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Cook v. City of Bella Villa

October 2, 2009


Appeal from the United States District Court for the Eastern District of Missouri.

The opinion of the court was delivered by: Riley, Circuit Judge.

Submitted: April 16, 2009

Before RILEY, BENTON, and SHEPHERD, Circuit Judges.

Diane Cook (Diane) and Michael Cook (Michael) (collectively, Cooks), filed suit against Chief of Police Edward Locke Jr. (Chief Locke) and the City of Bella Villa (City) (collectively, Appellees) for alleged federal civil rights violations. The Cooks included supplemental state law claims against Chief Locke for malicious prosecution and indecent assault and battery, and against the City on a theory of respondeat superior. The Cooks voluntarily dismissed their state law respondeat superior claims against the City. Appellees filed a motion for summary judgment on the Cooks' remaining claims. The district court*fn1 granted summary judgment in part, leaving only three claims for the jury to consider. The Cooks did not pursue the one remaining state law claim, indecent assault and battery. During the jury trial, at the close of all the evidence, the district court granted judgment as a matter of law on the Cooks' municipal liability claim. The jury then found for Chief Locke on the remaining claim that Chief Locke, in violation of the Fourth Amendment, improperly touched Diane. The Cooks now assert seven errors. We affirm.


A. Factual Background

On August 26, 2005, Diane and her husband, Michael, joined two friends, Elizabeth Walkmaster (Walkmaster) and Brenda Markley (Markley), to celebrate Diane's birthday. Diane drove her mother's car; Diane and Michael picked up Walkmaster and Markley; and the four arrived at K.C.'s Bar and Grill (K.C.'s) at approximately 7:00 p.m.*fn2 Diane claims she had two beers while seated at the bar, and then she had a third beer with dinner. Michael drank only Pepsi that evening, but he did take prescription medications, including an inhaler, Vicodin, and Robaxin. Walkmaster consumed two white Russians, and Markley consumed four to six rum and Cokes and considered herself to be "drunk."

"[A] little before midnight," Diane, Michael, Walkmaster, and Markley decided to leave K.C.'s because Walkmaster, who had been diagnosed with a terminal brain tumor, was not feeling well. Upon leaving K.C.'s, Diane drove, Walkmaster was seated in the front passenger seat, Michael was seated in the rear passenger seat behind Walkmaster, and Markley sat in the rear passenger seat behind Diane. After stopping for gas, followed by a trip home for money, and a purchase of cigarettes, Diane drove towards Walkmaster's home. Diane usually avoids driving in Bella Villa because the City has a "reputation" for being a "speed trap." On this occasion, Diane claims she was in a hurry to get Walkmaster home, so Diane decided to drive through Bella Villa.

Diane proceeded west on Bayless Avenue, stopped at a light near the entrance to Highway 55, and noticed a patrol car had pulled behind her. The officer was Chief Locke, whom neither Diane nor Michael had ever met. Chief Locke claims he was monitoring traffic at 3955 Bayless Avenue when he saw a vehicle, driving in the fast lane, cross over the double yellow street lines three times. Diane denies crossing over the street lines. Chief Locke activated his patrol car's lights and sirens, and pulled Diane over on Highway 55. Chief Locke parked behind the vehicle Diane was driving, approached the driver's side of the vehicle, and asked Diane for her driver's license and insurance card.

Diane produced her driver's license, but could not locate the insurance card in her mother's car. After Diane searched for a period of time, Chief Locke stated, "Don't worry about the [insurance] card." Chief Locke then asked Diane if she had been drinking. Diane "sarcastically" replied she was "working on 32 ounces of Diet Pepsi," although Diane understood Chief Locke was inquiring whether Diane had consumed alcohol. Chief Locke asserts Diane slurred her words and smelled of alcohol. Diane denies slurring her words and states she does not know if she smelled like alcohol.

Chief Locke asked Diane to exit her vehicle and Diane complied, following Chief Locke to the front of his patrol car. Chief Locke states Diane was swaying and almost lost her balance, but Diane states she was walking "very steadily." Chief Locke opened his patrol car's front passenger side door, reached in the vehicle, and instructed Diane to get rid of the cigarette she was smoking. Chief Locke asserts he asked Diane to blow into a preliminary breath test device and to submit to three field sobriety tests, but Diane refused. At this point, Michael, who was straining to see out the back window of the vehicle, opened the rear passenger side door about ten inches so he could see out of the door.

Diane "asserts that when Chief Locke requested her to blow into a preliminary breath test device[,] he did so by holding his fist closed and demanding that she blow in it, all without explaining either that he had a[n] alcohol testing device in his hand or why he wanted her to blow into his hand." Diane maintains she asked Chief Locke, "Why," and Chief Locke responded, "Because I told you to. That's why." Diane replied, "Well, I don't understand," and Chief Locke answered, "You have failed to maintain a single lane for a full mile." Diane then argued,

For starters, you haven't been behind me for a full mile, and for second, I don't know what you have in your hand, where it came from, what it's for. . . . You haven't even, you know, said anything that, you know, I'm stumbling, I'm stinking of alcohol, you know. Don't you do some kind of roadside test or sobriety test or-You haven't looked in my eyes or anything.

Diane claims Chief Locke responded, "I can do whatever I want and I can choose to give you whatever test I want, so either you blow in this or you're going to jail for DWI." Diane said "[f]ine," and Chief Locke instructed Diane to turn around and put her hands behind her back because she was under arrest for driving while intoxicated. Diane complied by putting her hands behind her back, and when Chief Locke handcuffed her, she exclaimed, "Fine. We'll see who's drunk." Diane contends Chief Locke then slammed her onto the hood of his patrol car. Diane responded sarcastically, stating, "Damn, Danno, take it easy."

Michael states, when he saw Chief Locke "slam[] [Diane] onto the hood of the car," he started to get out of the car, to which Markley responded, "Mike, don't do it." Michael decided to sit back down. At this point, Walkmaster had also opened her door and was crying and yelling, "She didn't do anything. She didn't do anything. What are you doing?"

Diane says after she made the "Danno remark," Chief Locke thrust his knee between her legs, and while Diane was still leaning on the hood of the patrol car, Chief Locke began to paw and stroke her, beginning at Diane's waist and moving down to her buttocks. Diane testified Chief Locke was "rubbing down [her] butt onto and around [her] inner/outer thighs, [and then] around the front." Diane could hear Michael and Walkmaster yelling, but she told them, "I'll take care of it. It will be okay." Diane claims Chief Locke then slid his hands under her sweater and began "working his hands up from [her] waist up to [her] sides towards [her] breasts." Michael stepped out of the car at that point and was yelling at Chief Locke. Diane claims less than a minute passed from the time Chief Locke began to touch her to the time Michael stepped out of the vehicle.

Michael testified that when he saw Chief Locke slide his hands down Diane's buttocks and in between her legs, Michael declared, "Oh, hell no!" and started to get out of the car again. Michael saw Chief Locke begin to slide his hands under Diane's jacket, so Michael stepped out of the vehicle and said, "Yo dude, what's the problem?" and, "You can't be touching her thataway." Michael described Chief Locke looked like "[a] deer in headlights." Walkmaster also exited the vehicle and was yelling and crying. Chief Locke ordered Walkmaster to get back into the vehicle, and Walkmaster complied. Michael did not get back in the vehicle because Chief Locke told him, "I'll talk to you in a minute." Diane reports Chief Locke marched her towards Michael, and said, "Get back in the fucking car," and in the same motion, pulled out his taser and simultaneously tased Michael.*fn3

Michael describes these events as follows:

The next thing I know, [Chief Locke] started walking towards us, so I took one step back. I had a cigarette in my right hand. I looked down to flip the ashes and I heard him say something, but you know what, I couldn't tell you what because the next think I know, I'm laying on the ground doing a fish.

Michael maintains he only took one step toward Chief Locke and Chief Locke never told him to get back in the car.

Chief Locke denies slamming Diane onto the hood of his patrol car or conducting any kind of pat down or search of Diane's person. Instead, Chief Locke testified he did not have time to conduct a search of Diane because, as he started to place Diane's left hand into handcuffs, the rear passenger side door opened. Chief Locke did not know who was getting out of the car, and Chief Locke ordered the individual to stay in the car and close the door.

Chief Locke contends that as he attempted to place Diane under arrest, Michael exited the vehicle and began yelling at Chief Locke, "[Y]ou're not going to arrest my wife, you're not touching my wife, you're not arresting my wife." Chief Locke says he yelled at Michael to get back in the car so Chief Locke could continue handcuffing Diane. Chief Locke explains that as he finished handcuffing Diane, Michael ran toward Chief Locke and pushed Chief Locke's shoulder in an attempt to move Chief Locke away from Diane. Chief Locke continued to hold onto Diane with his left hand, pulled out the taser with his right hand, and darted Michael in the chest.

Chief Locke reports that after Michael fell to the ground, Chief Locke walked Diane to his patrol car and placed her in the front passenger seat. Chief Locke contends he tased Michael and attempted quickly to secure Diane because Michael's actions posed a big safety concern, as they were standing on the side of the highway, and Michael approached on Chief Locke's gun side before shoving Chief Locke on the shoulder. Diane claims that after Chief Locke tased Michael, Chief Locke slammed Diane on the trunk of her car, walked over to Michael, and then placed Diane in the patrol car.

While Chief Locke placed Diane in the patrol car, Michael removed the darts from his chest and threw them in a ditch. Chief Locke contends Michael stood up, immediately ran at him again, and made contact with Chief Locke's shoulder. Chief Locke states he was able to grab Michael and put him against the car, but Michael attempted to push back as Chief Locke began to handcuff Michael. Michael declares he was merely attempting to stand up when Chief Locke grabbed him and threw him against the side of Diane's mother's vehicle. Michael claims Chief Locke then handcuffed Michael and again pushed him against the side of the car, splitting Michael's right eye open.

Once Michael was handcuffed, Chief Locke took Michael to the back of the patrol car and told him to get in the car. Chief Locke relates Michael got in the car without any further incident. Michael contends he was not immediately able to get into the back of the patrol car because he has a back condition which makes it difficult for him to bend sideways. When another officer arrived at the scene, Michael charges Chief Locke put his hand on Michael's head and started pushing him into the car, which resulted in Chief Locke slamming Michael's head into the door and cutting the left side of Michael's head. The second officer, a St. Louis County officer, arrived to assist Chief Locke, who had called for assistance after he tased Michael.

Chief Locke and the second officer looked for the taser darts in the ditch, and told Markley and Walkmaster that they would need to call someone to pick them up. Markley's husband picked them up. Chief Locke asked Diane if she would rather have the vehicle impounded or privately towed. After some discussion, Chief Locke decided the car would be impounded. Chief Locke exited the patrol car when the tow truck arrived, and Diane asserts that when Chief Locke got back into the patrol car, he reached his hand under her buttocks with his palm up and grinned at Diane and looked back and grinned at Michael.

Upon arrival at the police station, Chief Locke cited Diane for failing to maintain a single lane and for driving while intoxicated. Diane went to trial in state court, was found guilty on both offenses, and was sentenced to two years probation. Michael was cited for interfering with a police officer and resisting arrest. Michael's charges were dismissed because the conduct giving rise to the charges occurred outside Bella Villa's city limits.

B. Procedural History

On October 17, 2006, the Cooks filed suit against Chief Locke and the City, asserting five separate claims: Count I alleged Chief Locke violated Diane's and Michael's rights under the Fourth and Fourteenth Amendments when Chief Locke subjected Diane to improper touching and used excessive force on Michael; Count II alleged the City was liable for Chief Locke's constitutional violations under theories of municipal liability; Count III alleged the City was liable for Chief Locke's conduct under a theory of respondeat superior; Count IV asserted state law claims of indecent assault and assault and battery against Chief Locke; and Count V asserted a state law malicious prosecution claim against Chief Locke for instituting charges against Michael. On August 9, 2007, the Cooks moved to dismiss the respondeat superior state law claims alleged in Counts IV and V, and the district court granted the Cooks' motion on December 10, 2007.

Appellees filed a motion for summary judgment on November 6, 2007. The district court, on April 8, 2008, granted Appellees' motion in part, dismissing Michael's excessive force claim and Diane's substantive due process claim. The district court permitted Diane to proceed to trial on three claims: (1) Count I alleging Chief Locke improperly touched Diane in violation of the Fourth Amendment; (2) Count II alleging the City should be liable for Chief Locke's constitutional violations; and (3) Count IV alleging Diane's state law claim of indecent assault and battery. Diane did not pursue her remaining state law claim.

A jury trial began on April 28, 2008. At the close of all the evidence, Appellees moved for judgment as a matter of law, and the district court granted Appellees motion in part, dismissing the municipal liability claim against the City. The jury then considered Diane's constitutional claim of improper touching against Chief Locke, and returned a ...

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