Roemen v. United States
| Decision Date | 27 September 2022 |
| Docket Number | 4:19-CV-4006-LLP |
| Parties | MICAH ROEMEN, and TOM TEN EYCK, Guardian of Morgan Ten Eyck; and MICHELLE TEN EYCK, Guardian of Morgan Ten Eyck, Plaintiffs, v. UNITED STATES OF AMERICA, ROBERT NEUENFELDT, individually and UNKNOWN SUPERVISORY PERSONNEL OF THE UNITED STATES, individually, Defendants. |
| Court | U.S. District Court — District of South Dakota |
MICAH ROEMEN, and TOM TEN EYCK, Guardian of Morgan Ten Eyck; and MICHELLE TEN EYCK, Guardian of Morgan Ten Eyck, Plaintiffs,
v.
UNITED STATES OF AMERICA, ROBERT NEUENFELDT, individually and UNKNOWN SUPERVISORY PERSONNEL OF THE UNITED STATES, individually, Defendants.
No. 4:19-CV-4006-LLP
United States District Court, D. South Dakota, Southern Division
September 27, 2022
MEMORANDUM OPINION AND ORDER DENYING MOTION TO STRIKE, GRANTING IN PART GOVERNMENT'S MOTION TO DISMISS
Lawrence L. Piersol, United States District Judge
Pending before the Court is Defendant United States of America's Motion to Strike Expert Report of John Long (Doc. 128) and Motion to Dismiss (Doc. 90) under Rules 12(b)(h) and 12(b)(1) of the Federal Rules of Civil Procedure. The parties have also filed cross motions for summary judgment. (Docs. 83, 98). Pursuant to the Court's order from the bench during oral argument on August 9, 2022, the Government's Motion to Strike is denied. For the following reasons, the Government's Motion to Dismiss is granted in part and denied in part.
BACKGROUND
The following is a recitation of the facts alleged by Plaintiffs in the Second Amended Complaint. In resolving any factual challenges to Plaintiffs' Second Amended Complaint made by the United States under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Court may reference affidavits, deposition testimony and other matters outside the pleadings that were submitted by the parties in support of and in opposition to this motion to dismiss.
I. Facts
A. Flandreau Santee Sioux Tribe's 638 Contract for Law Enforcement Services
The Flandreau Santee Sioux Tribe (“the Tribe”) and the United States, acting through the Bureau of Indian Affairs, Office of Justice Services (“BIA”) entered into a contract wherein the Flandreau Santee Sioux Tribal Police Department was operated by the Tribe pursuant to an Indian
Self-Determination and Education Assistance Act (“ISDEAA”) Contract (“638 contract”). (Doc. 93, Ex. 1). In this section 638 contract, the provision of law enforcement services for the Flandreau Santee Sioux Indian Reservation was transferred from the BIA to the Tribe from October 1, 2015, through September 30, 2018. (Id.).
B. Mutual Aid Agreement and Dispatch Agreement
During this same time, the Moody County Sheriffs Office (“Moody County”) and the Tribe entered into a Law Enforcement Assist Agreement in September of 2015. (Doc. 91, Ex. 1, Wellman Dep. at 31:10-32:15; Doc. 93, Ex.l at 2340-2342). The City of Flandreau and Moody County had a similar agreement because “there's usually one [police officer] out for each department” and “[s]ometimes one person can't control the situation.” (Doc. 91, Ex. 1, Wellman Dep. at 35:13-18). The Mutual Aid Agreement provided that “[i]n the event of or the threat of an emergency, disaster, or widespread conflagration which cannot be met with the facilities of one of the parties to this agreement, the other party agrees, upon proper request, to furnish law enforcement assistance to the party requesting the assistance upon either an actual or standby basis.” (Doc. 93, Ex. 1 at 2340). A “proper request” from Moody County to the Tribe “shall only be communicated directly, either formally or informally, by the Sheriffs Office or the Sheriffs designee(s), to the Tribe's Chief of Police or the Chiefs designee.” (Doc. 93, Ex. 1 at 2341). While the furnishing party is rendering aid to the other, the responding officer “shall temporarily have the same powers and authority conferred by law on the members of the law enforcement of the party to which the assistance is rendered.” (Doc. 93, Ex. 1 at 2341).
As of June 17, 2017, Moody County provided dispatch services to the Tribe and the City of Flandreau. (Doc. 93, Ex. 1 at 2344-2348). Moody County's dispatch received and accepted “all calls for service within, or near, the jurisdiction of the Tribe, including emergency calls for fire, medical, and emergency situations.” (Doc. 93, Ex. 1 at 2344-45). It also provided radio and support communications with the Tribe from the initial call until the conclusion of the emergency. (Doc. 93, Ex. 1 at 2344-45). During this timeframe, Moody County, the City of Flandreau, and the Tribe all utilized the same radio channel. (Doc. 91, Ex. 1, Wellman Dep. 63:18-23). In addition, other nearby agencies or jurisdictions also had access to this radio channel like Lake County and certain South Dakota Highway Patrol officers who worked in that geographical area. (Id.).
C. Events prior to pursuit of vehicle driven by Tahlen Bourassa on June 17,2017
During the section 638 contract period, in January 2016, Neuenfeldt was hired as a police officer. (Doc. 91, Ex. 2, Neuenfeldt Dep. 14:12-19). Neuenfeldt had been certified as a law enforcement officer by the State of South Dakota after attending the State Academy in 2013. (Doc. 91, Ex. 2, Neuenfeldt Dep. 8:5-8). Neuenfeldt previously worked as a deputy sheriff for Moody County from 2013 through late-2015. (Doc. 91, Ex. 2, Neuenfeldt Dep. 13:20-14:14). Neuenfeldt eventually became Acting Chief of Police for the Tribe and occupied that role on June 17, 2017. (Doc. 91, Ex. 2, Neuenfeldt Dep. 60:2-8).
On the evening of June 17,2017, Moody County Sheriff s Deputies Carl Brakke and Logan Baldini were on duty together in Brakke's police cruiser. (Doc. 91, Ex. 3, Brakke Dep. at 21:520). They were doing a drive-by security check of a residence located in rural Moody County at 24364 484th Avenue, Dell Rapids, South Dakota. (Id.; Doc. 91, Ex. 4 at 1; Doc. 109 (citing Doc. 85-9, Brakke Dep. 21:5-21:8). The owners of this unoccupied property had requested extra drive-bys from the Moody County Sheriffs Office to help the owners with security because there had been a party there the prior evening. (Doc. 91, Ex. 3, Brakke Dep. 29:15-30:5); Doc 109 at 2594 (citing Doc. 85-9, Brakke Dep. 29:8-30:5)). The owners had ongoing concerns with trespassing. (Doc. 91, Ex. 3, Brakke Dep. 29:15-30:5).
At 11:50 p.m. on June 17, 2017, Deputy Brakke radioed to Moody County dispatch that he could see six to eight vehicles at the location and “looks like another house party going on.” (Doc. 91, Ex. 3, Brakke Dep. 32:7-15; Ex. 4 at 4; Doc. 109 at 2594 (citing Doc. 85-9, Brakke Dep. 32:734:1). Deputy Brakke then relayed to dispatch that as they pulled up to the residence, 15 individuals ran from the house toward the trees. (Doc. 91, Ex. 3, Brakke Dep. 32:12-15). Deputy Brakke said he believed there were more people in the house, and there were a number of people who did not run, but instead stayed in the driveway near Deputy Brakke's cruiser. (Doc. 91, Ex. 3, Brakke Dep. 33:1-5). Deputy Brakke estimated there were 25 people in the house having a party. (Doc. 91, Ex. 3, Brakke Dep. 33:17-20).
Deputy Brakke testified that he was involved with radio traffic from at least two different dispatchers and two different radio channels that night. (Doc. 91, Ex. 3, Brakke Dep. 47:22-48:5). He testified that after he contacted Moody County's dispatch, he went to the “Brookings interagency” channel, which is a channel that Troopers from the South Dakota Highway Patrol monitor
and where deputies go to ask for their help, and asked for assistance at a house party and “gave the address the same type of way” that he gave it to his own dispatcher. (Doc. 91, Ex. 3, Brakke Dep. 57:4-25). Deputy Brakke testified that on his inter-agency request for assistance, he asked for “any available units” or “can you start all unites to my location” and “went on to explain about the kids running and the number of vehicles.” (Doc. 91, Ex. 3, Brakke Dep. 47:5-15; 57:15-25). The parties have been unable to locate recordings from the Brookings inter-agency channel. (Docs. 89-1 at 1974, n.4; 109 at 2596 n.l). Todd Dravland, system engineer for the Brookings InterAgency Channel, reported to Plaintiffs that on June 18, 2017, there was “mechanical Hard Disk Drive” failure that “wiped” the alleged recordings. (Doc. 110, Ex. 2). Deputy Baldini also testified that Deputy Brakke made a call for “a generally assist' on the radio. (Doc. 91, Ex. 5, Baldini Dep. at 18:3-4).
At 11:52 p.m., Deputy Brakke contacted Flandreau City Police Officer Brent Goehring via radio and told him about the party at the residence. (Doc. 91, Ex. 3, Brakke Dep. 53:3-10; Doc. 109 at 2594 (citing Doc. 85-9, Brakke Dep. 52:14-53:24). Officer Goehring responded, “10-4. We can start heading that way.” (Docs. 91, Ex. 3, Brakke Dep. 53:20-24; 109 at 2594 (citing Doc. 85-9, Brakke Dep. 52:14-53:24)).
At about 12:02 a.m. on June 18, 2017, one of the partygoers standing in the driveway with Deputies Brakke and Baldini started to have a seizure. (Doc. 91, Ex. 4 at 2093, Ex. 3, Brakke Dep. 38:14-24). Deputy Brakke requested a non-tribal ambulance to assist with the seizure. (Doc. 91, Ex. 3, Brakke Dep. 39:14-19). At about 12:05 a.m., South Dakota Highway Patrol Trooper Isaac Kurtz was working in the area and asked Moody County dispatch if Deputy Brakke needed assistance with the house party. (Doc. 91, Ex. 13). Dispatch responded and said, “Yes, please.” CW; Doc. 91, Ex. 6 at 2145).
Deputy Brakke did not directly call Neuenfeldt to ask him to assist. (Doc. 91, Ex. 3, Brakke Dep. 71:15-17). Sheriff Troy Wellman of Moody County, Neuenfeldt's former supervisor, confirmed that as a tribal police officer, Neuenfeldt had a habit of jumping calls or arriving on the scene when his assistance was not requested. (Doc. 109 at 2600 (citing Doc. 85-17, Wellman Dep. 25:4-25:15)). He testified that “If we were on a traffic stop outside of town, we would not request any help. The deputies that I have and had at the time are capable of doing their job. That's why I hired them. If we need help, we'll ask for it, but there were times that Rob [Neuenfeldt] would
show up on a call or on a traffic stop that he was not requested for backup or any kind of...
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