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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
OCTAVIUS JOHNSON, DEMETRIUS )
JOHNSON, JUAQUEZ JOHNSON, )
SHARON JOHNSON, and SHAREE )
JOHNSON, individuals, )
)
Plaintiffs, ) Case No. 14-cv-0004
)
vs. )
)
CITY OF OMAHA, a political subdivision; )
TODD SCHMADERER, in his capacity of )
Chief of the Omaha Police Department; ) PLAINTIFFS OPPOSITION
TO
AARON P. VON BEHREN, individually and as ) MOTIONS FOR
SUMMARY
an officer of the OPD; BRADLEY D. ) JUDGMENT FOR QUALIFIED
CANTERBURY, individually and as an officer ) IMMUNITY
of the OPD; JAMES T. KINSELLA, individually )
and as an officer of the OPD; JUSTIN A. )
REEVE, individually and as an officer of the )
OPD; JOSEPH E. KOENIG, individually and )
as an Officer of the OPD; JOHN D. PAYNE, )
Individually and as an officer of the OPD; )
DYEA L. ROWLAND, individually and as an )
Officer of the OPD; MATTHEW C. WORM, )
individually and as an Officer of the OPD; )
CHRISTOPHER J. OLSON, and JOHN and )
JANE DOES 2 24, ) )
Defendants. )
COME NOW the Plaintiffs and offer the following brief in
opposition to the Motions for
Summary Judgment on grounds of Qualified Immunity filed by
Defendants Dyea Rowland
(Rowland Motion, Doc. 94); Bradley D. Canterbury (Canterbury
Motion, Doc. 88 ), and the
Motion of Defendants Von Behren, Kinsella, Reeve, Koenig, Payne,
Worm, and Olson (OPD
Motion, Doc. 91).
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STATEMENT OF CONTROVERTED FACTS
Plaintiffs have set out below, the statements of fact contained
in the Motions for
Summary Judgment which are not contested and those which
Plaintiffs dispute. The facts are
identified by which Motion for Summary Judgment the specific
facts are contained in. In
addition, following the responses to factual allegations
contained in the Defendants statements
of fact, Plaintiffs set forth those facts which they believe
specifically provide genuinely disputed
issues of fact which are material and preclude the granting of
Defendants Motions for Summary
Judgment.
Following the numbered statement of facts there is a relatively
brief narrative statement
of facts which hopefully puts the factual issues in some
context.
I. Rowland Motion (Brief in Support Doc. 95)
1. Plaintiffs admit the allegations contained in Paragraphs 1
through 9 of the
Statement of Facts in the Brief in Support of Motion for Summary
Judgment filed by Dyea
Rowland [Doc. 95] except the characterization of Jacquez arrival
on scene as being sudden.
Plaintiffs accept the admission that Officer Rowland was
informed by Officer Worm that the
Johnson family was anti-police.
2. Plaintiffs admit the statement in paragraph 10 of Doc. 95
that a blue truck arrived
on the scene. Plaintiffs dispute the statement in paragraph 10
that the truck arrived suddenly or
that it parked up over the curb. The video of the incident shows
the truck was not parked on the
curb. [Doc. 90 Ex. 15.] The state of Michael Lynch to the police
also contradicts this
description. [Doc. 102-5 p.2.]
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3. Plaintiffs deny the statement in paragraph 11 of Doc. 95 that
Octavius physically
confronted the officers. [Doc. 90-16 61:15-24, 63:25-65:10; Doc.
90 Ex. 151; Doc. 102-5 p.2.]
4. Plaintiffs admit the statement in paragraph 12 of Doc. 95
that Octavius was
backing up toward the truck. However, according to Octavius, the
video of the event, and
Michael Lynch, Octavius was ordered by Officer Canterbury to
turn around and Octavius was
turning to place his hands on the hood of the truck to allow
himself to be frisked by Officer
Canterbury [Doc. 90-16 74:12-77:11; Doc. 102-5 p.2.] While
Octavius was complying and
turning away from Officer Canterbury, Officer Canterbury grabbed
Octavius around the neck
with no warning and threw him to the ground using a hip toss.
[Doc. 90-16 76:6-16; Doc. 90-7
13.]
5. Plaintiffs admit the fact statements in paragraphs13 through
15 of Doc. 95.
6. Plaintiffs deny that Octavius was resisting being put into
handcuffs by Officer
Rowland as stated in paragraph 16 of Doc. 95. Plaintiffs allege
that Octavius was thrown to the
ground in a way that trapped his arm under his body. [Doc. 90-16
76:18-77:11.] Because
Officer Canterbury had his knee on Octavius back at this point,
Octavius could not free his hand
to allow Officer Rowland to handcuff him. [Doc. 90-16
88:19-89:2.]
7. Plaintiffs admit the fact statements in paragraphs 17 through
20 of Doc. 95.2
8. Plaintiffs deny the fact statement in paragraph 21 of Doc. 95
that Jacquez was
violating Worms instructions. [Doc. 96-4 53:20-55:1.]
9. Plaintiffs admit the remaining fact statements contained in
paragraphs 21 through
24 of Doc. 95.
1 References to Doc. 90 Ex. 15 are to the videotape of the
incident and no hyperlink is available. 2 The actions of Dyea
Rowland that violated the Plaintiffs civil rights occurred
primarily after she entered the residence.
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10. Plaintiffs admit the fact statement in paragraph 25 of Doc.
95 that Sharon Johnson
was just inside the door of the Johnson home in her wheelchair.
Plaintiffs admit that when
Officer Rowland entered the Johnson residence Sharon Johnson had
already been thrown to the
floor and was lying underneath her wheelchair as stated in
Officer Rowlands affidavit. [Doc.
96-1 p. 4.]
11. Plaintiffs deny that Officer Rowland merely called Demetrius
name before
placing him in handcuffs as stated in paragraph 26 of Doc. 95.
Plaintiffs allege that Demetrius
was already on the floor before Officer Rowland entered the
house and then Officer Koenig
jumped on Demetrius while he was sitting and used excessive
force in placing him in handcuffs.
[Doc. 90-17 33:21-34:9, 36:2-12, 40:16-19; Doc. 102-3 101:17-22;
Doc. 102-7 p.105.]
12. Plaintiffs admit the statements in paragraphs 27 and 28 of
Doc. 95.
13. Plaintiffs deny that Rowland left the Johnson residence
prior to conspiring with
officers Kinsella, Von Behren, and others regarding the
confiscation and destruction of property
owned by the Johnson family. [Doc. 102-3 103:10-105:10
(describing officers in house
searching cellphone).]
14. Plaintiffs deny the statement in paragraph 30 of Doc.
95.
II. Canterbury Motion (Brief in Support Doc. 89)
15. Plaintiffs admit the fact statements contained in paragraphs
1 and 2 of Doc. 89.
16. Plaintiffs deny the fact statement in paragraph 3 of Doc. 89
that Jacquez appeared
he might physically interfere with the towing of the vehicles.
[Doc. 90 Ex. 15.]
17. Plaintiffs admit the statement in paragraph 4 of Doc. 89
that Octavius Johnsons
truck was loud when it arrived on the scene and deny that
Octavius immediately confronted the
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officers. Octavius truck was loud because of a mechanical issue,
not reckless driving. [Doc.
90-16 55:19-56:10.]
18. Plaintiffs admit the statement in paragraph 5 of Doc. 89
that something occurred
during the incident at issue which drew the attention of a
neighbor and awakened Demetrius
Johnson.
19. Plaintiffs admit that Demetrius Johnson was the registered
owner of the black
1999 Ford Mustang described in paragraph 7 of Doc. 89.
Plaintiffs allege that the officers used
force on Octavius without properly ascertaining his identity.
[Doc. 90-16 85:25-86:16.]
20. Plaintiffs deny the fact statements contained in paragraph 8
of Doc. 89. [Doc. 90-
16 74:8-77:11.]
21. Plaintiffs admit the fact statements in paragraph 9 of Doc.
89.
22. Plaintiffs deny the fact statement in paragraph 10 of Doc.
89 that Octavius
Johnson resisted police after being taken to the ground. Rather,
Octavius was thrown to the
ground on top of his right arm and was unable to move his right
arm from under his body while
Officer Canterbury was kneeling on Octavius back. [Doc. 90-16
74:8-77:11.] Plaintiffs admit
that Officer Canterbury struck Octavius.
23. Plaintiffs admit the fact statement in paragraph 11 of Doc.
89 that Octavius was
placed into handcuffs and held to the ground. Plaintiffs deny
that Octavius was resisting after
being thrown to the ground and placed in handcuffs. [Doc. 102-7
p.5.]
24. Plaintiffs admit the statement in paragraph 12 of Doc. 89
that Juaquez Johnson
began to flee from Officer Worm but deny that Juaquez was
attempting to avoid arrest. Juaquez
did not hear anyone say he was under arrest, had done nothing
warranting arrest, and he was fearful
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that he would be attacked in the same way he had seen his
brother Octavius attacked. [Doc. 96-4
24:17-24, 52:9-53:1.]
25. Plaintiffs deny the statement in paragraph 13 of Doc. 89
that Octavius began to
move underneath Officer Canterbury in a manner to make Officer
Canterbury reasonably believe
Octavius was attempting to resist arrest or physically harm
Officer Canterbury. [Doc. 102-5 p.2-
3.] Plaintiffs admit that Officer Canterbury struck Octavius at
least three times while Octavius
was completely helpless lying face down, prone in the street,
with his hands handcuffed behind
his back and the only movement of Octavius was to turn his head.
[Doc. 90-16 98:23-99:19.]
26. Plaintiffs admit the fact statements in paragraph 14 of Doc.
89.
III. OPD Motion (Brief in Support Doc. 92)
27. Plaintiffs admit the fact statement in paragraph 1 of Doc.
92 that prior to Juaquez
being chased into the house no officer stopped Juaquez from
videotaping any police conduct.
28. Plaintiffs deny the factual assertion/legal conclusion
stated in paragraph 2 of Doc.
92 that probable cause existed to arrest Juaquez Johnson.
Plaintiffs also deny that there was
probable cause to arrest Demetrius Johnson because he was not
properly identified as the person
with the warrant until he was already in handcuffs and in the
patrol car on his way to jail. [Doc.
90-17 39:18-23.]
29. Plaintiffs deny the factual assertion/legal conclusion in
paragraph 3 of Doc. 92
that Officer Worm entered the Johnson residence in pursuit of a
person who he had probable
cause to arrest. Plaintiffs admit that other officers entered
the residence after observing Officer
Worms pursuit of Juaquez and after Officer Woolmans help an
officer call. Plaintiffs deny
any implication in the statements in paragraph 3 of Doc. 92 that
Officer Wollmans distress call
was justified by anything done by Demetrius or Juaquez
Johnson.
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STATEMENT OF UNDISPUTED MATERIAL FACTS SHOWING THE OFFICERS
ARE NOT ENTITLED TO QUALIFIED IMMUNITY
30. The Omaha Police Department determined that Officer
Canterburys reported use
of force varied in multiple respects from the force observed on
the video taken by Michael
Lynch. [Doc. 102-4.]
31. Officer Kinsella used strikes while assisting Officer Worm
in arresting Juaquez.
[Doc. 102-6; Doc. 102-7 p.70.]
32. Sharon Johnson, an individual requiring the use of a
wheelchair for mobility, was
knocked to the floor by officers and was subsequently placed in
handcuffs. [Doc. 102 -3 43:18-
47:9.]
33. Sharon Johnson was handcuffed with three pairs of handcuffs.
[Doc. 102-7 p.61.]
34. After entering the Johnson home, officers including Von
Behren, Kinsella,
Rowland, Payne, and Reeve remained in the home after determining
there were no exigent
circumstances requiring a warrantless search. [Doc. 102-6.]
35. Officers seized a cell phone, removed its memory card, and
destroyed the memory
card. [Doc. 102-6.]
36. All charges against Demetrius, Octavius, and Juaquez Johnson
arising from the
incident at the Johnson home on March 21, 2015 were
dismissed.
37. An internal police investigation determined that officers
Von Behren, Kinsella,
Rowland, Payne, and Reeve illegally seized and destroyed
evidence. [Doc. 102-6.]
38. An internal police investigation also found that certain
officers who went inside
the Johnson residents conspired to conceal actions taken inside
the Johnson residents. [Doc.
102-6.]
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39. An internal police investigation determined that Officer
Canterbury provided false
information to the police department regarding his use of force.
[Doc. 102-4.]
40. The officers allegedly believed that Octavius was Demetrius
when Octavius was
placed under arrest but Officer Rowland subsequently claimed
that when she went into the
Johnson home she said Demetrius name and he responded. [Doc
102-3 p. 38.]
STATEMENT OF MATERIAL FACTS IN DISPUTE
41. Whether Officer Canterbury directed Octavius to get inside
his truck or ordered
him to turn and place his hands on the hood of the pickup.
42. Whether Octavius was complying with the directions of
Officer Canterbury when
Officer Canterbury grabbed Octavius in a choke hold.
43. Whether Octavius behavior after arriving at the scene of the
cars being towed
justified officer Canterburys use of force.
44. Whether Octavius was attempting to resist Officer
Canterburys putting cuffs on
him or was merely startled by being grabbed by the neck from
behind with no warning.
45. Whether Officer Canterbury had probable cause to arrest
Octavius.
46. Whether Octavius was attempting to resist being handcuffed
after he was taken to
the ground by officer Canterbury.
47. Whether Octavius attempted to get away from or harm officer
Canterbury after
Officer Rowland went into the Johnson family residence.
48. Whether Juaquez was obstructing or interfering with the
police when officer
Worm began chasing him.
49. Whether Officer Worm had probable cause to arrest
Juaquez.
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50. Whether Officer Rowland learned that Demetrius was not the
individual detained
by Officer Canterbury before she went into the Johnson family
residence.
51. Whether Demetrius was already on the floor when Officer
Rowland entered the
residence. (If he was already on the floor, Officer Rowlands
statement that Demetrius
responded to her stating his name must be false.)
52. Whether Officers Rowland and Koenig utilized excessive-force
when arresting
Demetrius.
53. Whether Officers Rowland and Payne improperly restrained
Sharon Johnson.
54. Whether excessive force was used to arrest Juaquez.
55. Whether a call to help an officer was justified under the
circumstances.
56. Whether the officers should have immediately left the house
when it was clear
there had not been probable cause to enter.
57. Whether there was any justification for a warrantless search
of the Johnson family
home.
58. Whether there were any exigent circumstances allowing
Officer Worm to pursue
Juaquez into the Johnson residence.
59. If exigent circumstances existed, whether they were created
solely by the police.
NARRATIVE STATEMENT OF FACTS
On March 21, 2013, Officer Worm called a tow truck to the street
in front of the
residence at 3321 Seward Street to remove certain vehicles for
violation of city ordinances.
[Doc. 90-8 1.] Based on prior contacts with the family Officer
Worm believed they were anti-
police and, therefore, asked for additional officers on the
scene. [Doc. 96-1 7.] Officers
Canterbury and Rowland responded to Worms request. [Doc. 96-1
5-7.] When Officers
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Canterbury and Rowland arrived, Sharon Johnson, who is confined
to a wheelchair and could not
leave the homes porch because of stairs, shouted at the officers
so they could hear her, asking
for an explanation of why the cars were being towed. [Doc. 96-3
17:19-22, 18:0-19:9, 31:17-
32:13.] Juaquez Johnson arrived at the Johnson home and went to
ask the officers what was
occurring. [Doc. 96-4 33:6-34:1.] Shortly thereafter, Octavius
Johnson, the eldest of the three
Johnson brothers, arrived at the scene driving a blue pickup
truck heavily loaded with scrap
metal. [Doc. 96-4 34:9-14; Doc. 90-16 126:20-127:6; Doc. 90 Ex.
15.] Octavius got out of the
pickup and he and the officers moved toward each other. [Doc.
90-16 63:21-64:5.] The officers
allege that they told Octavius to get back in his truck. [Doc.
102-3 p.22-23.] Neither Octavius or
Juaquez heard officers tell Octavius to get back into his truck.
[Doc. 90-16 70:16-25, 73:23-
74:1, 74:12-25; Doc. 96-4 41:14-18.]
According to Octavius, Officer Canterbury directed him to turn
around and put his hands
on the hood of the truck. [Doc. 90-16 74:8-20.] Octavius thought
he was going to be frisked and
was turning to put his hands on the hood of the truck when he
heard someone say cuff him
which caused him to look over his right shoulder at Officer
Rowland who he believed would be
putting handcuffs on him. [Doc. 90-16 75:16-76:1.] As Octavius
turned his head to his right,
Officer Canterbury came up behind Octavius, put him in a choke
hold and used a hip toss to
throw Octavius to the ground. [Doc. 90-16 74:12-77:11; Doc. 90-7
13.] According to the
police officers, they knew that the owner of the black Mustang
which was being hooked up to the
tow truck had a misdemeanor warrant out for his arrest and they
believed Octavius was the
owner of the vehicle. [Doc. 96-1 8; Doc. 90-7 12.] Octavius had
not yet shown them
identification so they had no reason not to believe he was the
owner of the vehicle and had a
warrant for his arrest. [Dec. 90-17 64:15; Doc. 90-7 8.]
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After Officer Canterbury grabbed Octavius in a choke hold,
Octavius fell to the ground
on top of one of his arms, trapping it beneath his body. [Doc.
90-16 76:18-77:11.] Octavius was
unable to move his arm from under his body because Officer
Canterbury was holding him down
to the ground. [Id.] Officer Canterbury struck Octavius several
times because Octavius could
not offer his uncuffed arm to Officer Rowland. [Doc. 90-7 14.]
After the first set of blows,
Octavius was handcuffed and remained on the ground, face down,
with his hands cuffed behind
his back until he was lifted up by two officers who later
arrived on the scene and who placed him
in a police cruiser. [Doc. 90-16 100:19-101:18.] At all times
after being handcuffed until he was
placed in the police cruiser, Octavius was prone in the street
lying face down. [Doc. 90-16
100:19-101:18; Doc. 102-7 p.5.]
When the police took Octavius to the ground and put him in
handcuffs, Juaquez Johnson
began recording the incident. [Doc. 96-4 46:21-25.] Juaquez
stepped into the street and moved
toward the officers but was escorted back to the sidewalk by
Officer Worm. [Doc. 90-8 9.]
Juaquez then remained on or within a foot or two of the sidewalk
at all times. [Doc. 90 Ex. 15.]
While he was videotaping, Juaquez was yelling at the officers
that they were abusing Octavius,
there was no need to use the level of force being used on
Octavius, and Officer Canterbury
should not have his knee on Octavius neck. [Doc. 90 Ex. 15.]
Once Octavius was on the
ground in handcuffs Officer Worm returned to his police cruiser
and opened the vehicle door.
[Doc. 90 Ex. 15.] Juaquez was on the sidewalk with the
videocamera, stepped slightly off the
curb and then back up onto the sidewalk. [Doc. 90 Ex. 15.] After
Juaquez had returned to the
sidewalk, Officer Worm suddenly began chasing Juaquez. [Doc. 90
Ex. 15; Doc. 96-4 51:12-
20.] Juaquez had previously told Officer Worm that Juaquez was
not comfortable with Officer
Worm being close to him. [Doc. 90 Ex. 15; Doc. 96-4 50:20-51:8,
53:2-12.] Officer Worm did
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not tell Juaquez he was under arrest and according to Juaquez
the only command given by
Officer Worm was to give him the camera. [Doc. 96-4 24:19-21,
51:17-22.]
Frightened by Officer Worm, Juaquez ran into the Johnsons home.
[Doc. 96-4 52:18-
53:4, 54:18-22.] Sharon Johnson remained in her wheelchair in
the doorway of the home where
she had been since she learned the police were in front of her
house to tow cars but backed up
away from the door when Juaquez began running to the house.
[Doc. 96-3 62:19-24.] When
Juaquez began running Demetrius Johnson was asked by his aunt to
find a cell phone to begin
recording the events. [Doc. 90-17 26:25-27:8.] Demetrius located
a cell phone and returned to
the doorway area, standing slightly behind his aunt near the
doorway and attempting to use a cell
phone to record the events. [Doc. 90-17 26:19-24,
28:6-29:9.]
When Juaquez got to the door of the house he was able to get by
his aunt, but Officer Worm
grabbed for Juaquez shirt and the momentum of Officer Worms
actions threw Sharon Johnson
from her wheelchair and left the wheelchair on top of Sharon.
[Doc. 96-3 68:5-24; Doc. 90-8 12.]
Demetrius Johnson was knocked to the floor at the same time.
[Doc. 96-3 68:18-24; Doc. 90-8
12.] Demetrius remained on the floor but scooted out of the way
until his back was up again a
part of the entryway into the dining room. [Doc. 90-17
33:21-34:9.] Officer Worm continued into
the house and threw himself on Juaquez. [Doc. 102-7 p.70.]
Officers Kinsella and Reeve were the next officers to arrive on
the scene and entered the
house seconds after Officer Worm. [Doc. 102-7 p.2.] Officer
Kinsella then assisted Officer Worm
to cuff Juaquez. [Doc. 102-7 p. 70.] It was at this time Officer
Kinsella used strikes on Juaquez.
[Doc. 102-6; Doc. 102-7 p.70.]
Officer Wollman arrived on the scene shortly thereafter and upon
entering the house issued
an help an officer call. [Doc. 102-3 p.100.] Officer Rowland
left Officer Canterbury and
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Octavius and ran into the house. [Doc. 96-1 25.] When Officer
Rowland entered the house she
removed the wheelchair from on top of Sharon Johnson and then,
without checking to see if Sharon
was hurt, proceeded into the house. [Doc. 102-3 p. 35.] Just
after Officer Rowland went into the
house and other officers ran into the residence leaving Officer
Canterbury alone with Octavius,
Officer Canterbury looked both right and left and then delivered
a second series of blows striking
Octavius head and/or shoulder. [Doc. 90 Ex. 15; Doc. 102-5 p.3.]
Octavius was handcuffed
during this set of blows and had not offered any resistance.
[Doc. 102-5 p.3; Doc. 102-7 p.5.]
Demetrius was already on the floor when Officer Rowland entered
the home and did not
ever hear anyone call his name. [Doc. 90-17 33:23-34:22.] Even
though Demetrius was already
on the floor he was tackled by an officer believed to be Officer
Koenig who then assisted
Officer Rowland in cuffing Demetrius.3 [Doc. 90-17 33:21-35:21.]
When Demetrius was pushed
face down some officer banged his face against the floor. [Doc.
90-17 33:23-34:22.] When he
was handcuffed Demetrius felt his cell phone being ripped out of
his hand. [Doc. 90-17 46:13-
17.] A cell phone was later found in pieces and reassembled by
one of the officers, believed to be
Officer Payne. [Doc. 102-7 p.105.] Although Officer Koenig later
allegedly bragged about
kneeing Juaquez, no use of force report was filed by Officer
Koenig and he later denied he had
used any force cuffing Juaquez. [Doc. 102-7 p.111.] Demetrius
was not asked his name until he
was in the police cruiser on the way to jail. [Doc. 90-17
39:18-23.]
Despite having committed no crime and having been thrown out of
the wheelchair she
required for mobility, Sharon Johnson had three sets of
handcuffs placed on her arms, handcuffing
3 It was rumored that Officer Koenig used a flying lunge to take
Demetrius all the way to the ground which is consistent with
Demetrius report that he was tackled even though he was already
sitting down. [Doc. 102-7 p. 68.]
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her behind her back while she sat on the living room floor.
[Doc. 96-3 82:14-25, 97:11-98:15;
Doc. 102-7 p. 61.]
After Juaquez and Demetrius were in handcuffs, Officers Van
Behren, Kinsella, Rowland,
and Reeve remained in the Johnson home. [Doc. 102-7 p.61-62.]
These officers stood in the
kitchen of the Johnson household attempting to view whatever
video had been taken by Demetrius
with the cell phone. [Doc. 102-3 50:8-23; Doc. 102-7 p.61-62.]
Despite finding no video on the
phone, Officer Kinsella took the SIM Card from the camera and
put it in his pocket. [Doc. 102-
6; Doc. 102-7 p.64.] Officer Kinsella threw the SIM Card out of
the window of his patrol cruiser
as he and his partner drove away from the scene. [Doc. 102-7
p.74.]
All the charges against Octavius, Juaquez, and Demetrius Johnson
arising from the events
on March 21, 2013 were dropped.
ARGUMENT AND AUTHORITIES
I. SUMMARY JUDGMENT IS NOT PROPER IN THIS CASE.
The standard of review for summary judgment is well established.
Summary judgment is
appropriate when there are no genuine issues of material fact in
dispute. Fed. R. Civ. P. 56(c).
A genuine issue of material fact exists when a reasonable jury
could render a verdict for the non-
moving party. Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990
(8th Cir. 2005).
The party seeking summary judgment must prove there is no
genuine issue of material
fact to be decided by the finder of fact. Fed. R. Civ. P. 56(c);
Adickes v. S.H. Kress & Co., 398
U.S. 144, 157 (1970). In determining if the moving party has met
this burden, the Court must
construe all evidence as benefitting the non-moving party and,
if there is a factual dispute
demonstrated, the court must consider that all the facts
favoring the nonmoving party are true.
Mettler v. Whitledge, 165 F.3d 1197, 1200 (8th Cir.1999).
Further, the non-moving party is
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entitled to any reasonable inferences in its favor that may be
drawn from the facts
presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.
Ct. 2505, 91 L. Ed. 2d 202
(1986); Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076
(8th Cir. 1980). It is not appropriate
to grant summary judgment on the issue of qualified immunity
where a dispute remains
regarding facts material to the qualified immunity issue.
Rohrbough v. Hall, 586 F.3d 582, 585
(8th Cir. 2009).
In the present case, not only are there disputed facts on almost
every point related to the
claims of qualified immunity, there are inferences that can be
drawn from the factual disputes
that make it clear Defendants are not entitled to summary
judgment on the issue of Qualified
Immunity.
II. STANDARD FOR QUALIFIED IMMUNITY
The United States Court of Appeals for the Eighth Circuit has
established the standard for
a court to reject the defense of qualified immunity. According
to the Eighth Circuit:
To overcome the defense of qualified immunity, a plaintiff must
show: (1) the
facts, viewed in the light most favorable to the plaintiff,
demonstrate the
deprivation of a constitutional or statutory right; and (2) the
right was clearly
established at the time of the deprivation.
Smith v. Kansas City, Missouri Police Dept., 586 F.3d 576, 580
(8th Cir. 2009).
The Supreme Court of the United States has instructed that A
Court required to rule
upon the qualified immunity issues must consider, then, this
threshold question: Taken in light
most favorable to the party asserting the injury, do the facts
alleged show the officers conduct
violated a constitutional right? Saucier v. Katz, 533 U.S. 194,
201 (2001). The Eighth Circuit
has explained, To establish a constitutional violation under the
Fourth Amendments right to be
free from excessive force, the test is whether the amount of
force used was objectively
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reasonable under the particular circumstances. Brown v. City of
Golden Valley, 574 F.3d 491,
496 (8th Cir. 2009) (internal quotations omitted).
In its decision in Graham v. Connor, 490 U.S. 386, 109 S. Ct.
1865, 104 L. Ed. 2d 443
(1989) the United States Supreme Court established the three
factors to be utilized in
determining if the use of force was reasonable. According to the
Court the factors to be
considered are:
[T]he severity of the crime at issue, whether the suspect poses
an immediate threat
to the safety of the officers or others, and whether he is
actively resisting arrest or
attempting to evade arrest by flight.
Id., 490 U.S. at 396.
The analysis employed by the United States District Court, for
the Southern District of
Iowa, in the matter of Davis v. City of Albia, 434 F. Supp. 2d
692 (S.D. Iowa 2006), citing
Winters v. Adams, 254 F.3d 758, 766 (8th Cir. 2001), is
instructive. In that case, the Court noted
that the suspects conduct was very low on the severity scale
under either of the two possible
public offenses for which Davis could have been arrested;
nonviolent, simple misdemeanors.
III. NONE OF THE OFFICERS IS ENTITLED TO QUALIFIED IMMUNITY
A. Officer Canterbury
1. Canterburys Use of Force was Objectively Unreasonable
In Small v. McCrystal, 708 F.3d 997 (8th Cir. 2013), the Eighth
Circuit decided a case
with many factual similarities to the present case. The
plaintiff had claimed excessive force
claim, and the defendants asserted qualified immunity. In
deciding whether the officers were
entitled to a finding of qualified immunity on a motion for
summary judgment the court said:
Viewing the facts most favorably to Small: He was charged with
nonviolent
misdemeanors. He did not pose an immediate threat to the safety
of the officers or
others. He was walking away from them, toward his trailer. He
was not in flight
or resisting arrest. McCrystal had not advised him he was under
arrest. It was
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unreasonable for McCrystal to use more than de minimis force
against Small by
running and tackling him from behind without warning.
Small, 708 F.3d at 1005.
Force may unreasonable and unnecessary even if that force
resulted in de minimus injury.
Chambers v. Pennycook, 641 F.3d 898 (8th Cir. 2011).
2. Canterburys Conduct Violated a Well Established Right
In determining if qualified immunity exists, a court must also
consider whether the
Constitutional rights allegedly infringed were clearly
established at the time of the arrest.
Saucier v. Katz, 533 U.S. 194, 205 (2001). See also Burton v.
St. Louis Bd. of Police Commrs,
731 F.3d 784, 791-92 (8th Cir. 2013). A claim of qualified
immunity must fail if on an
objective basis, it is obvious that no reasonably competent
officer would have concluded the
defendants should have taken the disputed action. Davis v. City
of Albia, supra.
The Eighth Circuit has repeatedly held, The right to be free
from excessive force is a
clearly established right under the Fourth Amendments
prohibition against unreasonable
seizures of the person. Guite v. Wright, 147 F.3d 747, 750 (8th
Cir. 1998).
On a more fact specific basis, there is a plethora of case law
placing Officer Canterbury
and the Omaha Police Department on notice that their conduct in
using force to take Octavius to
the ground when he was complying with their commands and without
ascertaining his identity
was impermissible.
One instructive case is Atkinson v. City of Mountain View, Mo.,
709 F.3d 1201 (8th Cir.
2013). Atkinson involved a police officer, dressed in street
clothes who charged (without first
identifying himself as law enforcement) at Atkinson and slammed
into him causing serious
injuries. The district court determined that the defendants bull
rush was reasonable as matter
of law. However, the 8th Circuit Court of Appeals disagreed. The
Atkinson Court noted that the
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officer could not have reasonably assumed that the suspect was
actively resisting or attempting to
flee because Saunders [the officer] did not identify himself as
a police officer and because, as
Saunders admits, he did not attempt to arrest Atkinson [the
suspect] peacefully before physically
charging at Atkinson. Atkinson, 709 F.3d at 1210. The Court went
on to state:
A reasonable officer in Sanders positionwithout either of the
first two Graham factors to justify a forceful arrestwould not have
thought it appropriate to charge Atkinson without first identifying
himself as a law enforcement official
and giving Atkinson a chance to return the cell phone
peacefully. By remaining
anonymous, Sanders never gave Atkinson the opportunity to comply
with a
legitimate request by a law enforcement official.
Id. 709 F.3d at 1210. The Atkinson Court ultimately concluded
that:
Viewing the record in the light most favorable to Atkinson, we
decide the
unlawfulness of Sanders charging Atkinson would be clear to a
reasonable
officer in Sanders situation. Saucier, 533 U.S. at 202, 121
S.Ct. 2151. As a
general matter, [t]he right to be free from excessive force is a
clearly established
right under the Fourth Amendments prohibition against
unreasonable seizures of
the person. Guite v. Wright, 147 F.3d 747, 750 (8th Cir.1998).
Although we have
not previously confronted a situation identical to this case,
[t]here is no
requirement that the very action in question [be] previously ...
held unlawful.
Vaughn v. Ruoff, 253 F.3d 1124, 1129 (8th Cir.2001) (quoting
Anderson, 483 U.S.
at 640, 107 S.Ct. 3034). It is enough that earlier cases ...
g[a]ve Sanders fair
warning that [his] alleged treatment of Atkinson was
unconstitutional. Meloy
v. Bachmeier, 302 F.3d 845, 848 (8th Cir.2002) (quoting Hope v.
Pelzer, 536 U.S.
730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). On August 31,
2007, Sanders
had fair warning that charging at a non-resisting individual
without first
identifying himself as a police officer was unconstitutional in
the context of an
arrest.
Id. 709 F.3d at 1212.
The videotape of the event shows clearly that Octavius was not
fleeing or moving toward
Officer Canterbury. The case of Sloan v. Dulak, 868 F. Supp. 2d
535 (W.D. Va. 2012), involved
a dispute regarding whether a man had stopped fleeing from
police and complied with law
enforcement prior to the officers exercise of force. The United
States Court of Appeals for the
Sixth Circuit held:
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[H]ad Sloan been stopped for a sufficient amount of time to
indicate he was no
longer evading or resisting arrest and posed no threat to the
Officers safety, the Officers would likely not have been justified
in tackling him and would not be
entitled to protection under the qualified immunity doctrine.
Conversely, if Sloan
was still actively evading arrest or had only just stopped, such
that the Officers
did not have sufficient time to evaluate and react to Sloans
changed course of conduct, the Officers conduct would be analyzed
in accordance with Grahams protection for split-second
judgments.
Dulak, 868 F. Supp. 2d at 542.
In this instance, Octavius made no sudden moves and, in fact,
according to Octavius
testimony was turning to place his hands on the hood of his
truck at the direction of Officer
Canterbury when Canterbury came up behind him and seized
Octavius without warning from
behind. [Doc. 90-16 76:6-16; Doc. 90-7 13.] Canterbury asserts
that Octavius stiffening
following Canterburys grabbing his neck was a form of
resistance. However, it is virtually
impossible to imagine that someone being seized by the neck from
behind without warning or
knowledge that he or she is being placed under arrest would not
reflexively stiffen in a
spontaneous effort to protect against injury from the
anticipated fall. According to the officers,
when they decided to arrest Octavius he had not presented
identification and they believed that
he was the owner of the black Mustang and the owner of the
Mustang had an outstanding
misdemeanor arrest warrant.4
In Blackenhorn v. City of Orange, 485 F.3d 463 (9th Cir. 2007),
the Court concluded:
Blankenhorn was suspected of having committed a misdemeanor
trespass. When
Nguyen and Gray stopped him, he was talking with an adult friend
and was
accompanied by two young boys. Nguyen asked Blankenhorn what he
was doing
at the mall, and Blankenhorn responded that he was talking with
some friends. At
some point, Nguyen grabbed his arm and, when Blankenhorn pulled
free,
threatened to spray him with mace. Blankenhorn threw his drivers
license on the ground, but he did not take a combative stance,
clench his fists, or otherwise make
threatening gestures. When Nguyen asked him to kneel down so he
could be
handcuffed, Blankenhorn refused. Almost immediately, Nguyen,
Ross, and South
4 Demetrius Johnson, Octavius youngest brother, had a warrant
for failure to appear on a ticket for first offense littering.
[Doc. 90-18 50:14-51:6.]
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gang-tackled him. Nguyen did not try to handcuff Blankenhorn
before the three
officers tackled him. Blankenhorn struggled for several moments
before the
officers brought him to the ground. Once on the ground, however,
Blankenhorn
did not attempt to prevent the officers from handcuffing him.
Even so, Nguyen
punched him several times, and an officer or officers pushed his
face into the
pavement by shoving a knee into the back of his neck. Once
Blankenhorn was
subdued, the officers placed hobble restraints on his ankles,
which made it
difficult for Blankenhorn to move and breathe. If Blankenhorn
can prove the
events as set forth above, some or all of the Defendants would
probably be liable
for excessive force, both in their gang tackling, use of hobble
restraints, and in Nguyens punching of Blankenhorn.
Id. at 485 F.3d 478.
In this case although Octavius heard the words cuff him, or
something to that effect, he
did not hear that statement until he was moving to put his hands
on the hood of the truck to allow
the officers to frisk him. [Doc. 90-16 74:12-77:11.] Without
asking Octavius to put his hands
behind his back or telling him he was under arrest and without
any other warning, Officer
Canterbury seized Octavius by the neck and threw him to the
ground. [Doc. 90-16 76:6-16; Doc.
90-7 13.] Then, despite the fact that Octavius could not move
his arm in accordance with the
instructions of the officers, Officer Canterbury hit Octavius a
number of times.
The case of Wysong v. City of Heath, 260 Fed. Appx. 848 (6th
Cir. 2008) (not selected for
publication), involved a diabetic who claimed to be unconscious,
and thus, was not resisting
during any arrest. The Sixth Circuit determined that, [I]f
Wysong was not resisting, the
officers use of force was excessive and we hold that if the
officers struck him when he was
not resisting, they will not receive qualified immunity. The
same cases holding that police may
not use force on a subdued, non-resisting subject hold that the
right to be free from physical force
when one is not resisting the police is a clearly established
right. Id. 260 Fed. Appx. at 855.
The Eighth Circuit held in Brown v. City of Golden Valley, 574
F.3d 491,499 (8th Cir.
2009) that [I]t is clearly established that force is least
justified against nonviolent
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misdemeanants who do not flee or actively resist arrest and pose
little or no threat to the security
of the officers or the public.5
Finally, in Herrera v. Bernalillo Cnty. Bd. of Cnty. Commrs, 361
F. Appx. 924, 928
(10th Cir. 2010) (not selected for publication), the Court
determined that a jury could find
excessive force was used based on the following facts:
Mr. Herrera claims that he neither evaded the deputies nor
resisted their efforts to
arrest him, yet in spite of this, as they arrested him, three
deputies gang-tackled
him and applied sufficient force to tear ligaments in his knee.
Mr. Herrera
emphasizes that, when the deputies instructed him to stop and
threatened to shoot
him if he did not, he promptly complied, lying face down on the
ground with his
arms and hands visibly extended. He adds that, at the time the
deputies ordered
him to stop, he was not running but simply walking through the
field. And he
claims that he never said anything to the deputies to suggest
disobedience to their
commands.
Id.
In this case, if the jury believes Octavius testimony that he
was not attempting to escape
or resist, Canterbury is not entitled to immunity. It is clearly
established that when a person is
subdued and restrained with handcuffs, a gratuitous and
completely unnecessary act of violence
is unreasonable and violates the Fourth Amendment. Blazek v.
City of Iowa City, 761 F.3d 920
(8th Cir. 2014) quoting Henderson v. Munn, 439 F.3d 497, 503
(8th Cir. 2006). In this case the
videotape evidence shows that before his second set of strikes
Officer Canterbury looked up,
checked two directions, and then struck Octavius again. [Doc. 90
Ex. 15; Doc. 102-5 p.3; Doc.
102-7 p.5.] In addition, other officers examining Officer
Canterburys report against what could
be seen from the videotape concluded that it was unlikely that
Octavius could have attempted to
grab Officer Canterburys trousers prior to the second set of
punches to Octavius. [Doc. 102-6.]
By striking a non-resisting handcuffed individual Defendant
Canterbury failed to abide by
5 The City of Golden Valley case involved the use of force
through deployment of a taser.
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clearly established constitutional limits on the use of force
and failed to follow the procedures
established by the Omaha Police Department. Prior to a trial on
the disputed factual issues
Office Canterbury is not entitled to qualified immunity and his
motion for summary judgment
should be denied.
B. Officer Rowland
Several different actions by Officer Rowland raise questions
regarding her qualified
immunity. First, she went inside a private residence and made a
very forceful arrest of
Demetrius. Second, she chose to handcuff Sharon Johnson, an
individual who was inside her
home, had done nothing beyond being loud and obnoxious and who
was never under arrest.
Third, Officer Rowland re-entered the home after all the
residents were restrained and then
participated in a warrantless search of a cell phone taken from
Demetrius when he was
handcuffed.
It is well-established that warrantless searches and seizures
inside a home are
presumptively unreasonable. Mitchell v. Shearrer, 729 F.3d 1070
(8th Cir. 2013). Crucial issues
in determining if a search and seizure is lawful include the
location of the individual and the
individuals reasonable expectation of privacy. Duncan v. Storie,
869 F.2d 1100, 1102 (8th Cir.
1989). Therefore, we must examine each of Officer Rowlands
actions to determine if her
actions are entitled to immunity.
1. Arrest of Demetrius
Although Demetrius had a warrant for his arrest, Plaintiffs are
entitled to an inference
that Officer Rowland did not know when she entered the house
that it was Demetrius inside the
house. The inference arises from the fact that Officers Worm,
Canterbury, and Rowland testified
that part of the reason that they arrested Octavius was because
they believed he was the owner of
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the black Mustang and, therefore, was Demetrius the brother with
the outstanding warrant.
[Doc. 90-7 8.] Contradicting this testimony, however, Officer
Rowland testified in her
deposition in the criminal proceeding against Officer Kinsella
and in her affidavit in this case
that she spoke Demetrius name when she entered the house and he
responded. [Doc. 102-3
p.38.] However, watching the tape it is clear that there was no
time after Octavius was taken to
the ground when Officer Rowland could have determined Octavius
identity. [Doc. 90 Ex. 15.]
In addition, Demetrius testified that he never heard his name
called when the officers entered the
home and that no one even bothered to ask him his name until he
was in the police cruiser, under
arrest and on the way to jail. [Doc. 90-17 39:18-23.] Demetrius
version of the events is further
supported by the testimony of Officer Worm who also testified
that Demetrius was knocked
down when Officer Worm chased Juaquez into the residence and
threw Sharon from her
wheelchair.6 [Doc. 90-8 12.] Officer Worms testimony is
consistent with Demetrius
statement that he was on the floor when the officers entered the
residence.
Officer Rowlands testimony, however, which should not be
believed under the standard
for a motion for summary judgment, was that Demetrius was
standing when she entered the
residence and that he responded to his name. [Doc. 102-3 p.38.]
This Court cannot decide on
these disputed facts if Officer Rowland in fact knew Demetrius
identity and that he was the
brother with the warrant. Rather, Plaintiffs are entitled to the
inference that Officer Rowland did
not know when she entered the house that she was arresting
someone who had a warrant and,
therefore, the seizure of Demetrius inside the home is
presumptively unreasonable. Mitchell v.
6 Officer Worm originally told IA investigators that Juaquez
dumped Sharon from her
wheelchair but at a subsequent interview admitted that he,
Officer Worm, caused Sharon to be
thrown to the floor from her chair but that he believed it was
Juaquez responsibility because Juaquez ran into the house. [Doc.
102-7 p. 53-54.]
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Shearrer, supra. Even if Officer Rowlands testimony that she had
realized the person inside the
house was Demetrius is truthful, she is not entitled to claim
exigent circumstances to justify
her entrance into the home. According to the United States
Supreme Court, if the underlying
offense is relatively minor, the governments interest is reduced
and the presumption that a
warrantless search is unreasonable is difficult to rebut. Welsh
v. Wisconsin, 466 U.S. 740, 749-
50, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984).
2. Handcuffing Sharon Johnson
Starting from the point that any warrantless search and seizure
inside a residence is
presumptively unreasonable, Officer Rowland is clearly not
entitled to qualified immunity for
placing handcuffs on Sharon Johnson. In fact, the only
justification offered by Officer Rowland
for handcuffing Sharon was that Sharon had not obeyed Officer
Rowlands direction to stay
put, when Sharon was lying just inside the hallway of her own
home and the fact that because
Sharon uses a wheelchair Officer Rowland feared Sharon might
have exceptional upper body
strength. [Doc. 102-3 p.46-47.] However, even assuming that
Officer Rowland believed she had
probable cause to be in the house to arrest one of the brothers,
she had absolutely no probable
cause to restrain Sharon Johnson for anything. Any use of force
violates the Fourth Amendment
if it is objectively unreasonable under the facts and
circumstances of the particular situation.
Hemphill v. Hale, 677 F.3d 799, 800 (8th Cir. 2012). Because
Sharon Johnson could not stand or
walk without her wheelchair and was out of her wheelchair,
Officer Rowlands alleged level of
concern is not reasonable. Officer Rowland is not entitled to
qualified immunity for placing
Sharon Johnson in handcuffs.
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3. Warrantless Search of the Cell Phone
Officer Rowland has tried to downplay her participation in
searching the cell phone that
Demetrius was attempting to use to record the events that
incurred inside the Johnsons home.
However, it should have been clearly understood by all involved
that they had no right without a
warrant to be viewing recordings or other material on the cell
phone found on the floor after
Demetrius arrest. [102-1 17.] The officers had no reason to
believe the telephone was
evidence of a crime. Rather, the cell phone was the personal
property of one of the Johnson
family members and, therefore, not subject to warrantless search
or seizure. Finally, and most
importantly in the context of summary judgment, the only
reasonable inference that can be
drawn from the actions of the officers reviewing the video on
the cell phone and destroying the
SIM-card from the phone is that the officers believed that there
was something on that cell phone
that would have revealed improper conduct on their part. For
this reason alone, Rowland and the
other officers should not be granted qualified immunity on a
motion for summary judgment.
C. Officer Worm
The crime of obstructing a police officer requires the intent to
interfere or obstruct the
actions of officers in the performance of their duties. [Doc.
90-5.] The first time Juaquez went
into the street and was escorted back to the sidewalk by Officer
Worm could possibly have been
construed as demonstrating intent to interfere with the
officers. [Doc. 90 Ex. 15.] However,
after being walked back to the sidewalk by Officer Worm, Juaquez
never moved more than a
step or two away from the curb remaining far enough away from
Officer Canterbury and
Octavius to demonstrate that he did not have any intent to
interfere with the officers. In fact, the
video of the event shows that Juaquez was back on the grass
strip near the sidewalk and not in
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the street when Officer Worm suddenly bolted from his police
cruiser and began chasing
Juaquez. [Doc. 90 Ex. 15.]
In addition, there are disputed material facts which must be
construed in favor of the
Plainitiffs. Officer Worm alleges that he believed he had
probable cause to arrest Juaquez but he
does not say he told Juaquez he was under arrest. [Doc. 90-8
11.] Juaquez, however, states that
he was never told he was under arrest and that the only command
given to him by officer
Worm was for Juaquez to give the video camera to Officer Worm.
[Doc. 96-4 24:17-24, 52:9-
53:1.] If Juaquez account is believed as it must be for purposes
of summary judgment
Juaquez ran from Officer Worm only because he was frightened and
did not want to give up his
camera. [Doc. 96-4 24:17-24, 52:9-53:1.] According to commentary
in the internal affairs
summary report, Worm lacked probable cause for his arrest of
Juaquez. According to the report:
WORM said he arrested Juaquez for obstructing because he
diverted their
attention away from Octavius arrest and towing the cars; the
disorderly conduct charge was for Juaquezs verbal obscenities while
he was outside and in the street. (Juaquez did not seem to meet any
of the elements of a disorderly conduct arrest
because) WORM said Juaquez never squared off on him or take a
fighting stance
with him, Juaquez seemed to avoid WORM when WORM approached
or
confronted him, WORM said Juaquez did not resist while WORM
escorted him in
an arm bar back to the sidewalk; WORM said Juaquez started
swearing when
Octavius arrived but while Juaquez was on the sidewalk and in
the street during
Octavius arrest his main concern was the well-being of his
brother Octavius; and WORM said Juaquez was not combative or
resistive inside the house.
[Doc. 102-7 p. 56 (emphasis in original).]
Officer Worms actions are very similar to those addressed in
Robinson v. Fetterman,
378 F. Supp.2d 534 (E.D. Penn. 2005). In that case, an officer
arrested an individual for
videotaping police officers making truck inspections and charged
the individual with harassment,
a misdemeanor which, like obstruction, requires intent. In
finding the officer was not entitled to
qualified immunity, the court said:
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No reasonable trooper could have believed that Robinsons
videotaping on October 23, 2002 constituted harassment under
[Pennsylvania statutes]. That
statute provides, in relevant part: [a] person commits the crime
of harassment when, with the intent to harass, annoy or alarm
another, the person . . . (2) follows
the other person in or about a public place or places; [or]
engages in a course of
conduct or repeatedly commits acts which serve no legitimate
purpose.
Id. 378 F. Supp. at 541.
Because it was not reasonable for the trooper to believe the
crime of harassment had been
commited, the officer was not entitled to immunity. See also
Gilk v. Cunniffe, 655 F.3d 78 (1st
Cir. 2011) in which the United States Court of Appeals for the
First Circuit found it was not
reasonable for officers to arrest an individual openly recording
the police actions for a potential
wiretap violation on the basis that the recording was secret
because the officers did not know if
there was actually audio being recorded. Id., 655 F.3d at
88.
If Officer Worm lacked probable cause to arrest Juaquez then he
certainly lacked
probable cause to enter the house pursuing Juaquez, causing
injury and humiliation to Sharon by
knocking her out of her wheelchair. According to the United
States Supreme Court:
The Fourth Amendment has drawn a firm line at the entrance to
the house.
Absent exigent circumstances, that threshold may not reasonably
be crossed
without a warrant.
Payton v. New York, 445 U.S. 573, 584, 100 S. Ct. 1371, 63 L.
Ed. 2d 639 (1980).
Entering a house without a warrant and without probable cause is
a violation of a clearly
established Constitutional right.
Further, the defense of exigent circumstances is not available
in this case because the
right violated is of much greater importance than the
seriousness of the crime. See Welsh v.
Wisconsin, supra, holding that one of the factors that must be
considered in determining the
reasonableness of a warrantless search and seizure is the
seriousness of the crime.
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Also in this case, to the extent Juaquez flight could be
considered exigent
circumstances the only reason Juaquez ran was because Officer
Worm, without warning, began
chasing Juaquez. [Doc. 96-4 24:17-24, 52:9-53:1; Doc. 90 Ex. 15
Doc. 96-4 24:17-24, 52:9-
53:1.] Therefore, any exigent circumstances were created solely
by Officer Worm. If exigent
circumstances relied on by officers to enter a private residence
are created by the officers, the
officers are not entitled to qualified immunity. Kentucky v.
King, 131 S. Ct. 1849, 179 L. Ed. 2d
865, 79 U.S.L.W. 4306 (2011). Under the police created exigency
doctrine, police law
enforcement officers must be responding to an unanticipated
exigency rather than simply
creating the exigency for themselves. United States v. Chambers,
395 F.3d 563, 566 (6th Cir.
2005). Further, exigent circumstances are generally justified
only if they are intended to
preserve evidence or prevent imminent danger or harm to an
officer. See Brigham City v. Stuart,
547 U.S. 398, 403, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006). In
this case it was obvious or
should have been obvious to Officer Worm that Juaquez express
intent in running from him
after being told to give up his camera, was to preserve, not
destroy evidence. Officer Worm is
not entitled to qualified immunity at this stage of the
proceedings
D. Officers Kinsella, Von Behren, Reeve, Payne, and Koenig
Officers are not entitled to qualified immunity if the situation
shows facts demonstrating
a violation of a well-established Constitutional right. In the
present case, although the Officers
initial entry into the house after observing Officer Worm
pursuing Juaquez and assuming that
Worm had probable cause may have been reasonable, the officers
actions after that point violate
clearly established Constitutional rights guaranteed by the
Fourth and Fifth Amendments to the
Constitution.
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1. Officer Kinsella
Officer Kinsella violated rights in a number of ways. First, it
is well-established that the
use of force is not always permissible in an arrest. In this
case, Kinsella admitted that he used
strikes on Juaquez even though he did not complete a use of
force report. [Doc. 102-6; Doc.
102-7 p.70.] Kinsella was also the officer who was holding
Demetrius camera while the other
officers were looking at it. [Doc. 102-6.] Officer Kinsella also
removed the memory card from
the phone and threw it out the window of the patrol car. Id.
The inference to be drawn from Officer Kinsellas conduct is that
he knew that his use of
force was unjustified, he did not intend to report his use of
force, and he destroyed the SIM-card
to destroy any evidence that might exist documenting his use of
force on Juaquez. Officer
Kinsella is not entitled to qualified immunity.
2. Officer Von Behren
Officer Von Behren was one of the officers who directed other
officers to search the
home even after he knew or should have known that Officer Worm
and the other officers did not
have probable cause to enter the home. [Doc. 102-7 p.61.]
Officer Behren did direct some
officers not to enter the home but it was after telling those
officers not to enter the home that Von
Behren was involved in the unauthorized search of Demetrius cell
phone. [Doc. 102-7 p.61.] In
addition, Officer Von Behren admitted that he believed force had
been used inside the house,
creating the inference that he believed such force might have
been unjustified and that was the
reason for the concern over what was on the cell phone that
might have recorded what occurred
in the house. [Doc. 102-7 p.66.]
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3. Officer Reeve
Officer Reeve was also involved in the unauthorized search of
the cell phone and,
although he may not have known about its destruction, engaged in
conversations with his fellow
officers intended to keep the information about the cell phone
and the SIM-card from coming to
light during the investigation into the incident that occurred
March 21, 2013. [Doc. 102-6.]
4. Officer Payne
Officer Payne was involved in the arrest of Demetrius. Although
Demetrius had a
warrant for his arrest for the serious crime of first offense
littering no one properly identified
Demetrius until he was actually under arrest and in the police
car. Officer Payne did not observe
Demetrius do anything that would have caused his arrest and
there is no evidence that he asked
any of the other officers what Demetrius had done. It is a
well-established right to be free from
arrest absent probable cause or a warrant. The officers cannot
rely on the existence of a warrant
to arrest Demetrius because they did not ascertain his identity
prior to the arrest and, in fact, had
arrested Octavius in part because they believed he was
Demetrius.
In addition, Officer Payne was one of the officers who
handcuffed Sharon Johnson.
[Doc. 102-7 p. 61.]
5. Officer Koenig
Officer Koenig was involved in the arrest of Demetrius. [Doc.
102-7 pp.2,70.] Even
though Demetrius was already on the floor, he was tackled when
he was taken to the ground
and cuffed. [Doc. 90-17 34:15-35:19.] It is possible Officer
Koenig used a flying lunge in
arresting Demetrius which is consistent with Demetrius
description of the events. [Doc. 102-7
p.66.] Other officers also heard Officer Koenig bragging about
using his knees against
Demetrius. [Doc. 102-7 p.114.] The use of force in any situation
is contrary to the Fourth
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Amendment if the force is excessive under objective standards of
reasonableness. Saucier,
533 U.S. at 201-02. Demetrius Johnson was already on the floor
when he was tackled. There
is no testimony even suggesting that Demetrius was attempting to
resist. Even Officer
Rowlands questionable testimony that Demetrius was standing and
responded to his name
acknowledges that Demetrius was not resisting. [Doc. 102-3
p.41-42.] Officer Koenigs use of
force against a suspect who was already on the ground and who
offered no resistance to being
arrested is unreasonable as a matter of law.
CONCLUSION
In this case, there are internal inconsistencies and variations
of facts between the
testimony of various officers as well as between the Plaintiffs
and the Defendants and
independent eye witness accounts. When such inconsistencies
exist, summary judgment is not
proper. As stated in a similar case by the United States Court
of Appeals for the Eighth Circuit:
Because of the internal discrepancies and variations in the
officers testimony, among other things, there remain factual issues
in dispute that prohibit a grant of
summary judgment. The current record does not conclusively
establish the
reasonableness of the officers actions or beliefs. Therefore, we
agree with the District Court that summary judgment on the basis of
qualified immunity is
inappropriate.
Wilson v. City of Des Moines, Iowa, 293 F.3d 447 (8th Cir.
2002).
Because of the unresolved factual issues that must examined to
determine if the actions of
the officers were reasonable under the circumstances, this Court
should deny each of the
Defendants motions for summary judgment on the issue of
qualified immunity.
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Dated this 29th day of May, 2015.
OCTAVIUS JOHNSON, JUAQUEZ
JOHNSON, DEMETRIUS JOHNSON,
SHARON JOHNSON and SHAREE JOHNSON
By: /s/ Diana J. Vogt
Diana J. Vogt, NE Bar #19387
SHERRETS BRUNO & VOGT LLC
260 Regency Parkway Drive, Suite 200
Omaha, NE 68114
(402) 390-1112 (phone)
(402) 390-1163 (fax)
[email protected]
AMERICAN CIVIL LIBERTIES UNION
COOPERATING ATTORNEY
and
Amy Miller, NE Bar #21050
ACLU Nebraska Foundation, Inc.
941 O Street, #706
Lincoln, NE 68508
(402) 476-8091 (phone)
(402) 476-8135 (fax)
[email protected]
CERTIFICATE OF SERVICE
I hereby certify that on this 29th day of May, 2015, I filed a
true and correct copy of this
document with the United States District Court for the District
of Nebraska, using the EC/CMF
electronic filing system, which will electronically serve a copy
on all parties registered with this
Court for electronic service. I further certify that I am aware
of no parties who are not registered
with the electronic filing service.
/s/ Diana J. Vogt
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