Opinion
8:98CV466
October, 2000
MEMORANDUM AND ORDER
This matter comes before the Court on the plaintiff's objection (filing 66) to the magistrate judge's report and recommendation (filing 63). In her report and recommendation, the magistrate judge recommended that the defendants' motion for summary judgment be granted, that the plaintiff's motion to deny summary judgment be denied, and that the plaintiff's motion to dismiss defendant Rogers be granted. The plaintiff objects to the magistrate judge's conclusion of law that defendants Sergeant Phinney and Trooper Greg Goltz are entitled to qualified immunity as a matter of law (filing 66).
I. Standard of Review
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The Court may also receive further evidence or remand the matter to the magistrate judge with instructions.
II. Discussion
Excessive force claims are analyzed under the Fourth Amendment to the United States Constitution, and the test is whether the amount of force used was objectively reasonable under the particular circumstances of the case. Brandt v. Davis, 191 F.3d 887, 891 (8th Cir. 1999) ( citing Greiner v. City of Champlin, 27 F.3d 1346, 1354 (8th Cir. 1994)). The United States Supreme Court has declared that "[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Graham v. Connor, 490 U.S. 386, 396-97 (1989). Moreover, the Eighth Circuit has cautioned that "[a] court should not judge an officer's conduct in hindsight; rather, a court examining an excessive force claim should place itself in the shoes of a reasonable officer under the circumstances." Brandt, 191 F.3d at 892 (c iting Foster v. Metropolitan Airports Comm'n, 914 F.2d 1076, 1082 (8th Cir. 1990)).
A reasonable evaluation focuses on "whether the officers' actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Brandt, 191 F.3d at 892 ( quoting Graham, 490 U.S. at 397). The Eighth Circuit has instructed that "[c]ircumstances such as the severity of the crime, whether the suspect posed a threat to the safety of the officers or others, and whether the suspect was resisting arrest are all relevant to the reasonableness of the officer's conduct." Moore v. Novak, 146 F.3d 531, 535 (8th Cir. 1998). If a complainant's injuries are likely explained by the actions of the arrestee, then his allegations cannot establish a material issue of fact regarding whether the arresting officers used excessive force. Brandt, 191 F.3d at 892 (c iting Greiner, 27 F.3d at 1355)).
In his brief in support of his objection to the Report and Recommendation, the plaintiff contends that he was maliciously shot by an Trooper Goltz because he did not respond fast enough to an order. Cooper believes that a genuine issue of material fact exists and that therefore summary judgment is inappropriate. The Court does not agree.
The undisputed facts establish that the on the morning of December 11, 1997, Nebraska State Patrol ("NSP") Investigator J. M. Phinney spoke with the plaintiff's wife who told Phinney that her husband was seriously ill, heavily armed, and dangerous. The plaintiff's wife relayed to Phinney a horrific story of being doused with gasoline by Cooper while he threatened to ignite her, discharged a firearm near her head, shot holes into nearby windows to ensure sufficient air for the fire to burn, and placed a dog chain around his wife's neck. The plaintiff's wife told Phinney that the domestic abuse occurred on December 9-10 and that Cooper had forced her to carry two rifles, a shotgun, a pair of binoculars, and a homemade knife to a truck parked near the house. Based on the information provided by the plaintiff's wife, the Hamilton County Sheriff obtained arrest warrants for Cooper and contacted the Nebraska State Patrol's Emergency Services Team ("EST") for assistance in executing the warrants.
The undisputed facts further establish that the plaintiff did not surrender to law enforcement officials until several hours had passed with intermittent communications occurring on a bullhorn and throw phone. The Court agrees with the magistrate judge's finding that this significant delay in surrendering evidenced the plaintiff's intent to resist arrest. Furthermore, the plaintiff does not dispute that he failed immediately to comply with the officers' order to drop the throw phone and lay on the ground. Rather, he only argues that he didn't comply because he was overwhelmed by the sight of three heavily armed officers rushing towards him with weapons pointed. While the plaintiff's explanation for his noncompliance may be plausible, the critical facts remain that (1) the plaintiff was alleged to have committed a serious crime of domestic violence; (2) that as long as Cooper remained at large and in close proximity to lethal weapons, he posed a threat to the safety of officers; (3) the scene of the arrest was tense and uncertain; and (4) Cooper failed to comply immediately with a direct order to drop the throw phone and lay on the ground. Graham, 490 U.S. at 397, and Moore, 146 F.3d at 535.
In light of these critical and undisputed facts, the Court adopts the magistrate judge's legal conclusion that the officers' use of non-lethal force was objectively reasonable under the totality of the circumstances. As such, the officers are entitled to qualified immunity from suit. The Court further adopts the magistrate judge's recommendations to grant the motion for summary judgment filed by defendants Goltz, Rogers and Phinney; to deny the plaintiff's motion to deny summary judgment; and to grant the plaintiff's motion to dismiss defendant Rogers.
IT IS HEREBY ORDERED:
The report and recommendation of the magistrate judge (filing 63) is adopted;
The plaintiff's objection to the report and recommendation (filing 66) is overruled;
The motion for summary judgment filed by defendants Goltz, Rogers, and Phinney (filing 56) is granted;
The plaintiff's motion to deny summary judgment (filing 61) is denied; and
The motion to dismiss defendant Rogers filed by the plaintiff (filing 62) is granted.