EXCESSIVE FORCE: Fact issues preclude summary judgment for officers as to whether tasering intoxicated naked man in welfare check was reasonable, whether he was unlawfully restrained… bankruptcy trustee substituted as Plaintiff…Anderson/Christensen.
Magistrate Anderson’s sanctions order.
On 8/12/07 a friend of Soheil Verdi called 911 because he had sent a text which said “I’m done” and he was not answering his phone. Bozeman PD dispatched Sgt. Greg Megargel and Officer Marek Ziegler at 10 p.m. to check on Verdi. They knocked for some time before he opened his door. He appeared intoxicated and was not wearing any clothes. Recordings from a mike worn by Ziegler revealed that either Ziegler or Megargel told Verdi to have a seat and they just wanted to make sure he was OK. Ziegler contends that Verdi lunged at Megargel, prompting Ziegler to tase Verdi. Verdi fell to the deck outside his home, sustained injuries, and was unresponsive. He was handcuffed and told to roll over. Because he was not responsive, an officer asked dispatch to “roll medical.” The 2nd part of the audio begins with an officer asking if they have “got gloves” and the other saying “getting them dude.” They told Verdi, “talk to us,“ “talk to us man,” “talk to us bro.” They then remove the taser darts from Verdi and state that they will “clean them up later.” Ziegler then says, “hey man, he came after to you,” to which Megargel replies, “I shoved him but you got him.” They proceed to cuff Verdi “a little bit better” and there is the sound of a diesel engine and an officer saying Verdi is “breathing but not responsive, he was tased.” Someone then asks the officers to remove Verdi’s handcuffs, at which point the 2nd part of the audio ends. The 3rd recording begins when ambulance personnel are loading Verdi and he starts to mumble and cry. They tell him to calm down. After the ambulance left, Ziegler’s body mike recorded:
Megargel: Now what the fuck?
Ziegler: Yeah, what am I going to clear this as? Fuck, public assistance with a tasing?
Megargel: Fuckin-a-baby, 10-8 medical.
Ziegler: 10-8 what?
Ziegler: He didn’t commit a crime.
Megargel: No, but he could’ve.
Ziegler: Well, I was afraid for you, dude.
Ziegler: What are we going to, so we’re going to clear it as…
Megargel: 10-8 medical.
Megargel: And then we’re going to put it as a medical call.
Verdi sued Bozeman, the PD, Megargel, Ziegler, former Chief Tymrak, and Dep. Chief Kent. He filed Ch. 7 in Utah in 5/10 but failed to list the suit. He received a discharge in 9/10. In 1/11 he moved to reopen to list the claims asserted herein and to claim an exemption under Utah law. His bankruptcy was reopened in 2/11 and Roger Segal was reappointed trustee. Defendants moved for summary judgment that he was judicially estopped from pursuing this action after failing to disclose the suit in his schedules. Segal objected to Verdi’s claim of exemption in any award resulting from this suit, and Verdi withdrew the claim. This Court recommended that Segal be substituted for Verdi as the plaintiff in this case and that Defendants’ summary judgment motion be denied on grounds that their judicial estoppel argument did not extend to Segal. Judge Cebull adopted the recommendations 7/24/12. On 8/16 Segal moved for sanctions for spoliation as to the missing 3-4 minute audio segment between when the ambulance arrived and left. Ziegler hypothesizes that he probably deleted it immediately after making it, but has no recollection of deleting any files that night. He confirmed that he did not delete it by accident because deletion requires a distinct 3-step process. He testified that he would turn his mike off when “there was nothing worthy to record.” He has never had another missing segment. Segal requests a sanction, primarily in the form of a default judgment as to liability, against all Defendants. The Court finds it appropriate to instruct the jury that the missing segment, if it existed, would be damaging to Defendants and relevant & favorable to some or all of Segal’s claims of excessive force. The instruction should explain that the law does not condone intentional destruction of evidence by officers. Defendants should also be precluded from offering any explanation as to how or why the segment was deleted beyond Ziegler’s belief that he likely erased it at the scene.
Judge Christensen’s rulings on Anderson’s summary judgment findings & recommendations.
Segal objects to Judge Anderson’s finding that Kent and Tymrak investigated the incident. Although it was not as detailed or thorough as Segal would have preferred, the facts show that a satisfactory investigation did occur.
Segal objects to Anderson’s conclusion that “Plaintiff simply fails to offer any plausible explanation as to how the investigation that was completed by Sergeant Benz, Kent and Tymrak is ratification of any excessive force that may have been inflicted when Ziegler used his taser on Verdi.” He argues that the actions of Kent, Tymrak, and BPD amounted to ratification of excessive force because, inter alia, there was lack of documentation as to Ziegler’s taser training and Kent misrepresented his taser qualifications to become a taser instructor. However, Segal does not dispute that Ziegler and Megargel both received over 26 hours of training, including in use of force, and the Court fails to see how a misrepresentation of taser qualifications amounts to “deliberate indifference to the rights of persons with whom the police come into contact.” Canton (US 1989).
Megargel and Ziegler object to Anderson’s conclusion that summary judgment as to excessive force should be denied. They assert that he applied a legal standard which did not exist at the time of the incident, Bryan (9th Cir. 2010), when he should have applied Graham (US 1989). Bryan declared use of a taser as “an intermediate, significant level of force that must be justified by the governmental interest involved.” Following Jackson, an officer who used a taser was entitled to qualified immunity if an objective officer would have believed that use of intermediate force, as opposed to a lesser degree, was reasonable. This is inconsistent withGraham, which found that an officer who used a taser was entitled to qualified immunity if an objective officer believed that some degree of force was reasonable. It is unclear which standard Anderson applied. He did mention that a taser was an intermediate level and concluded that “the fact that use of force by taser, under these circumstances, may not have been objectively reasonable, precludes entry of summary judgment in favor of Ziegler and Megargel on Count I.” In any event, he was correct that summary judgment for the officers should be denied. If force is not needed, any force is constitutionally unreasonable. HFD (9th Cir. 2000). The critical disputed fact is whether Verdi lunged at the officers after opening his door. Adopting Plaintiff’s version — that Verdi was too intoxicated to lunge and did not pose a threat — any force would be unreasonable. From the perspective of a reasonable officer, tasing a naked & intoxicated man who does not pose a threat would not be objectively reasonable. Thus the Court agrees with Anderson that, taking the facts in a light most favorable to Plaintiff, use of force by Megargel and Ziegler was not objectively reasonable.
Megargel and Ziegler contend that Anderson erred by applying a standard that asked if force was justified instead of a standard that asks if an objective officer at the scene could find that force was reasonable under the totality of circumstances. Graham. Although Anderson did state that “a finder of fact could conceivably find that the use of a taser in this case was not justified,” Megargel and Ziegler ignore his multiple references to the objectively reasonable standard. Nor is his use of “reasonable person” rather than “reasonable officer” fatal to his overall conclusion. Adopting Plaintiff’s version — Verdi was too intoxicated to lunge and did not pose a threat — an objective officer at the scene could find that the officers’ conduct was not reasonable.
Megargel and Ziegler argue that Anderson improperly considered Ziegler’s intent or motivation when he deployed his taser. They base this on Anderson’s discussion of the background facts where he discussed the missing audio file and sanctions by Judge Cebull, but Anderson makes no mention of the sanction order in his analysis of whether the conduct was objectively reasonable.
Megargel and Ziegler argue that Anderson improperly relied on inadmissible evidence. The Court does not agree. He cited admissible and undisputed facts in support of his conclusions that Verdi may have been too intoxicated to lunge at the officers and that their conduct could not be viewed by an objective officer as reasonable, including that Verdi had .291 BAC, lack of reasonable suspicion that he had committed or was about to commit a crime, he was never charged with a crime, he did not resist or attempt to evade arrest, and he was unarmed and naked. Although not stated in his analysis section, there are admissible and undisputed facts in the record that support Plaintiff’s argument that Verdi was too intoxicated to lunge, including Ziegler’s recorded comments that he was “stumbling around” when he came to the door; his comments that Verdi’s movements were “very slow, methodical movement at the beginning, kind of dragging his feet, and of course he was naked;” Ziegler’s report that Verdi “appeared to be very intoxicated;” the officers’ recorded comments immediately after the incident that Verdi “did not commit a crime;” Megargel’s deposition statement that in his 13 years with BPD he had never heard where someone allegedly attacked an officer but was not charged with a crime; and Ziegler’s report describing an “incident” rather than a “crime” and that Verdi was a “v” (victim) and not a “defendant.”
Megargel and Ziegler argue that Anderson failed to distinguish between denying summary judgment to Megargel and denying it to Ziegler. They contend that he should have evaluated the conduct of each officer and issued separate findings & recommendations. They failed to cite any law in support. An officer who fails to intervene to prevent another officer’s excessive force may be liable under §1983. Mick (10th Cir. 1996). Anderson’s findings & recommendations are adopted in full as they relate to his recommendation that summary judgment should be denied as to Megargel and Ziegler.
Plaintiff has not alleged sufficient material facts preventing summary judgment for Bozeman and BPD on the issue of negligent hiring & supervision. Anderson’s recommendation on this motion is rejected.
The Court agrees with Anderson that summary judgment for Bozeman should be denied as to the claim of false imprisonment. Bozeman asserts that restraint of Verdi was lawful under MCA 53-24-303, which allows an officer to assist or transport an intoxicated person to a hospital if he is in need of help and in a public place. Verdi was not in need of help or in a public place when he was tased. If force was not lawful, and Verdi was injured and in need of help because of the officers’ unlawful conduct, Bozeman could be held liable under respondeat superior. Adopting Plaintiff’s version of the disputed facts, an objective officer could find that the officers’ conduct was not reasonable.
Anderson found that Bozeman could be liable for punitives under respondeat superior. But applying the plain language of MCA 2-9-105 — “the state and other governmental entities are immune from exemplary and punitive damages” — the Court is compelled to agree with Bozeman that it is immune from punitives.
Segal v. Bozeman et al, Anderson’s order 41 MFR 169, 1/23/13, Christensen’s order 41 MFR 182, 11/18/13.
Todd Shea (Shea Law Firm), Bozeman, and Ryan Jackson (Jackson Law), Bozeman, for Segal; Michael Lilly (Berg, Lilly & Tollefsen), Bozeman, for the City; Michele Braukmann (Moulton Bellingham), Billings, for the chiefs; Brendon Rohan (Poore, Roth & Robinson), Butte, for Megargel and Ziegler.
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