Brossart v. Janke
| Citation | 859 F.3d 616 |
| Decision Date | 16 June 2017 |
| Docket Number | No. 16-1412,16-1412 |
| Parties | Rodney BROSSART, et al., Plaintiffs-Appellants v. Kelly JANKE, et al., Defendants-Appellees |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Counsel who presented argument and appeared on the brief on behalf of the appellant was Timothy C. Lamb, of Grand Forks, ND.
Counsel who presented argument and appeared on the brief on behalf of the appellee was Howard Dale Swanson, of Grand Forks, ND.
Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
During confrontations that extended over two days at the Brossart family farmstead in Nelson County, North Dakota, Deputy Sheriff Eric Braathen tased both Rodney Brossart and his son, Thomas Brossart. The Brossarts, including Rodney's wife, Susan, brought this action against Braathen, his supervisor, Sheriff Kelly Janke, and Nelson County, asserting federal claims under 42 U.S.C. § 1983 that Braathen used excessive force in violation of the Fourth Amendment, Janke is liable for the violations in his supervisory capacity, and Nelson County is liable for adopting an unconstitutional Taser Policy and for failing to train Braathen. The Brossarts also asserted pendent state law claims. The district court1 dismissed the state law claims as time-barred in a December 2014 Order. After the Brossarts filed an Amended Complaint, the district court granted defendants summary judgment and dismissed the Amended Complaint with prejudice in a January 2016 Order. The Brossarts appeal both orders. Reviewing the grant of summary judgment de novo and viewing the facts in the light most favorable to the Brossarts, the non-moving parties, we affirm.
A. Tasing of Rodney Brossart. On June 22, 2011, the Brossarts discovered six loose cattle on their property. They did not own these cattle but secured them in an old missile silo that evening without giving the notice to the county sheriff or to the chief brand inspector required by a North Dakota estray statute. See N.D.C.C. § 36-13-01 (2012). The following morning, Rodney's neighbor, Chris Anderson, tracked the cattle to the Brossarts property and spoke to Rodney, who declined to release the cattle and said Anderson should contact his insurance company regarding damage the cattle caused. Anderson left and phoned a complaint to the Nelson County Sheriff's Department, which was referred to Deputy Braathen. Braathen contacted the State's attorney, who advised that a criminal violation of the estray laws might be in issue. Braathen next contacted Fred Frederickson, a licensed peace officer and brand inspector for the North Dakota Stockman's Association. Braathen and Frederickson met with Anderson, who said he found his cattle at the Brossart missile silo, and Rodney said Anderson would have to pay to get them back. Anderson provided Frederickson brand papers for the cattle. Braathen and Frederickson set out for the Brossart farm in a patrol car to investigate.
Near the farm, the officers encountered Rodney and his son Jacob blocking the rural road while using a pump to drain water from a ditch. The summary judgment record includes a transcript of the recorded conversation. Braathen first introduced Frederickson to Rodney, who refused to shake hands and questioned Frederickson's authority. Frederickson asked for permission to inspect the cattle, explaining he had brand papers and the officers had received a complaint. Rodney said, "Well, when I get done here." Braathen said, "We're going to do it now, Rodney." Rodney replied, "if you can step foot on that property, mister, you're not going to be walking away." Frederickson interjected, 2
Braathen then said they were going to see the cattle. Rodney replied, "I'll be done here after a bit," turned away from Braathen, and walked towards his equipment to remove his pump from the roadway, ignoring Braathen's warning, "We're not giving you a choice here." When Rodney insisted he would finish his work, Braathen said, "You're going to go to jail if we don't cooperate now." Rodney replied,
Braathen said, "All right, you're under arrest."3 The confrontation escalated. The Amended Complaint described the following sequence:
The patrol car recording supports these allegations. After Braathen informs Rodney that he is under arrest, Rodney inquires "for what," and is heard saying "[g]et, get." Braathen testified that Rodney said those words to his son, Jacob, who headed for the pickup truck but was intercepted by Frederickson before he reached it. The truck contained two firearms and ammunition. Braathen is heard saying:
Braathen then deployed his taser for the first time, firing two probes in dart-mode into Rodney's pectoral region. Rodney stumbled backward to the edge of the road. On the patrol car recording, Braathen is heard saying The Amended Complaint alleged, "Brossart goes down on one knee and then gets back up again." Braathen re-activated the taser when Rodney continued to ignore commands to stay down. Rodney fell down and rolled into the ditch. On the recording, Braathen tells Frederickson to "cuff him" and calls for back-up. Rodney says, "I want some proof of that guy's authority." In response to Braathen's repeated commands to "stay down," Rodney first accuses Deputy Braathen of stepping on his phone and then repeatedly says, "Where's my glasses?" Braathen repeatedly warns, The patrol car recording reveals that Rodney would not stay on his knees or otherwise cooperate:
The Amended Complaint alleges that Braathen "noticed that Rodney Brossart was attempting to stand up in a ‘very hostile, aggressive manner’ " and tased Rodney a third time in the ditch for "not responding to his command to get back down." Braathen also touched the taser to the back of Rodney's neck. "Moments later, Rodney Brossart attempted to get up and Deputy Sheriff Braathen command[ed] him to get back down in the mud, while waiting for Inspector Frederickson to come down into the ditch to assist in handcuffing Brossart." Braathen tased him a fourth time for trying to resist, deploying more darts in his pectoral region. When Rodney resisted the attempted handcuffing, Braathen tased him a fifth time, achieving "complete neuromuscular incapacitation."
Braathen and Frederickson handcuffed Rodney, walked him to the patrol car, and placed him in the back seat. Transported by ambulance to a local hospital, Rodney was examined for two hours and five darts were removed before he was transported to the correctional center. He suffered no permanent scarring or disfigurement.
B. June 23 Armed Standoff. That evening, Braathen and Sheriff Janke returned to the Brossart farmstead with a search warrant to retrieve the six cattle. When they walked into the yard, three of Rodney's sons, Alex, Thomas, and Jacob, exited the house carrying rifles and told the officers they were trespassing on private property. The officers drew their guns and backed away, then retreated "about a mile north" where they called a crisis negotiation team. The Grand Forks SWAT team with support from adjoining counties arrived to establish a perimeter around the Brossart home, then left for the evening. Two agents did a drive-by and confirmed the cattle remained in the missile silo.
C. June 24 Tasing of Thomas Brossart. The next morning, law enforcement including the SWAT team proceeded to the missile silo to execute the search warrant. As they were removing the cattle, Thomas Brossart came to the silo on his three-wheeler, while brothers Jacob and Alex rode over on a tractor. Thomas told law enforcement that they were trespassing on private property and to leave. The SWAT team arrested the brothers on terrorizing charges, based on the prior evening's events. Deputies Braathen and Olson, waiting two miles south, were called in to transport the brothers to the correctional center. When Braathen arrived, the three brothers were handcuffed and lying on the ground, held at gun point by a SWAT team member.
Thomas refused to walk to the patrol car, so the deputies dragged him and placed him in the back seat. So all three brothers could be placed in the back seat, Braathen told Thomas to move over. Thomas moved a couple inches. Thomas alleges that Braathen then tased him on his left leg in drive stun mode. The parties dispute whether Braathen warned Thomas that he would be tased if he did not move. Braathen claims Thomas would only say: "This is my property and I don't agree to the sale" (an obvious reference to the cattle). Braathen...
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