Pollreis v. Marzolf

• Decision Date: 13 March 2020
• Docket Number: CASE NO. 5:18-CV-5200
• Citation: 446 F.Supp.3d 444
• Parties: Casondra POLLREIS, on behalf of herself and her minor children, W.Y. and S.Y., Plaintiff v. Lamont MARZOLF and Josh Kirmer, in their individual capacities, Defendants
• Court: U.S. District Court — Western District of Arkansas

446 F.Supp.3d 444

Casondra POLLREIS, on behalf of herself and her minor children, W.Y. and S.Y., Plaintiff

v.Lamont MARZOLF and Josh Kirmer, in their individual capacities, Defendants

CASE NO. 5:18-CV-5200

United States District Court, W.D. Arkansas, Fayetteville Division.

Signed March 13, 2020

Jonathan D. Nelson, Jonathan D. Nelson, Attorney at Law, Bentonville, AR, Norman Douglas Norwood, Norwood & Norwood, P.A., Rogers, AR, for Plaintiff.

Gabrielle Denise Gibson, Sara L. Monaghan, Arkansas Municipal League, North Little Rock, AR, for Defendants.

MEMORANDUM OPINION AND ORDER

TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE

Currently before the Court is a Motion for Summary Judgment (Doc. 20) filed by Defendants Lamont Marzolf and Josh Kirmer.¹ Plaintiff Casonda Pollreis filed a Response in Opposition (Doc. 31), and Defendants then filed a Reply (Doc. 34). For the reasons explained below, the Court GRANTS IN PART AND DENIES IN PART the Motion for Summary Judgment (Doc. 20).

I. THE FACTS

W.Y. and S.Y., two boys ages 14 and 12, respectively, at the time of the incident at issue, were walking home one evening and were stopped by Springdale Police Officer Lamont Marzolf. In the course of this stop, the boys were forced to lie facedown on the ground at gunpoint, and they were subsequently handcuffed and searched. The boys and their mother, Ms. Pollreis, claim that Officer Marzolf and Officer Josh Kirmer, who was in communication with Officer Marzolf, violated their civil rights.

The following facts are taken from a dashcam video, deposition testimony, and other uncontroverted evidence in the record. Officer Marzolf's dashcam captured the entire event, and facts from the dispatch transcript are also interspersed throughout the following narrative.

On January 8, 2018, Officer Kirmer responded to a tip that Jennifer Price, who had outstanding warrants, was staying with Tomas Silva at 2100 Lynn Street, in Springdale, Arkansas. (Doc. 22-1, p. 2). Mr. Silva was known to Officer Kirmer as a gang member and a prior suspect in cases involving guns and drugs. Id. During his surveillance of Mr. Silva, Officer Kirmer saw two males, one shorter and skinnier than the other, get into a Chevy Cobalt. Id. Officer Kirmer radioed this information to other officers in the area, and another officer tried to initiate a traffic stop of the Chevy Cobalt. Id. Mr. Silva fled and eventually wrecked the Chevy Cobalt. Id. Four occupants, including Mr. Silva, fled the disabled car; two went south and two went north. Id. at 3. Over the radio, Officer Kirmer requested that a perimeter be set up, and Officer Marzolf responded to this call. Id.

According to Officer Marzolf's dashcam,² he receives the dispatch call at time stamp 21:37:07.³ He arrives at 40th Street and Luvene Avenue a minute and a half later. (21:38:30). Dispatch instructs Officer Marzolf to drive down to the intersection of Luvene and Lynn Street to watch for the suspects. (21:39:50). As Officer Marzolf approaches the intersection, someone announces over the radio that "the last time we made contact with Tomas, he had a gun." (21:39:29). In response, Officer Marzolf says, "Shit." Someone asks over the radio, "Is he the one that's on foot?" Another officer responds, "Yeah, him and three others, one possibly a female by the name of Jennifer Price." (21:39:56).

Almost immediately after that, W.Y. and S.Y. become visible on the dashcam video. Officer Marzolfs blue lights are flashing. W.Y. and S.Y. are on the sidewalk on the east side of Lynn Street slowly walking side-by-side in the direction of Officer Marzolf's patrol car. They both are wearing hoodies and light colored pants. From Officer Marzolf's perspective, the boy on the left is larger and taller than the boy on the right. Officer Marzolf turns on his high beams and angles his car toward the boys. He stops the car and says, "Hey, what are you guys doing?" The larger boy, who was later identified as 14-year old W.Y., responds audibly and points past Officer Marzolf, but his response is not intelligible on the recording. Officer Marzolf then says, "Hey, stop, stop, turn away, turn away from me." (21:40:18). W.Y. and S.Y. stop and turn away from Officer Marzolf with their arms held out to their sides. At this point, Officer Marzolf enters the frame from the left with his firearm in his right hand pointed at the boys.

Officer Marzolf says, "What are your names

?" (21:40:21). At the same time, Officer Marzolf pulls out his flashlight with his left hand and points it at the boys' backs. One of the boys (it is unclear which) audibly responds, and Officer Marzolf responds, "Huh?" The same boy, in a louder voice, clearly says his name. Officer Marzolf replies, "What?" The boy reiterates his name a third time. (21:40:27). Officer Marzolf audibly confirms the boy's name, and the boy responds, "Yes sir." Officer Marzolf holsters his flashlight, but his weapon remains drawn and pointed at the boys.

Next, Ms. Pollreis, who is off-screen, says, "Officer, officer, may I have a word with you?" (21:40:33). Officer Marzolf turns his head and looks behind him, and he lowers his firearm so that it is pointing at the ground. Ms. Pollreis continues speaking, but the recording does not clearly pick up what she is saying. Officer Marzolf then speaks into his radio, "45 Springdale, I've got [W.Y.] in front of me, I've got two juvenile individuals, dark hoodies and pants." Officer Kirmer responds, "Ok, detain both of those." (21:40:57). Officer Marzolf then says to Ms. Pollreis, "Yeah, I can hear you." (21:40:58). Ms. Pollreis can be heard speaking with Officer Marzolf, but her words are not clear on the recording. Officer Marzolf then radios,-"10-9." Officer Kirmer responds, "Detain both of them. Is one taller than the other? The short one should be short and skinny." (21:41:08). Officer Marzolf responds, "10-4." (21:41:12). Officer Kirmer then says, "Yeah, hold onto them please." (21:41:15).

Officer Marzolf then approaches the boys and tells them to get on the ground. (21:41:14). His gun is drawn and pointed at them. They comply. Officer Marzolf says, "Put your hands out," and they put their arms out to their sides (21:41:16). Ms. Pollreis then enters the camera's view from the left, walking towards Officer Marzolf, and she says, "What happened?" (21:41:23). Officer Marzolf responds, "Hey, step back." (21:41:24). While taking a sideways step, she says, "They're my boys." (21:41:25). In a louder voice, Officer Marzolf says, "Get back." (21:41:26). He then steps towards her, his gun in his right hand still pointed at the boys on the ground. Ms. Pollreis says, "Are you serious?" Officer Marzolf responds, "I am serious, get back." At the same time, with his gun still pointed at the boys, he draws his taser with his left hand and points it at Ms. Pollreis (21:41:30). Ms. Pollreis then says, "It's OK, boys." (21:41:36). Officer Marzolf holsters his taser but again commands Ms. Pollreis to "get back." (21:41:38). Ms. Pollreis says, "Where do you want me to go?" (21:41:38). He responds, "I want you to go back to your house." Ms. Pollreis retorts, "Are you serious? They're 12 and 14 years old." Officer Marzolf responds, "And I'm looking for two kids about this age right now, so get back in your house." Ms. Pollreis, who sounds upset, says, "Oh, my God. You're OK guys, I promise." According to the dispatch logs, around this time, Officer Patrick Gibbs states on the radio that one of the suspects "will be H/M blk hoodie blk jeans whi shoes med hair." (Doc. 22-1, p. 30).

For nearly two minutes, Officer Marzolf then stands over the boys with his gun pointed at them. (21:41:36–21:43:28). During these two minutes, he asks them if they have identification, and they respond in the negative. All the while, Officer Marzolf's gun appears to be pointed at the boys. Also during this two minute period, Officer Marzolf asks dispatch, "I've got my two on the ground here, can I have another unit?" He then tells dispatch, "I'm going to be about halfway down Lynn, off of Chapman."

Off-screen, the boys' stepfather can be heard to say, "Officer ... can I have a word with you?" (21:43:29). Officer Marzolf answers, "No, not right now." The stepfather responds, "Those are my kids," and Officer Marzolf responds, "Ok." The stepfather explains, "We just left her parents' right there. When you guys passed with your lights on, they were walking behind my car. I also have witnesses if you want me to call them." Officer Marzolf responds, "That's fine, I just need to find out who these kids are right now." The stepfather states the boys' names, and Officer Marzolf verbally acknowledges that he heard the stepfather's statement. (21:44:01).

Officer Adrian Ruiz arrives, and he and Officer Marzolf walk towards the boys with guns drawn and pointed at the boys. (21:44:19). At the same time, one of the boys reaches back to adjust his shirt or belt, and Officer Marzolf says, "Hey, keep your hands out!" (21:44:19). At this time, dispatch records show that someone said, "Tomas and Jennifer are the only two left out[,] he is wearing a blu[e] jacket with maybe a gr[a]y hoodie under." (Doc. 22-1, p. 31). While Officer Ruiz continues to point his gun at the boys, Officer Marzolf holsters his weapon and tells W.Y. to "put his hands behind his back." (21:44:37). Officer Marzolf then handcuffs W.Y.'s hands behind his back. Officer Marzolf told dispatch, "I've got black hoodies and khaki pants and jeans." (21:44:43). Officer Ruiz, responds, "Black hoodie, and a white backpack...." (21:44:50). Sergeant Franklin⁴ arrives, and Officer Marzolf says to him, while pointing backwards past the patrol car, "Sarge, you got a parent back there." (21:44:55). Officer Marzolf also handcuffs the 12-year old S.Y.

Once the boys are handcuffed, Sergeant Franklin asks them if they were the ones who ran from the police. (21:44:56). They respond in the negative. Sergeant Franklin then asks, "What are you doing down here?" (21:44:58). One...