Todd v. Baker
| Decision Date | 04 June 2012 |
| Docket Number | CV 10-127-M-DWM |
| Parties | JOHN TODD, Plaintiff, v. IAN BAKER; CHAD ZIMMERMAN; CITY OF KALISPELL; CITY OF KALISPELL POLICE DEPARTMENT; KALISPELL POLICE CHIEF ROGER NASSET; and DOES 1-10, Defendants. |
| Court | U.S. District Court — District of Montana |
John Todd brings this case under 42 U.S.C. § 1983 alleging violations of his federal constitutional rights stemming from a September 2007 incident in which Kalispell City Police Officer Ian Baker tasered Todd. The Complaint also maintains state claims for violation of Todd's rights under the Montana Constitution, negligence, assault and battery, infliction of emotional distress, aswell as claims for compensatory and punitive damages.
There are two motions for summary judgment pending. The City of Kalispell, the Kalispell Police Department, and Police Chief Roger Nasset (collectively "the City") argue that the requirements for municipal liability under § 1983 have not been met. The officers involved in the incident, Officer Ian Baker ("Baker") and Officer Chad Zimmerman ("Zimmerman")(collectively "the Individual Defendants") argue they are entitled to qualified immunity on the federal claims and that they are entitled to immunity as to the remaining claims under Montana Code Annotated § 2-9-305(5). The defendants also allege that Todd failed to establish the duty element of negligence and to demonstrate "severe" distress to support his claim for infliction of emotional distress.
For the reasons discussed below, the defendants are entitled to summary judgment on all Todd's claims except his excessive use of force claim under the Montana Constitution. Additionally, the Individual Defendants are immune from liability for this claim under Montana Code Annotated § 2-9-305(5), and must be dismissed from the action. Griffith v. Butte Sch. Dist. No. 1, 244 P.3d 321 (Mont. 2010). The case is alive as to the other defendants on the remaining claim.
FACTUAL BACKGROUND
On November 13, 2007, Todd celebrated his 23rd birthday by going out to two Kalispell bars. On his way home around 11:00 p.m., Todd stopped walkingand sat on a grass median between the sidewalk and the parking lot of Murdoch's Ranch & Home Supply store. Officers Baker and Zimmerman were on patrol in a patrol car in the area. As Zimmerman pulled the vehicle into the south entrance of the Murdoch's parking lot, he noticed Todd sitting on the grass. The officers, both in uniform, proceeded to get out of the patrol car and approach Todd. Zimmerman proceeded toward Todd on the sidewalk while Baker snuck up on him from behind, through the parking lot. As he got closer, Zimmerman asked, "Hey man, are you alright?" Baker then shined his flashlight on Todd from approximately 20 feet away. Claiming that he saw what he thought was a pill container with a green leafy substance in it, Baker stated, "Hey, we have dope."
Following these two statements—although there appears to be some confusion as to which statement came first—Todd stood and began to run away from the officers down the sidewalk. Both officers gave chase, but began to lose ground. One of the officers may have yelled at Todd to stop. While Baker was still within approximately 20 feet of Todd, he deployed his Taser into Todd's back. The taser was employed for reasons that were either unwarranted or perhaps justified, questions for the jury. Todd became incapacitated and fell to the sidewalk with both hands underneath him, striking his head.
Zimmerman pulled Todd's hands from underneath him and noted that Todd had a cut over his left eye and appeared to have a bloody nose. Zimmermancontacted dispatch and requested an ambulance. Prior to going to the hospital, Baker collected a key, a key chain, and the pill bottle with the suspected marijuana. The suspected drugs were tested and determined to be marijuana. Todd was transported to the emergency room by ambulance and cited for obstructing an officer and possession of dangerous drugs. Todd eventually entered a plea agreement, entering a nolo contendere plea as to the possession charge, and the obstruction charge was dismissed. He was given a six-month deferred sentence on the possession charge, which was later dismissed with prejudice.
ANALYSIS
Parties are entitled to summary judgment if they can demonstrate "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is warranted where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). On a motion for summary judgment, this Court must determine whether a fair-minded jury could return a verdict for the non-moving party. Id. at 252. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude entry of summary judgment; factual disputes which are irrelevant or unnecessary to the outcome are not considered. Id. at 248.
The City is not liable here under § 1983, and Officers Baker and Zimmerman are entitled to qualified immunity. Thus, the defendants are entitled to summary judgment on Todd's federal claims.
A municipality cannot be held liable under § 1983 on a theory of respondeat superior. Monell v. Dept. of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978). However, a municipality can be held liable under § 1983 if it had a "deliberate policy, custom or practice that was the 'moving force' behind the constitutional violation" suffered by the plaintiff. Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007) (citing Monell, 436 U.S. at 694–95). A plaintiff can establish such a policy by demonstrating that "that the municipality's deliberate indifference led to an omission," Gibson v. Co. of Washoe, 290 F.3d 1175, 1186 (9th Cir. 2002), or that "'the individual who committed the constitutional tort was an official with final policy-making authority' or such an official 'ratified a subordinates's unconstitutional decision of action and the basis for it,'" Clouthier v. Co. of Contra Costa, 591 F.3d 1323, 1259 (9th Cir. 2010) (quoting Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 2002)). The plaintiff must then show that the policy "caused" the constitutional violation. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). A municipality is not automatically liable under § 1983 if anofficer applies a policy in an unconstitutional manner. Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009) (citation omitted).
The first question is whether the Department's policies regarding the use of force are facially unconstitutional. Todd contends they are because they do not inform officers to take into account the severity of the crime when determining the appropriate level of force to use in a given situation. The City responds that the Department's policies mirror the reasonableness standard outlined in Graham v. Connor, 490 U.S. 386, 396-97 (1989), and that an explicit inclusion of the Graham factors is not necessary. The City is correct.
Graham recognizes the "right to use some degree of physical coercion or threat thereof" to effect either an investigative stop or an arrest. 490 U.S. at 396. Three factors inform the limitations of this right: 1) "the severity of the crime at issue," (2) "whether the suspect poses an immediate risk to the safety of the officers or others," and (3) "whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight." Id. "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. Additionally, the unique facts and circumstances of each situation must be considered. Id.
A plain reading of the Department's policies demonstrates that they reflectthe "reasonableness" test outlined in Graham. (See City's SUF, doc. 32 at ¶¶ 23-25.) They require officers to use only the level of force that is "reasonable and necessary" to effect an arrest or gain control of a situation. For example, the policies state that "[e]ach use of force situation is unique and will be evaluated based upon the circumstances faced by the officer at the time the force is applied" and that "as the situation that necessitated the use of force diminishes, so too shall the use of force." (Id.) Although the policies do not expressly require that officers consider the severity of the crime at issue, they are still constitutional. See e.g, Phillips v. City of Fairfield, 406 F. Supp 2d 1101, 1117 (E.D. Cal. 2005) (). Thus, Todd's claim that the Department's formal policy fails to limit the use of force officers use is not viable.
Todd also contends that the City was deliberately indifferent in training, supervising, and disciplining Baker and Zimmerman. "To prove deliberate indifference, the plaintiff must show that the municipality was on actual or constructive notice that its omission would likely result in a constitutional violation." Clouthier, 591 F.3d at 1259 (citing Farmer v. Brennan, 511 U.S. 825, 841 (1994)). A showing of negligence is not enough. City of Canton v. Harris, 489 U.S. 378, 407 (1989).
In limited situations, a local government's failure to adequately train employees may give rise to liability under § 1983. Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011). However, a "municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on the failure to train." Id. A plaintiff must show that the allegedly inadequate police training "amounts to deliberate indifference to the...
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