Opinion
Case No. 17-cv-839 (JNE/KMM)
04-01-2019
Brett August KOHORST, Plaintiff, v. Thomas J. SMITH and Steven Stoler, in their individual capacities as Burnsville Police Officers, Defendants.
Jeffrey M. Montpetit, SiebenCarey, Jeffrey S. Storms, Paul Convery Dworak, Newmark Storms Dworak LLC, Minneapolis, MN, for Plaintiff. Joseph E. Flynn, Patti J. Skoglund, Jardine Logan & O'Brien PLLP, Lake Elmo, MN, for Defendants.
Jeffrey M. Montpetit, SiebenCarey, Jeffrey S. Storms, Paul Convery Dworak, Newmark Storms Dworak LLC, Minneapolis, MN, for Plaintiff.
Joseph E. Flynn, Patti J. Skoglund, Jardine Logan & O'Brien PLLP, Lake Elmo, MN, for Defendants.
ORDER
JOAN N. ERICKSEN, United States District Judge
This matter is before the Court on Defendants Thomas J. Smith and Steven Stoler's Motion for Summary Judgment. Plaintiff Brett August Kohorst brings suit against Smith and Stoler, in their individual capacities as Burnsville police officers, alleging that the officers used excessive force against him in violation of his rights under the Fourth Amendment to the United States Constitution. For the following reasons, the Court grants Defendants' Motion for Summary Judgment.
Factual Background
On the evening of November 19, 2015, Kohorst and his friend were dropped off in a neighborhood near Lake Crystal, Minnesota, after spending some time at a movie theater in Burnsville, Minnesota. After dropping the men off, the driver noticed that Kohorst and his friend were "knocking on random doors" in the neighborhood and had walked a block and a half away from where she had left them. Concerned that the men might freeze or walk into a nearby lake, the driver called 911 and stated her concerns for the men's safety. She also indicated that the men were intoxicated and had been involved in an altercation earlier that night at the Burnsville movie theater. Burnsville Police Officer Thomas J. Smith was dispatched in response to the 911 call.
The Burnsville Computer Aided Dispatch system ("CAD") sends electronic messages to dispatched Burnsville police officers, which they can view on laptops in their squad cars. The following comments appear on the CAD system records:
2 INTOXICATED WMALES = ONE TALL 6FT BLONDE WHITE
SKINNY OTHER 5FT 8IN
SKINNY INTOXICATED AND WALKING ON FOOT TOWARDS
BUTTERNUT LANE [REPORTING PERSON] HAD
DROPPED THEM OFF FROM THE MOVIE THEATER = MALES
TOLD [REPORTING PERSON] THATS WHERE THEY
LIVE – [REPORTING PERSON] BELIEVES IT IS NOT AND
CONCERNED FOR THEIR
SAFETY
THE TWO MALES ARE POSSIBLE SUSP IN PREVIOUS FIGHT AT
THE BURNSVILLE MOVIE
THEATER
CAD Message, ECF No. 54-2, Flynn Decl., Ex. B. Smith testified that he reviewed the contents of the above CAD message before encountering Kohorst and was therefore aware that Kohorst was a possible suspect in an earlier fight at the Burnsville movie theater. See Smith Dep., ECF No. 54-1, Flynn Decl., Ex. A.
As Smith arrived on the scene, he observed one of the two reported intoxicated males, later identified as Kohorst. Smith wore a body cam, which he activated before interacting with Kohorst. When Smith began interacting with Kohorst, he was the only police officer on the scene.
There are several body cam videos. The two primary videos are titled "Obstruction File 5—Smith Body Cam (Incident)," Flynn Decl., ECF No. 54-7, Ex. G and "Slip the Cuffs—Hobble Restraint—Oelrich Body Cam," ECF No. 54-22, Flynn Decl., Ex. EE.
Smith asked Kohorst to take a seat on the bumper of Smith's squad car, but Kohorst remained standing. Smith again asked Kohorst to sit on Smith's car and also to remove his hands from his pockets. Smith asked Kohorst if there was something in his shirt and touched the front of Kohorst's jacket. Kohorst asked Smith why Smith was "touching" him. Smith responded that Kohorst's "pants were undone, you're drunk, and you're lost," and that "someone called us because they think you guys are lost and drunk." Kohorst continued to place his hands in his pockets, despite Smith's repeated requests to remove them.
Later in the video Smith removes several papers from inside of Kohorst's jacket.
Smith asked for Kohorst's address and identification. Kohorst turned his body away from Smith and produced his wallet from his pocket, holding the wallet against the front of his chest with one hand and placing his other hand back into his pocket. As Smith reached for Kohorst's wallet, Kohorst pulled the wallet away from Smith's grasp and moved it behind his own back. Smith responded by grabbing Kohorst's arm and attempting to place him in an escort hold. Smith later testified that he believed Kohorst was going to fight with him or try to flee because Kohorst was tensing his body and pulling away. See Smith Dep., ECF No. 54-1.
While both men were still standing, Smith called for assistance on his microphone and told Kohorst, "Do not fight with me." Seconds later, Smith directed Kohorst to the ground using an arm-bar takedown.
The arm-bar takedown consisted of the following movements: Smith extended Kohorst's right arm, exerted pressure on his shoulder towards the ground, and directed him to the ground. Smith was trained to use the arm-bar maneuver, along with other techniques, to control resistant subjects. See Brave Report, ECF No. 54-20, Flynn Decl., Ex. T.
After the takedown, Smith repeatedly ordered Kohorst to place his hands behind his back and tried, unsuccessfully, to handcuff Kohorst. The officer warned Kohorst that he would be tased if he continued to resist. Kohorst nevertheless opposed Smith's attempts to position his arms behind his back. Smith tased Kohorst in "drive stun mode," applying the taser to Kohorst's back. Smith then tried to gain control of Kohorst's arms, but Kohorst rolled onto his back. Smith ordered Kohorst to roll over to his stomach and put his hands behind his back so he could be handcuffed. Instead of rolling onto his stomach, Kohorst sat up. Smith then pressed his right hand on Kohorst's shoulder, directing him back to the ground. This action caused Kohorst's chin to strike the pavement, resulting in a laceration that required stitches. Smith again ordered Kohorst to place his arms behind his back, but Kohorst did not comply. Kohorst then rolled onto his back, lifted his legs towards Smith, and appeared to kick in Smith's direction. Smith pushed Kohorst's legs down and continued to order Kohorst to put his arms behind his back.
Smith claims the taser did not function properly during this deployment.
Smith discharged the taser a second time into Kohorst's backside, this time in "barb mode." As the taser discharged, Kohorst held his left hand behind his back and his right arm under his chest. Smith ordered Kohorst to place both his hands behind his back. After the taser discharged, Smith attempted to move Kohorst's right hand behind his back, but Kohorst opposed Smith's efforts and pulled both arms under his chest. Smith discharged his taser again in "barb mode" into Kohorst's backside and ordered Kohorst to put his hands behind his back. Kohorst then voluntarily moved his hands behind his back and Smith placed Kohorst into handcuffs.
Burnsville police Sergeant Stoler arrived on the scene as Smith handcuffed Kohorst. Officers Warnemunde and Oelrich arrived next, and Kohorst was placed in the back of Warnemunde's and Oelrich's squad car. Warnemunde monitored Kohorst from the driver's seat of the squad car while the officers and Kohorst waited at the scene for the paramedics to arrive. Warnemunde testified that Kohorst began to kick the interior of the squad car door. See Warnemunde Dep., ECF No. 54-5, Flynn Decl., Ex. E. Warnemunde further testified that when he told Kohorst to stop, Kohorst began to slam his head into the plexiglass partition separating the front and back of the squad car. Warnemunde activated his body cam and exited the car.
Moments later, Stoler opened the rear door of the squad car containing Kohorst. The officers observed that Kohorst had moved his handcuffs between his legs, with one leg raised above the handcuffs. Stoler explained to Kohorst that he needed to exit the vehicle so Stoler could reapply the handcuffs. Stoler told Kohorst: "Relax and follow along and everything will be fine. Okay?" As Kohorst did not appear to agree, Stoler continued:
"Now listen ... listen to me. You're going to come out here, lay down, and we're going to handcuff you and you're not going to give us any problems. Are you clear? If you give us problems, you will be tased again."
Transcript of "Slip the Cuffs—Hobble Restraint—Oelrich Body Cam," ECF No. 54-11, Flynn Decl., Ex. K. Kohorst did not exit the squad car. Stoler was unable to release the handcuffs while Kohorst remained seated in the squad car because, according to Stoler's testimony, Kohorst twisted his hands. See Stoler Dep., ECF No. 54-10, Flynn Decl., Ex. J. Oelrich suggested that Stoler "Just pull [Kohorst] out of the car like that" in order to reapply the handcuffs. "Slip the Cuffs—Hobble Restraint—Oelrich Body Cam," ECF No. 54-22. Stoler picked Kohorst up from his seated position with two hands and moved him to the street. Stoler appears to bring Kohorst to the ground on Kohorst's left side. Kohorst alleges that his head struck the ground, although Stoler testified that he controlled Kohorst's body so that his head did not hit the ground. See Stoler Dep., ECF No. 54-10. Once Kohorst was outside the car, the officers re-cuffed him and applied a hobble restraint.
Kohorst was transported by ambulance to the Fairview Ridges Hospital and later to jail. The doctor documented that Kohorst had a chin laceration, as well as facial abrasions and contusions. The doctor noted no concern for skull fracture or intercerebral hemorrhage and Kohorst's neurological exam was normal. Two days later, on November 21, 2015, Kohorst was diagnosed with a concussion. Kohorst testified at his deposition that he has no memory of any of the relevant events. See Kohorst Dep., ECF No. 54-16, Flynn Decl., Ex. P.
In a report dated August 30, 2018, Plaintiff's Expert Maureen Hackett, MD, DFAPA, describes several other physical and psychological ailments experienced by Kohorst allegedly as a result of the November 19, 2015 incident. See ECF No. 60, Storms Decl., Ex. 10. Dr. Hackett reports that in January 2016, Kohorst was diagnosed with acute stress reaction, retrograde amnesia, concussion, major depressive disorder, anticipatory anxiety and insomnia due to psychological distress. Id.
Smith completed an Incident Report and a Use of Force Report for the disputed encounter. See Smith Incident Report, ECF No. 54-21, Flynn Decl., Ex. U; Use of Force Report, ECF No. 57-1, Storms Decl., Ex. 5. Stoler did not complete a Use of Force Report. On November 20, 2015, Kohorst was charged with one count of gross misdemeanor obstruction of legal process and one count of misdemeanor disorderly conduct. See Michael Brave Expert Report, ECF No. 54-20, Flynn Decl., Ex. T. These charges arose from Kohorst's interactions with the Defendants on November 19, 2015. Id. Kohorst subsequently pled guilty to an amended charge of disorderly conduct related to the fight at the Burnsville movie theater on November 19, 2015 and the other two charges against Kohorst stemming from his interactions with the Defendants were dismissed. Id.
Discussion
Kohorst brings this action pursuant to 42 U.S.C. § 1983 and claims that Smith and Stoler used excessive force against him in violation of his Fourth Amendment rights. Smith and Stoler move for summary judgment on grounds that they are immune from suit under the doctrine of qualified immunity. "Qualified immunity shields government officials from liability in a § 1983 action unless the official's conduct violates a clearly established constitutional or statutory right of which a reasonable person would have known." Brown v. City of Golden Valley , 574 F.3d 491, 495 (8th Cir. 2009) (citing Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) ). "On summary judgment, a defendant official is entitled to qualified immunity unless ‘(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.’ " Walton v. Dawson , 752 F.3d 1109, 1116 (8th Cir. 2014) (quoting Howard v. Kan. City Police Dep't , 570 F.3d 984, 988 (8th Cir. 2009) ).
Moreover, summary judgment is proper "if the movant shows 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). A genuine dispute exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To support an assertion that a fact cannot be or is genuinely disputed, a party must cite "to particular parts of materials in the record," show "that the materials cited do not establish the absence or presence of a genuine dispute," or show "that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A)-(B). In determining whether summary judgment is appropriate, a court views the record and all justifiable inferences in favor of the non-movant. Liberty Lobby , 477 U.S. at 255, 106 S.Ct. 2505.
I. Section 1983 Claims Against Smith and Stoler
When evaluating excessive force claims under § 1983, "[t]he test is whether the amount of force used was objectively reasonable under the particular circumstances." Michael v. Trevena , 899 F.3d 528, 532 (8th Cir. 2018) (internal citations omitted). "Objective reasonableness is ‘judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’ " Id. (quoting Graham v. Connor , 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ). "The 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 , 490 U.S. at 396–97, 109 S.Ct. 1865. "The assessment ‘requires careful attention to the facts and circumstances of each particular case, including the 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.’ " Trevena , 899 F.3d at 532 (citing Graham , 490 U.S. at 396, 109 S.Ct. 1865 ) (listing the Graham factors). "In addition to the circumstances surrounding the use of force, we may also consider the result of the force." Crumley v. City of St. Paul , 324 F.3d 1003, 1007 (8th Cir. 2003).
In light of the undisputed facts and after drawing all justifiable inferences in Kohorst's favor, the Court finds that Smith and Stoler used objectively reasonable amounts of force and therefore did not violate any of Kohorst's constitutional rights. Finding no genuine disputes of material fact, the Court concludes, as explained below, that Smith and Stoler are entitled to summary judgment pursuant to the doctrine of qualified immunity.
A. Smith's Takedowns
Kohorst first claims that Smith's arm-bar takedown and subsequent use of force to keep Kohorst on the ground were excessive. The Court disagrees with Kohorst and for the following reasons finds that Smith's takedowns were objectively reasonable under the circumstances.
Kohorst claims that he should be considered a nonviolent misdemeanant. In support, Kohorst speculates that Smith did not see the CAD message concerning "THE TWO MALES" who were "POSSIBLE SUSP IN PREVIOUS FIGHT" and consequently had no basis to suspect Kohorst of fighting at the Burnsville movie theater. Kohorst notes that Smith did not specifically mention the previous fight while interacting with Kohorst, nor did Smith reference the fight in his Incident Report or Use of Force Report. Moreover, the first time Smith explicitly linked Kohorst to the Burnsville fight was in a supplemental report that Smith wrote after learning that Kohorst filed a complaint against him.
Kohorst notes that Officer Warnemunde testified that "a lot" of officers shut the laptops that display CAD messages because they "want to be more aware of their surroundings" while responding to calls. Warnemunde Dep., ECF No. 54-5.
But Kohorst's speculation does not create a genuine dispute of fact. Smith testified that he reviewed the relevant CAD message before encountering Kohorst. See Smith Dep., ECF No. 54-1. And the record supports Smith's testimony. Notably, Smith appears to reference details from the CAD message in his conversation with Kohorst. For example, Smith told Kohorst that "someone called us cuz [sic ] they think you guys are lost and drunk. The guy who dropped you off here." Transcript of "Obstruction File 5—Smith Body Cam (Incident)," Flynn Decl., ECF No. 54-6, Ex. F. The CAD message informed Smith that the 911 reporter "DROPPED [Kohorst and his friend] OFF FROM THE MOVIE THEATER" and that the 911 reporter was "CONCERNED FOR [Kohorst's and his friend's] SAFETY." CAD Message, ECF No. 54-2. Furthermore, Smith wrote in the Incident Report that he was dispatched "to check in [sic ] two intoxicated males," which is consistent with the CAD message that dispatched Smith to check on "2 INTOXICATED WMALES." The Court is therefore not persuaded by Kohorst's argument that Smith did not see the CAD message and consequently had no basis to suspect Kohorst of violent conduct.
Smith believes "WMALES" means "white males." See Smith Dep., ECF No. 54-1.
Furthermore, Smith's knowledge of Kohorst's possible involvement in the Burnsville movie theater fight is immaterial. Even if Smith did not suspect Kohorst of fighting, Kohorst's conduct during the encounter with Smith justified Smith's uses of force. "Resistance may justify the use of greater force." Crumley , 324 F.3d at 1008 (finding that woman's "defensive" movements away from an officer "to keep him from getting hold of her once he pushed her" constituted resistance). The undisputed video evidence shows that Kohorst ignored Smith's repeated orders to sit on the bumper of Smith's squad car and to remove his hands from his pockets. Moreover, when Smith began reaching for Kohorst's identification, Kohorst yanked his wallet away from Smith's hand. Kohorst then pulled away from Smith as Smith tried to secure Kohorst's arm, prompting Smith to state repeatedly "Don't fight with me" and "Put your hands behind your back," before bringing Kohorst to the ground using an arm-bar takedown maneuver. Similarly, before Smith directed Kohorst to the ground a second time, Kohorst had rolled onto his back and attempted to sit up, despite Smith's orders to "roll over" and "put your hands behind your back." The video evidence thus shows that Kohorst resisted arrest, which further supports the reasonableness of Smith's forceful response. See Ehlers v. City of Rapid City , 846 F.3d 1002, 1011 (8th Cir. 2017) (holding that an arresting officer did not violate a constitutional right by executing a spin takedown and tasing a man who ignored the officer's orders to place his hands behind his back and instead walked away from the officer).
Because the Court's inquiry turns on the objective reasonableness of the officers' conduct, Kohorst's claim that Smith and Stoler used force because they were frustrated by Kohorst's failure to comply with orders does not impact the Court's analysis. See Hicks v. Norwood, 640 F.3d 839, 843 n.8 (8th Cir. 2011).
Kohorst argues, unpersuasively, that his resistance was "de minimis" under Rohrbough v. Hall , 586 F.3d 582, 586 (8th Cir. 2009) (finding that a jury could conclude that arrestee's single push against officer was "de minimis" resistance). But unlike the subject in Rohrbough , Kohorst repeatedly ignored Smith's orders and continuously resisted physical direction. Moreover, Smith's encounter with Kohorst unfolded under tense, uncertain, and rapidly-evolving circumstances: the men encountered each other at night, alongside a road, and Smith had no backup and feared that a second intoxicated male subject was close at hand. Compare Vester v. Hallock , 864 F.3d 884, 886 (8th Cir. 2017) (finding arm-bar takedown justified where officer encountered a noncompliant and potentially dangerous suspect without backup), with Brown , 574 F.3d at 498 (finding force less justified where four officers were present than in separate case where only one officer was present). Under these circumstances, neither Smith's arm-bar takedown nor Smith's subsequent takedown rises to the level of force required to constitute a constitutional violation. See Hicks v. Norwood , 640 F.3d 839, 842 (8th Cir. 2011) (holding that an arm-bar takedown maneuver was objectively reasonable to subdue a pretrial detainee who the officer reasonably believed threatened his safety). Accordingly, Smith is entitled to qualified immunity on Kohorst's claim that Smith used excessive force to take him to the ground.
The Court notes that these circumstances also distinguish the present case from Karels v. Storz , 906 F.3d 740 (8th Cir. 2018). The Eighth Circuit held in Karels that a jury could have found that a reasonable officer would not have interpreted a "drunk and argumentative" woman's actions as noncompliance and would have known that the woman, who was in her own garage, was neither an immediate threat to anyone's safety nor a flight risk. See id. at 745-46. Karels is further distinguishable because the disputed encounter was not videotaped, unlike here, where video evidence depicts Kohorst's active resistance. Finally, insofar as Karels provides helpful precedent to Kohorst, the Court notes that because Karels was decided after November 19, 2015, it has no bearing on what was clearly established law as of that date.
B. Smith's Use of the Taser
Kohorst next claims that Smith's use of the taser against him violated his Fourth Amendment right to be free from excessive force. For the following reasons, all three times Smith used his taser against Kohorst were objectively reasonable under the circumstances. "[I]t is clearly established that force is least justified against nonviolent misdemeanants who do not flee or actively resist arrest and pose little or no threat to the security of the officers or the public." Brown , 574 F.3d at 499 (citations omitted). In Brown , officers used a taser on a passenger in a car whose husband had been pulled over after driving erratically. Id. at 494. The court held that "the law was sufficiently clear to inform a reasonable officer that it was unlawful to Taser a nonviolent, suspected misdemeanant who was not fleeing or resisting arrest, who posed little to no threat to anyone's safety, and whose only noncompliance with the officer's commands was to disobey two orders to end her phone call to a 911 operator." Id. at 499. In contrast, in Ehlers , responding officers "could have interpreted Ehler's behavior of continuing to lay on his hands and refusing to comply with instructions as resistance and reasonably responded .... by using the taser." 846 F.3d at 1011 (citing Carpenter v. Gage , 686 F.3d 644, 649-50 (8th Cir. 2012) ).
Kohorst's conduct is more like the arrestee in Ehlers than in Brown . Unlike the arrestee in Brown , Kohorst was not a nonviolent misdemeanant. Smith had reason to believe that Kohorst was involved in a fight before the encounter and Kohorst had physically resisted Smith's attempts to control him during the encounter. And like the arrestee in Ehlers , Kohorst repeatedly failed to comply with orders to place his arms behind his back. Moreover, despite warnings that he would be tased if he did not comply, Kohorst rolled around, attempted to stand up, kicked in Smith's direction, and repeatedly pulled his arms under his chest, even as Smith tried to pry his arms behind his back. In fact, Kohorst continued to pull his right arm under his chest until after Smith deployed the taser a third time. Although Kohorst maintains that he attempted to comply with Smith's orders, an officer could have reasonably interpreted Kohorst's movements as deliberate resistance, not as an innocent inability to comply due to inebriation, the effects of unrelated physical trauma, or lack of time. See Ehlers , 846 F.3d at 1011 ; Carpenter , 686 F.3d at 649-50. Smith's use of the taser was an objectively reasonable response to the resistance he reasonably perceived. Smith is therefore entitled to qualified immunity on Kohorst's claim related to Smith's use of the taser.
C. Stoler's Takedown
Kohorst finally claims that Stoler used excessive force in removing him from the squad car. For the following reasons, Stoler's use of force was objectively reasonable under the circumstances.
First, it was objectively reasonable for Stoler to remove Kohorst from the squad car when Kohorst was at minimum passively resistant. See Wertish v. Krueger , 433 F.3d 1062, 1066-67 (8th Cir. 2006) ("When a suspect is passively resistant, somewhat more force may reasonably be required."). When Stoler encountered Kohorst in the backseat of the squad car, Kohorst had maneuvered his handcuffs between his legs and was bent over with one leg above the cuffs. While in that contorted position, Kohorst ignored Stoler's repeated orders to move out of the car and instead prevented Stoler from removing the handcuffs by twisting his hands. Owing to Kohorst's uncooperative movements in the backseat of the squad car, it was objectively reasonable to move Kohorst from the squad car to the ground, where the officers could effectively restrain him.
The record supports Stoler's testimony that Kohorst was twisting his hands while Stoler tried to remove the cuffs. For example, although Kohorst's hands are not completely visible on the available video evidence of the encounter, it is possible to hear Stoler tell Kohorst "don't twist your hand" while leaning in towards Kohorst. See ECF No. 54-22, Flynn Decl., Ex. EE. Without any contradictory evidence in the record, the Court concludes that there is no genuine issue of fact as to whether Kohorst twisted his hands while Stoler attempted to remove the handcuffs.
Second, a reasonable officer in Stoler's position could conclude that Kohorst was likely to fight back while Stoler attempted to remove Kohorst's handcuffs. "If an officer reasonably, but mistakenly, believed that a suspect was likely to fight back, for instance, the officer would be justified in using more force than in fact was needed." Saucier v. Katz , 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Shortly before Stoler initiated the relevant interaction, Kohorst had kicked at the inside of the squad car door and had hit his head against the plexiglass partition. Further, Stoler's knowledge that Kohorst had previously resisted Smith's efforts to subdue him, combined with Kohorst's noncompliance in the backseat of the squad car supported a reasonable belief that Kohorst might try to fight back. Quickly moving Kohorst to the ground was an objectively reasonable tactic to minimize Kohorst's ability to do so.
The record supports Warnemunde's testimony that Kohorst kicked the inside of the squad car door and hit his head against the plexiglass partition. Although Kohorst was not moving vigorously when Stoler opened the squad car door, Kohorst had maneuvered his handcuffs from behind his back to in between his legs sometime between when the officers' placed Kohorst in the squad car and when Stoler opened the squad car door. The fact that Kohorst had moved his body into that contorted position supports Warnemunde's testimony that Kohorst hit parts of his body against the squad car interior while moving around. Because Kohorst does not cite anything in the record to dispute this finding, the Court credits Warnemunde's testimony in this regard.
Third, the force Stoler used to bring Kohorst to the ground was not gratuitous. In Blazek v. City of Iowa City , the Eighth Circuit found that "gratuitously" jerking a compliant arrestee who was fully restrained in handcuffs with "enough violent force to cause significant injury" would contravene clearly established law. See 761 F.3d 920, 925-26 (8th Cir. 2014). Unlike the arrestee in Blazek , video evidence shows that Kohorst was neither compliant nor fully restrained when Stoler moved him from the squad car to the ground. As noted above, Kohorst had been flailing around in the backseat of the squad car and had maneuvered the handcuffs between his legs. More importantly, Stoler's use of force was not a "gratuitous and completely unnecessary act of violence." Id. at 925. The video shows that Stoler moved Kohorst to the ground on his side, which reduced the risk of Kohorst's head striking the pavement. And even if Stoler could possibly have treated Kohorst more gently, his forceful actions were tailored to a legitimate purpose: quickly moving Kohorst to the ground where the officers could safely apply handcuffs and a hobble restraint. See id. at 926 (citing Jackson v. City of Bremerton , 268 F.3d 646, 652-53 (9th Cir. 2001) ) ("[O]fficers are not required to treat detainees as gently as possible."). The Court accordingly finds that Stoler's use of force was not gratuitous.
Finally, Kohorst's injuries do not create a genuine issue of fact as to whether Stoler used an unreasonable amount of force. Kohorst was diagnosed with a concussion two days after the encounter with Stoler and Smith, and a further diagnosis in January 2016 included acute stress reaction, retrograde amnesia, concussion, major depressive disorder, anticipatory anxiety, and insomnia due to psychological stress. Additionally, Kohorst's medical expert opined in August 2018 that "Kohorst has suffered considerably as a result of his physical injuries and his neuroendocrine and psychological response to the trauma of the event." See Hackett Report, ECF No. 60, Storms Decl., Ex. 10. But it is not possible to pinpoint the cause of these injuries when, in addition to the officers' uses of force, Kohorst was involved in the movie theater fight before interacting with Smith and Stoler, and Kohorst's actions in the backseat of the squad car included slamming his head against a partition. See Greiner v. City of Champlin , 27 F.3d 1346, 1355 (8th Cir. 1994) (injuries that are likely explainable by complainant's own conduct do not create an issue of material fact as to whether an officer used excessive force). Even if the Court assumes that Stoler's or Smith's actions caused Kohorst's injuries, qualified immunity does not hinge on whether an otherwise reasonable use of force caused injuries. "[I]t is unrealistic to expect a police officer, in the heat of the moment, to discern whether a particular ... injury would result from a takedown." Blazek , 761 F.3d at 925. Particularly here, where the record includes video evidence of the relevant encounters, Kohorst's injuries, while not irrelevant, do not create a genuine issue of fact as to whether the officers used excessive force.
Kohorst's injuries also do not suggest that Smith used excessive force against him, for the same reasons provided below.
The Court recognizes that the officers' takedowns resulted in a laceration to Kohorst's chin, as well as other contusions and abrasions. These injuries do not give rise to a genuine issue of fact as to whether Smith and Stoler used excessive force under the circumstances.
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For these reasons, Stoler's use of force was objectively reasonable and he is entitled to qualified immunity.
Conclusion
The Court grants Defendants' Motion for Summary Judgment and dismisses Plaintiff's claims pursuant to the doctrine of qualified immunity.
Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:
1. Defendants' Motion for Summary Judgment against Plaintiff's Amended Complaint, ECF No. 27, is GRANTED.
a. Kohorst's claims against Defendant Smith are DISMISSED WITH PREJUDICE;
b. Kohorst's claims against Defendant Stoler are DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.