Boggs v. Pearson, 072821 SDSC, 29249-PJD

CourtSupreme Court of South Dakota
JudgeJENSEN, Chief Justice, and KERN and SALTER, Justices, and GILBERTSON, Retired Chief Justice, concur. MYREN, Justice,
Writing for the CourtDEVANEY, JUSTICE.
PartiesNICHOLE A. BOGGS, Plaintiff and Appellee, v. ANDREW PEARSON, MARK TOLAND, MARTIN HOFFMAN, Individually, and the CITY OF SIOUX FALLS, SOUTH DAKOTA, a political subdivision acting by and through the SIOUX FALLS POLICE DEPARTMENT, Defendants and Appellants.
Docket Number29249-PJD

2021 S.D. 44

NICHOLE A. BOGGS, Plaintiff and Appellee,


ANDREW PEARSON, MARK TOLAND, MARTIN HOFFMAN, Individually, and the CITY OF SIOUX FALLS, SOUTH DAKOTA, a political subdivision acting by and through the SIOUX FALLS POLICE DEPARTMENT, Defendants and Appellants.

No. 29249-PJD

Supreme Court of South Dakota

July 28, 2021



JEFFREY R. BECK Sioux Falls, South Dakota Attorney for plaintiff and appellee.

GARY P. THIMSEN ALEXIS A. WARNER of Woods, Fuller, Shultz, & Smith, P.C. Sioux Falls, South Dakota Attorneys for defendants and appellants.


[¶1.] In this 42 U.S.C. § 1983 action against certain officers of the Sioux Falls Police Department and the City of Sioux Falls, the circuit court concluded on a motion for summary judgment that the officers were not entitled to qualified immunity because material issues of fact were in dispute on the questions whether the officers' warrantless entry into the plaintiff's apartment and subsequent use of force were constitutional. The court further denied summary judgment on the plaintiff's claim against the City, determining that material issues of fact were in dispute as to whether the plaintiff's injury was caused by inadequate training, a deliberate indifference, or an errant policy. We affirm in part, reverse in part, and remand.

Factual and Procedural Background

[¶2.] Around 3:15 a.m. on August 19, 2016, Sioux Falls police officers Mark Toland and Andrew Pearson were dispatched to investigate a 911 call. Dispatch was able to determine that the call came from a location within a 25-meter radius of 4513 East Ashbury Place in Sioux Falls, which is an apartment building within a large apartment complex. The caller was not identified, but the line remained open and the dispatcher documented what was heard. Between 3:18:54 a.m. and 3:31:38 a.m., the dispatch log relates the following: "hear alot of verbal discussion . . . hear a dog barking"; "and female saying no alot"; heard someone asking "if calling police"; "only verbal . . [.] hear some swearing . . . and people saying knock it off . . . and someone saying no"; "heard again did you guys call the cops"; "can hear a female telling him t[o] sit down . . [.] and will get his stuff"; "fairly calm . . [.] but can still hear alot of talking . . [.] sounds like several people there[.]"

[¶3.] Officer Toland arrived at the apartment complex at approximately 3:19 a.m. He relates in his affidavit that he observed a man sitting outside and asked him if he had heard anything. The male pointed the officer to the apartment complex at 4517 East Ashbury Place and told the officer that people were fighting. While the man explained this, Officer Toland heard a male yell. Officer Toland walked toward the apartment building and found an adult male standing outside one of the apartments. The male, Brendan Conlon, told Officer Toland that he and his brother had gotten into an argument and one of their dogs had bitten him.

[¶4.] Thereafter, Brendan and Officer Toland walked to the ground-level apartment leased by Brendan's mother, Nichole Boggs. As they approached the apartment, Officer Toland observed blood on the concrete near Nichole's apartment. Brendan knocked on the door, and Nichole answered. Nichole told the officer that she wanted Brendan to leave, and she threw his shoes in front of the door. Nichole explained that she wanted Brendan gone because he and her other son Cody had gotten into a physical fight over Brendan falling asleep while leaving food cooking on the stove. She stated that the fight took place outside the apartment. Officer Toland told Nichole there had been a 911 call and that the police department's policy required him to enter her apartment to ensure no one was injured, but she refused to allow him to enter without a warrant.

[¶5.] While Officer Toland was talking to Nichole, her adult son Sebastian came to the door from inside the apartment. Sebastian also told Officer Toland that he could not enter the apartment without a warrant. At some point, Nichole stepped outside of the apartment and went to her garage to get a folder containing documents pertaining to her legal rights. When she returned, she told Officer Toland he could not enter her home. According to Officer Toland, he repeated to Nichole for a third time that he needed to enter the apartment to make sure everyone was okay. He claimed he also told her if she did not let him go in, she could be arrested for obstruction.

[¶6.] Officer Pearson then arrived on the scene, and he, along with Officer Toland, again told Nichole that they needed to enter her apartment. Officer Pearson, like Officer Toland, had noticed blood on the concrete near Nichole's apartment. Officer Pearson states in his affidavit that when questioned about the blood, Brendan indicated it was his and again claimed he had been bitten by the family dog. Brendan lifted his shirt and showed him a small laceration on his upper abdomen. Officer Pearson's affidavit also states that when he arrived, all three individuals (Nichole, Brendan, and Sebastian) were agitated and denied the officers entrance into the apartment without a warrant, informing them that everyone inside the apartment was fine. Officer Pearson further claims that when Sebastian attempted to shut the apartment door, Officer Toland placed his foot in the way to prevent the door from closing. According to Officer Pearson, this made Nichole, Brendan, and Sebastian "increasingly agitated."

[¶7.] Three other individuals then came to the door from inside the apartment and were later identified as Nichole's sons Cody and Jaden and a family friend. According to Officer Toland, the boys told the officers that there was no one else in the apartment. While the door to the apartment was open, Officer Pearson observed a fresh laceration on Cody's face. According to Nichole, the officers ordered all the occupants out of the apartment. Both officers relate in their affidavits that at some point, Cody, age 17, attempted to push past the officers to reenter the apartment. Officer Toland stopped Cody from reentering by putting his hand on Cody's chest, after which Cody, Brendan, and Sebastian began yelling and became increasingly confrontational. Thereafter, the officers placed Cody, Brendan, and Sebastian in handcuffs.

[¶8.] While the boys were in handcuffs outside the apartment, Nichole continued to insist that no one from her apartment had called 911. She further claims in her affidavit that although she had asked the officers to attempt to determine the source of the 911 call, they made no attempt to communicate with dispatch in order to identify the caller. The officers dispute this claim and note in their affidavits that the dispatch log showed attempted communications between dispatch and officers responding to the scene regarding the identity and location of the caller.1

[¶9.] Neither Officer Toland nor Officer Pearson placed Nichole in handcuffs throughout the encounter, and they allowed her to move around freely outside the apartment. Nichole went to her garage a second time to retrieve legal papers, and when she returned with papers in hand, the officers told her they were going to enter her apartment without her consent. Approximately 20 minutes had elapsed since the 911 call, and by this time, several additional officers had arrived to help secure the scene, including Sergeant Martin Hoffman.

[¶10.] Officer Toland entered the apartment first, and Nichole followed behind while flipping through the papers she had retrieved from her garage. Officer Pearson entered behind Nichole and, according to Nichole, without any verbal command or warning, grabbed her left arm and began to throw her to the ground. Officer Toland turned around and attempted to grab her right arm. Nichole claims in her affidavit that when Officer Pearson threw her to the ground, her head and face struck the entryway floor, causing her severe pain.

[¶11.] The officers' version of this encounter is quite different. Officer Pearson's affidavit states that as the officers were walking into the apartment, Nichole started following them, and he instructed her to wait outside. He further claims that when Nichole stated she was going inside, he attempted to "re-direct" her outside, but she pushed past him. According to Officer Pearson, he then grabbed Nichole's left arm while Officer Toland grabbed her right arm. Both officers explain in their affidavits that as Officer Toland was grabbing Nichole's arm, he fell backward and landed on the ground. Officer Pearson claims that at the time these events were occurring, he thought Officer Toland was taking Nichole to the ground, rather than just falling, so he (Officer Pearson) "guided" her to the ground. Officer Pearson's affidavit further states that while everyone was on the ground, Nichole was actively resisting arrest and attempting to get her hands free.

[¶12.] Eventually, the officers, along with assistance from Sergeant Hoffman, placed Nichole in handcuffs, and Officer Pearson took her out to his patrol vehicle. They also called paramedics to assess her injuries. Meanwhile, Officer Toland and Sergeant Hoffman searched the apartment and did not find any additional occupants. While Nichole did not receive any treatment from the paramedics, she later claimed that she suffered a fractured arm and dislocated shoulder because of the officers' actions.

[¶13.] Nichole was arrested and charged with obstruction and resisting arrest, Sebastian was arrested for disorderly conduct, and Brendan was arrested for disorderly conduct and...

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