Johnson v. City of Ferguson

• Court: U.S. District Court — Eastern District of Missouri
• Writing for the Court: AUDREY G. FLEISSIG UNITED STATES DISTRCIT JUDGE
• Decision Date: 15 March 2016
• Docket Number: Case No. 4:15CV00832 AGF
• Citation: Johnson v. City of Ferguson, Case No. 4:15CV00832 AGF (E.D. Mo. Mar 15, 2016)
• Parties: DORIAN JOHNSON, Plaintiff v. CITY OF FERGUSON, et al., Defendants.

DORIAN JOHNSON, Plaintiff v. CITY OF FERGUSON, et al., Defendants.

Case No. 4:15CV00832 AGF

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

March 15, 2016

MEMORANDUM AND ORDER

This matter is before the Court on the joint motion of Defendants City of Ferguson, Missouri ("Ferguson"), Ferguson former Police Chief Thomas Jackson, and Ferguson former Police Officer Darren Wilson, to dismiss Plaintiff Dorian Johnson's complaint for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, this motion shall be granted in part and denied in part.

BACKGROUND

In reviewing the motion to dismiss, the Court must accept Plaintiff's allegations as true and construe them in Plaintiff's favor. The facts, as alleged in the complaint, are as follows. On August 9, 2014, at approximately 12:00 noon, Plaintiff and Michael Brown, Jr., both African-American males, were "peacefully and lawfully walking down Canfield Drive in Ferguson, Missouri." A marked police vehicle driven by Wilson stopped next to Plaintiff and Brown, and Wilson ordered the pair to "Get the f*ck on the sidewalk." Wilson continued to drive his vehicle several yards, put it into reverse, and parked it at an angle to block the path of Plaintiff and Brown, stopping the vehicle within inches of Brown. The complaint alleges that Wilson forcefully opened his door which struck Brown, and then reached through his open window and grabbed Brown who was closer to Wilson than was Plaintiff. Wilson threatened to shoot his weapon. As Brown struggled to break free, Wilson discharged his weapon twice, striking Brown in the arm. Fearing for his life, Plaintiff ran away from Wilson "simultaneously with Brown." Wilson did not order Plaintiff or Brown to stop or freeze, but withdrew his weapon and fired "at Plaintiff [and Brown]" as they fled, striking Brown several more times (and killing him). Plaintiff alleges that these events caused him to suffer "psychological injury, severe emotional distress, medical expenses, lost wages . . . and other loses to be proven at trial." (Doc. No. 8.)

Plaintiff alleges that he and Brown were stopped (within the meaning of the Fourth Amendment) by Wilson when his police car blocked their path, that this stop was "without reasonable suspicion of criminal activity," and that Wilson lacked "reasonable suspicion, or legal justification to detain Plaintiff." (Doc. No. 8 at 7-9.) The four-count complaint, filed in state court on April 29, 2015, brings claims pursuant to 42 U.S.C. § 1983, for unconstitutional detention and use of excessive force in violation of the Fourth and Fourteenth Amendments (Count I); and under Missouri state law, for assault (Count II), intentional infliction of emotional distress (Count III), and in the alternative, negligent infliction of emotional distress (Count IV). Each claim is brought against all Defendants, with the § 1983 claims against Wilson and Jackson in both their official andindividual capacities, and the state tort claims against Jackson and Ferguson under the theory of respondeat superior.

The complaint claims that Jackson and Ferguson are also liable for "fail[ing] to intervene" in the actions of Wilson, in light of their perpetration of a pattern and practice of unconstitutional and racially discriminatory policing which sanctioned police officers' use of unnecessary force and unlawful seizures, as well as Jackson's and Ferguson's prioritization of the collection of fines over ensuring public safety. In addition to claiming that he was the direct victim of assault by Wilson, Plaintiff also asserts a claim for "transferred intent" assault, based on Wilson's shooting at Brown.

The complaint requests compensatory damages, punitive damages, attorney's fees, and an injunction preventing Ferguson and the Ferguson Police Department from engaging in unlawful detainment, assault, and excessive use of force. The complaint further alleges that "Defendant City of Ferguson maintains a liability insurance policy and has thus waived sovereign immunity for tort liability." (Doc. No. 8 at 3.)

In the complaint, Plaintiff quotes extensively from a report by the Department of Justice ("DOJ"), attached as an exhibit to Plaintiff's memorandum in opposition to this motion to dismiss, disclosing the findings of the DOJ's investigation of the Ferguson Police Department following the shooting death of Brown.¹ The report notes, in pertinent part, that the Ferguson Police Department and Ferguson court system work in concert to maximize fine collection to bolster Ferguson's revenue. Id. at 5-6. The report also foundthat the Ferguson Police Department routinely fails to supervise the conduct of its officers, particularly with regards to their use of force, which serves to condone officer misconduct. Id. at 6.

On May 26, 2015, Defendants removed the case to this Court under 28 U.S.C. § 1331, on the basis of federal question jurisdiction.

ARGUMENTS OF THE PARTIES

Defendants' Arguments

Defendants first argue that Count I should be dismissed as to Jackson and Wilson, in their individual capacities, on the basis of qualified immunity, because Plaintiff's allegation that he was seized by Wilson fails as he did not plead that he was struck by a bullet, and, in fact, he fled the scene after shots were fired. They assert that as a result, Plaintiff also failed adequately to plead an excessive force claim, because the Fourth Amendment only prohibits the use of excessive force during a seizure. Defendants assert that thus there was no underlying constitutional violation, and that even if there was one, "the law was not clearly established on August 9, 2014, that firing gunshots that fail to contact a suspect where the suspect flees the scene constituted a seizure for purposes of unlawful detention, excessive force, and failure to intervene." (Doc. No. 5 at 11.)

Defendants argue that Jackson cannot be held liable for failure to intervene for the further reason that there is no allegation that he was at or near the encounter at the time of the alleged seizure and use of excessive force by Wilson. Further, Defendants argue that Count I fails to state a claim against Ferguson, because municipalities may not be liable under § 1983 unless their officers committed a constitutional tort, and Plaintiff has failedto show that any underlying constitutional violation occurred in this case. Additionally, Defendants argue that the § 1983 claims against Jackson and Wilson in their official capacities should be dismissed, as they are essentially claims against Ferguson, and are therefore redundant to claims against Ferguson, and that Ferguson is immune from an award of punitive damages regarding Plaintiff's claim under § 1983.

Defendants argue that Plaintiff's request for injunctive relief should be dismissed because it is moot and/or not ripe, in that the alleged constitutional violations against Plaintiff have already occurred, and there are no allegations supporting a finding that Plaintiff will again be subject to the same actions and conditions which give rise to this action. Defendants contend that any future harms pleaded by Plaintiff are purely speculative.

With respect to the state law claims, Defendants argue that Count II for assault fails to state a claim under Missouri law, because Plaintiff only pleaded that Wilson attempted to, and did, shoot Brown rather than Plaintiff. Defendants argue that there can be no transferred intent in assault cases. Defendants contend that Counts III and IV for intentional and negligent infliction of emotional distress, respectively, should be dismissed because there is no factual support in the complaint from which to infer that Plaintiff sustained "bodily harm," as required for Count III, or that his emotional distress was "medically significant," as required for Count IV. Moreover, Defendants argue that Ferguson is entitled to sovereign immunity with respect to the state law claims, under Missouri Revised Statute § 537.600, because Plaintiff has failed adequately to plead any exception to Missouri's sovereign immunity statute.

Finally, Defendants argue that under the "American Rule," litigants each bear their own attorneys' fees, and Plaintiff has not pleaded any exception to this rule which would allow for the recovery of attorney's fees on his state law claims.

Plaintiff's Response

With respect to his claims under § 1983, Plaintiff argues first that Wilson's conduct toward him constituted an unlawful seizure under the Fourth and Fourteenth Amendments. Plaintiff claims that Defendants' focus on the shots fired by Wilson as Brown and Plaintiff fled is misplaced. Plaintiff claims that the actual seizure occurred when Wilson used his vehicle to block Plaintiff's path, forcing him to stop, and brandished his firearm, which made Plaintiff reasonably feel that he was not free to leave. Plaintiff asserts that when he later fled from Wilson, it was not because he felt free to leave, but rather because he feared for his life. Moreover, because Wilson lacked the requisite reasonable suspicion to make such a stop, Plaintiff contends that the seizure was unlawful. Plaintiff notes that Defendants have not suggested that Wilson possessed a reasonable suspicion that Plaintiff was involved in criminal activity at the time he made the stop. Plaintiff argues that the facts as pled show that Wilson used unreasonable force during the encounter, and that Defendants have not disputed this claim other than by arguing that there was no underlying wrongful seizure.

Plaintiff argues that Jackson "failed to intervene" in the sense that he and the Ferguson Police Department failed to "implement an intervention system to identifyofficers who tend to use excessive force or the need for more training."² Plaintiff argues that, but for Jackson's failure to implement such a system, Wilson's unlawful acts may never have occurred.

Plaintiff contests Defendants' assertion that...