54 F.3d 465 (8th Cir. 1995), 93-3157, Ludwig v. Anderson

Docket Nº:93-3157.
Citation:54 F.3d 465
Party Name:Merilyn LUDWIG, Special Administrator of the Estate of James Robert Ludwig, Deceased, Plaintiff-Appellant v. Charles ANDERSON, individually and as a police officer for the City of St. Paul; Joseph Strong, individually and as a police officer for the City of St. Paul; City of St. Paul, a municipal corporation, Defendants-Appellees.
Case Date:May 01, 1995
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 465

54 F.3d 465 (8th Cir. 1995)

Merilyn LUDWIG, Special Administrator of the Estate of James

Robert Ludwig, Deceased, Plaintiff-Appellant


Charles ANDERSON, individually and as a police officer for

the City of St. Paul; Joseph Strong, individually and as a

police officer for the City of St. Paul; City of St. Paul,

a municipal corporation, Defendants-Appellees.

No. 93-3157.

United States Court of Appeals, Eighth Circuit

May 1, 1995

Submitted May 12, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied June 15, 1995.

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[Copyrighted Material Omitted]

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Daniel J. Rice, Oak Park, IL, argued, for appellant.

Pamela F. Hutton, St. Paul, MN, argued, for appellee.

Before MAGILL, Circuit Judge, FLOYD R. GIBSON and JOHN R. GIBSON, Senior Circuit Judges.

JOHN R. GIBSON, Senior Circuit Judge.

Merilyn Ludwig, Special Administrator of the Estate of her son, James Ludwig, appeals the district court's grant of partial summary judgment, dismissing from this case Charles Anderson and Joseph Strong, two St. Paul, Minnesota, police officers, on the basis of qualified immunity. Ludwig v. Anderson, Civil No. 4-91-733 (D.Minn. June 21, 1993). 1 We reverse.

On September 22, 1990, Sergeant Anderson and Officer Strong shot and killed James Ludwig. Initially, a concerned citizen called the police regarding Ludwig, who had been camping behind a Wendy's near the caller's home. The caller told the police that Ludwig was "not in a right frame of mind ... cause he's got his shoes off, and he's talking about his feet got jungle rot, and he's talking about Vietnam and all." The caller further stated that children frequented this area and that although "[Ludwig] might not be doing nothing wrong, ... he might be sick or need some help." Officer Denise Hossalla was dispatched to investigate:

Clarence and Maryland on an emotionally disturbed person. Comp. says a man's been sleeping behind Wendy's for the past several days. The person talks crazy stuff about Vietnam. Comp. is concerned about the kids in the area.

Hossalla arrived at the Wendy's and saw a motorcycle partially covered with a black tarp, one end of which was fastened to a tree to form a shelter. Hossalla also noticed the word "constitution" written in the dirt and a drawing of a stop sign with the word "stop" written inside. Ludwig was wearing a blue cloth around his head, mirrored sunglasses, blue jeans, shoes, leather gloves and a blue poncho over a brown leather jacket. Hossalla was in uniform and driving a semi-marked squad car. Hossalla reported that "[a]fter I entered his area he began talking about something that had nothing to do with why I was there." Ludwig called the place his "domain" and invited Hossalla to come in and sit down. She told Ludwig that people were worried about him because of the cold. Ludwig replied that was why he had built the shelter and asked her if she wanted to see his identification. Ludwig pulled off his right glove, dropped it to the ground, and reached under his poncho. Hossalla described Ludwig as initially cooperative.

Then Officer Richard Munoz arrived, uniformed and in a marked squad car. Ludwig became excited, stating that he didn't want two cops in his domain. Hossalla began to think that Ludwig might be emotionally disturbed.

Ludwig handed Munoz his identification, moving toward Munoz with a "martial arts type of side step," one step sideways, then behind and then another step. Neither Hossalla nor Munoz ran a radio check on Ludwig's

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identification, contrary to standard procedure.

Ludwig then put his hand back under his poncho. Munoz pulled his service revolver and, in a loud voice, ordered Ludwig to reveal his hand, although Munoz understood that this conduct might agitate an emotionally disturbed person. Both Munoz and Hossalla continued to order Ludwig to reveal his hand, but Ludwig replied that he didn't have to do so. Both officers asked Ludwig to take a seat in the squad car and continued to order Ludwig to take his hand out from under his poncho, but Ludwig began backing into the shopping center parking lot. Hossalla noticed that Ludwig had a strong grip on something underneath his poncho, based on the angle and rigidity of his arm. Hossalla then called for assistance. Ludwig began to kneel down with his right hand still under his poncho. Munoz then sprayed Ludwig in the chest with mace. Ludwig did not appear to be affected and continued walking backwards away from them.

Two more squad cars pulled into the lot. Ludwig pulled a knife and crouched, with staggered legs and bent knees. Hossalla drew her gun. Both Munoz and Hossalla pointed their guns at Ludwig.

Other police cars arrived, although it is difficult from the record to determine the exact order of their arrival. Robert Lodmell arrived on the scene with lights activated, but later turned them off because he knew that Ludwig was potentially emotionally disturbed, and Lodmell "didn't want to go to the scene with red lights and a siren to aggravate anything else that might be going on." Strong and Michael Johnson arrived in time to see Ludwig holding the knife and stepping sideways away from Munoz and Hossalla. Ronald Sherbert arrived with his squad car lights on and remained in his car to block Ludwig's access to the health club.

Ludwig turned and began running north through the woods, the only direction he could run without confronting police. Hossalla, Munoz, Johnson, Lodmell and Strong chased him on foot. Sherbert saw Ludwig running up the hill, moved his squad car to the top of the hill and got out.

Sergeant Anderson, the ranking officer, heard the initial dispatch to Hossalla. Although he later denied hearing that Ludwig was emotionally disturbed, during the internal investigation of Ludwig's death, he stated that the initial dispatch was "to check on a person ... that sounded emotionally disturbed." Anderson arrived with lights on, siren off, and saw all of the officers facing Ludwig with guns drawn. Anderson saw Ludwig running up the hill and drove to the top of the hill.

When Ludwig reached the top of the hill, he stopped, crouched, and said he was tired. Anderson saw an opportunity to "stop [Ludwig] by using the squad [car] to disrupt his movement by hitting him." Approximately 100 feet from Ludwig, while traveling 30-40 miles per hour, Anderson decided to hit Ludwig with the car because Ludwig was "displaying an intent to use deadly force and containment efforts had so far failed." Anderson braked the car very close to Ludwig and states that his car was almost stopped, but still moving, when it hit Ludwig. However, Strong saw Anderson's attempt and estimated that Anderson's car was still moving approximately 10 to 15 miles per hour when it hit Ludwig. Ludwig turned, put a hand on the hood of Anderson's squad car and vaulted over and around the front of the car.

After Anderson's failed attempt to hit Ludwig, the officers formed a semicircle around Ludwig and continued to order him to take his hand out from under his poncho and drop the knife. Anderson joined the group, drew his gun and asked Ludwig to drop the knife. Ludwig switched the knife from hand to hand, holding it alternately by the blade and handle. Hossalla later stated that it looked as if Ludwig might throw the knife. Ludwig asked Anderson his name and badge number. Anderson answered and told Ludwig to sit down on the curb. Ludwig refused Anderson's requests and orders and countered them with "things that didn't make sense" and "weren't relative to what [Anderson] was asking." Ludwig told the police they were going to have to kill him. Although Anderson knew this could be characteristic of an emotionally disturbed person,

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he now claims uncertainty as to whether Ludwig was emotionally disturbed because Ludwig was "maintaining a calm, calculated reaction or actions." Anderson observed no nervousness about Ludwig and stated that Ludwig's voice did not appear excited. "Although he remarked to an order or request to put the knife down with what's my name or what's my badge number, he did that in a manner with thought rather than as a reaction. He wasn't excited."

Anderson then ordered Simmons to mace Ludwig, knowing that macing emotionally disturbed persons may disturb them more. Simmons stated that he had received no instruction that mace should be avoided with emotionally disturbed persons. Simmons maced Ludwig in the face. Ludwig immediately turned and ran towards Barclay Street where Anderson could see pedestrians. Without firing a warning shot or yelling a warning, Anderson shot Ludwig twice from approximately 8 to 15 feet. 2 Anderson fired...

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