United States District Court, D. Nebraska
DE-VAUNTE J. TAYLOR, Plaintiff,
JAMES E. HOLTMEYER, Defendant.
MEMORANDUM AND ORDER
JOHN M. GERRARD UNITED STATES DISTRICT JUDGE
De-Vaunte Taylor is suing James Holtmeyer, an Omaha police officer, for allegedly using excessive force when arresting Taylor. Holtmeyer moves for summary judgment, contending that the force used was objectively reasonable and that he is entitled to qualified immunity. The Court agrees that Holtmeyer is entitled to qualified immunity, and will grant Holtmeyer's motion for summary judgment.
The sequence of events that led to Taylor's May 31, 2013 arrest began with mistaken identity. A domestic assault was reported to Omaha police. Filing 72-1 at 1. Specifically, the victim reported that a man had assaulted her with a baseball bat, and that the suspect drove a black Chevrolet Tahoe in which he kept a handgun and drugs. Filing 72-1 at 1. The victim identified the suspect by name and provided police with the license plate number of the vehicle. Filing 72-1 at 1.
Meanwhile, Taylor was at a friend's house, but needed to run an errand, and was unable to get a ride, so he asked if he could borrow his friend's vehicle. Filing 78-5 at 9-10. She said he couldn't, because her plates were expired, but he could borrow her cousin's vehicle instead. Filing 78-5 at 9. Unfortunately for Taylor, his friend's cousin was the domestic assault suspect police wanted, and the vehicle Taylor was borrowing was the black Tahoe police were looking for. See filing 78-1 at 27-28, 42-44.
Holtmeyer was on uniformed patrol duty, in a marked cruiser, and was looking for the domestic assault suspect. Filing 72-1 at 1; filing 78-1 at 37. He went to the area of 41st Street and Ames Avenue, where he had heard the suspect might be located. Filing 78-1 at 36. Holtmeyer was stopped at a stop sign on 41st Street when he saw a black Tahoe drive by, headed east on Ames Avenue. Filing 78-1 at 39-41. The Tahoe's driver was, according to Holtmeyer, speeding, and made an unlawful lane change. Filing 78-1 at 42. Holtmeyer saw from the license plate that it was the vehicle he was looking for. Filing 78-1 at 44. Based on the traffic infractions and reported domestic assault, Holtmeyer decided to initiate a stop. Filing 78-1 at 44.
Taylor was driving the Tahoe. Filing 73 at 2. For separate reasons, Taylor had decided to abandon his errand and return to his friend's house, and had pulled into a barbershop parking lot to turn around. Filing 78-5 at 14. Taylor pulled into a parking space adjacent to the building, and was preparing to back out again when Holtmeyer pulled in behind, blocking Taylor from backing out. Filing 78-1 at 44-45. Holtmeyer had activated his cruiser's lights just as he pulled into the parking lot. Filing 78-1 at 45; filing 72-2 at 19:50:53.
Things happened very quickly after that. Holtmeyer got out of his cruiser and drew his sidearm. Filing 78-1 at 60-61. Taylor began to back the Tahoe up, but stopped when he saw the cruiser behind him and heard Holtmeyer shouting at him. Filing 78-5 at 16-17. Taylor said that because of the height of the Tahoe and its tinted windows, all he could see was that there was a black car behind him. Filing 78-5 at 16. Taylor saw that Holtmeyer had a gun drawn, but said he had not immediately realized Holtmeyer was a police officer. Filing 78-5 at 17.
Holtmeyer directed Taylor to raise his hands, and opened the driver's-side door of the Tahoe. Filing 78-1 at 61. Taylor got out of the vehicle, raised his hands, and turned to face the vehicle. Filing 78-1 at 62; filing 78-5 at 19. Holtmeyer held Taylor by or near the collar of his T-shirt and, after Taylor turned around, holstered his firearm. Filing 72-2 at 19:51:09-13; filing 78-1 at 63. Holtmeyer had his left arm around Taylor's left side, between Taylor and the driver's seat, and took Taylor's right arm with his right hand. Filing 72-2 at 19:51:13; filing 78-1 at 63. Holtmeyer said he was trying to handcuff Taylor, because he had just seen a firearm in the vehicle near the driver's seat. Filing 78-1 at 63-64. There was, in fact, a loaded handgun and spare magazine on the floor of the vehicle near the driver's seat. Filing 73 at 3.
Next, Taylor fell into the front seat of the Tahoe. Filing 72-2 at 19:51:17. According to Taylor, he felt Holtmeyer push him sideways and down, "like when . . . someone hip tosses you." Filing 78-5 at 21. But Holtmeyer said that he was trying to get Taylor's hands in a position to put handcuffs on, and Taylor fell into the vehicle. Filing 78-1 at 64-65. Holtmeyer testified that:
as I recall the incident, I had him, and I was trying to prevent him from going back into the car, and I was trying to take control of his body, and his momentum took him to the left, back into the car. I didn't intentionally push him or pull him into that vehicle, but he ended up going into the vehicle.
Filing 78-1 at 65. Holtmeyer explained that he wouldn't have "intentionally push[ed] a guy into a car where [he] saw a gun, " and that "the last thing" he would want to do is push a suspect back into a car to have access to a gun or potentially escape. Filing 78-1 at 65.
Although Taylor said that Holtmeyer fell into the vehicle on top of him, filing 78-5 at 22, it is clear from the video taken by the cruiser's onboard recording system that Holtmeyer did not lose his footing. See filing 72-2 at 19:51:17. Holtmeyer described his position as "behind" Taylor with his "upper body . . . over him." Filing 78-1 at 66. For a few seconds, because Taylor's upper body was in the vehicle, it is not clear on the video where the parties' hands were. Filing 72-2 at 19:51:17-24 Then, Holtmeyer pulled Taylor from the vehicle, with his left arm around Taylor's neck and his right hand pulling on Taylor's right arm. Filing 72-2 at 19:51:24. Taylor described that as a "chokehold." Filing 78-5 at 24. According to Holtmeyer, he was not intentionally applying a chokehold at that point: instead, he was just trying to "get a grip" and pull Taylor out of the vehicle. Filing 78-1 at 67-68. Taylor fell to the ground and then got up again, with Holtmeyer retaining his hold around Taylor's neck. Filing 72-2 at 19:51:25-29.
Holtmeyer, calling Taylor by the domestic assault suspect's name, told Taylor to stop struggling and that he was going to jail. Filing 78-5 at 24. Taylor was grasping at Holtmeyer's left arm with his right hand. Filing 72-2 at 19:51:31. Taylor said that he was reaching for his own throat, trying to breathe and loosen Holtmeyer's grip. Filing 78-5 at 26-28. Taylor said he was "lightheaded, you know, discombobulated, you know." Filing 78-5 at 28. Then, as Taylor was grasping at Holtmeyer's arm, Holtmeyer struck Taylor in the face, once, with a closed fist. Filing 72-2 at 19:51:32-33. Holtmeyer explained he punched Taylor "[b]ecause [Taylor was] resisting arrest, there's a firearm present, and [he] believed [his] life was in danger, and [he's] trying to take [Taylor] into custody." Filing 78-1 at 69.
After the punch, there were a few more seconds of wrestling, and the two men fell to the ground, out of the frame of the cruiser's video recording. Filing 72-2 at 19:51:33-37. But a video recorded on a bystander's mobile phone picks up the scene just a few seconds later from a better vantage point. Filing 72-3. Holtmeyer still had his arm around Taylor's neck; according to Holtmeyer, this was now a "Level I Lateral Vascular Neck Restraint." Filing 73 at 2-3. Holtmeyer repeatedly ordered Taylor to put his hands behind his back; Taylor was slow to pull his right arm back into position to be handcuffed, although that may well have been because Holtmeyer was, at this point, essentially kneeling on him. Filing 72-3 at 0:06-27. Taylor can be heard insisting that he wasn't fighting Holtmeyer, and asking repeatedly why Holtmeyer had punched him. Filing 72-3 at 0:14-1:19. Holtmeyer managed to successfully handcuff Taylor, and kept him on the ground for a little under a minute, until more officers arrived. Filing 72-3 at 0:35-1:19.
Holtmeyer told the first officer who can be seen arriving that there was a gun underneath the seat of the Tahoe. Filing 72-3 at 1:19-21. Holtmeyer may have been concerned about the weapon because, by this time, a crowd had gathered-earlier, he had ordered someone off-screen not to go near the car. Filing 72-3 at 0:12-14. Holtmeyer got Taylor to his feet and searched him, substantially without incident, and about a minute later was placed in the back of Holtmeyer's cruiser. Filing 72-3 at 1:47-3:00; filing 72-2 at 19:56:12.
After his detention, during processing the next day at the Douglas County Correctional Center, Taylor reported that his eye was swollen and his neck hurt. Filing 78-5 at 38-39. (He also reported kidney pain, but that was from an unrelated medical condition. Filing 78-5 at 38.) He was given an over-the-counter painkiller, either ibuprofen or aspirin. Filing 78-5 at 40. There is no evidence of any lasting or permanent physical injuries resulting from the incident.
Taylor sued Holtmeyer in his individual and official capacities, along with the State of Nebraska and Omaha Police Department, alleging unconstitutional use of excessive force. Filing 1. Taylor's claims against the State and Police Department, and against Holtmeyer in his official capacity, were dismissed on initial review. Filing 12. Holtmeyer now moves for summary judgment on Taylor's remaining claim against Holtmeyer in his individual capacity. Filing 71.
II. STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). The movant bears the initial responsibility of informing the Court of the basis for the motion, and must identify those portions of the record which the movant believes demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Id. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the evidence are jury functions, not those of a judge. Id. But the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts. Id.In order to show that disputed facts are material, the party opposing summary judgment must cite to the relevant substantive law in identifying facts that might affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751 (8th Cir. 2011). The mere existence of a scintilla of evidence in support of the nonmovant's position will be insufficient; there must be evidence on which the jury could conceivably find for the nonmovant. Barber v. C1 Truck ...