Webb v. City of Waterloo, 17-CV-2001-CJW-MAR

• Decision Date: 11 December 2019
• Docket Number: No. 17-CV-2001-CJW-MAR,17-CV-2001-CJW-MAR
• Parties: JOVAN WEBB, Plaintiff, v. CITY OF WATERLOO, et al., Defendants.
• Court: U.S. District Court — Northern District of Iowa

JOVAN WEBB, Plaintiff, v. CITY OF WATERLOO, et al., Defendants.

No. 17-CV-2001-CJW-MAR

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA EASTERN DIVISION

December 11, 2019

MEMORANDUM OPINION AND ORDER

TABLE OF CONTENTS

I. INTRODUCTION .......................................................................... 1

II. FACTUAL FINDINGS .................................................................... 1

A. Police Response to Report of Fight .............................................. 1

B. Officer Nissen's Initial Confrontation with Plaintiff .......................... 3

C. Officers' Confrontation with Plaintiff at the Parking Lot Exit .............. 3

D. Discharge of Firearms .............................................................. 4

E. Officer Frein's Discharge of his Firearm ....................................... 6

F. Surveillance and Police Car Video ............................................... 6

G. Plaintiff's Flight from the Scene and Subsequent Arrest ..................... 7

H. Plaintiff's Prosecution and Convictions ......................................... 7

I. City of Waterloo Policy and Procedures ........................................ 8

III. PLAINTIFF'S CLAIMS ................................................................... 9

IV. SUMMARY JUDGMENT STANDARD .............................................. 10

V. DISCUSSION ............................................................................... 13

A. Count I: Section 1983 Claim for Excessive Use of Force ................... 13

1. Officer Nissen .............................................................. 17

2. Officer Frein ................................................................ 21

B. Count II: Section 1983 Claim for Equal Protection Violation .............. 22

1. Officer Nissen .............................................................. 24

2. Officer Frein ................................................................ 25

C. Application of the Heck Doctrine ................................................ 26

D. Application of Res Judicata and Collateral Estoppel Doctrines ............ 31

E. Count III: Section 1983 Claim for Failure to Intervene ..................... 35

F. Count IV: State Law Battery Claim ............................................. 36

1. Officer Nissen .............................................................. 36

2. Officer Frein ................................................................ 37

G. Claims Against the City ........................................................... 37

1. Section 1983 Claim ........................................................ 37a. Failure to Supervise Basis for Liability ........................ 39

b. Failure to Train Basis for Liability ............................. 42

2. City Liability on the Battery Claim ..................................... 45

VI. CONCLUSION ............................................................................. 46

I. INTRODUCTION

This matter is before the Court on defendants' Motions for Summary Judgment. Defendants City of Waterloo (the "City") and Officer Mark Nissen ("Officer Nissen") filed a Motion for Summary Judgment (Doc. 69), as did defendant Officer Thomas Frein ("Officer Frein") (Doc. 70). After obtaining an extension of time, plaintiff filed a timely brief in resistance to both Motions for Summary Judgment. (Doc. 84). Plaintiff also filed a response to defendants' statements of material facts (Docs. 80-1 & 80-2), and his own statement of material facts (Doc. 80). After obtaining an extension of time, defendants filed a timely joint reply to plaintiff's statement of additional material facts (Doc. 91), defendants City of Waterloo and Nissen filed a brief in reply to plaintiff's resistance (Doc. 92) and defendant Frein also filed a brief in reply to plaintiff's resistance (Doc. 94). For the reasons that follow, the Court grants in part, and denies in part, defendants' Motions for Summary Judgment.

II. FACTUAL FINDINGS¹

A. Police Response to Report of Fight

On April 5, 2015, at approximately 1:27 a.m., Waterloo police officers were dispatched to the New World Lounge on a report of a fight involving approximately 40 people. Officers had been called to the New World Lounge many times in the past for fights, weapons, and narcotics. On this occasion, multiple units responded to the call, including Officers Nissen and Frein, who were members of the Waterloo Police Department's Violent Crimes Apprehension Team. Officers Nissen and Frein were together in an unmarked police car. Officer Nissen was in plain clothes, wearing a fleecepullover jacket. Officer Nissen claims his badge was clipped to the top of his jacket in full view; plaintiff denies that Officer Nissen's badge was visible. Officer Nissen was also wearing a holster and handgun, handcuffs, a radio, and a flashlight. Officer Frein was in full police uniform.

While the officers were enroute, the dispatcher reported another call of a possible shot being fired in the air by someone in a white SUV as the vehicle was leaving the area. When Officers Nissen and Frein arrived at the parking lot of the New World Lounge, Officer Nissen activated his lights and siren to disperse the crowd. Officer Nissen parked the patrol car in the southeast corner of the parking lot. A large group of people were congregated in the parking lot and in the parking lot of a nearby convenience store located to the south of the New World Lounge. Other officers were present, walking through the area trying to get the people to disperse.

Officers Nissen and Frein got out of their car and observed a dispute among some individuals in the convenience store parking lot. Both officers walked toward the convenience store parking lot, but the dispute ended, and those parties dispersed.

There were still many people in the New World Lounge parking lot, but most were slowly dispersing; a few were yelling. Officer Nissen crossed the street from the convenience store and began walking west. As Officer Nissen was walking he observed a white car backed into a parking space in the New World Lounge parking lot. Plaintiff Jovan Webb was the sole occupant of the car and was seated in the driver's seat. Plaintiff had not been involved in the altercation at the bar and had just left the lounge, walked to his car, and got into the driver's seat. The car windows were rolled up. Officer Nissen states that he observed plaintiff put what Officer Nissen believed to be a liquor bottle up to plaintiff's mouth, then screw the cap back on and place the bottle behind the driver's seat. Plaintiff states that he did not have a bottle at or near his mouth while seated in his car. Officer Nissen did not see plaintiff stumble, slur his speech, or commit a trafficviolation. A liquor bottle was later found in plaintiff's car. Officer Nissen could see that plaintiff was a black man.

B. Officer Nissen's Initial Confrontation with Plaintiff

Officer Nissen approached plaintiff's car on the driver's side and shined his flashlight into the backseat. Officer Nissen observed what he believed to be a liquor bottle leaning up against the rear passenger door. Officer Nissen knocked or pounded on the driver's side window and may have identified himself as a police officer. Plaintiff saw Officer Nissen, but states that he did not hear Officer Nissen identify himself as a police officer and did not see Officer Nissen's badge. No audio recordings captured Officer Nissen identifying himself as a police officer.

Plaintiff began to drive away. Plaintiff drove east across the parking lot toward the Broadway Street exit from the lot. Plaintiff did not drive at a high rate of speed across the parking lot, nor did he drive slowly. Officer Nissen ran after plaintiff's car, yelling "Hey police!" Officer Nissen also called out on his radio: "Hey get this car, this white car's taking off on me right here." Another officer, Randy Girsch, called out plaintiff's license plate number. Plaintiff admits, based on the recorded audio, that Officer Nissen yelled "Hey Police!" but denies that he heard Officer Nissen at the time.

C. Officers' Confrontation with Plaintiff at the Parking Lot Exit

Officer Steven Bose heard Officer Nissen's radio call to stop plaintiff's vehicle. Officer Bose was crossing the New World Lounge parking lot at the time. Officer Bose initially believed Nissen was calling from the convenience store parking lot, but then saw plaintiff's car coming at him and saw Officer Nissen running behind plaintiff's car. Officer Bose estimated plaintiff was driving approximately 15 to 20 miles-per-hour.

Officer Bose was in full police uniform. Officer Bose testified in a deposition that he faced plaintiff's car, raised a hand, and yelled for plaintiff to stop. Plaintiff recognized Officer Bose was a police officer. Plaintiff denies seeing Bose raise his hand or hearingOfficer Bose telling plaintiff to stop. Plaintiff nevertheless stopped his car in front of Officer Bose, who was positioned between plaintiff's driver's side headlight and the center of the car hood. The car was stopped for a second or two.

Officer Nissen then caught up with plaintiff's car on the passenger side and started pounding on the passenger side window so hard that his hand hurt. Officer Nissen also tried to open the door. Officer Nissen states that he yelled for plaintiff to stop; plaintiff states that he did not hear any such command.

Defendants assert that Plaintiff let his foot off the brake and moved the car forward, bumping into the legs of Officer Bose three to four times as Officer Bose continued to back up. Defendants assert that plaintiff's car was moving slowly and did not cause injury to Officer Bose's legs when it bumped him. Officer Bose testified that he yelled "hey" a couple of times and yelled for plaintiff to stop his car. Officer Bose placed his left hand on the hood of the car and had his pepper spray in his right hand. Officer Bose also moved more toward the driver's side...