Anderson v. Driskill

(quoting City of Escondido v. Emmons,

139 S. Ct. 500, 503

(2019)). 178

Id.

(quoting Ehlers v. City of Rapid City,

846 F.3d 1002, 1008

(8th Cir. 2017)).

21 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 22 of 56

the other hand, if the Court determines that officer Driskill did not use reasonable force under the

circumstances, the Court must then determine whether the right that Officer Driskill violated “was

clearly established at the time of the deprivation.”179 It is important to note that “clearly established

law” is not to be defined at “a high level of generality.”180 For a right to be clearly established,

“existing precedent must have placed the statutory or constitutional question beyond debate.”181

Said differently, “[q]ualified immunity protects ‘all but the plainly incompetent or those who

knowingly violate the law.’”182 “Even where an officer’s action is deemed unreasonable under the

Fourth Amendment, he is entitled to qualified immunity if a reasonable officer could have

believed, mistakenly, that the use of force was permissible—if he was ‘reasonably

unreasonable.’”183

That is not to say that a law is clearly established only if there is a “case directly on

point.”184 Nor is it to say that the exact conduct must have been deemed unconstitutional before

the incident. But it does mean that, “in the light of preexisting law[,] the unlawfulness must be

apparent.”185

A. The Attempted Armbar

“[T]he right to make an arrest or investigatory stop necessarily carries with it the right to

use some degree of physical coercion or threat thereof to effect it.”186 When Officer Driskill

179

(quoting Ehlers,

). 180 Ashcroft v. al-Kidd,

563 U.S. 731

, 742 (2011). 181 Ryan v. Armstrong,

850 F.3d 419, 427

(8th Cir. 2017) (quoting White v. Pauly,

137 S. Ct. 548, 551

(2017)). 182 Shelton,

964 F.3d at 753

(quoting Malley v. Briggs,

475 U.S. 335, 341

(1986)). 183

Id.

(quoting Anderson v. Creighton,

483 U.S. 635, 643

(1987)). 184 Ashcroft, 563 U.S. at 742. 185 Langford v. Norris,

614 F.3d 445, 461

(8th Cir. 2010) (quoting Anderson,

483 U.S. at 640

). 186 Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 43) at 3 (quoting Graham,

490 U.S. at 396

22 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 23 of 56

initially approached and questioned Mr. Warren, a seizure had not yet occurred.187 But the moment

Officer Driskill applied physical force to the body of Mr. Warren, a seizure occurred.188 Ms.

Anderson contends that the force used to effectuate the seizure was objectively unreasonable.189

In particular, she asserts that Officer Driskill’s attempt to use an armbar constituted an excessive

use of force.190

Ms. Anderson’s assertion is hard to reconcile with Kohorst v. Smith, a case in which the

Eighth Circuit held that a successful armbar takedown did not rise to the level of a constitutional

violation where the plaintiff “at minimum appeared to be resisting and was not complying with

commands.”191 The facts in Kohorst are not on all fours with facts of the case at bar, but they are

close enough.192

At first blush, the severity of Mr. Warren’s suspected crime appears relatively minor. Mr.

Warren was knocking on doors, walking through yards, and screaming. At worst, Mr. Warren was

a suspected misdemeanant.193 But a closer look from the perspective of Officer Driskill suggests

187 See California v. Hodari D.,

499 U.S. 621, 626

(1991) (“An arrest requires either physical force . . . or, where that is absent, submission to the assertion of authority.”) (emphasis added). 188 Torres v. Madrid,

141 S. Ct. 989, 994

(2021). Even though the initial attempt did not ultimately succeed in subduing Mr. Warren, a Fourth Amendment seizure still occurred. See

id.

189 Pl.’s Compl. (Doc. 2) ¶¶ 17, 27. Ms. Anderson also vaguely quibbles with the propriety of the seizure itself. Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 43) at 6. But only indirectly. And she does not cite any law or develop any arguments contesting the propriety of the seizure itself. 190 Pl.’s Compl. (Doc. 2) ¶¶ 13, 27. 191 Kohorst,

968 F.3d at 877

. 192 See also Ehlers, 846 F.3d at 1010–11 (affirming the district court’s grant of qualified immunity where the police used a spin takedown and taser on a nonviolent misdemeanant who defied police orders); McVay ex rel. Est. of McVay v. Sisters of Mercy Health Sys.,

399 F.3d 904

, 908 (8th Cir. 2005) (finding no excessive force where a police officer tackled a man who appeared “disoriented and [was] exhibiting signs of lacking mental control” because the man’s running towards a glass door “posed a threat at least to himself”). 193 Mr. Warren was ultimately charged with public intoxication, fleeing on foot, disorderly conduct, and resisting arrest. Ex. 4 to Defs.’ Statement of Material Facts (Doc. 27-4) at 2; Ex. 16 to Defs.’ Statement of Material Facts (Doc. 27-16) at 1–4. His initial charges (before resisting arrest) were relatively minor. But despite Mr. Warren being only a suspected misdemeanant when Officer Driskill first made contact, Officer Driskill was “not required to let [Mr. Warren] run free.” McKenney v. Harrison,

635 F.3d 354, 360

(8th Cir. 2011) (“Although the charges were limited to misdemeanors, the officers executing the warrant were not required to let Barnes run free.”). In fact, the Eighth Circuit has held that “officers may seize a person ‘in order to ensure the safety of the public and/or

23 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 24 of 56

there were legitimate reasons for heightened concern. Indeed, multiple residents in the area had

called 911 to report the disturbance. Mr. Warren’s conduct was brazen; he gave no regard to whom

he disturbed or whether he was caught. And he was on the move. Additionally, the first resident

Officer Driskill spoke with stated that Mr. Warren had tried to “snatch the door open,”194 that it

“was scary,” and that the man’s “eyes were big,” as if the man “was on something.”195

Initially, Officer Driskill simply called out to Mr. Warren. But when Mr. Warren abruptly

began to run down a public road in the dark, Officer Driskill was forced to react. Throughout this

brief chase, Officer Driskill (who was alone at this point) repeatedly instructed Mr. Warren to stop

running, but to no avail. When Officer Driskill finally caught Mr. Warren, he attempted an armbar

takedown. In light of Mr. Warren’s suspected conduct, his refusal to comply with repeated verbal

demands, and his flight, the attempted armbar takedown was objectively reasonable. Moreover,

the attempted armbar was just that, an attempted (unsuccessful) armbar. And there is no indication

in the record that Mr. Warren suffered any injury whatsoever from this initial, two-second seizure

and attempted armbar.196

Ms. Anderson alleges that Officer Driskill “knew that Rayshawn Warren had a clinical

diagnosis of bipolar disorder” and that Mr. Warren was entitled to certain accommodations as a

result of his mental disorder.197 The record reveals that Officer Driskill had arrested Mr. Warren

the individual, regardless of any suspected criminal activity.’” Cravener v. Shuster,

885 F.3d 1135, 1140

(8th Cir. 2018) (quoting Winters v. Adams,

254 F.3d 758

, 763–65 (8th Cir. 2001)). 194 Ex. 3 (Driskill Bodycam) to Pl’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 54) beginning at 00:59:40. 195

beginning at 00:59:45. 196 “The fleeting nature of some seizures by force undoubtedly may inform what damages a civil plaintiff may recover . . . .” Torres,

141 S. Ct. at 999

. “‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’ violates the Fourth Amendment.” Graham,

490 U.S. at 396

(internal citation omitted). The only specific injury that Ms. Anderson alleges is a crushed trachea. Ms. Anderson did not put forth any evidence indicating that Mr. Warren suffered a crushed trachea as a result of the attempted armbar. See, e.g., Pl.’s Resp. to Defs.’ Statement of Material Facts (Doc. 44) ¶¶ 61–72. 197 Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 43) at 5.

24 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 25 of 56

on one previous occasion for criminal trespass during the early morning hours of June 28, 2017.198

According to an incident report, Mr. Warren “admitted that he knew he wasn’t suppose[d] to be

on the property,” and Mr. Warren admitted to using meth “two days ago.”199 The report also

indicated that Mr. Warren “was restless and couldn’t stop talking,” and that Mr. Warren “began

having a conversation with himself.”200 But nothing in the report or the rest of the record indicates

that Officer Driskill knew that Mr. Warren suffered from bipolar disorder.201 And there is no

indication that Officer Driskill recognized Mr. Warren during the initial and brief physical

interaction at issue today.202

Even if Officer Driskill did know that Mr. Warren had a mental illness, knowledge of a

person’s disability is but one of the circumstances considered in determining whether the use of

force was reasonable.203 And the Eighth Circuit has been clear in holding that knowledge of a

198 Ex. 3 to Defs.’ Affidavit re Motion for Leave to File Supp. Record (Doc. 67-3) at 3. 199

Id.

200

Id.

201 The Court took judicial notice of, among other things, a petition Mr. Warren’s aunt “filed on August 24, 2015 for the Involuntary Admission of the Plaintiff’s son, Rayshawn Warren, due to mental illness in case number 47B- PR2015-114.” Mot. for Judicial Notice (Doc. 71) ¶ 1.a. Ms. Anderson asserts that knowledge of Mr. Warren’s mental illness can be imputed to Officer Driskill under the theory of constructive or “collective knowledge.” The “collective knowledge” theory requires “communication” among members of a team or investigation. See, e.g., Wood v. Wooten,

986 F.3d 1079, 1081

(8th Cir. 2021) (stating that officers may rely on the “collective knowledge of all law enforcement officers involved in the investigation … if there is some degree of communication”) (quoting United States v. Edwards,

891 F.3d 708

, 711–12 (8th Cir. 2018)); United States v. Collins,

883 F.3d 1029, 1032

(8th Cir. 2018) (“When a team of law enforcement officers is involved in an investigation, the issue is whether all the information known to the team provided ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant’ the investigative stop.”) (quoting United States v. Winters,

491 F.3d 918, 921

(8th Cir. 2007)). Ms. Anderson has not provided any evidence that the officers involved in Mr. Warren’s admission to a mental hospital in 2015 had any involvement in the instant arrest or otherwise communicated information about Mr. Warren to Officer Driskill. Although the Court takes judicial notice of the public record, the information is not imputed to Officer Driskill. 202 McKenney,

635 F.3d at 360

(“Accepting, however, that the mental capacity of the citizen bears on the reasonableness of the officer’s conduct, the record does not support a finding that these officers knew that Barnes was mentally retarded. That Barnes did not say anything in response to Harrison’s orders or ask the officers any questions did not place the officers on notice of a mental disability.”). 203 Sok Kong Tr. for Map Kong v. City of Burnsville,

960 F.3d 985, 993

(8th Cir. 2020) (“Though Kong appeared high on meth, the cases establish that mental illness or intoxication does not reduce the immediate and significant threat a suspect poses.”); Frederick v. Motsinger,

873 F.3d 641, 647

(8th Cir. 2017) (“Even if she was suffering from mental illness or other impairment, the relevant inquiry is whether she posed a threat, not what prompted her

25 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 26 of 56

disability cannot foreclose officers from protecting themselves or the general public when faced

with a threat.204 Likewise, knowledge of mental illness cannot foreclose an officer from using

some degree of force to stop a fleeing suspect who refuses to listen to verbal commands. Based

on all of the circumstances, and from “the perspective of a reasonable officer on the scene,” the

Court finds that the force applied during this initial seizure was objectively reasonable. Ms.

Anderson has failed to identify a genuine question of material fact that would permit a rational

juror to rule in her favor with respect to the attempted armbar. Because the force used was

objectively reasonable, Ms. Anderson cannot demonstrate the deprivation of a constitutional or

statutory right. Officer Driskill is therefore entitled to qualified immunity with respect to the initial

seizure and the corresponding force employed.205

B. The Takedown

While much of the armbar analysis applies to the takedown, a separate analysis must still

be conducted. “[T]he Fourth Amendment does not recognize any ‘continuing arrest during the

period of fugitivity.’”206 “A seizure by force—absent submission—lasts only as long as the

application of force.”207 When Mr. Warren broke free of Officer Driskill’s initial grasp, the first

seizure ended. When Officer Driskill made physical contact with Mr. Warren for a second time,

threatening conduct.”); Est. of Morgan v. Cook,

686 F.3d 494, 498

(8th Cir. 2012) (“But Morgan’s intoxication does not alter our finding that Cook’s use of deadly force was objectively reasonable.”); Hayek v. City of St. Paul,

488 F.3d 1049, 1055

(8th Cir. 2007) (“Even if William were mentally ill, and the officers knew it, William’s mental state does not change the fact he posed a deadly threat to the officers.”); Hassan v. City of Minneapolis, Minn.,

489 F.3d 914, 919

(8th Cir. 2007) (“However, even if Jeilani were mentally ill, Jeilani’s mental state does not change the fact he posed a deadly threat to the officers and the public.”); Sanders v. City of Minneapolis, Minn.,

474 F.3d 523

, 527 (8th Cir. 2007) (quoting Bates ex rel. Johns v. Chesterfield County, Va.,

216 F.3d 367, 372

(4th Cir. 2000) (“Knowledge of a person’s disability simply cannot foreclose officers from protecting themselves, the disabled person, and the general public when faced with threatening conduct by the disabled individual.”)). 204 See supra note 203. 205 MacKintrush,

(quoting Ehlers,

). 206 Torres, 141 S. Ct. at 999 (quoting Hodari D.,

499 U.S. at 625

). 207

Id.

26 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 27 of 56

a second, new seizure began.

The biggest change from the first seizure analysis to the second seizure analysis is Mr.

Warren’s erratic conduct during the first seizure and his subsequent evasiveness.208 At first

contact, Mr. Warren was a suspected misdemeanant, albeit a concerning suspected misdemeanant.

But when Mr. Warren resisted arrest by fighting with Officer Driskill, pushing him to the ground,

and running away, the threat Mr. Warren posed to Officer Driskill and the community evolved.

He had now committed additional crimes (resisting arrest and fleeing from an officer) witnessed

by Officer Driskill—crimes that showed a willingness to resist police with force.209

Another change from the first seizure to the second seizure is the type and degree of force

applied. This time, Officer Driskill (who was still alone at this point) knocked Mr. Warren onto

Mr. Warren’s back. Officer Driskill then mounted Mr. Warren and held his hands down for a little

over one minute. There is no indication in the record that Mr. Warren suffered any injury

whatsoever from this takedown.210 Nor is there any indication that Mr. Warren was harmed by

Officer Driskill’s conduct in pinning Mr. Warren to the ground. Most importantly, Mr. Warren

208 The Eighth Circuit has repeatedly recognized that police officers are often faced with making “split-second judgments” in “‘tense, uncertain, and rapidly evolving’ circumstances.” See, e.g., Shelton,

964 F.3d at 752

(emphasis added) (quoting Graham,

490 U.S. at 396

). As the situation escalates, the officer’s use of corresponding force may escalate with it. Bahl v. Cty. of Ramsey,

695 F.3d 778, 785

(8th Cir. 2012) (noting that even routine traffic stops can escalate out of control and that officers must “respond fluidly to changing situations and individuals they encounter”) (quoting Tucker v. Tennessee,

539 F.3d 526, 536

(6th Cir. 2008), abrogated on other grounds by Anderson v. City of Blue Ash,

798 F.3d 338

(6th Cir. 2015)). Conversely, when a situation de-escalates, “a reasonable officer is not permitted to ignore changing circumstances.” Masters v. City of Indep., Mo.,

998 F.3d 827, 836

(8th Cir. 2021) (quoting Neal v. Ficcadenti,

895 F.3d 576, 581

(8th Cir. 2018)). 209 See

Ark. Code Ann. § 5-54-103

. Indeed, on September 29, 2018, Officer Driskill filed an incident report with the Blytheville Police Department characterizing Mr. Warren as committing a resisting arrest crime. Ex. 1 to Defs.’ Statement of Material Facts (Doc. 27-1) at 1; see also Ex. 16 to Defs.’ Statement of Material Facts (Doc. 27-16). 210 “‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’ violates the Fourth Amendment.” Graham,

490 U.S. at 396

(internal citation omitted). “A de minimis use of force is insufficient to support a claim, and it may well be that most plaintiffs showing only de minimis injury can show only a corresponding de minimis use of force.” Robinson v. Hawkins,

937 F.3d 1128, 1136

(8th Cir. 2019) (quoting Chambers,

641 F.3d at 906

). As noted earlier, the only specific injury that Ms. Anderson alleges is a crushed trachea. Ms. Anderson did not put forth any evidence indicating that Mr. Warren suffered a crushed trachea as a result of the takedown. See, e.g., Pl.’s Resp. to Defs.’ Statement of Material Facts (Doc. 44) ¶¶ 61–72.

27 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 28 of 56

had been actively fleeing from Officer Driskill and continued to struggle to break free of Officer

Driskill’s grip.

When Officer Krupin arrived on the scene, Officer Krupin identified Mr. Warren by name.

Given that Officer Driskill arrested Mr. Warren a little over a year earlier, this may have triggered

Officer Driskill’s memory of Mr. Warren. The record does not indicate either way. But even

assuming it did spark a connection, there is still nothing in the record indicating that Officer

Driskill knew of Mr. Warren’s history of mental illness. And as stated above, even if he did know,

mental illness is just one factor to consider in determining what constitutes reasonable force.

Officer Driskill was still justified in using some amount of force to tackle and restrain a fleeing

and resistant suspect and to control the situation near a public road after dark.211

Considering all of the facts previously identified, as well as the additional developments

just discussed, the Court finds that the force applied to this point during the second seizure was

objectively reasonable. Ms. Anderson has failed to identify a genuine question of material fact

that would permit a rational juror to rule in her favor with respect to the takedown. Because the

force used was objectively reasonable, Ms. Anderson cannot demonstrate the deprivation of a

constitutional or statutory right. Officer Driskill is therefore entitled to qualified immunity with

respect to the takedown.

C. The First Tasing

Defendants urge the Court to stop its analysis of Officer Driskill’s conduct at this juncture.

Defendants contend that the Complaint only alleges facts pertaining to Officer Driskill’s

involvement in the attempted armbar and the takedown.212 In response, Ms. Anderson asserts that

211 See, e.g., Sok Kong,

960 F.3d at 993

. 212 Defs.’ Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 26) at 5–8; Defs.’ Reply to Pl.’s Resp. to Defs.’ Mot. for

28 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 29 of 56

the Complaint’s language is broad enough to encompass all of Officer Driskill’s involvement in

Mr. Warren’s arrest, even where his involvement is in a supporting role.213 Defendants have a

pretty strong point. There is no question that the thrust of the Complaint is about the attempted

armbar restraint. But, to be safe, let’s assume arguendo that the Complaint is broad enough to

encompass all of Officer Driskill’s physical interactions with Mr. Warren during the arrest.214

This assumption does not open the floodgates for Plaintiff nor does it allow Plaintiff to

sidestep the Court’s prior denial of Plaintiff’s Motion to Amend. The Eighth Circuit has been clear

that “[a]n officer may be held liable only for his or her own use of excessive force.” 215 Indeed,

“[l]iability for damages for a federal constitutional tort is personal, so each defendant’s conduct

must be independently assessed.” 216 “Section 1983 does not sanction tort by association,”217 and

the Court must therefore consider “the actions of each officer ‘from the perspective of a reasonable

officer on the scene . . . .’”218 Thus, Officer Driskill’s liability is confined to his personal conduct.

He can’t be tagged with the conduct of the other Officers.

It is true that the Eight Circuit recognizes that an officer can be liable for failing to intervene

Summ. J. (Doc 55) at 1–6. 213 Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 43) at 1–2, 15. 214 Under Federal Rule of Civil Procedure 8(d), “[e]ach allegation” in a pleading “must be simple, concise, and direct.” And the Court must construe the pleadings “so as to do justice.” FED. R. CIV. P. 8(e). The Complaint generally alleges that Officer Driskill deprived Mr. Warren of his constitutional rights by “using a degree of force that was unreasonable.” Pl.’s Compl. (Doc. 2) ¶ 27; Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 43) at 1–2, 15. The Complaint also broadly states that “the force used to restrain Rayshawn Warren was extremely excessive.” Pl.’s Compl. (Doc. 2) ¶ 17. And the Complaint notes that the alleged excessive force can be seen on “at least three (3) officer body camera[s]” that were recording during the arrest. Id. ¶ 18. Considering Federal Rule of Civil Procedure 8(e), it’s not entirely unreasonable to argue that the Complaint fairly includes all of Officer Driskill’s physical interactions with Mr. Warren and sufficiently placed Defendants on notice of the same. 215 Smith v. Kansas City, Mo. Police Dep’t,

586 F.3d 576, 581

(8th Cir. 2009) (citing Hayek,

488 F.3d at 1055

). 216 Heartland Acad. Cmty. Church v. Waddle,

595 F.3d 798

, 805–06 (8th Cir. 2010) (quoting Wilson v. Northcutt,

441 F.3d 586, 591

(8th Cir. 2006)). 217

218 Ryan,

850 F.3d at 427

(emphasis added) (quoting Graham,

490 U.S. at 396

29 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 30 of 56

to stop another officer from using excessive force219 and for conspiring to use excessive force.220

But both of those claims are distinct from an excessive force claim, meaning they must be pleaded

in a plaintiff’s complaint. Ms. Anderson did not allege a failure-to-intervene claim or a conspiracy

claim.221

From 8:10:28 p.m. until 8:10:52 p.m., Officer Driskill’s conduct consisted of little more

than holding Mr. Warren’s hands to the ground and attempting to roll Mr. Warren onto his stomach

to handcuff him safely. In light of all the circumstances, this conduct was objectively reasonable.

Mr. Warren was actively resisting arrest and was blatantly defying the Officers’ verbal commands.

Even together, Officers Driskill and Krupin were unable to flip Mr. Warren over. The police must

be able to secure a suspect in handcuffs, especially one that has shown a willingness to flee and is

still resisting. At this point, Officer Driskill was part of an effort to do this with the least force

possible.

Subsequently, in an attempt to get Mr. Warren to roll over, Officer Krupin administered a

five-second drive stun to Mr. Warren’s abdomen after issuing four verbal warnings to Mr.

Warren.222 As explained above, Officer Driskill is not liable for the conduct of another officer.

But even assuming Officer Krupin’s conduct could somehow be imputed to Officer Driskill, the

219 Nance v. Sammis,

586 F.3d 604, 612

(8th Cir. 2009) (“A police officer who fails to act to prevent the use of excessive force may still be held liable where (1) the officer observed or had reason to know that excessive force would be or was being used, and (2) the officer had both the opportunity and the means to prevent the harm from occurring.”) (quoting Floyd v. City of Detroit,

518 F.3d 398, 406

(6th Cir. 2008)). 220 Askew v. Millerd,

191 F.3d 953

, 957 (8th Cir. 1999) (“To prove a § 1983 conspiracy claim against a particular defendant, the plaintiff must show: that the defendant conspired with others to deprive him or her of a constitutional right; that at least one of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and that the overt act injured the plaintiff.”). 221 Johnson v. Carroll,

658 F.3d 819

, 828 n.2 (8th Cir. 2011) (refusing to address a failure to intervene claim because the plaintiff “failed to state such a claim in her complaint”). 222 The Eighth Circuit has “eschewed a bright-line rule requiring officers to issue a warning before deploying a taser against a suspect.” Boudoin v. Harsson,

962 F.3d 1034, 1043

(8th Cir. 2020) (citing Brown v. City of Golden Valley,

574 F.3d 491, 499

(8th Cir. 2009)).

30 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 31 of 56

use of a drive-stun taser was not unreasonable under the circumstances. “[I]t is excessive force to

use a taser on a nonfleeing, nonviolent misdemeanant.”223 But the Eighth Circuit routinely

“permit[s] officers to use tasers on noncompliant, violent suspects.”224 In fact, the Eighth Circuit

has said that even “passively resisting subjects can pose a threat necessitating the use of taser

force.”225 And the Eighth Circuit has repeatedly held that “a tasing in drive-stun mode ‘only causes

discomfort and does not incapacitate the subject,’ suggesting that the effects of such force are de

minimus.”226

Mr. Warren (who at that point had already resisted arrest and fled from an officer) was

noncompliant, and he was actively fighting with Officers Krupin and Driskill in what appeared to

be an effort to free himself from their grasps. Even if Mr. Warren’s motive for resisting was

innocent, and even if he had a mental illness that the Officers knew of, Officers Krupin and Driskill

could have reasonably interpreted Mr. Warren’s actions as resistance and responded with an

amount of force that was reasonable to effectuate the arrest.227 They had already tried verbal

commands and simple arm/body strength to get Mr. Warren to acquiesce to being handcuffed. A

single drive-stun tase—designed to cause only discomfort—was a reasonable use of force under

the circumstances and from the perspective of a reasonable officer reacting in the heat of the

moment after other, lighter tactics failed. Moreover, this use of force appeared wholly ineffective

223 Franklin v. Franklin Cty., Arkansas,

(8th Cir. 2020). 224

225 Cravener,

. 226 Franklin,

(quoting Brossart v. Janke,

859 F.3d 616, 626

(8th Cir. 2017)). 227 Carpenter v. Gage,

686 F.3d 644, 650

(8th Cir. 2012) (“Even if Carpenter’s motive was innocent, the deputies on the scene reasonably could have interpreted Carpenter’s actions as resistance and responded with an amount of force that was reasonable to effect the arrest.”) (citing McKenney,

635 F.3d at 360

). Defendants assert that Mr. Warren “suffered cardiac arrest and subsequent respiratory arrest most likely secondary to methamphetamine or substance abuse.” Defs.’ Statement of Material Facts (Doc. 27) ¶ 73. Ms. Anderson denies this theory of injury and maintains that Mr. Warren’s injury was a crushed trachea. Pl.’s Resp. to Defs.’ Statement of Material Facts (Doc. 44) ¶¶ 73, 61–72. Ms. Anderson did not put forth any evidence indicating that Mr. Warren suffered a crushed trachea as a result of the first tasing. See, e.g.,

id.

31 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 32 of 56

in tempering Mr. Warren’s defiance; its ineffectiveness suggests its de minimus nature.

Even if Officer Krupin’s conduct could be imputed to Officer Driskill, and even if the

tasing could be deemed unreasonable, Officer Driskill would still be entitled to qualified immunity

under the second step in the qualified immunity analysis. In De Boise v. Taser International, Inc.,

the Eighth Circuit held that it was not clearly unconstitutional to tase (at least six times “in barb

mode” and twice in “drive stun mode”) a suspect known to the officers to be suffering from a

mental illness where the suspect was noncompliant, violent, and aggressive.228 If Officer Krupin’s

administration of the drive stun did not violate a clearly established right, “then [Officer Driskill]

would not have had ‘fair notice’ that [Officer Krupin] was using unconstitutionally excessive force

against [Mr. Warren] either.”229

Considering all of the facts previously identified, as well as the additional developments

just discussed, the Court finds that the force applied thus far was objectively reasonable. Ms.

Anderson has failed to identify a genuine question of material fact that would permit a rational

juror to rule in her favor with respect to the first tasing. Because the force used was objectively

reasonable, Ms. Anderson cannot demonstrate the deprivation of a constitutional or statutory right.

Moreover, even if Officer Krupin’s conduct were unconstitutional, and even if it somehow could

be imputed to Officer Driskill, the Court finds that no reasonable officer observing Mr. Warren’s

behavior “would have understood the actions taken to be so disproportionate and unnecessary as

to amount to a violation of [Mr. Warren’s] rights.”230 Therefore, Officer Driskill is entitled to

qualified immunity with respect to the events culminating in the first drive-stun tasing.

228 De Boise, 760 F.3d at 897–98. 229 McManemy v. Tierney,

970 F.3d 1034, 1040

(8th Cir. 2020) (discussing failure to intervene). 230 De Boise, 760 F.3d at 897–98.

32 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 33 of 56

D. The Chokehold (Vascular Restraint)

Officer Driskill filled a supporting role in ultimately subduing Mr. Warren. He was not

the Officer who applied the chokehold to Mr. Warren. In fact, at times, Officer Driskill had

difficulty finding a way to effectively assist Officers Krupin and Berumen. But Officer Driskill

was the one who applied the handcuffs to Mr. Warren once Mr. Warren fell unconscious. Thus,

while Officer Driskill was involved in this part of the arrest, there is no question that he played a

smaller role than Officers Krupin and Berumen.

Before the application of the chokehold, the Officers had tried a number of verbal and

physical maneuvers to obtain compliance from Mr. Warren. None worked. Officer Krupin tried

a five-second drive stun. It did not work. Mr. Warren’s active resistance persisted. Indeed, Mr.

Warren’s erratic and belligerent behavior escalated. It is indisputable that Mr. Warren was kicking

and wrestling with the Officers. And it is indisputable that Mr. Warren refused to comply with

multiple commands to roll over, to stop resisting, and to relax his arm. All this at night, adjacent

to a public road, and with a suspect that had already once fled from a police officer at the start of

this incident. Even after Officer Krupin applied a chokehold, Mr. Warren still refused to give his

arm to Officer Driskill. Only with the combined effort of all three Officers, and only after Mr.

Warren fell unconscious, were the Officers able to finally subdue Mr. Warren.

Chokeholds (vascular restraints) are dangerous maneuvers. It is obvious that they should

not be performed unless (1) other lighter intervention techniques have been tried and failed, and

(2) there is a serious and immediate need to gain control over the suspect. In the case at bar, both

prongs are met. Officers were facing a stark choice—either get Mr. Warren handcuffed, continue

fighting with him (which could have led to injury), or let him flee into the night down a dark public

road in a highly agitated state. Considering Officer Driskill’s conduct under the circumstances

33 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 34 of 56

and from the perspective of a reasonable officer, the Court finds that Officer Driskill used an

objectively reasonable degree of force. The Court also finds that it was objectively reasonable for

Officer Driskill to have supported Officers Krupin and Berumen. Ms. Anderson has failed to

identify a genuine question of material fact that would permit a rational juror to rule in her favor

with respect to Officer Driskill’s participation in the events surrounding the chokehold.

As stated above, Officer Driskill can “be held liable only for his . . . own use of excessive

force.”231 But even assuming that Officer Driskill could somehow be held liable for Officer

Krupin’s conduct, the Court would find Officer Driskill entitled to qualified immunity. The Eighth

Circuit has clearly established that “it violates the Fourth Amendment to choke a suspect who is

handcuffed and not resisting.”232 But the Eighth Circuit has not spoken so plainly on the use of

chokeholds when a suspect is not handcuffed and is actively resisting arrest and fighting with

officers. Ms. Anderson has not pointed the Court to any caselaw on the topic.

Thus, even assuming the use of a chokehold was unreasonable, the right to be free from

chokeholds under these particular circumstances was not “clearly established at the time of the

deprivation.”233 Nor was it clearly established at the time of the deprivation that Officer Driskill

could be liable for Officer Krupin’s administration of a chokehold outside of a claim alleging a

failure to intervene.234 Officer Driskill is entitled to qualified immunity with respect to the events

surrounding the chokehold.235

231 Smith, 586

F.3d at 581. 232 Tatum v. Robinson,

858 F.3d 544, 552

(8th Cir. 2017). 233 MacKintrush,

(quoting Ehlers,

). 234 As stated above, “clearly established law” is not defined at “a high level of generality.” Ashcroft, 563 U.S. at 742. For a right to be clearly established, “existing precedent must have placed the statutory or constitutional question beyond debate.” Ryan,

850 F.3d at 427

(quoting White,

137 S. Ct. at 551

). 235 Even assuming the Officers knew of Mr. Warren’s mental illness, the outcome is the same. Under the circumstances of this arrest, the fact that Mr. Warren’s crimes and resistance could be attributed to a mental illness does not outweigh the other factors that suggest the reasonableness of Officer Driskill’s conduct. And it certainly

34 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 35 of 56

E. The Leg Slam, Second Tasing, and Leg Shackles

“[A] reasonable officer is not permitted to ignore changing circumstances.”236 Of course,

that is not to say that what had happened up to this point is irrelevant.237 Rather, it is to say that

each use of force should be considered separately under the circumstances as they exist at the time

the force is applied, which is naturally informed by the events that have already transpired.238

The big change at this point is that Mr. Warren was now in handcuffs. “[W]hen a person

is subdued and restrained with handcuffs, a ‘gratuitous and completely unnecessary act of

violence’ is unreasonable and violates the Fourth Amendment.”239 But reasonable force is still

constitutional. For instance, in Brossart v. Jake, the Eighth Circuit affirmed the district court’s

dismissal of a plaintiff’s claim that an officer used excessive force against him when the officer

tased the plaintiff while the plaintiff “was handcuffed and detained in the back seat of a squad car

. . . .”240 The Eighth Circuit noted that the plaintiff had been violent before he was handcuffed,

that after the plaintiff was handcuffed he continued to “verbally resist” the officers, and that the

plaintiff continued to resist lawful arrest by refusing to comply with the officers’ lawful

commands.241 On balance, the Eighth Circuit reasoned that the use of a taser in drive-stun mode

was not excessive given the plaintiff’s continued resistance and the relatively minor infliction of

doesn’t make the use of force a violation of a clearly established right. 236 Masters,

998 F.3d at 836

(quoting Neal,

895 F.3d at 581

). 237 Brossart,

859 F.3d at 626

(“Plaintiffs argue the district court inappropriately considered facts preceding Thomas’s arrest in granting Braathen qualified immunity. This contention is frivolous. Graham v. Conner requires taking all relevant circumstances into account . . . .” (internal citation omitted)). 238 See, e.g., Jackson v. Stair,

944 F.3d 704, 712

(8th Cir. 2019) (finding error where the district court did not analyze as a separate use of force a second tasing that nearly instantaneously and without warning followed a first tasing). 239 Kohorst,

968 F.3d at 878

(quoting Blazek v. City of Iowa City,

761 F.3d 920, 926

(8th Cir. 2014)). 240 Brossart,

859 F.3d at 626

. 241

35 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 36 of 56

harm.242

In the case at hand, the circumstances changed when Mr. Warren was handcuffed.

Although Mr. Warren could still be characterized as a belligerent misdemeanant that fled and

resisted arrest, he was now restrained by handcuffs and clearly under police control. At this point,

Mr. Warren presented little to no danger to the public. But he still posed some degree of danger

to himself and the Officers.243 Indeed, Mr. Warren had shown himself to be a formidable opponent,

having for some time successfully resisted three trained Officers’ attempts to subdue him. It was

only after Mr. Warren fell unconscious that the Officers were finally able to handcuff him.

When Mr. Warren regained consciousness, his obstinance resumed. It is indisputable that

Mr. Warren remained defiant even after he was handcuffed. And it is indisputable that Mr. Warren

was erratically kicking his legs into the air. When Officer Driskill knelt beside Mr. Warren to try

to verbally calm Mr. Warren down, Mr. Warren kicked Officer Driskill at least once. In response,

Officer Driskill slammed Mr. Warren’s legs to the ground and then secured one of Mr. Warren’s

legs against Officer Driskill’s chest. Almost immediately thereafter, Officer Driskill rose to his

feet, separated himself from Mr. Warren, and never physically reengaged with Mr. Warren.

Perhaps Officer Driskill could have simply stepped back from Mr. Warren at this point.

But Officer Driskill’s conduct was not a gratuitous and completely unnecessary act of violence.

To the contrary, Officer Driskill responded to an act of aggression from Mr. Warren by controlling

the precise part of his body Mr. Warren was using to be aggressive. Moreover, there is nothing in

the record to suggest that slamming Mr. Warren’s leg to the ground caused Mr. Warren any injury

or inflicted any damage. Plaintiff does not argue otherwise. This use of force was transient and

242

243 The Eighth Circuit has repeatedly recognized that “[a] person in handcuffs can still present a danger to officers.” Franklin, 956 F.3d at 1062–63.

36 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 37 of 56

de minimis. Officer Driskill’s conduct was reasonable under the circumstances; at a minimum it

did not violate clearly established law.244

As to the tasing that occurred around this time, Officer Driskill was not physically assisting

Officers Krupin and Berumen when Officer Krupin administered the second drive stun. But even

assuming he had been assisting, and even assuming that Officer Krupin’s conduct could somehow

be imputed to Officer Driskill, the use of a drive stun was not an unreasonable use of force in light

of the Eighth Circuit’s ruling in Brossart.245 Although there was a far lower likelihood of Mr.

Warren fleeing while his arms were handcuffed behind him, the chance was not zero. This arrest

took place outside in the dark near a public road. It was not an entirely controlled or controllable

situation. Moreover, at some point police must be allowed to stop a handcuffed suspect from

kicking at them. After all, they need to interact with such a suspect to bring him to a detention

facility. After verbal attempts to get this conduct to stop, a short drive stun is not unreasonable.

Moreover, even if the force were unreasonable, the right to be free from the administration

of a drive-stun tase under these particular circumstances was not “clearly established at the time

of the deprivation.”246 Nor was it clearly established at the time of the deprivation that Officer

Driskill could be liable for Officer Krupin’s administration of a drive stun outside of a claim

alleging a failure to intervene.247 Ms. Anderson has not pointed the Court to any caselaw to the

contrary. Thus, Officer Driskill is entitled to qualified immunity.

244 Ultimately, Officers Berumen and Krupin were able to handcuff Mr. Warren’s legs. The remainder of the bodycam footage reveals that Mr. Warren continued to try to stand up and move around in a way that the Officers could reasonably believe was an attempt to flee, even after his legs and feet were handcuffed. And Mr. Warren continued to kick and resist as Officer Krupin, Officer Berumen, and the paramedic attempted to prepare Mr. Warren for transport. 245 Brossart, 859 F.3d at 626–27. 246 MacKintrush,

(quoting Ehlers,

). 247 See supra note 234.

37 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 38 of 56

F. Additional Excessive Force Allegations

The Court wishes to be plain. The facts set forth in the Corresponding Bodycam section

above regarding “Additional Excessive Force Allegations” (see supra text pp. 17–19) are

disturbing. But these facts don’t involve Officer Driskill. Officer Driskill is not liable for any

excessive force during this period of time because he was no longer physically engaged with Mr.

Warren. As noted in Defendants’ Brief, § 1983 claims necessarily fail “when the plaintiff fails to

factually allege that the Defendant had any involvement in the claim.”248 And as stated above,

Ms. Anderson did not allege claims for failure to intervene or conspiracy under which Officer

Driskill might more reasonably be tagged with liability. Accordingly, Officer Driskill is entitled

to summary judgment with respect to any allegations of excessive force that occurred after Officer

Driskill was no longer physically engaged with Mr. Warren or directly assisting those who were

physically engaged with Mr. Warren.

II. Chief Thompson – Failure to Train and Supervise

Ms. Anderson asserts that Chief Thompson (and the City of Blytheville) is liable for

violating Mr. Warren’s constitutional rights because Chief Thompson failed to train and supervise

“Defendant Police Officer(s) . . . .”249 Aside from Chief Thompson himself, Officer Driskill is the

only “Defendant Police Officer” in this case.

“A supervisor may be held individually liable under § 1983 if he directly participates in

the constitutional violation or if he fails to train or supervise the subordinate who caused the

248 Defs.’ Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 26) at 11 (citing Beck v. LaFleur,

257 F.3d 764, 766

(8th Cir. 2001)); Ellis v. Norris,

179 F.3d 1078, 1079

(8th Cir. 1999) (explaining that a plaintiff must allege the defendant was involved in or responsible for the constitutional violation to state a § 1983 claim). 249 Pl.’s Compl. (Doc. 2) ¶ 28.

38 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 39 of 56

violation.”250 To succeed on a failure to train or supervise claim, Ms. Anderson must show that

Chief Thompson “(1) had ‘notice of a pattern of unconstitutional acts committed by [Officer

Driskill]’; (2) was deliberately indifferent to or tacitly authorized those acts; and (3) failed to take

‘sufficient remedial action’; (4) proximately causing injury to [Mr. Warren].”251 To show

deliberate indifference or tacit authorization, Ms. Anderson must show that Chief Thompson “had

notice that the training procedures and supervision were inadequate and likely to result in a

constitutional violation.”252

Ms. Anderson argues that Chief Thompson (and the City) failed to train Officer Driskill in

“crisis intervention” and on how to constitutionally arrest a person with mental illness.253 She

similarly argues that Chief Thompson (and the City) failed to properly supervise its officers by

failing to send an officer that was properly trained in crisis intervention. Aside from these

conclusory assertions, Ms. Anderson failed to identify any facts or law to support her claims that

Chief Thompson’s failure to train and supervise Officer Driskill deprived Mr. Warren of his

constitutional rights.

It is true, as Plaintiff’s counsel argued at the motion hearing, that Officer Driskill was not

trained in crisis intervention at the time of the incident.254 But there is no legal requirement for

Officer Driskill to be a “crisis intervention team officer” before he can respond to a crime. Indeed,

Arkansas Code Annotated section 20-47-801 et. seq. does not limit an officer’s ability to confront

and arrest a mentally impaired criminal suspect. Rather, it simply broadens the scope of options

250 Brockinton v. City of Sherwood, Ark.,

503 F.3d 667, 673

(8th Cir. 2007). 251 Livers v. Schenck,

700 F.3d 340, 355

(8th Cir. 2012) (quoting Andrews v. Fowler,

98 F.3d 1069, 1078

(8th Cir. 1996)). 252

(quoting Andrews,

98 F.3d at 1078

). 253 Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 43) at 20. 254 See, e.g, April 8, 2021 Hr’g Tr. at 59–60, 70.

39 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 40 of 56

available to a trained officer working within a “crisis intervention team.”

The record evidence suggests Officer Driskill was well trained and highly experienced in

all the areas required for him to legally engage with Mr. Warren. It is undisputed that at the time

of the incident, “Officer Driskill attended and completed the 13-week Law Enforcement Training

Academy (“LETA”) in 2016, totaling 577 hours of training.”255 It is likewise undisputed that

“Officer Driskill . . . attended and completed the Federal Law Enforcement Academy from May

2007 until September 2007, totaling 647 hours of training.”256 And it is undisputed that, “[i]n

addition to his four years with the BPD, Officer Driskill also worked as Border Patrol for almost

a year, with the Jonesboro Police Department as a patrol officer for approximately a year, and as

a military police officer from 1997-2007.”257

In any event, even if crisis intervention training were a necessity, Ms. Anderson’s failure

to train and supervise claims are fundamentally flawed because Officer Driskill’s conduct did not

result in an unconstitutional deprivation of Mr. Warren’s rights. As noted above, the Eighth Circuit

has been clear in holding that knowledge of a disability cannot foreclose officers from protecting

themselves or the general public when faced with a threat.258 In Sok Kong Trustee for Map Kong

v. City of Burnsville, the Eighth Circuit found that the use of deadly force against a mentally

impaired man (high on meth) was reasonable even though the police department’s “training” and

“policy” “advised that ‘taking no action or passively monitoring the situation may be the most

reasonable response to a mental health crisis.’”259 The Eighth Circuit further explained that

255 Pl.’s Resp. to Defs.’ Statement of Material Facts (Doc. 44) ¶ 83. 256 Id. ¶ 84. 257 Id. ¶ 85. 258 See supra note 203. 259 Sok Kong,

960 F.3d at 993

40 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 41 of 56

“[e]ven if officers ‘created the need to use’ deadly force by trying to disarm a mentally ill person,”

they were still entitled to use reasonable force to subdue the suspect.260

Ms. Anderson has failed to identify any facts that would permit a rational juror to conclude

that Chief Thompson’s (or the City’s) alleged failure to train or supervise Officer Driskill

proximately caused a constitutional deprivation. Chief Thompson is therefore entitled to qualified

immunity and judgment as a matter of law.261

III. First, Fifth, Sixth, Eighth, and Fourteenth Amendment Claims

Ms. Anderson also alleges federal claims under the First, Fifth, Sixth, Eighth, and

Fourteenth Amendments.262 Specifically, Ms. Anderson contends that Defendants inflicted

punishment on Mr. Warren “for the purpose of quelling [Mr.] Warren’s verbal expression” in

violation of the First Amendment.263 Ms. Anderson alleges that Defendants’ use of force and

policies (or lack thereof) deprived Mr. Warren of his right to a trial by jury in violation of the Sixth

Amendment and constituted cruel and unusual punishment under the Eighth Amendment.264 And

Ms. Anderson alleges that Defendants’ use of force and policies (or lack thereof) resulted in

“unwanted and unreasonable restraints” in violation of the Fifth and Fourteenth Amendments.265

Defendants assert that none of these claims are cognizable in this case.266 Defendants are correct

with respect to the claims under the Fifth, Sixth, Eighth, and Fourteenth Amendments.

260

at 993–94 (citing Schulz v. Long,

44 F.3d 643, 649

(8th Cir. 1995)). 261 It’s also worth noting that there is no record evidence that Officer Driskill acted poorly in prior policing situations or evidence that Chief Thompson or the City of Blytheville knew that Officer Driskill needed closer supervision or training. 262 Pl.’s Compl. (Doc. 2) ¶¶ 2, 26–29; Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc 42) at 21. 263 Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc 43) at 21. 264 Pl.’s Compl. (Doc. 2) ¶ 27. 265 Pl.’s Compl. (Doc. 2) ¶¶ 27–29; Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc 43) at 21. 266 Defs.’ Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 26) at 20.

41 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 42 of 56

“[T]he Fifth Amendment applies only to the federal government or federal actions.”267

Defendants are not federal actors, so the Fifth Amendment does not apply.268 Similarly, courts

have repeatedly held that Sixth Amendment rights do not attach until “at or after the initiation of

adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing,

indictment, information, or arraignment.”269 Although Mr. Warren had been arrested, no judicial

criminal proceedings had commenced, so the Sixth Amendment does not apply. With respect to

the Eighth Amendment, the Eighth Circuit has plainly stated that the Eighth Amendment applies

only to convicted prisoners, not pre-trial detainees.270 Mr. Warren was not a convicted prisoner,

so the Eighth Amendment does not apply. Finally, the Supreme Court and the Eighth Circuit have

held that “the Fourteenth Amendment does not apply to excessive force claims involving arrests,

which are appropriately reviewed under a Fourth Amendment analysis.”271

Ms. Anderson’s First Amendment claim is at least cognizable. But beyond mere cognition,

it utterly fails. To succeed on her claim, Ms. Anderson must show “(1) that [Mr. Warren] engaged

in a protected activity; (2) that [Officer Driskill] took adverse action against [Mr. Warren] that

267 Stair,

944 F.3d at 709

(citing Barnes v. City of Omaha,

574 F.3d 1003

, 1005 n.2 (8th Cir. 2009)); see also Dusenbery v. United States,

534 U.S. 161, 167

(2002). 268 See Pl.’s Compl. (Doc. 2) ¶¶ 4–8. 269 United States v. Ingle,

157 F.3d 1147, 1151

(8th Cir. 1998) (quoting United States v. Gouveia,

467 U.S. 180, 188

(1984)). Most of the U.S. Supreme Court and Eighth Circuit cases that discuss when Sixth Amendment rights attach specifically refer to the right to counsel. See Moran v. Burbine,

475 U.S. 412, 428

(1986) (explaining that the Sixth Amendment right to counsel “attaches only after the first formal charging procedure”); Ingle,

157 F.3d at 1151

(explaining that the Sixth Amendment right to counsel “does not attach until after the initiation of formal charges”). However, the Court has no reason to believe that the Sixth Amendment right to a trial by jury is any different, such that it attaches before the initiation of formal charges. Indeed, this District has stated that the entire Sixth Amendment does not attach until that point. Wren v. Tucker, No. 3:09-cv-00118 JMM,

2012 WL 369929

, at *3 (E.D. Ark. Feb. 6, 2012) (“The Sixth Amendment attaches at or after the initiation of adversary judicial criminal proceedings . . . ”) (internal quotations omitted). 270 Hott v. Hennepin Cty., Minn.,

260 F.3d 901

, 905 (8th Cir. 2001). 271 Stair,

944 F.3d at 709

(citing Graham,

490 U.S. at 395

(“Today we make explicit what was implicit in Garner’s analysis, and hold that all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.”)).

42 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 43 of 56

would chill a person of ordinary firmness from continuing the activity; and (3) that the adverse

action was motivated at least in part by the exercise of the protected activity.”272

Even if Mr. Warren’s excited ramblings as he resisted arrest constitute protected activity,

no rational juror could conclude from this record that Officer Driskill (or any other officer for that

matter) took adverse action against Mr. Warren for his excited ramblings. It is true that Officers

Krupin, Berumen, and Driskill repeatedly instructed Mr. Warren to stop talking. But there is no

evidence that any of the Officers used force on Mr. Warren to suppress Mr. Warren’s speech. As

discussed above, Officer Driskill’s conduct was reasonably aimed at controlling Mr. Warren’s

physically belligerent and dangerous behavior.273 Once Mr. Warren’s physical aggression was

controlled, Mr. Warren continued to speak unimpeded. And he was allowed to do so.

Defendants are entitled to judgment as a matter of law on Ms. Anderson’s Fifth, Sixth,

Eighth, and Fourteenth Amendment claims. And because Ms. Anderson failed to allege that Mr.

Warren was engaged in First Amendment protected activity, and because no rational juror could

conclude that Officer Driskill’s conduct was motivated by a desire to thwart Mr. Warren’s speech,

Defendants are entitled to judgement as a matter of law on Ms. Anderson’s First Amendment

claim.

IV. Claims Against the City of Blytheville

Defendants argue that they are entitled to judgment as a matter of law on all the claims

against the City of Blytheville, which include the claims against Officer Driskill and Chief

Thompson in their official capacities.274 In particular, they assert that Ms. Anderson has failed to

272 Santiago v. Blair,

707 F.3d 984, 991

(8th Cir. 2013). 273 “[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” Stair,

944 F.3d at 709

(quoting United States v. O’Brien,

391 U.S. 367, 376

(1968)). 274 Defs.’ Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 26) 13–14. “Claims against individuals in their official

43 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 44 of 56

establish any underlying constitutional violation and, even if she has, Ms. Anderson has failed to

identify an official policy or custom that caused a constitutional violation. Defendants are correct

on both accounts.

Section 1983 does not establish any substantive rights on its own.275 “Rather, it simply

serves as a vehicle for ‘vindicating federal rights elsewhere conferred by those parts of the United

States Constitution and federal statutes that it describes.’ Accordingly, an underlying

constitutional or statutory violation is a predicate to liability under section 1983.”276 “[A]bsent a

constitutional violation by a [municipal] employee, there can be no § 1983 or Monell liability for

the [municipality].”277 As explained in great detail above, Officer Driskill did not violate the

Constitution under the First, Fourth, Fifth, Sixth, Eighth, or Fourteenth Amendments. Neither did

Chief Thompson. Thus, the City of Blytheville is entitled to summary judgment on Ms.

Anderson’s Monell claim.

Even if Ms. Anderson had established a constitutional violation, her claims against the City

would still fail because she failed to identify an official policy or custom that caused the violation.

Indeed, a municipality cannot be held vicariously liable for its employees’ unconstitutional

conduct.278 It can only be held liable when a municipal policy or custom is the “moving force”

behind a constitutional violation.279

Municipal policy may be found in written ordinances and regulations, in certain affirmative decisions of individual

capacities are equivalent to claims against the entity for which they work; they require proof that a policy or custom of the entity violated the plaintiff’s rights . . . .” Gorman v. Bartch,

152 F.3d 907, 914

(8th Cir. 1998) (quoting Hafer v. Melo,

502 U.S. 21

, 24–27 (1991)). 275 Henley v. Brown,

686 F.3d 634, 640

(8th Cir. 2012). 276

(internal citation omitted) (quoting Baker v. McCollan,

443 U.S. 137

, 144 n.3 (1979)). 277 Kingsley v. Lawrence Cty., Mo.,

964 F.3d 690, 703

(8th Cir. 2020) (quoting Whitney v. City of St. Louis,

887 F.3d 857, 861

(8th Cir. 2018)). 278 Wedemeier v. City of Ballwin, Mo.,

931 F.2d 24, 26

(8th Cir. 1991). 279

44 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 45 of 56

policymaking officials, or in certain omissions on the part of policymaking officials that manifest deliberate indifference to the rights of citizens. Outside of such formal decisionmaking channels, a municipal custom may arise if a practice is so “persistent and widespread” and “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.”280

At the time of the incident, it is undisputed that the City of Blytheville had a policy on the

use of force.281 Ms. Anderson argues that the City of Blytheville’s policy was unconstitutional

because it permitted its officers to use discretion in deciding “whether to take a mentally ill person

who is in a crisis to the county jail or to a hospital for treatment of their condition,” thereby

permitting officers to “override the judgment of medical professionals and to use any means

necessary to effectuate an arrest . . . .”282 Ms. Anderson has not cited any authority supporting her

contention that such a policy is unconstitutional. And the Eighth Circuit has made clear that it is

not unconstitutional.

In Sok Kong, the city of Burnsville enacted a training and department policy that advised

that “taking no action or passively monitoring the situation may be the most reasonable response

to a mental health crisis.”283 But the policy also provided that “[n]othing in this policy shall be

construed to limit an officer’s authority to use reasonable force when interacting with a person in

a crisis.”284 The officers in Sok Kong exercised their discretion to use deadly force, rather than

taking no action or passively monitoring the situation.285 The Eighth Circuit reasoned that the

officers did not act contrary to the policy, given the provision affording them discretion.286 And

280 Carter v. Morris,

164 F.3d 215, 218

(4th Cir. 1999) (cleaned up). 281 Pl.’s Resp. to Defs.’ Statement of Material Facts (Doc. 44) ¶ 82. 282 Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 43) at 19. 283 Sok Kong,

. 284

285

. 286

45 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 46 of 56

the Eighth Circuit further noted that, even had the discretionary provision not existed, acting

“contrary to training ‘does not itself negate qualified immunity . . . so long as a reasonable officer

could have believed that his conduct was justified.’”287 In other words, police officers may

exercise discretion in using reasonable force whether or not a policy allows for it. Like the policy

in Sok Kong, the City of Blytheville’s policy permitted its officers to use discretion in how best to

handle a criminal suspect suffering from a mental health crisis.

The Court finds that the City of Blytheville’s use of force policy at the time of the incident

was not unconstitutional on its face because it did not require the City’s law enforcement officers

to act unconstitutionally. Because Ms. Anderson failed to identify an underlying constitutional

violation, and because she failed to identify an unconstitutional custom or policy, her claims

against the City of Blytheville fail as a matter of law. Defendants are therefore entitled to judgment

as a matter of law with respect to these claims.

V. State Law Assault and Battery

Ms. Anderson alleges that Officer Driskill committed the torts of assault and battery against

Mr. Warren.288 Under Arkansas law, “[b]attery is a wrongful or offensive physical contact with

another through the intentional contact by the tortfeasor and without consent of the victim . . . .”289

Assault is an “intentional attempt by a person, by force or violence, to do an injury to the person

of another, or as any attempt to commit a battery, or any threatening gesture showing in itself or

by words accompanying it an immediate intention, coupled with a present ability, to commit a

battery.”290

287

(quoting City of San Francisco v. Sheehan,

575 U.S. 600, 615

(2015)). 288 Pl.’s Compl. (Doc. 2) ¶ 30. 289 Costner v. Adams,

82 Ark. App. 148, 156

121 S.W.3d 164, 170

(Ark. App. 2003). 290

46 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 47 of 56

Arkansas protects police officers from liability when effectuating an arrest. Indeed,

Arkansas Code Annotated section 5-2-610 states that “a law enforcement officer is justified in

using nondeadly physical force . . . upon another if the law enforcement officer reasonably believes

the use of nondeadly force is necessary to [e]ffect an arrest or prevent the escape from custody of

an arrested person unless the law enforcement officer knows that the arrest is unlawful.”291 A law

enforcement officer is further justified in using nondeadly force to “defend himself . . . or a third

person from what the law enforcement officer reasonably believes to be the use or imminent use

of physical force while effecting or attempting to effect an arrest or while preventing or attempting

to prevent an escape.”292

As already explained in great detail above, Officer Driskill used a reasonable degree of

force in arresting Mr. Warren given Mr. Warren’s belligerent behavior. Because Officer Driskill’s

conduct was justified, his physical contact with Mr. Warren was not “wrongful” and thus not

battery. For the same reason, Officer Driskill cannot be said to have attempted to commit battery

sufficient to establish a claim of assault. Ms. Anderson does not cite any caselaw to the contrary.

Rather, she repeats her same assertions that Officer Driskill’s conduct was tortious and

unconstitutional because Mr. Warren had a mental illness. For all the reasons discussed above,

that argument fails. Officer Driskill is therefore entitled to judgment as a matter of law.293

Federal Rule of Civil Procedure 56(d) Request

There’s a final issue for the Court to address. Ms. Anderson appears to believe that the

291

Ark. Code Ann. § 5-2-610

(a)(1). 292

Id.

at § 5-2-610(a)(2). 293 To the extent Officer Driskill was not justified in any of his conduct, for the reasons stated in the rest of this opinion, he is still entitled to qualified immunity under Arkansas law. Ms. Anderson does not dispute that Arkansas law is currently interpreted as including the qualified immunity doctrine. She says this understanding of Arkansas law is incorrect and she invites this Court to abolish the doctrine entirely. That’s not something a District Court can do.

47 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 48 of 56

Court should allow additional discovery before resolving the Motion for Summary Judgment. As

the Court explains below, she has not made a timely and proper 56(d) request. But even if she had

done so, she does not meet the standard set out by the Eighth Circuit for 56(d) relief.

The Discovery deadline set by the Court’s Second Amended Final Scheduling Order

expired on June 19, 2020.294 Defendants’ filed the instant Motion for Summary Judgment on July

20, 2020, which was the last day allowable. Under the Scheduling Order and Local Rule 7.2(b),

Ms. Anderson had fourteen days to “file with the Clerk a concise statement in opposition to the

motion with supporting authorities.”295 Defendants could then file a reply within 7 days. The

Scheduling Order and the Local Rule make clear that “[n]o surresponse or surreply will be

permitted, absent express direction by the Court.”296

On July 29, 2020, Ms. Anderson asked the Court to stay the case or extend the deadline for

responding to summary judgment because her counsel had late-stage terminal cancer.297 She asked

to extend the response deadline by at least 60 days, which she said “will allow her counsel time to

engage the assistance of someone to review the files and prepare [a] response[]” to the Motion for

Summary Judgment.298 Finding this a very reasonable request, the Court extended the deadline

for responding to summary judgment by 90 days, making the new deadline October 2, 2020.299

On September 16, 2020, Ms. Anderson (now with new counsel) moved once again to

amend the schedule.300 She asked to “extend all outstanding deadlines set forth in the Second

294 Second Am. Final Scheduling Order (Doc. 24) ¶ 2. 295 Third Am. Final Scheduling Order (Doc. 41) ¶ 7. 296 Id. 297 Mot. for Stay (Doc. 31) ¶¶ 2, 5, 6. 298 Id. ¶ 6. 299 Text Order (Doc. 32). The 90-day extension fell on a Saturday, thus Plaintiff’s response was due the following Monday. 300 Pl.’s Third Mot. to Amend the Scheduling Order (Doc. 37).

48 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 49 of 56

Amended Final Scheduling Order by one hundred and eighty days . . . .”301 Although the discovery

and pleading deadlines (having already passed) were not outstanding, the context of the motion

suggests that Ms. Anderson was asking for an extension of those deadlines in addition to the

deadline for her response to summary judgment.302 For reasons discussed in prior Orders by the

Court303 and discussed to some extent below, the Court denied the request to re-open discovery or

the time for amendment of the complaint.304 But the Court partially granted the request for

additional time to respond to the Summary Judgment Motion.305 The Court gave Ms. Anderson

an additional 45 days (approximately) to file a Response, making the deadline November 30, 2020.

On November 30, 2020, Ms. Anderson filed a Response, a Brief in Support of her

Response, and a Statement of Facts.306 She did not file a Rule 56(d) motion or affidavit. After a

short extension of time, Defendants filed a Reply on December 14, 2020.307 Then, on February 2,

2021, Ms. Anderson filed a document titled “Supplemental Affidavit Under Rule 56(f) of the

Federal Rules of Civil Procedure.”308 Since subsection (f) is now “Judgment Independent of the

Motion,” I am going to assume Ms. Anderson meant her Affidavit to be a Rule 56(d) Affidavit. In

relevant part, the Affidavit stated that her prior counsel “never took the depositions that we need

301 Id. ¶ 5. 302 See id. (stating that the extension would “allow counsel for Plaintiff to familiarize themselves with the case, adequately investigate the claims, and amend the pleadings as necessary”) (emphasis added). 303 See Text Order (Doc. 40); Order Denying Mot. to Amend (Doc. 70). 304 Text Order (Doc. 40). 305 Id. 306 Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 42); Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 43); Pl’s Resp. to Defs.’ Statement of Material Facts (Doc. 44). 307 Defs.’ Reply to Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 55). 308 Affidavit re Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 66). In the meantime, the parties had filed dueling papers on Ms. Anderson’s Motion to Amend the Complaint, which the Court addressed in its Order Denying the Motion to Amend. Order Denying Mot. to Amend (Doc. 70); see also Pl.’s Mot. to Amend (Doc. 50); Defs.’ Resp. to Pl.’s Mot. to Amend (Doc. 52); Defs.’ Br. in Supp. of Defs.’ Resp. to Pl.’s Mot. to Amend (Doc. 53).

49 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 50 of 56

to respond fully to the defendants’ Motion for Summary Judgment . . . .”309 It also stated that “we

never received discovery of relevant documents and other materials from the defendants before

the discovery deadlines and [the deadlines] for amendment of pleadings . . . .”310

There are several problems with Ms. Anderson’s Rule 56(d) affidavit. First, it is not clear

that a Rule 56(d) request is in order after the expiration of the discovery deadline in a Court’s

scheduling order. The Eighth Circuit has made clear on numerous occasions that “[t]he purpose

of this rule is ‘to prevent a party from being unfairly thrown out of court by a premature motion

for summary judgment.’”311 Rule 56(d) is essentially a protective mechanism to effectuate “[t]he

general rule . . . that summary judgment is appropriate ‘only after the nonmovant has had adequate

time for discovery.’”312

Still, it is fair to say that the language of the Rule does not expressly limit itself to situations

where the discovery period is ongoing. So let’s assume that a Rule 56(d) request can, in theory,

be made even after the expiration of the discovery deadline. A second problem for Ms. Anderson

is that the Court’s Scheduling Order (as further amended) and the Local Rules (1) clearly required

all responses to summary judgment to be made by November 30, 2020, and (2) clearly prohibited

surrresponses. If Ms. Anderson wanted to raise a 56(d) issue, she was required to do so at the time

of her response to the Summary Judgment Motion—not more than 2 months later. The violation

of the Local Rules and the Court’s Scheduling Order are by themselves sufficient grounds to deny

the 56(d) request.

Even if Ms. Anderson’s request was timely and proper, it fails to meet the Eighth Circuit’s

309 Affidavit re Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 66) ¶ 10. 310 Id. 311 Jackson v Riebold,

815 F.3d 1114, 1121

(8th Cir. 2016). 312

(quoting Toben v. Bridgestone Retail Opers., LLC,

751 F.3d 888, 894

(8th Cir. 2014)).

50 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 51 of 56

standard for granting 56(d) relief. “[T]o obtain a Rule 56(d) continuance, the nonmovant ‘must

file an affidavit affirmatively demonstrating … how postponement of a ruling on the motion will

enable him, by discovery or other means, to rebut the movant’s showing of the absence of a

genuine issue of fact.’ A district court has ‘wide discretion’ in ruling on a Rule 56(d) motion.”313

Ms. Anderson’s Affidavit doesn’t say anything of the sort. Instead, it vaguely and generally asserts

that her prior lawyer didn’t take several depositions and get unidentified discovery that would

allow a “full[er]” response to the Summary Judgment motion.314

It is likely that Ms. Anderson realized the substantive shortcomings of her Affidavit. On

the evening of April 7, 2021, the day the Court held a hearing on the Motion for Summary

Judgment, Ms. Anderson filed a document titled “Third Affidavit in Support of Plaintiff’s Partial

Response to Defendants’ Motion for Summary Judgment.”315 Although the title does not suggest

it is a Rule 56(d) Affidavit, the substance of the document does.316 And it states more specifically

than the First Affidavit what information Ms. Anderson believes additional discovery would

uncover. Upon request of the Defendants, the Court struck this document as untimely.317 This

document was even more out of time than the first 56(d) Affidavit. Ms. Anderson cannot simply

file documents responding to Summary Judgment whenever she wants and in a piecemeal fashion.

Doing so makes it impossible for the Defendants to fairly respond to arguments and for this Court

to resolve the outstanding issues in an orderly fashion. There was no good reason for the delay.

Even if I were to consider the substance of the Affidavit, it still does not meet the Eighth

313

(internal citation omitted) (quoting Toben,

751 F.3d at 894

). 314 Affidavit re Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 66) ¶ 10. 315 Third Affidavit in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 79). 316 Id. ¶ 5. 317 Text Order (Doc. 102).

51 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 52 of 56

Circuit’s substantive standard for Rule 56(d) relief. For example, consider Paragraphs 5A and

5B.318 These paragraphs contain the exact type of general and vague assertions that fail the test.

In paragraph 5C, Ms. Anderson says that “[i]f additional discovery is allowed, I will be

able to take the deposition of Dr. John Thomas at St. Bernard’s Medical Center regarding his

statement that my son’s vegetative state was a result of being deprived of air. . . . This deposition

is necessary to authenticate medical records and to show that my son’s vegetative state was caused

by being choked and deprived of air by Defendant . . . Driskill and the other police officers who

assisted Driskill in the September 29, 2018 arrest of my son, and not from a ‘drug overdose.’”319

But authentication of the medical records that the parties have presented is unnecessary at this

stage—the Court has assumed for purposes of summary judgment that the medical records are

authentic. More importantly, the Court has assumed for purposes of summary judgment that

Plaintiff is correct in its position that a crushed trachea was the cause of death. In light of these

assumptions, the information Ms. Anderson describes is not the sort of information that is

necessary to rebut the movants’ showing of an absence of a genuine issue of material fact. Put

another way, even if Ms. Anderson secured the facts she seeks, it would not alter the outcome of

the pending Summary Judgment Motion.

In paragraph 5D, Ms. Anderson says she “would like to take the deposition of Defendant .

. . Driskill to prove that he did not have the crisis intervention training and de-escalation training

that was required to respond to a call of a person having a mental health crisis, including a bad

reaction to drugs.”320 But a failure-to-train claim would only be viable if Officer Driskill had

committed a constitutional violation and did so because of the purported failure to train. Because

318 Third Affidavit in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 79) ¶ 5. 319 Id. 320 Id.

52 Case 3:18-cv-00231-LPR Document 104 Filed 07/26/21 Page 53 of 56

the Court has concluded that Driskill did not commit a constitutional violation, there is no potential

for a viable failure-to-train claim regardless of what information might come out at a deposition.321

In paragraph 5E, Ms. Anderson says she “would like to take the deposition of the custodian

of records of the Blytheville Police Department and the Blytheville Chief of Police regarding the

police department’s policies and procedures regarding mentally ill persons and persons having a

‘mental health crisis’ who are going to be placed under arrest.”322 What has already been written

about paragraph 5D—in both text and footnote—applies equally here. Moreover, this request

seems more like the proverbial fishing expedition than a narrow request calculated to be able to

rebut a movant’s showing of the absence of a genuine issue of material fact.

In paragraph 5F, Ms. Anderson says she “would like to take the depositions of Officers

Santos Berumen, Nathan Krupin, and Doyne Driskill regarding the approximately 3-4 minutes of

body camera footage that is missing from the materials provided by the Defendants in their

disclosures to the Plaintiff.”323 She says that “[t]he whereabouts and actions of each officer is

critical to establishing that my son was being intentionally deprived of air and was unable to

breath[e] during that time.”324 There are at least three problems here. First, Ms. Anderson is

essentially going on a fishing expedition. She hopes a deposition would reveal something

nefarious about the whereabouts and conduct of Officer Driskill; but she has no evidence to suggest

321 In any event, Rule 56(d) “is designed to minister to the vigilant, not to those who slumber on perceptible rights.” Beatty v. Synthes (USA), 101 Fed. App’x 645, 646 (8th Cir. 2004) (unpublished) (quoting Ayala-Gerena v. Bristol Myers-Squibb Co.,

95 F.3d 86, 92

(1st Cir. 1996)). From the very outset of this case (back in October of 2018), Ms. Anderson knew that Officer Driskill was the arresting officer and knew that that her son had mental illness issues. Very shortly after that, Ms. Anderson knew her son had been on illegal substances the night of the arrest. Ms. Anderson had approximately one year to depose Officer Driskill before anyone even suggested that her prior counsel’s illness got in the way of work. There were other depositions scheduled and conducted in that time. And Officer Driskill’s deposition was scheduled, but then cancelled by Plaintiff’s side. 322 Third Affidavit in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 79) ¶ 5. 323

324