Submitted February 11, 2015.
Appeal from United States District Court for the District of Minnesota - Minneapolis.
For Jonathon Ziesmer, Plaintiff - Appellant: Christopher J. Kuhlman, Kuhlman Law, Pllc, Minneapolis, MN.
For Derrick Lee Hagen, individually and in his professional capacity as a Minnesota State Patrol Officer, Defendant - Appellee: Kathryn Ann Fodness, Assistant Attorney General, Michael P. Goodwin, Assistant Attorney General, Attorney General's Office, Saint Paul, MN.
Before GRUENDER, SHEPHERD, and KELLY, Circuit Judges.
KELLY, Circuit Judge.
Jonathon Ziesmer appeals the district court's grant of summary judgment in favor of the defendant, Trooper Derrick Lee Hagen, on his claim for relief under 42 U.S.C. § 1983. Ziesmer alleges that Hagen used excessive force during an unlawful arrest. Under the facts viewed in a light most favorable to Ziesmer, we conclude that Trooper Hagen is not entitled to judgment as a matter of law, and we therefore reverse.
On August 22, 2010, Ziesmer was driving brothers Travis and Tyler Jones back home on Interstate 94 from a restaurant in St. Paul, Minnesota. Travis Jones attempted to flick a cigarette out the passenger-side window, but the butt flew back in through the rear window and landed on the floor of the backseat. Ziesmer pulled the car over so the cigarette could be retrieved. Moments later, Trooper Hagen pulled his patrol car up behind Ziesmer's car and approached to see if the vehicle's occupants required assistance.
Trooper Hagen approached the front passenger side of the car, where Travis Jones was seated with his window rolled halfway down. Trooper Hagen later testified that Travis Jones was " moving around" and " quickly bent over as if he was reaching for something." Travis Jones denied making any furtive movements. As Trooper Hagen approached, he claims he saw a hammer lying on the floor of the car; Ziesmer, however, contends the hammer was concealed beneath the seat and that Hagen could not possibly have been aware of it until after a later search. Trooper Hagen also reports that the smell of marijuana was coming from the car, though all three of the passengers contest this fact. Answering Trooper Hagen's inquiries, Travis Jones and Ziesmer explained that they were pulled over in order to extinguish a cigarette. Trooper Hagen then requested each of the passengers' identification and went back to his patrol car to run their names through the police database. No relevant information concerning Ziesmer, his car, or the two Jones brothers appeared.
Trooper Hagen returned to the car and asked Travis Jones to get out. Once Travis Jones complied, Trooper Hagen told him that he was going to be searched. He reports that as he was placing his hands on the car to be searched, Trooper Hagen shoved him, though Trooper Hagen disputes this. After Trooper Hagen frisked Travis Jones, he instructed him to go stand underneath a highway overpass, about 15 or 20 yards away, and Travis Jones complied.
Trooper Hagen then came to the driver's side of the car and instructed Ziesmer to exit the car. According to Ziesmer, he " calmly" asked why he had to exit the vehicle, which led to Trooper Hagen screaming, " Get out of your car right now, I do not have to have a reason to pull you out of your car." Trooper Hagen admits that he raised his voice but denies screaming. Ziesmer also reports that he attempted to call 911 on his cell phone, but Trooper Hagen " just reached in my window . . . and he hung up my phone and threw it on the passenger floor." While Trooper Hagen claims ...