Anderson v. Driskill

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

NORTHERN DIVISION TAWONA WARREN ANDERSON PLAINTIFF Guardian of the Person and Estate of Rayshawn Warren v. Case No. 3:18-cv-00231-LPR DOYNE DRISKILL DEFENDANTS Individually and in his official capacity as a Police Officer for the City of Blytheville, Arkansas, ROSS A. THOMPSON Individually and in his official capacity as Chief of Police for the City of Blytheville, Arkansas, and CITY OF BLYTHEVILLE, ARKANSAS

ORDER

Some cases try judges’ souls. This is one of them. A man with mental illness, who was at most a misdemeanant, has died after being arrested; his mother, who is most assuredly in unbearable anguish, believes one or more of the arresting police officers or emergency medical technicians at the scene are to blame and wants them held to account. Any human being would have the utmost sympathy for the Plaintiff in this case. But judges are sworn to put aside such feelings of sympathy and to decide cases impartially—solely based on the law. It is the only way our justice system can function fairly for all participants. And it is what I do here. Nonetheless, and as I have noted in a prior Order, this is precisely the type of case that warrants a hard second look from the Court of Appeals to ensure that my decision represents an accurate understanding and application of governing precedent.

On October 30, 2018, Plaintiff Tawona Anderson, in her capacity as the Guardian of the Person and Estate of Rayshawn Warren, filed a Complaint in the Circuit Court of Mississippi County, Arkansas.1 She sued Officer Doyne Driskill (in both his individual and official capacities), Blytheville Chief of Police Ross Thompson (in both his individual and official capacities), and the City of Blytheville, Arkansas.2 In short, Ms. Anderson’s Complaint alleges that Defendants violated Mr. Warren’s First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights under the United States Constitution, and that Officer Driskill committed the common law state torts of assault and battery.3

On November 29, 2018, Defendants removed the case to the Eastern District of Arkansas.4 A lot has happened since that time. A fairly comprehensive procedural history can be read (and should be read) in the Court’s relatively recent Order denying Plaintiff’s Motion to Amend the Complaint.5 It’s important to note here, however, that Officer Driskill, Chief Thompson, and the City of Blytheville are the only Defendants named in the Complaint. Other officers and paramedics involved in Mr. Warren’s arrest and transport are not named as Defendants.6

Defendants’ Motion for Summary Judgment is now before the Court. The Court has carefully considered the parties’ evidence, briefing, and oral arguments. For the following reasons, the Court concludes that the Motion for Summary Judgment should be granted in its entirety.

Summary Judgment Standard

Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”7 The movant bears the initial burden of showing (1) the absence of a genuine dispute as to any material fact and (2) that a rational juror could not possibly find for the nonmoving party based on the undisputed facts.8 If the movant successfully makes this showing, the burden then shifts to the nonmoving party to establish that there is some genuine and material issue to be determined at trial.9 The nonmoving party may not rest solely upon the allegations in its pleadings.10 To survive summary judgment, the nonmoving party “must demonstrate the existence of specific facts . . . supported by ‘sufficient probative evidence that would permit a finding in her favor on more than mere speculation, conjecture, or fantasy.’”11 If the nonmoving party can present specific facts by “affidavit, deposition, or otherwise, showing the existence of a genuine issue for trial,” then summary judgment is not appropriate.12

Of course, the mere existence of a disputed fact will not bar summary judgment.13 The dispute must be genuine, which means the evidence could cause a reasonable jury to decide the particular question of fact for either party.14 And the disputed fact must be material, meaning the resolution of the dispute will be outcome determinative under the controlling law.15 The Court will resolve all genuine issues of material fact in the non-moving party’s favor.16 But the Court will not adopt a version of the facts that is blatantly contradicted by the record such that no rational juror could believe it.17

Background The events in question occurred in Blytheville, Arkansas, between 7:59 p.m. and 9:00 p.m. on September 29, 2018. It was well after sunset and dark outside. At approximately 7:59 p.m., Officer Driskill of the Blytheville Police Department responded to a call about an unknown man at 910 Hearn Street trying to “snatch the door open.”18 Officer Driskill spoke with the resident of 910 Hearn Street, who explained that the encounter with the unknown man “was scary” and that the man’s “eyes were big,” as if the man “was on something.”19 The resident described the man as a black male wearing a blue shirt.20 Officer Driskill searched around the outside of the house but did not find the man.

While Officer Driskill was still at 910 Hearn Street, dispatch received several calls concerning a man matching the same general description knocking on doors on Walnut Street.21 Officer Driskill left Hearn Street and made contact with a caller on Walnut Street.22 The caller stated that a man was knocking on doors and asking for help.23 The caller directed Officer Driskill toward 8th Street, which is where the man was last seen.24 En route, Officer Driskill received yet another call from dispatch that seemed to involve the unknown male.25 This time, dispatch relayed information about a man who was screaming for help behind a Baptist Church.26 There is a Baptist Church on the corner of 8th Street and Walnut Street.27

Officer Driskill located a man fitting the given description at approximately 8:08 p.m. at the southeast corner of Main Street and 7th Street.28 The man was 29-year-old Rayshawn Warren. As it turns out, Mr. Warren suffered from a history of bipolar disorder.29 He also had a documented history of drug use and meth abuse.30 Indeed, on the night in question, Mr. Warren tested positive for amphetamines.31

Officer Driskill attempted to approach Mr. Warren saying, “what’s going on, man,” and “come here.”32 Mr. Warren responded “no.”33 Officer Driskill told Mr. Warren two more times to “come here.”34 Once again, Mr. Warren responded “no” and then started running down Main Street.35 Officer Driskill pursued Mr. Warren.36 At approximately 8:08 p.m., Officer Driskill made physical contact with Mr. Warren.37 Roughly twenty-three minutes later, two other officers determined that Mr. Warren did not have a pulse and began CPR.38 Mr. Warren never regained consciousness; he spent the remainder of his life in a vegetative state until he died. What happened during those twenty-three minutes, and specifically whether Officer Driskill’s conduct was reasonable, are the primary questions underpinning Ms. Anderson’s Complaint and Defendants’ Motion for Summary Judgment.

Bodycam Videos The Court will walk step-by-step through the events that transpired during the arrest on the night of September 29, 2018.39 For the most part, the facts will be derived from the bodycam videos belonging to Officers Berumen, Krupin, and Driskill.40 When a fact is genuinely disputed, the Court will adopt the version of the genuinely disputed fact that is most favorable to Plaintiff.

The Attempted Armbar At 8:08:46 p.m., Officer Driskill made physical contact with Mr. Warren.41 The parties agree that during this brief initial altercation, Officer Driskill attempted to perform an armbar on Mr. Warren.42 Mr. Warren was facing Officer Driskill when contact was made.43 Mr. Warren put both of his arms out in front of his body and towards the chest or head of Officer Driskill.44 This was not done in a particularly violent manner. Rather, Mr. Warren simply appeared to be creating a buffer between himself and Officer Driskill.

Officer Driskill and Mr. Warren scuffled for approximately 2 seconds before Mr. Warren prevailed in pushing Officer Driskill to the ground and breaking free of Officer Driskill’s grasp.45 At 8:08:48 p.m., Mr. Warren’s legs can be seen as Officer Driskill falls backwards to the ground.46 As Officer Driskill fell, he lost physical contact with Mr. Warren, and Mr. Warren again took flight. At 8:08:50 p.m., Officer Driskill got back up and resumed pursuit.47

The Takedown For the next eighteen seconds, Mr. Warren eluded Officer Driskill.48 Occasionally, Officer Driskill would instruct Mr. Warren to “come here” or to “get on the ground.”49 Mr. Warren did not heed Officer Driskill’s commands. At 8:09:08 p.m., Officer Driskill again made physical contact with Mr. Warren.50 This time, Officer Driskill threw Mr. Warren to the ground.51

Mr. Warren landed on his back on a patch of grass near to, but off of, a public road. One second later, Officer Driskill mounted Mr. Warren, and the two lightly wrestled for hand control.52 At 8:09:15 p.m., Officer Driskill gained control of both of Mr. Warren’s wrists.53 By 8:09:18 p.m., Officer Driskill had both of Mr. Warren’s arms pinned to the ground near Mr. Warren’s head.54 Officer Driskill was sitting on Mr. Warren’s stomach, straddling him.55 Mr. Warren repeatedly yelled, “momma.”56

From 8:09:18 p.m. until 8:10:28 p.m., Officer Driskill sat on Mr. Warren’s stomach, straddling him and restraining his arms.57 Occasionally, Mr. Warren’s arms can be seen tensing and flexing as he attempted to free himself from Officer Driskill’s grasp.58 Officer Driskill instructed Mr. Warren to “stand down,” “calm down,” and “stop.”59 Throughout this interaction, Mr. Warren repeatedly yelled for his mother and for help. He also stated that he is a father of two and that he was “sketching.”60 Mr. Warren also yelled unintelligible phrases. Mr. Warren had what appears to be a white foam around his lips.

In the meantime, Officer Krupin arrived to the scene. 61 At 8:10:11 p.m., Officer Krupin approached Officer Driskill and Mr. Warren.62 At 8:10:20 p.m., Officer Krupin addressed Mr. Warren by name, saying “Rayshawn, chill the f**k out.”63 At 8:10:24 p.m., Officer Krupin radioed Mr. Warren’s full name to an unidentified party.64 At 8:10:28 p.m., Officer Krupin knelt down on the grass near the right side of Mr. Warren and made physical contact with Mr. Warren in an effort to assist Officer Driskill in restraining Mr. Warren.65

The First Tasing Officer Driskill was still holding Mr. Warren’s arms against the ground.66 At 8:10:29 p.m., Officer Krupin placed his hand on Mr. Warren’s right wrist and placed a taser on Mr. Warren’s abdomen.67 Officer Krupin warned Mr. Warren that if Mr. Warren kept fighting, Officer Krupin was going to “tase the s**t” out of Mr. Warren.68 At 8:10:30 p.m., Mr. Warren said “okay” and Officer Krupin removed his hand from Mr. Warren’s wrist.69

In the meantime, Officer Berumen arrived on the scene.70 At 8:10:34 p.m., Officer Berumen radioed Mr. Warren’s full name to an unidentified party.71 At 8:10:40 p.m., Officer Driskill (still holding Mr. Warren’s wrists) climbed off Mr. Warren and knelt on the grass next to until approximately 8:10:11. Ex. 2A (Bodycam Collage Video – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2).

Mr. Warren’s left hip.72 At 8:10:42 p.m., Mr. Warren lifted his legs to his stomach.73 Officer Krupin then repeatedly instructed Mr. Warren to roll over.74 Officer Krupin warned Mr. Warren three times that he would tase Mr. Warren if he did not roll over.75

At 8:10:45 p.m., Officer Berumen told Officers Driskill and Krupin to roll Mr. Warren over.76 Officers Driskill and Krupin attempted to roll Mr. Warren over.77 Mr. Warren sprawled backwards.78 Mr. Warren was kicking his legs and attempting to rip his arms from the Officers’ grips. At 8:10:47 p.m., Officer Krupin administered a five-second drive stun to Mr. Warren’s abdomen.79 Mr. Warren appeared unaffected.80 The video reveals that Mr. Warren was able to grab Officer Krupin’s taser and pull it away from his body.81 At 8:10:51 p.m., Officer Berumen grabbed Mr. Warren’s right wrist.82 Officers Driskill, Krupin, and Berumen were all working together to control Mr. Warren.

The Chokehold Mr. Warren was still lying on his back because the Officers were having a difficult time getting him turned over.83 From that position, Mr. Warren sprawled backwards, kicked his legs into the air, and attempted to pull his arms to his body and out of the Officers’ grasps.84 Officer Driskill was positioned to the left of Mr. Warren and worked to control Mr. Warren’s left arm and left leg.85 But Officer Driskill quickly lost his grip on Mr. Warren’s arm.86 Officer Berumen was positioned on Mr. Warren’s right side and was attempting to restrain Mr. Warren’s right arm.87 Officer Krupin had been near Mr. Warren’s legs, but quickly repositioned himself near Mr. Warren’s head.88

At 8:10:59 p.m., Mr. Warren put both hands over his head and curled into a ball on his left side.89 The Officers repeatedly instructed Mr. Warren to roll over, but to no avail. At 8:11:04 p.m., Mr. Warren’s voice became distorted.90 Viewing the facts in the light most favorable to Plaintiff, the Court concludes that this is the moment when Officer Krupin began to apply a chokehold (a vascular restraint) to Mr. Warren.

At 8:11:06 p.m., Officer Berumen’s bodycam fell to the ground.91 About this same time, Officer Driskill’s bodycam also came loose.92 As Officer Driskill adjusts his bodycam, it becomes apparent that he is no longer in physical contact with Mr. Warren.93 At 8:11:15 p.m., Officers Krupin and Berumen succeeded in rolling Mr. Warren onto his stomach.94 Officer Krupin told Officer Driskill to take hold of Mr. Warren’s left arm.95 Officer Berumen was holding Mr. Warren’s right arm behind Mr. Warren’s back.96 At 8:11:31 p.m., Officer Krupin’s bodycam fell to the ground and Officer Driskill took hold of Mr. Warren’s left arm.97 At 8:11:33 p.m., Officer Krupin stated that he had Mr. Warren in a chokehold and assured Officers Driskill and Berumen that Mr. Warren wasn’t going anywhere.98

From approximately 8:11:36 p.m. until approximately 8:12:05 p.m., Mr. Warren pulled his arm away from Officer Driskill and inward toward his own body.99 At least two of the Officers (it is unclear exactly which two) repeatedly instructed Mr. Warren to relax his arm.100 At 8:12:04 p.m., Officer Driskill addressed Mr. Warren by name and instructed him to relax his arm.101 At 8:12:06 p.m., Officer Krupin announced that Mr. Warren was unconscious.102 Officer Krupin then immediately released his chokehold and lifted himself off of Mr. Warren’s back.103 In the light most favorable to Plaintiff, the chokehold lasted for approximately one minute and two seconds.

At 8:12:17 p.m., Officer Driskill successfully placed Mr. Warren’s wrists in handcuffs behind Mr. Warren’s back.104 By 8:12:20 p.m., all three Officers had broken physical contact with Mr. Warren, who was laying chest-down in the grass.105 Immediately after Officer Driskill finished handcuffing Mr. Warren, Officer Driskill sat backwards and reached for his ankle.106 Officer Berumen then placed his hands on Officer Driskill and asked Officer Driskill if he had been hurt.107 Officer Driskill stated that he twisted his ankle.108

At 8:12:34 p.m., Mr. Warren began to move again.109 At most, Mr. Warren was unconscious for approximately twenty-eight seconds. At 8:12:47 p.m., Mr. Warren began to talk again.110 His talking quickly progressed to yelling.

The Leg Slam, Second Tasing, and Leg Shackles At 8:12:51 p.m., Officer Driskill instructed Mr. Warren to “calm down” and “relax.”111 For the next few seconds, Mr. Warren squirmed on the ground and continued to yell.112 Officer Berumen was standing close to Mr. Warren. At one point, it appears as though Officer Berumen was standing over Mr. Warren or on Mr. Warren’s right arm to hold Mr. Warren in place.113 At 8:13:21 p.m., Officer Berumen bent down, grabbed Mr. Warren by the arm, and slid Mr. Warren a few feet away from the concrete sidewalk and further onto the grass.114 Mr. Warren continued to writhe, wriggle, and yell.

At 8:13:29 p.m., Mr. Warren began kicking his legs into the air and near the Officers who were standing close by.115 At 8:13:34 p.m., Officer Driskill reinitiated physical contact with Mr. Warren.116 Officer Driskill knelt down beside Mr. Warren, placed his left hand on Mr. Warren, and instructed Mr. Warren to calm down. At 8:13:37 p.m., Officer Berumen warned Officer Driskill not to allow Mr. Warren to kick Officer Driskill.117 Only moments later, at 8:13:41 p.m., Mr. Warren kicked his legs again. It appears that Mr. Warren’s right foot contacted Officer Driskill’s left shoulder and the left side of Officer Driskill’s head or neck.118

Officer Driskill immediately reacted to the kick.119 At 8:13:44 p.m., Officer Driskill grabbed Mr. Warren’s right leg and slammed it to the ground, using the force of Officer Driskill’s own body. Officer Driskill’s bodycam fell off in the process.120 Officer Berumen then joined the struggle.121 At 8:13:47 p.m., Officer Driskill can be seen holding Mr. Warren’s right leg as Officer Berumen simultaneously holds Mr. Warren’s right arm.122 Officer Berumen instructed Officer Driskill to let go of Mr. Warren’s leg, and Officer Driskill let go.123 Officer Driskill then clambered off of Mr. Warren and Officer Krupin took Officer Driskill’s place.124

At 8:13:50 p.m., Officer Krupin reminded Officers Berumen and Driskill that, despite the fact that Mr. Warren was “kicking and s**t,” Mr. Warren was now in their custody.125 By this time, there is no indication that Officer Driskill was still physically engaged with Mr. Warren. At 8:13:57 p.m., it is apparent that Officer Driskill was standing a few feet away from Mr. Warren.126 At 8:13:58 p.m., Officer Driskill’s bodycam went dark. Officer Krupin’s bodycam and Officer Berumen’s bodycam both remained on. Nothing in their video feeds suggest that Officer Driskill returned to the struggle.127

At 8:13:59 p.m., Officer Krupin warned Mr. Warren that if Mr. Warren kept moving, he was going to get tased.128 Officer Krupin placed his taser (in drive-stun mode) against Mr. Warren’s right leg.129 At 8:14:04 p.m., Officer Krupin administered a five-second drive stun to Mr. Warren’s leg.130 At the end of the taser cycle, Mr. Warren rolled onto his stomach and Officer Berumen placed his weight on Mr. Warren’s back.131 Mr. Warren continued to lightly kick his legs.132 At 8:14:44 p.m., Officer Krupin placed Mr. Warren’s ankles into handcuffs.133 Officer Krupin then stood up and placed his foot on the handcuff chain between Mr. Warren’s ankles.134

At 8:14:59 p.m., Officer Driskill can be seen on the left side of Officer Krupin’s video feed sitting down in the grass a few feet to the left of Mr. Warren and behind Officer Berumen. 135 Officers Krupin and Berumen remarked that Mr. Warren was “tripping on something,” but that Mr. Warren did not appear to be suffering from an overdose.136 Shortly thereafter, Officer Berumen rose to his feet, placed his hand on Mr. Warren’s back for a few seconds, and then shifted to placing his right foot on Mr. Warren’s back.137

At 8:15:40 p.m., Officer Driskill came back into view.138 He was standing against one of the police cruisers well away from Mr. Warren. At 8:16:14 p.m., Officer Berumen asked Officer Driskill if Officer Driskill needed to go to the hospital.139 At 8:17:14 p.m., Officer Krupin stated that Mr. Warren must have “got some bad meth.”140 At 8:17:22 p.m., Officer Driskill turned his bodycam back on.141 He was still standing next to the police cruiser a good distance away from Mr. Warren. At 8:17:54 p.m., Officer Krupin reported to EMS that Officer Driskill “messed his ankle up fighting with the suspect.”142 Officers Berumen, Driskill, and Krupin sprayed themselves with bug spray. They did not spray Mr. Warren.

At 8:18:07 p.m., Officer Driskill sat down on the ground a few feet away from Mr. Warren.143 Mr. Warren was still muttering unintelligibly. At 8:18:11 p.m., Officer Berumen removed his foot from Mr. Warren’s back.144 At 8:18:20 p.m., Mr. Warren can be seen sitting upright on the ground between Officers Driskill, Berumen, and Krupin.145 None of the Officers were holding him down. At 8:18:28 p.m., Mr. Warren rocked forward, as if he were attempting to stand up, and then asked Officer Krupin if he could stand up for a minute.146 Officer Krupin said no and told Mr. Warren to stay seated.147 Mr. Warren then repeatedly tried to stand.148 At 8:18:44 p.m., Officer Driskill verbally urged Mr. Warren to sit with him.149 By approximately 8:21:07 p.m., EMS had arrived on the scene.150

Additional Excessive Force Allegations The last time Officer Driskill was physically engaged with Mr. Warren was approximately 8:13:51 p.m., when Officer Driskill let go of Mr. Warren’s leg right before Officer Krupin took control and administered the second drive-stun tasing. The Court has already detailed some of what happened after Officer Driskill ceased contact with Mr. Warren. In particular, Officer Krupin tased Mr. Warren in drive-stun mode in the leg, and Officers Krupin and Berumen handcuffed Mr. Warren’s legs.

Plaintiff also notes that, after EMS arrived, the paramedic became aggressive with Mr. Warren.151 At 8:24:28 p.m., Mr. Warren began kicking his legs as Officers Krupin and Berumen and the paramedic attempted to prepare Mr. Warren for transfer.152 After Mr. Warren began kicking, the paramedic stated that Mr. Warren was about to “kick the wrong person.”153 Mr. Warren continued to kick, and the paramedic attempted “pain compliance” tactics to subdue Mr. Warren.154 Specifically, at 8:25:04 p.m., the paramedic began kneeing Mr. Warren in the side.155 Mr. Warren’s conduct did not abate despite the paramedic’s force.

At 8:25:58 p.m., the paramedic began to hog-tie Mr. Warren.156 At 8:26:09 p.m., Officer Krupin informed the paramedic that he could not hog-tie Mr. Warren.157 At 8:27:03 p.m., Mr. Warren yelled one last time and then went silent.158 Once again, Officer Driskill had no contact with Mr. Warren during this interaction. Indeed, Officer Driskill had left the scene to retrieve his vehicle from where he had originally parked it when the foot chase with Mr. Warren first began.159

At 8:28:15 p.m., the paramedic rolled Mr. Warren onto Mr. Warren’s back.160 At 8:28:21 p.m., the paramedic stated, “hold your breath, that’s good.”161 At approximately 8:30:00 p.m., all of the Officers’ bodycams went dark.162 A little over a minute later, at 8:31:04 p.m., Officer Krupin’s video feed returned.163 Officer Krupin was taking Mr. Warren’s pulse. Officer Krupin began CPR at 8:31:49 p.m.164 At 8:32:19 p.m., Officer Driskill bent down and began assisting Officers Krupin and Berumen in removing the handcuffs from Mr. Warren.165 This was the first time that Officer Driskill physically contacted Mr. Warren in over nineteen minutes. Shortly thereafter, EMS took Mr. Warren into its custody and transported Mr. Warren to the hospital.

As stated above, Mr. Warren never regained consciousness; he spent the remainder of his life in a vegetative state until he died. Ms. Anderson maintains that Defendants’ conduct resulted in Mr. Warren suffering a crushed trachea, which she alleges ultimately caused Mr. Warren’s death.166 She cites little to no evidence supporting this contention.167 Defendants assert that Mr. Warren died from cardiac arrest (which they say was caused by the amphetamines in Mr. Warren’s system on the night of the arrest).168 Defendants’ theory has more support in the record,169 but it too is not without holes.170 Ultimately, however, the Court need not decide this issue. Although the dispute here is genuine, its outcome is not dispositive for reasons described in the Court’s analysis below.

Discussion Ms. Anderson, as Guardian of the Person and Estate of Rayshawn Warren, sued Officer Driskill in his individual and official capacities for allegedly violating Mr. Warren’s constitutional rights under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. She also sued Officer Driskill for state law claims of assault and battery. Ms. Anderson sued Chief Thompson in his individual and official capacities for allegedly violating Mr. Warren’s constitutional rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments because Chief Thompson allegedly failed to properly train and supervise “Defendant Police Officer(s) . . . .”171 (Aside from Chief Thompson himself, Officer Driskill is the only “Defendant Police Officer” in this case.) Finally, Ms. Anderson asserts that the City of Blytheville violated Mr. Warren’s constitutional rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments by failing to train and supervise its officers, and by permitting the use of unconstitutional customs and policies. I. Officer Driskill – Excessive Force Under the Fourth Amendment

The primary question in this case is whether Officer Driskill used excessive force in apprehending Mr. Warren. “Excessive force claims under the Constitution are governed by the Fourth Amendment’s right of the people to be secure against unreasonable seizures.”172 “Assessing the reasonableness of a seizure ‘requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.’”173

Reasonableness must be determined from “the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”174 The Court considers the particular circumstances of the case, including (but not limited to) “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.”175 “The degree of a plaintiff’s injury is also relevant ‘insofar as it tends to show the amount and type of force used.’”176 And, as Plaintiff argues and Defendants acknowledge, a suspect’s mental illness is a proper factor to be considered in the mix to the extent the officer knows about the illness.

This case also implicates qualified immunity. As a general rule, qualified immunity protects police officers from liability for civil damages so long as their conduct “does not violate clearly established constitutional or statutory rights of which a reasonable person would have known.”177 To determine whether qualified immunity applies, the Court asks two questions: “(1) whether the facts, viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory right; and (2) whether the right was clearly established at the time of the deprivation.”178

If the Court determines that Officer Driskill used reasonable force under the circumstances, then the analysis ends because there was no deprivation of a constitutional or statutory right. On at 396). 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 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 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)). 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 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.”)). 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 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 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. 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 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 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.

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 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.

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. 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 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.

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 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 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 “[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.

“[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 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 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)). 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 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

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 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 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 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 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 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 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 it would. Indeed, to the extent there is anything in the record on this point, it suggests that Officer Driskill was away from the immediate area around Mr. Warren at this point. “Rule 56(d) does not condone a fishing expedition where a plaintiff merely hopes to uncover some possible evidence of unlawful conduct.”325 Second, Ms. Anderson has already had the opportunity to depose the paramedic at the scene.326 She had (and used) the opportunity to ask about the whereabouts of Officer Driskill and others during the time frame in question. And third, as discussed in footnote 321, Ms. Anderson had more than enough time to depose the persons she now asks to depose.

In paragraph 5G, Ms. Anderson says she “would like to take the depositions of Officers Santos Berumen, Nathan Krupin, and Doyne Driskill to discuss records that establish that the officers knew about Rayshawn Warren’s mental disorder before” the night of the arrest. 327 In addition to the other problems previously identified with the request to depose a bunch of persons who could have been deposed earlier, Ms. Anderson does not require this information for purposes of effectively challenging summary judgment. That is because the Court has concluded above that summary judgment is appropriate even under the assumption that Officer Driskill knew of Mr. Warren’s mental illness.328

In paragraph 5H, Ms. Anderson says she “would like to take the deposition of Blytheville city officials who were involved in the previous arrest and prosecution of Rayshawn Warren that led to him being placed on misdemeanor probation in the City of Blytheville, Arkansas.”329 But Ms. Anderson doesn’t say why. So, she cannot meet the 56(d) standard. If Ms. Anderson wants to impute knowledge of Mr. Warren’s mental illness to Officer Driskill, that is not a good justification for 56(d) relief in this case. As just discussed, the Court’s decision above concludes that summary judgment is appropriate even under the assumption that Officer Driskill knew of Mr. Warren’s mental illness.

In the end, Ms. Anderson has no persuasive justification for seeking Rule 56(d) relief to delay a ruling on summary judgment. While there is no question that her original attorney could have served her better and more aggressively conducted discovery (in the time period before his illness interfered with his work), Ms. Anderson cannot identify further information that she would likely obtain from additional discovery which would allow her to overcome the Defendants’ Motion for Summary Judgment. She has the three bodycam videos; she has deposition testimony from the paramedic at the scene; she has medical reports regarding the cause of death; she has reports about Mr. Warren’s mental status. In short, this case is appropriate for summary judgment resolution now. There’s no persuasive reason to wait longer.

Conclusion

For all of the foregoing reasons, Defendants’ Motion for Summary Judgment is GRANTED in its entirety. Judgment will be entered in Defendants’ favor.

IT IS SO ORDERED this 26th day of July 2021.

________________________________ LEE P. RUDOFSKY UNITED STATES DISTRICT COURT