LOKEN, Circuit Judge.
During confrontations that extended over two days at the Brossart family farmstead in Nelson County, North Dakota, Deputy Sheriff Eric Braathen tased both Rodney Brossart and his son, Thomas Brossart. The Brossarts, including Rodney's wife, Susan, brought this action against Braathen, his supervisor, Sheriff Kelly Janke, and Nelson County, asserting federal claims under 42 U.S.C. § 1983 that Braathen used excessive force in violation of the Fourth Amendment, Janke is liable for the violations in his supervisory capacity, and Nelson County is liable for adopting an unconstitutional Taser Policy and for failing to train Braathen. The Brossarts also asserted pendent state law claims. The district court
A. Tasing of Rodney Brossart.
On June 22, 2011, the Brossarts discovered six loose cattle on their property. They did not own these cattle but secured them in an old missile silo that evening without giving the notice to the county sheriff or to the chief brand inspector required by a North Dakota estray statute.
Near the farm, the officers encountered Rodney and his son Jacob blocking the rural road while using a pump to drain water from a ditch. The summary judgment record includes a transcript of the recorded conversation. Braathen first introduced Frederickson to Rodney, who refused to shake hands and questioned Frederickson's authority. Frederickson asked for permission to inspect the cattle, explaining he had brand papers and the officers had received a complaint. Rodney said, "Well, when I get done here." Braathen said, "We're going to do it now, Rodney." Rodney replied, "if you can step foot on that property, mister, you're not going to be walking away." Frederickson interjected, "Hey, you don't want to make threats, okay? Don't make threats like that."
Braathen then said they were going to see the cattle. Rodney replied, "I'll be done here after a bit," turned away from Braathen, and walked towards his equipment to remove his pump from the roadway, ignoring Braathen's warning, "We're not giving you a choice here." When Rodney insisted he would finish his work, Braathen said, "You're going to go to jail if we don't cooperate now." Rodney replied, "Where's the writ? Give me the writ." Braathen said, "All right, you're under arrest."
The patrol car recording supports these allegations. After Braathen informs Rodney that he is under arrest, Rodney inquires "for what," and is heard saying "[g]et, get." Braathen testified that Rodney said those words to his son, Jacob, who headed for the pickup truck but was intercepted by Frederickson before he reached it. The truck contained two firearms and ammunition. Braathen is heard saying: "Rodney! Down on the ground! Down on the ground! Down on the ground! Down on the ground."
Braathen then deployed his taser for the first time, firing two probes in dart-mode into Rodney's pectoral region. Rodney stumbled backward to the edge of the road. On the patrol car recording, Braathen is heard saying "[d]on't move! Stay on the ground. . . . Down on the ground, Rodney!" The Amended Complaint alleged, "Brossart goes down on one knee and then gets back up again." Braathen re-activated the taser when Rodney continued to ignore commands to stay down. Rodney fell down and rolled into the ditch. On the recording, Braathen tells Frederickson to "cuff him" and calls for back-up. Rodney says, "I want some proof of that guy's authority." In response to Braathen's repeated commands to "stay down," Rodney first accuses Deputy Braathen of stepping on his phone and then repeatedly says, "Where's my glasses?" Braathen repeatedly warns, "You move again Rodney, and you're going to get tased . . . Stay down! . . . Rodney, if you move at all I'll tase you again!" The patrol car recording reveals that Rodney would not stay on his knees or otherwise cooperate:
(Taser sounds and moaning).
The Amended Complaint alleges that Braathen "noticed that Rodney Brossart was attempting to stand up in a `very hostile, aggressive manner'" and tased Rodney a third time in the ditch for "not responding to his command to get back down." Braathen also touched the taser to the back of Rodney's neck. "Moments later, Rodney Brossart attempted to get up and Deputy Sheriff Braathen command[ed] him to get back down in the mud, while waiting for Inspector Frederickson to come down into the ditch to assist in handcuffing Brossart." Braathen tased him a fourth time for trying to resist, deploying more darts in his pectoral region. When Rodney resisted the attempted handcuffing, Braathen tased him a fifth time, achieving "complete neuromuscular incapacitation."
Braathen and Frederickson handcuffed Rodney, walked him to the patrol car, and placed him in the back seat. Transported by ambulance to a local hospital, Rodney was examined for two hours and five darts were removed before he was transported to the correctional center. He suffered no permanent scarring or disfigurement.
B. June 23 Armed Standoff.
That evening, Braathen and Sheriff Janke returned to the Brossart farmstead with a search warrant to retrieve the six cattle. When they walked into the yard, three of Rodney's sons, Alex, Thomas, and Jacob, exited the house carrying rifles and told the officers they were trespassing on private property. The officers drew their guns and backed away, then retreated "about a mile north" where they called a crisis negotiation team. The Grand Forks SWAT team with support from adjoining counties arrived to establish a perimeter around the Brossart home, then left for the evening. Two agents did a drive-by and confirmed the cattle remained in the missile silo.
C. June 24 Tasing of Thomas Brossart.
The next morning, law enforcement including the SWAT team proceeded to the missile silo to execute the search warrant. As they were removing the cattle, Thomas Brossart came to the silo on his three-wheeler, while brothers Jacob and Alex rode over on a tractor. Thomas told law enforcement that they were trespassing on private property and to leave. The SWAT team arrested the brothers on terrorizing charges, based on the prior evening's events. Deputies Braathen and Olson, waiting two miles south, were called in to transport the brothers to the correctional center. When Braathen arrived, the three brothers were handcuffed and lying on the ground, held at gun point by a SWAT team member.
Thomas refused to walk to the patrol car, so the deputies dragged him and placed him in the back seat. So all three brothers could be placed in the back seat, Braathen told Thomas to move over. Thomas moved a couple inches. Thomas alleges that Braathen then tased him on his left leg in drive stun mode. The parties dispute whether Braathen warned Thomas that he would be tased if he did not move. Braathen claims Thomas would only say: "This is my property and I don't agree to the sale" (an obvious reference to the cattle). Braathen considered Thomas's refusal to be further resistance and testified that he used the taser because physically moving Thomas risked being kicked by Thomas or causing him greater injury. The tasing resulted in a slight burn mark on Thomas that lasted less than a day and did not require medical treatment.
After the tasing, Deputy Olson pulled Thomas to the middle seat, and Jacob and Alex were placed in the back seat with Thomas. Throughout the drive to the correctional center, the brothers chanted: "This is my property and I don't agree to the sale." Thomas explained they found this phrase on the internet, and it conveyed their belief they were illegally arrested.
D. The Nelson County Taser Policy.
At the time of these events, the Nelson County Sheriff's Department had written policies in place for the use of force, entitled "Use of Control Continuum," and for the use of tasers, entitled "Less Lethal Weapons — Taser X26" (hereafter referred to as the "Taser Policy"). Janke adopted the Taser Policy in 2009. The Use of Control Continuum instructed officers to use control methods "only to the extent reasonable and necessary" and to consider the "totality of the circumstances." The Taser Policy required officer training: "Only officers receiving training and certification from an authorized TASER X26 instructor will be allowed to carry and deploy the weapon system when deemed appropriate. These officers will be required to attend and successfully complete an initial certification course of instruction and will also be required to successfully re-certify annually." Braathen was trained in taser use in January 2009 and again in January 2011, five months prior to the incidents at issue. Neither Nelson County nor Sheriff Janke had received any prior complaints regarding excessive force or taser use by any member of the Nelson County Sheriff's Department.
The Taser Policy recommended taser use when it "reduces the risk of injury or death to those involved." The Policy instructed that "[o]fficers are authorized to deploy the TASER X26 to gain control when faced with actual or threatened physical resistance. Officers are discouraged from deploying the TASER X26 on subjects where no physical violence or threat of physical violence exists (i.e. non-violent fleeing subjects)." The "Deployment Procedures" section provided that "[o]fficers should, if feasible and safe, provide a verbal warning to the suspect of the pending deployment of the TASER X26 in order to provide a final opportunity for compliance." The "Restrictions" section instructed that a taser "should not be deployed . . . [i]n cases of passive resistance," unless lesser force was unsuccessfully attempted, is not possible given the circumstances, or risks "a possibility of injury of suspect or officer," and "shall never be used punitively or for coercion or threat in the absence of actual or threatened physical resistance . . . [or] against a person already in custody unless physical resistance has to be overcome."
E. Procedural History.
After the district court dismissed state law claims of the tort of outrage, battery, negligent supervision, and mental anguish as time-barred, plaintiffs filed an Amended Complaint alleging that Susan experienced severe emotional distress as a result of the federal constitutional violations committed against Thomas and Rodney. The district court granted defendants' motions for summary judgment and dismissed the Amended Complaint with prejudice. On appeal, the Brossarts argue the district court erred in granting summary judgment on their Fourth Amendment excessive force claims, dismissing all claims of supervisory and municipal liability, and dismissing their state law claims as time-barred.
In this case, the district court concluded that Braathen was entitled to qualified immunity because plaintiffs made neither showing. First, the court concluded, there was no Fourth Amendment violation because "Rodney engaged in conduct during the course of his encounter with law enforcement officers that renders Braathen's conduct reasonable." Second, the court concluded, "Rodney's assertion that multiple tasings constitute a violation of a clearly established constitutional right is also unsupported in law." We agree with both conclusions.
The Fourth Amendment's objective reasonableness standard governs a claim that an officer used excessive force "in the course of making an arrest, investigatory stop, or other `seizure.'"
In applying this standard, the district court reasoned:
We agree with the district court's reasoning. The undisputed summary judgment record establishes, and the state court jury verdict and Supreme Court of North Dakota's opinion strongly confirm, that Rodney made two threats of violence to the law enforcement officers, repeatedly did not comply with Braathen's orders to cooperate in a potentially criminal investigation, and then resisted being handcuffed when told he was under arrest. Braathen's use of a taser under the circumstances was a reasonable use of significant non-lethal force.
Rodney argues that "even if the first Tasering were legitimate, the subsequent Taserings of a suspect on the ground are unconstitutional." He asserts that our decision affirming the denial of qualified immunity in
We further agree with the district court's alternative conclusion that Braathen is entitled to qualified immunity because, even if his repeated use of the taser was unreasonable, it did not violate clearly established law. For a right to be clearly established, "existing precedent must have placed the statutory or constitutional question beyond debate."
Here, Rodney refused to cooperate with officers attempting to investigate a possible criminal violation, made threats of violence sufficient to support conviction of a terrorizing felony, then physically resisted a lawful arrest, ignoring repeated commands to lie down or be tased. Use of force requires a particularized
B. Thomas's Excessive Force Claim.
Plaintiffs argue that Braathen's tasing of Thomas while he was handcuffed and detained in the back seat of a squad car constituted clearly established use of excessive force. In rejecting this contention, the district court explained:
Again, we agree with the district court's analysis. Plaintiffs argue the district court inappropriately considered facts preceding Thomas's arrest in granting Braathen qualified immunity. This contention is frivolous.
Plaintiffs rely heavily on our decisions in
For these reasons, we conclude the district court did not err in dismissing plaintiffs' claims that Deputy Braathen used constitutionally excessive force in tasing Rodney and Thomas Brossart.
C. Supervisory Liability.
Sheriff Janke was not present when either Rodney or Thomas was tased and therefore did not directly participate in the alleged use of excessive force. Plaintiffs allege Janke is nonetheless individually liable because he "failed to properly train, supervise, and control Deputy Braathen." Our decision that Braathen did not use excessive force against either Rodney or Thomas forecloses this claim.
D. Municipal Liability.
Plaintiffs argue the district court erred in dismissing their claims against Nelson County, asserting two theories of municipal liability on appeal: (1) that the Nelson County Taser Policy is unconstitutional, and (2) that the County (and Sheriff Janke) failed to appropriately train its officers in Taser use. Both theories are without merit.
A municipal policy or practice is unconstitutional "on its face" where the policy or practice "itself violates federal law, or directs an employee to do so."
A municipality may also be liable where its policies are lawful on their face but municipal action, such as failure to train or supervise, "was taken with deliberate indifference as to its known or obvious consequences" and "led an employee to violate a plaintiff's rights."
E. Dismissal of the State Law Claims.
The district court dismissed the Brossarts' state law claims as time-barred. North Dakota law provides that a claim against a political subdivision or Sheriff "must be commenced within three years" after it accrues. N.D.C.C. § 32-12.1-10; 28-01-17. Under North Dakota law, an action is commenced "as to each defendant when the summons is served on that defendant." N.D.C.C. § 28-01-38, N.D. R. Civ. Pro. 3. By contrast, Rule 3 of the Federal Rules of Civil Procedure provides that a "civil action is commenced by filing a complaint with the court." In
Plaintiffs filed their Original Complaint on June 23, 2014, three years after the tasing of Rodney Brossart. They served Sheriff Janke by certified mail on June 28, 2014, and all other defendants by process server on July 25, 2014. The district court applied the North Dakota rule and held that the Brossarts' state law claims were time-barred. The court rejected the Brossarts' contention that the federal rule should apply because their Complaint included federal claims, correctly noting that we "subsequently extended the
The judgment of the district court is affirmed.
KELLY, Circuit Judge, concurring in part and dissenting in part.
I respectfully dissent from Part II.B of the court's opinion. In determining whether an official is entitled to qualified immunity, we must view the facts "in the light most favorable to the party seeking damages"—here, the Brossarts.
The next day, law enforcement returned to the Brossarts' property. Thomas (on a three-wheeler) and his brothers (on a tractor) approached law enforcement, who were near the Brossarts' silo. Neither Thomas nor his brothers were carrying firearms. All three brothers were then arrested, handcuffed, and ordered to lay on the ground at gunpoint. Officer Braathen and another officer carried Thomas to a police car because he would not walk on his own, and placed him in the back seat. Thomas remained handcuffed. Once Thomas was seated in the car, Braathen told Thomas to "move over." Thomas moved over a couple of inches; he did not know that the officers needed room to place both of his brothers in the back seat with him. Without warning, Braathen tased Thomas on his left leg for approximately five seconds, resulting in a slight burn. Another deputy then pulled Thomas to the middle of the back seat. Thomas said: "This is my property and I don't agree to the sale."
Viewed in the light most favorable to Thomas, Braathen used excessive force. While the events of the prior evening are relevant to whether the force used against Thomas was excessive,
Furthermore, according to Thomas, Braathen told him to "move over," and Thomas—still handcuffed—did so by shifting a couple of inches, not understanding that he was expected to move even further. Such actions, viewed in the light most favorable to Thomas, do not constitute resistance.
Because the facts here establish a genuine issue of material fact as to whether officers used excessive force during Thomas' arrest and demonstrate that Thomas' right to be free from this excessive force was clearly established at the time of the events, I would reverse the grant of summary judgment on Thomas Brossart's excessive force claim and remand for further proceedings. I concur in the court's opinion in all other respects.