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Victoria Johnson v. James Steven Carroll

October 7, 2011

VICTORIA JOHNSON, APPELLANT,
v.
JAMES STEVEN CARROLL, BADGE 1005; CHAD CHUL HOFIUS, BADGE 3055; MATHEW ALAN KIPKE, BADGE 3717; PAUL JOHN SCHWEIGER, BADGE 6410, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES AS MINNEAPOLIS POLICE OFFICERS; AND THE CITY OF MINNEAPOLIS, A GOVERNMENT ENTITY AND POLITICAL SUBDIVISION OF THE STATE OF MINNESOTA, APPELLEES.



Appeal from the United States District Court for the District of Minnesota.

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

Submitted: March 16, 2011

Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.

Victoria Johnson filed suit against four Minneapolis police officers and the City of Minneapolis (City). Her claim against the officers under 42 U.S.C. § 1983 alleged that they used excessive, unreasonable force against her, in violation of the Fourth and Fourteenth Amendments. Her claim against the City alleged a violation of the Minnesota Government Data Practices Act (DPA). Her state-law claim alleged that the officers and the City were liable for battery and negligence. The district court granted summary judgment in favor of the officers and the City on all claims, holding that the officers had not violated Johnson's constitutional right, that Johnson failed to allege any damages for her DPA claim, that the battery claims against the officers were untimely, and that the City and the officers were entitled to official immunity from her state law claims.

Johnson appeals. We affirm the dismissal of the battery claims against the officers and the dismissal of the § 1983 claim against Carroll. We vacate the remainder of the judgment and remand for further proceedings.

I. Background

This case arose from an incident that occurred at approximately 6:30 p.m. on December 20, 2006, between four Minneapolis police officers, Johnson, and her nephew, Joseph McClennon. At that time, Johnson, age 39, was living with her three children, her niece, her nephew McClennon, and another nephew.

As might be expected, the parties have significantly different accounts of what occurred. According to Johnson, as she was preparing to depart for her Bible study group that evening, she was told by her son Blake that "Mom, the police are outside harassing Joseph." Johnson left the house and stood in her front yard, where she witnessed Officer John Schweiger question McClennon, pat him down, remove items from his pockets, and place him in the back of Schweiger's squad car. A second squad car arrived, occupied by Officers Chad Hofius and Mathew Kipke. Johnson asked Hofius and Kipke about what was happening, to which one of the officers replied, "you are ignorant," and the other said that Johnson was acting "childish."

Schweiger released McClennon from the squad car and threw an earlier-prepared drug paraphernalia citation at him, which McClennon bent down to pick up.

As McClennon began walking towards Johnson and her home, she told him to return to Schweiger's car to "get his stuff" that had been left on the hood. Johnson observed McClennon return to the car, where Schweiger swung at McClennon with a flashlight. When McClennon pushed the flashlight away, Schweiger grabbed him, pulled him into the street towards the second squad car, and attempted to take him to the ground. Although McClennon was not struggling, Hofius and Kipke approached to assist with the arrest. Johnson ran past the officers and jumped onto McClennon, bear-hugging him face-to-face, telling him to get to the ground, and trying to protect him from the officers in a non-resistant manner. Without first ordering Johnson to remove herself from McClennon, either Hofius or Kipke pulled her away from McClennon and threw her to the ground, "very hard, very forcefully." Johnson arose and again bear-hugged McClennon, this time from behind. The same officer pulled Johnson off McClennon and again threw her to the ground, "very hard," "very much" harder than the first time, injuring her left knee. An officer then tased McClennon, who fell to the ground. Johnson crawled over to McClennon as he lay there still shaking from being tased and again blanketed him with her body. With no warning or request that Johnson remove herself, Schweiger then maced her in the face, whereupon she "backed up off" McClennon so that the officers could remove the taser prongs from his body. Thereafter, Johnson crawled to the curb, where she was able to arise only by grasping a tree for support. A group of bystanders, including her two sons, stood there on the sidewalk. According to McClennon, there were "a lot of people," "a bunch of both, men and women," asking questions of the officers and loudly protesting what was happening to him and Johnson. Schweiger arrested McClennon and placed him in the back of the Schweiger's squad car. Hofius arrested Johnson, handcuffed her, and took her to jail.

At the jail, Johnson was provided with a wheelchair and attended to by a nurse. After being held for 72 hours, Johnson was released. She was initially charged with obstructing legal process but was never prosecuted. She visited a clinic to receive pain medication for her knee injury, which was later diagnosed as an anterior cruciate ligament (ACL) tear and small effusion with no other meniscal damage. Johnson underwent surgery on the knee in May 2007, following which she underwent ten weeks of physical therapy.

According to Schweiger's account of the incident, as he and Officer James Carroll, a passenger in Schweiger's squad car, drove near Johnson's home they noticed McClennon standing next to a parked car. When McClennon saw the squad car he turned and walked away, refusing to answer Schweiger's question regarding what he was doing and unwilling to take his hands out of his pockets despite Schweiger's repeated requests that he do so. Schweiger escorted McClennon to the squad car, performed a pat-down, found a pipe that he thought smelled of marijuana, and placed McClennon in the back seat of the car. After Schweiger issued McClennon a citation for possession of drug paraphernalia, he was released and brushed against Schweiger. When McClennon realized that he had left his belongings on the hood of the squad car, he returned to the car and began swinging at Schweiger. Schweiger, Hofius, and Kipke brought McClennon under control after taking him to the ground and tasing him. Johnson ran past the officers and jumped onto McClennon's back to prevent the officers from arresting him as he lay on the ground. She failed to follow verbal orders to move, resulting in her being maced and physically removed from McClennon. Both were arrested and taken to jail. During the incident, Carroll was keeping a crowd of anti-police bystanders, which had grown from eight to twenty persons, away from the scene by ordering them to stay back and by threatening to use his mace. Schweiger described the crowd as "quite large and very hostile" and that it "became even more belligerent," yelling at the officers "F**k the police" and "Get the f**k out of here."

In March 2007, Johnson sent notice of her claim to the City, pursuant to Minnesota Statute § 466.05. In March 2008, she requested that the City provide her with access to the police records from the December 20, 2006, incident pursuant to the DPA. In April 2008, the City provided her with a copy of the public police report. Johnson made another request on November 14, 2008. She filed this suit on December 19, 2008, with service on the City. The City responded to her second data request on February 10, 2009. Schweiger, Carroll, and Kipke were served on February 25, 2009, and Hofius on March 25, 2009. The City and the officers moved for summary judgment on all claims, asserting qualified immunity on Johnson's § 1983 constitutional claim, a lack of damages on her DPA claim, and statute of limitations and official immunity defenses on her state-law claims.

II. Discussion

Johnson asserts that the district court erred in finding that the officers had not violated her clearly established constitutional right to be free from excessive, unreasonable force. She contends that the district court erred by failing to determine whether she was entitled to costs and disbursements on her DPA claim. Finally, she asserts that because the officers acted ...


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