Anderson v. Driskill
Opinion
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION
TAWONA WARREN ANDERSON PLAINTIFF Guardian of the Person and Estate of Rayshawn Warren
v. Case No. 3:18-cv-00231-LPR
DOYNE DRISKILL DEFENDANTS Individually and in his official capacity as a Police Officer for the City of Blytheville, Arkansas, ROSS A. THOMPSON Individually and in his official capacity as Chief of Police for the City of Blytheville, Arkansas, and CITY OF BLYTHEVILLE, ARKANSAS
ORDER
Some cases try judges’ souls. This is one of them. A man with mental illness, who was at
most a misdemeanant, has died after being arrested; his mother, who is most assuredly in
unbearable anguish, believes one or more of the arresting police officers or emergency medical
technicians at the scene are to blame and wants them held to account. Any human being would
have the utmost sympathy for the Plaintiff in this case. But judges are sworn to put aside such
feelings of sympathy and to decide cases impartially—solely based on the law. It is the only way
our justice system can function fairly for all participants. And it is what I do here. Nonetheless,
and as I have noted in a prior Order, this is precisely the type of case that warrants a hard second
look from the Court of Appeals to ensure that my decision represents an accurate understanding
and application of governing precedent.
On October 30, 2018, Plaintiff Tawona Anderson, in her capacity as the Guardian of the
Person and Estate of Rayshawn Warren, filed a Complaint in the Circuit Court of Mississippi
County, Arkansas.1 She sued Officer Doyne Driskill (in both his individual and official
capacities), Blytheville Chief of Police Ross Thompson (in both his individual and official
capacities), and the City of Blytheville, Arkansas.2 In short, Ms. Anderson’s Complaint alleges
that Defendants violated Mr. Warren’s First, Fourth, Fifth, Sixth, Eighth, and Fourteenth
Amendment rights under the United States Constitution, and that Officer Driskill committed the
common law state torts of assault and battery.3
On November 29, 2018, Defendants removed the case to the Eastern District of Arkansas.4
A lot has happened since that time. A fairly comprehensive procedural history can be read (and
should be read) in the Court’s relatively recent Order denying Plaintiff’s Motion to Amend the
Complaint.5 It’s important to note here, however, that Officer Driskill, Chief Thompson, and the
City of Blytheville are the only Defendants named in the Complaint. Other officers and paramedics
involved in Mr. Warren’s arrest and transport are not named as Defendants.6
Defendants’ Motion for Summary Judgment is now before the Court. The Court has
carefully considered the parties’ evidence, briefing, and oral arguments. For the following reasons,
the Court concludes that the Motion for Summary Judgment should be granted in its entirety.
1 Defs.’ Notice of Removal (Doc. 1) ¶ 1.
2 Pl.’s Compl. (Doc. 2).
3 Id. ¶¶ 2, 27–30.
4 Defs.’ Notice of Removal (Doc. 1) ¶ 1.
5 See Order Denying Mot. to Amend (Doc. 70) at 1–7.
6 See id. In December 2020, Plaintiff moved to amend her Complaint to add as Defendants Officer Nathan Krupin, Officer Santos Berumen, Officer Billy Hancock, Paramedic Anthony Johnson, Pafford Emergency Medical Services, Inc., and Pafford Medical Services, Inc. Id. at 5. This was more than two years after the Complaint was filed, more than fourteen months after the expiration of the original amendment of pleadings deadline, and more than six months after the expiration of the second amendment of pleadings deadline. After careful deliberation, the Court denied the Motion. The Court found that Plaintiff failed to act diligently, and thus failed to satisfy the good-cause standard for amending her Complaint outside of the time established in the Court’s applicable scheduling orders.
Summary Judgment Standard
Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.”7 The movant bears the initial burden of showing
(1) the absence of a genuine dispute as to any material fact and (2) that a rational juror could not
possibly find for the nonmoving party based on the undisputed facts.8 If the movant successfully
makes this showing, the burden then shifts to the nonmoving party to establish that there is some
genuine and material issue to be determined at trial.9 The nonmoving party may not rest solely
upon the allegations in its pleadings.10 To survive summary judgment, the nonmoving party “must
demonstrate the existence of specific facts . . . supported by ‘sufficient probative evidence that
would permit a finding in her favor on more than mere speculation, conjecture, or fantasy.’”11 If
the nonmoving party can present specific facts by “affidavit, deposition, or otherwise, showing the
existence of a genuine issue for trial,” then summary judgment is not appropriate.12
Of course, the mere existence of a disputed fact will not bar summary judgment.13 The
dispute must be genuine, which means the evidence could cause a reasonable jury to decide the
particular question of fact for either party.14 And the disputed fact must be material, meaning the
7 MacKintrush v. Pulaski Cty. Sheriff’s Dep’t, 987 F.3d 767, 769 (8th Cir. 2021) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)); see also FED. R. CIV. P. 56(a).
8 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
9 Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 1997).
10 Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984).
11 Donathan v. Oakley Grain, Inc., 861 F.3d 735, 739 (8th Cir. 2017) (quoting Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
12 Grey v. City of Oak Grove, Mo., 396 F.3d 1031, 1034 (8th Cir. 2005).
13 Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989).
14 Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008); Anderson, 477 U.S. at 248.
resolution of the dispute will be outcome determinative under the controlling law.15 The Court
will resolve all genuine issues of material fact in the non-moving party’s favor.16 But the Court
will not adopt a version of the facts that is blatantly contradicted by the record such that no rational
juror could believe it.17
Background
The events in question occurred in Blytheville, Arkansas, between 7:59 p.m. and 9:00 p.m.
on September 29, 2018. It was well after sunset and dark outside. At approximately 7:59 p.m.,
Officer Driskill of the Blytheville Police Department responded to a call about an unknown man
at 910 Hearn Street trying to “snatch the door open.”18 Officer Driskill spoke with the resident of
910 Hearn Street, who explained that the encounter with the unknown man “was scary” and that
the man’s “eyes were big,” as if the man “was on something.”19 The resident described the man
as a black male wearing a blue shirt.20 Officer Driskill searched around the outside of the house
but did not find the man.
While Officer Driskill was still at 910 Hearn Street, dispatch received several calls
concerning a man matching the same general description knocking on doors on Walnut Street.21
Officer Driskill left Hearn Street and made contact with a caller on Walnut Street.22 The caller
15 Holloway, 884 F.2d at 366.
16 Kohorst v. Smith, 968 F.3d 871, 876 (8th Cir. 2020) (citing Scott v. Harris, 550 U.S. 372, 380 (2007)).
17 Id.
18 Ex. 3 (Driskill Bodycam) to Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 54) beginning at 00:59:40. It is not clear whether the resident said “snatch” or “smash.” Because this case is at the summary judgment stage, and genuinely disputed facts must be taken in the light most favorable to the Plaintiff, it is safest to assume the resident said “snatch,” even though “smash” makes more sense in context.
19 Id. beginning at 00:59:45.
20 Id. beginning at 00:59:50.
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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION
TAWONA WARREN ANDERSON PLAINTIFF Guardian of the Person and Estate of Rayshawn Warren
v. Case No. 3:18-cv-00231-LPR
DOYNE DRISKILL DEFENDANTS Individually and in his official capacity as a Police Officer for the City of Blytheville, Arkansas, ROSS A. THOMPSON Individually and in his official capacity as Chief of Police for the City of Blytheville, Arkansas, and CITY OF BLYTHEVILLE, ARKANSAS
ORDER
Some cases try judges’ souls. This is one of them. A man with mental illness, who was at
most a misdemeanant, has died after being arrested; his mother, who is most assuredly in
unbearable anguish, believes one or more of the arresting police officers or emergency medical
technicians at the scene are to blame and wants them held to account. Any human being would
have the utmost sympathy for the Plaintiff in this case. But judges are sworn to put aside such
feelings of sympathy and to decide cases impartially—solely based on the law. It is the only way
our justice system can function fairly for all participants. And it is what I do here. Nonetheless,
and as I have noted in a prior Order, this is precisely the type of case that warrants a hard second
look from the Court of Appeals to ensure that my decision represents an accurate understanding
and application of governing precedent.
On October 30, 2018, Plaintiff Tawona Anderson, in her capacity as the Guardian of the
Person and Estate of Rayshawn Warren, filed a Complaint in the Circuit Court of Mississippi
County, Arkansas.1 She sued Officer Doyne Driskill (in both his individual and official
capacities), Blytheville Chief of Police Ross Thompson (in both his individual and official
capacities), and the City of Blytheville, Arkansas.2 In short, Ms. Anderson’s Complaint alleges
that Defendants violated Mr. Warren’s First, Fourth, Fifth, Sixth, Eighth, and Fourteenth
Amendment rights under the United States Constitution, and that Officer Driskill committed the
common law state torts of assault and battery.3
On November 29, 2018, Defendants removed the case to the Eastern District of Arkansas.4
A lot has happened since that time. A fairly comprehensive procedural history can be read (and
should be read) in the Court’s relatively recent Order denying Plaintiff’s Motion to Amend the
Complaint.5 It’s important to note here, however, that Officer Driskill, Chief Thompson, and the
City of Blytheville are the only Defendants named in the Complaint. Other officers and paramedics
involved in Mr. Warren’s arrest and transport are not named as Defendants.6
Defendants’ Motion for Summary Judgment is now before the Court. The Court has
carefully considered the parties’ evidence, briefing, and oral arguments. For the following reasons,
the Court concludes that the Motion for Summary Judgment should be granted in its entirety.
1 Defs.’ Notice of Removal (Doc. 1) ¶ 1.
2 Pl.’s Compl. (Doc. 2).
3 Id. ¶¶ 2, 27–30.
4 Defs.’ Notice of Removal (Doc. 1) ¶ 1.
5 See Order Denying Mot. to Amend (Doc. 70) at 1–7.
6 See id. In December 2020, Plaintiff moved to amend her Complaint to add as Defendants Officer Nathan Krupin, Officer Santos Berumen, Officer Billy Hancock, Paramedic Anthony Johnson, Pafford Emergency Medical Services, Inc., and Pafford Medical Services, Inc. Id. at 5. This was more than two years after the Complaint was filed, more than fourteen months after the expiration of the original amendment of pleadings deadline, and more than six months after the expiration of the second amendment of pleadings deadline. After careful deliberation, the Court denied the Motion. The Court found that Plaintiff failed to act diligently, and thus failed to satisfy the good-cause standard for amending her Complaint outside of the time established in the Court’s applicable scheduling orders.
Summary Judgment Standard
Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.”7 The movant bears the initial burden of showing
(1) the absence of a genuine dispute as to any material fact and (2) that a rational juror could not
possibly find for the nonmoving party based on the undisputed facts.8 If the movant successfully
makes this showing, the burden then shifts to the nonmoving party to establish that there is some
genuine and material issue to be determined at trial.9 The nonmoving party may not rest solely
upon the allegations in its pleadings.10 To survive summary judgment, the nonmoving party “must
demonstrate the existence of specific facts . . . supported by ‘sufficient probative evidence that
would permit a finding in her favor on more than mere speculation, conjecture, or fantasy.’”11 If
the nonmoving party can present specific facts by “affidavit, deposition, or otherwise, showing the
existence of a genuine issue for trial,” then summary judgment is not appropriate.12
Of course, the mere existence of a disputed fact will not bar summary judgment.13 The
dispute must be genuine, which means the evidence could cause a reasonable jury to decide the
particular question of fact for either party.14 And the disputed fact must be material, meaning the
7 MacKintrush v. Pulaski Cty. Sheriff’s Dep’t, 987 F.3d 767, 769 (8th Cir. 2021) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)); see also FED. R. CIV. P. 56(a).
8 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
9 Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 1997).
10 Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984).
11 Donathan v. Oakley Grain, Inc., 861 F.3d 735, 739 (8th Cir. 2017) (quoting Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
12 Grey v. City of Oak Grove, Mo., 396 F.3d 1031, 1034 (8th Cir. 2005).
13 Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989).
14 Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008); Anderson, 477 U.S. at 248.
resolution of the dispute will be outcome determinative under the controlling law.15 The Court
will resolve all genuine issues of material fact in the non-moving party’s favor.16 But the Court
will not adopt a version of the facts that is blatantly contradicted by the record such that no rational
juror could believe it.17
Background
The events in question occurred in Blytheville, Arkansas, between 7:59 p.m. and 9:00 p.m.
on September 29, 2018. It was well after sunset and dark outside. At approximately 7:59 p.m.,
Officer Driskill of the Blytheville Police Department responded to a call about an unknown man
at 910 Hearn Street trying to “snatch the door open.”18 Officer Driskill spoke with the resident of
910 Hearn Street, who explained that the encounter with the unknown man “was scary” and that
the man’s “eyes were big,” as if the man “was on something.”19 The resident described the man
as a black male wearing a blue shirt.20 Officer Driskill searched around the outside of the house
but did not find the man.
While Officer Driskill was still at 910 Hearn Street, dispatch received several calls
concerning a man matching the same general description knocking on doors on Walnut Street.21
Officer Driskill left Hearn Street and made contact with a caller on Walnut Street.22 The caller
15 Holloway, 884 F.2d at 366.
16 Kohorst v. Smith, 968 F.3d 871, 876 (8th Cir. 2020) (citing Scott v. Harris, 550 U.S. 372, 380 (2007)).
17 Id.
18 Ex. 3 (Driskill Bodycam) to Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 54) beginning at 00:59:40. It is not clear whether the resident said “snatch” or “smash.” Because this case is at the summary judgment stage, and genuinely disputed facts must be taken in the light most favorable to the Plaintiff, it is safest to assume the resident said “snatch,” even though “smash” makes more sense in context.
19 Id. beginning at 00:59:45.
20 Id. beginning at 00:59:50.
21 Pl.’s Resp. to Defs.’ Statement of Material Facts (Doc. 44) ¶ 3.
22 Id. ¶ 4.
stated that a man was knocking on doors and asking for help.23 The caller directed Officer Driskill
toward 8th Street, which is where the man was last seen.24 En route, Officer Driskill received yet
another call from dispatch that seemed to involve the unknown male.25 This time, dispatch relayed
information about a man who was screaming for help behind a Baptist Church.26 There is a Baptist
Church on the corner of 8th Street and Walnut Street.27
Officer Driskill located a man fitting the given description at approximately 8:08 p.m. at
the southeast corner of Main Street and 7th Street.28 The man was 29-year-old Rayshawn Warren.
As it turns out, Mr. Warren suffered from a history of bipolar disorder.29 He also had a documented
history of drug use and meth abuse.30 Indeed, on the night in question, Mr. Warren tested positive
for amphetamines.31
Officer Driskill attempted to approach Mr. Warren saying, “what’s going on, man,” and
“come here.”32 Mr. Warren responded “no.”33 Officer Driskill told Mr. Warren two more times
23 Id.
24 Id.
25 Id. ¶ 5.
26 Id.
27 GOOGLE EARTH, https://earth.google.com/web/search/walnut+street,+Blytheville,+AR/@35.9284429 (last visited July 26, 2021). Pursuant to Federal Rule of Evidence 201, the Court takes judicial notice of this fact. It is not subject to reasonable dispute because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
28 Pl.’s Resp. to Defs.’ Statement of Material Facts (Doc. 44) ¶ 6; Ex. 3 (Driskill Bodycam) to Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 54) beginning at 01:08:40.
29 Ex. 1 to Pl.’s Am. Resp. to Defs.’ Mot. for Summ. J. (Doc. 51-1) at 1; Ex. 14 to Defs.’ Statement of Material Facts (Doc. 27-14) at 2. The Court has taken judicial notice of several facts, some of which provide evidence that Mr. Warren had a mental illness prior to the date of the arrest at issue in this litigation. See Mot. for Order for Judicial Notice (Doc. 71); see also Text Order Granting Mot. for Order for Judicial Notice (Doc. 83).
30 Ex. 1 to Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 51-1) at 3.
31 Pl.’s Resp. to Defs.’ Statement of Material Facts (Doc. 44) ¶ 67; Ex. 14 to Defs.’ Statement of Material Facts (Doc. 27-14) at 3; Ex. 13 to Defs.’ Statement of Material Facts (Doc. 27-13) at 10.
32 Pl.’s Resp. to Defs.’ Statement of Material Facts (Doc. 44) ¶ 7.
33 Id.
to “come here.”34 Once again, Mr. Warren responded “no” and then started running down Main
Street.35 Officer Driskill pursued Mr. Warren.36 At approximately 8:08 p.m., Officer Driskill
made physical contact with Mr. Warren.37 Roughly twenty-three minutes later, two other officers
determined that Mr. Warren did not have a pulse and began CPR.38 Mr. Warren never regained
consciousness; he spent the remainder of his life in a vegetative state until he died. What happened
during those twenty-three minutes, and specifically whether Officer Driskill’s conduct was
reasonable, are the primary questions underpinning Ms. Anderson’s Complaint and Defendants’
Motion for Summary Judgment.
Bodycam Videos
The Court will walk step-by-step through the events that transpired during the arrest on the
night of September 29, 2018.39 For the most part, the facts will be derived from the bodycam
videos belonging to Officers Berumen, Krupin, and Driskill.40 When a fact is genuinely disputed,
the Court will adopt the version of the genuinely disputed fact that is most favorable to Plaintiff.
34 Id. ¶ 8.
35 Id.
36 Ex. 3 (Driskill Bodycam) to Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 54) beginning at 01:08:28.
37 Id. beginning at 01:08:46.
38 Pl.’s Resp. to Defs.’ Statement of Material Facts (Doc. 44) ¶¶ 50–52. Officer Nathan Krupin, Officer Santos Berumen, and Officer Billy Hancock were also at the scene. Those Officers are not named as Defendants in this case, as discussed above in note 6. The same is true of Paramedic Anthony Johnson and Pafford Emergency Medical Services, Inc. See Order Denying Mot. to Amend (Doc. 70).
39 See Ex. 2A (Bodycam Collage Video) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
40 See generally Scott v. Harris, 550 U.S. 372, 381 (2007). The timestamp is represented in the upper righthand corner of each respective bodycam feed. The timestamp is in Zulu time. For the sake of clarity, the Court has converted the Zulu time to Central time. It is also worth noting that, although the videos in the bodycam collage are synchronized, the timestamps are different by fractions of a second. Ex. 2B (Description of Work) to Defs.’ Mot. for Summ. J. (Doc. 27-2) (“The time display on each of the cameras was slightly different, so I had to rely on the audio of two or more recordings to synchronize the footage together.”). Officer Berumen’s timestamp is a fraction of a second behind Officer Driskill’s timestamp. And Officer Krupin’s timestamp is a fraction of a second behind Officer Berumen’s timestamp. Officer Hancock’s timestamp appears to be perfectly synchronized with Officer Krupin’s timestamp. Because of these slight discrepancies, the Court’s “timing findings” are based on the Court’s best approximations.
The Attempted Armbar
At 8:08:46 p.m., Officer Driskill made physical contact with Mr. Warren.41 The parties
agree that during this brief initial altercation, Officer Driskill attempted to perform an armbar on
Mr. Warren.42 Mr. Warren was facing Officer Driskill when contact was made.43 Mr. Warren put
both of his arms out in front of his body and towards the chest or head of Officer Driskill.44 This
was not done in a particularly violent manner. Rather, Mr. Warren simply appeared to be creating
a buffer between himself and Officer Driskill.
Officer Driskill and Mr. Warren scuffled for approximately 2 seconds before Mr. Warren
prevailed in pushing Officer Driskill to the ground and breaking free of Officer Driskill’s grasp.45
At 8:08:48 p.m., Mr. Warren’s legs can be seen as Officer Driskill falls backwards to the ground.46
As Officer Driskill fell, he lost physical contact with Mr. Warren, and Mr. Warren again took
flight. At 8:08:50 p.m., Officer Driskill got back up and resumed pursuit.47
The Takedown
For the next eighteen seconds, Mr. Warren eluded Officer Driskill.48 Occasionally, Officer
Driskill would instruct Mr. Warren to “come here” or to “get on the ground.”49 Mr. Warren did
not heed Officer Driskill’s commands. At 8:09:08 p.m., Officer Driskill again made physical
41 Ex. 2A (Bodycam Collage Video – Officer Driskill) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
42 Pl.’s Resp. to Defs.’ Statement of Material Facts (Doc. 44) ¶ 10.
43 Ex. 2A (Bodycam Collage Video – Officer Driskill) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
44 Id.
45 Id.
46 Id.
47 Id.
48 Id.
49 Id.
contact with Mr. Warren.50 This time, Officer Driskill threw Mr. Warren to the ground.51
Mr. Warren landed on his back on a patch of grass near to, but off of, a public road. One
second later, Officer Driskill mounted Mr. Warren, and the two lightly wrestled for hand control.52
At 8:09:15 p.m., Officer Driskill gained control of both of Mr. Warren’s wrists.53 By 8:09:18 p.m.,
Officer Driskill had both of Mr. Warren’s arms pinned to the ground near Mr. Warren’s head.54
Officer Driskill was sitting on Mr. Warren’s stomach, straddling him.55 Mr. Warren repeatedly
yelled, “momma.”56
From 8:09:18 p.m. until 8:10:28 p.m., Officer Driskill sat on Mr. Warren’s stomach,
straddling him and restraining his arms.57 Occasionally, Mr. Warren’s arms can be seen tensing
and flexing as he attempted to free himself from Officer Driskill’s grasp.58 Officer Driskill
instructed Mr. Warren to “stand down,” “calm down,” and “stop.”59 Throughout this interaction,
Mr. Warren repeatedly yelled for his mother and for help. He also stated that he is a father of two
and that he was “sketching.”60 Mr. Warren also yelled unintelligible phrases. Mr. Warren had
what appears to be a white foam around his lips.
In the meantime, Officer Krupin arrived to the scene. 61 At 8:10:11 p.m., Officer Krupin
50 Id.
51 Id.
52 Id.
53 Id.
54 Id.
55 Id.
56 Id.
57 Id. Officer Driskill occasionally removed his grasp on Mr. Warren’s right arm.
58 Id.
59 Id.
60 Id.
61 Ex. 2A (Bodycam Collage Video – Officer Driskill – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2). The blue lights of a police car can be seen reflecting off of Mr. Warren at approximately 8:09:59 p.m. Ex. 2A (Bodycam Collage Video – Officer Driskill) to Defs.’ Mot. for Summ. J. (Doc. 27-2). But Officer Krupin’s camera is not on
approached Officer Driskill and Mr. Warren.62 At 8:10:20 p.m., Officer Krupin addressed Mr.
Warren by name, saying “Rayshawn, chill the f**k out.”63 At 8:10:24 p.m., Officer Krupin radioed
Mr. Warren’s full name to an unidentified party.64 At 8:10:28 p.m., Officer Krupin knelt down on
the grass near the right side of Mr. Warren and made physical contact with Mr. Warren in an effort
to assist Officer Driskill in restraining Mr. Warren.65
The First Tasing
Officer Driskill was still holding Mr. Warren’s arms against the ground.66 At 8:10:29 p.m.,
Officer Krupin placed his hand on Mr. Warren’s right wrist and placed a taser on Mr. Warren’s
abdomen.67 Officer Krupin warned Mr. Warren that if Mr. Warren kept fighting, Officer Krupin
was going to “tase the s**t” out of Mr. Warren.68 At 8:10:30 p.m., Mr. Warren said “okay” and
Officer Krupin removed his hand from Mr. Warren’s wrist.69
In the meantime, Officer Berumen arrived on the scene.70 At 8:10:34 p.m., Officer
Berumen radioed Mr. Warren’s full name to an unidentified party.71 At 8:10:40 p.m., Officer
Driskill (still holding Mr. Warren’s wrists) climbed off Mr. Warren and knelt on the grass next to
until approximately 8:10:11. Ex. 2A (Bodycam Collage Video – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
62 Ex. 2A (Bodycam Collage Video – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
63 Id.
64 Id.
65 Id.
66 Ex. 2A (Bodycam Collage Video – Officer Driskill and Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
67 Ex. 2A (Bodycam Collage Video – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
68 Id.
69 Id..
70 Officer Berumen stepped out of his car at approximately 8:10:30 p.m. Ex. 2A (Bodycam Collage Video – Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
71 Id.
Mr. Warren’s left hip.72 At 8:10:42 p.m., Mr. Warren lifted his legs to his stomach.73 Officer
Krupin then repeatedly instructed Mr. Warren to roll over.74 Officer Krupin warned Mr. Warren
three times that he would tase Mr. Warren if he did not roll over.75
At 8:10:45 p.m., Officer Berumen told Officers Driskill and Krupin to roll Mr. Warren
over.76 Officers Driskill and Krupin attempted to roll Mr. Warren over.77 Mr. Warren sprawled
backwards.78 Mr. Warren was kicking his legs and attempting to rip his arms from the Officers’
grips. At 8:10:47 p.m., Officer Krupin administered a five-second drive stun to Mr. Warren’s
abdomen.79 Mr. Warren appeared unaffected.80 The video reveals that Mr. Warren was able to
grab Officer Krupin’s taser and pull it away from his body.81 At 8:10:51 p.m., Officer Berumen
grabbed Mr. Warren’s right wrist.82 Officers Driskill, Krupin, and Berumen were all working
together to control Mr. Warren.
The Chokehold
Mr. Warren was still lying on his back because the Officers were having a difficult time
getting him turned over.83 From that position, Mr. Warren sprawled backwards, kicked his legs
72 Ex. 2A (Bodycam Collage Video – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
73 Id.
74 Id.
75 Id.
76 Ex. 2A (Bodycam Collage Video – Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
77 Ex. 2A (Bodycam Collage Video – Officer Berumen, Officer Krupin, and Officer Driskill) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
78 Ex. 2A (Bodycam Collage Video – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
79 Id.
80 Id.
81 Id.
82 Ex. 2A (Bodycam Collage Video – Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
83 Ex. 2A (Bodycam Collage Video – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
into the air, and attempted to pull his arms to his body and out of the Officers’ grasps.84 Officer
Driskill was positioned to the left of Mr. Warren and worked to control Mr. Warren’s left arm and
left leg.85 But Officer Driskill quickly lost his grip on Mr. Warren’s arm.86 Officer Berumen was
positioned on Mr. Warren’s right side and was attempting to restrain Mr. Warren’s right arm.87
Officer Krupin had been near Mr. Warren’s legs, but quickly repositioned himself near Mr.
Warren’s head.88
At 8:10:59 p.m., Mr. Warren put both hands over his head and curled into a ball on his left
side.89 The Officers repeatedly instructed Mr. Warren to roll over, but to no avail. At 8:11:04
p.m., Mr. Warren’s voice became distorted.90 Viewing the facts in the light most favorable to
Plaintiff, the Court concludes that this is the moment when Officer Krupin began to apply a
chokehold (a vascular restraint) to Mr. Warren.
At 8:11:06 p.m., Officer Berumen’s bodycam fell to the ground.91 About this same time,
Officer Driskill’s bodycam also came loose.92 As Officer Driskill adjusts his bodycam, it becomes
apparent that he is no longer in physical contact with Mr. Warren.93 At 8:11:15 p.m., Officers
Krupin and Berumen succeeded in rolling Mr. Warren onto his stomach.94 Officer Krupin told
84 Ex. 2A (Bodycam Collage Video – Officer Krupin, Officer Driskill, and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
85 Ex. 2A (Bodycam Collage Video – Officer Krupin and Officer Driskill) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
86 Id.
87 Id.
88 Ex. 2A (Bodycam Collage Video – Officer Krupin and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
89 Ex. 2A (Bodycam Collage Video – Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
90 Ex. 2A (Bodycam Collage Video – Officer Krupin, Officer Driskill, and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
91 Ex. 2A (Bodycam Collage Video – Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
92 Ex. 2A (Bodycam Collage Video – Officer Driskill) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
93 Id.
94 Ex. 2A (Bodycam Collage Video – Officer Driskill and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27- 2).
Officer Driskill to take hold of Mr. Warren’s left arm.95 Officer Berumen was holding Mr.
Warren’s right arm behind Mr. Warren’s back.96 At 8:11:31 p.m., Officer Krupin’s bodycam fell
to the ground and Officer Driskill took hold of Mr. Warren’s left arm.97 At 8:11:33 p.m., Officer
Krupin stated that he had Mr. Warren in a chokehold and assured Officers Driskill and Berumen
that Mr. Warren wasn’t going anywhere.98
From approximately 8:11:36 p.m. until approximately 8:12:05 p.m., Mr. Warren pulled his
arm away from Officer Driskill and inward toward his own body.99 At least two of the Officers
(it is unclear exactly which two) repeatedly instructed Mr. Warren to relax his arm.100 At 8:12:04
p.m., Officer Driskill addressed Mr. Warren by name and instructed him to relax his arm.101 At
8:12:06 p.m., Officer Krupin announced that Mr. Warren was unconscious.102 Officer Krupin then
immediately released his chokehold and lifted himself off of Mr. Warren’s back.103 In the light
most favorable to Plaintiff, the chokehold lasted for approximately one minute and two seconds.
At 8:12:17 p.m., Officer Driskill successfully placed Mr. Warren’s wrists in handcuffs
behind Mr. Warren’s back.104 By 8:12:20 p.m., all three Officers had broken physical contact with
Mr. Warren, who was laying chest-down in the grass.105 Immediately after Officer Driskill
95 Ex. 2A (Bodycam Collage Video – Officer Krupin and Officer Driskill) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
96 Ex. 2A (Bodycam Collage Video – Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
97 Ex. 2A (Bodycam Collage Video – Officer Krupin and Officer Driskill) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
98 Id.
99 Ex. 2A (Bodycam Collage Video – Officer Driskill) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
100 Ex. 2A (Bodycam Collage Video – Officer Krupin and Officer Driskill) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
101 Id.
102 Id.
103 Ex. 2A (Bodycam Collage Video – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
104 Ex. 2A (Bodycam Collage Video – Officer Driskill) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
105 Id.
finished handcuffing Mr. Warren, Officer Driskill sat backwards and reached for his ankle.106
Officer Berumen then placed his hands on Officer Driskill and asked Officer Driskill if he had
been hurt.107 Officer Driskill stated that he twisted his ankle.108
At 8:12:34 p.m., Mr. Warren began to move again.109 At most, Mr. Warren was
unconscious for approximately twenty-eight seconds. At 8:12:47 p.m., Mr. Warren began to talk
again.110 His talking quickly progressed to yelling.
The Leg Slam, Second Tasing, and Leg Shackles
At 8:12:51 p.m., Officer Driskill instructed Mr. Warren to “calm down” and “relax.”111
For the next few seconds, Mr. Warren squirmed on the ground and continued to yell.112 Officer
Berumen was standing close to Mr. Warren. At one point, it appears as though Officer Berumen
was standing over Mr. Warren or on Mr. Warren’s right arm to hold Mr. Warren in place.113 At
8:13:21 p.m., Officer Berumen bent down, grabbed Mr. Warren by the arm, and slid Mr. Warren
a few feet away from the concrete sidewalk and further onto the grass.114 Mr. Warren continued
to writhe, wriggle, and yell.
At 8:13:29 p.m., Mr. Warren began kicking his legs into the air and near the Officers who
106 Ex. 2A (Bodycam Collage Video – Officer Krupin and Officer Driskill) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
107 Id.
108 Id.
109 Id.
110 Ex. 2A (Bodycam Collage Video – Officer Krupin, Officer Driskill, and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
111 Id.
112 Ex. 2A (Bodycam Collage Video – Officer Krupin and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
113 Ex. 2A (Bodycam Collage Video – Officer Driskill) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
114 Ex. 2A (Bodycam Collage Video – Officer Driskill and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27- 2).
were standing close by.115 At 8:13:34 p.m., Officer Driskill reinitiated physical contact with Mr.
Warren.116 Officer Driskill knelt down beside Mr. Warren, placed his left hand on Mr. Warren,
and instructed Mr. Warren to calm down. At 8:13:37 p.m., Officer Berumen warned Officer
Driskill not to allow Mr. Warren to kick Officer Driskill.117 Only moments later, at 8:13:41 p.m.,
Mr. Warren kicked his legs again. It appears that Mr. Warren’s right foot contacted Officer
Driskill’s left shoulder and the left side of Officer Driskill’s head or neck.118
Officer Driskill immediately reacted to the kick.119 At 8:13:44 p.m., Officer Driskill
grabbed Mr. Warren’s right leg and slammed it to the ground, using the force of Officer Driskill’s
own body. Officer Driskill’s bodycam fell off in the process.120 Officer Berumen then joined the
struggle.121 At 8:13:47 p.m., Officer Driskill can be seen holding Mr. Warren’s right leg as Officer
Berumen simultaneously holds Mr. Warren’s right arm.122 Officer Berumen instructed Officer
Driskill to let go of Mr. Warren’s leg, and Officer Driskill let go.123 Officer Driskill then clambered
off of Mr. Warren and Officer Krupin took Officer Driskill’s place.124
At 8:13:50 p.m., Officer Krupin reminded Officers Berumen and Driskill that, despite the
fact that Mr. Warren was “kicking and s**t,” Mr. Warren was now in their custody.125 By this
115 Ex. 2A (Bodycam Collage Video – Officer Krupin, Officer Driskill, and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
116 Id.
117 Ex. 2A (Bodycam Collage Video – Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
118 Ex. 2A (Bodycam Collage Video – Officer Krupin, Officer Driskill, and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
119 Id.
120 Ex. 2A (Bodycam Collage Video – Officer Driskill) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
121 Ex. 2A (Bodycam Collage Video – Officer Krupin and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
122 Id.
123 Ex. 2A (Bodycam Collage Video – Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
124 Ex. 2A (Bodycam Collage Video – Officer Krupin and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
125 Ex. 2A (Bodycam Collage Video – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
time, there is no indication that Officer Driskill was still physically engaged with Mr. Warren. At
8:13:57 p.m., it is apparent that Officer Driskill was standing a few feet away from Mr. Warren.126
At 8:13:58 p.m., Officer Driskill’s bodycam went dark. Officer Krupin’s bodycam and Officer
Berumen’s bodycam both remained on. Nothing in their video feeds suggest that Officer Driskill
returned to the struggle.127
At 8:13:59 p.m., Officer Krupin warned Mr. Warren that if Mr. Warren kept moving, he
was going to get tased.128 Officer Krupin placed his taser (in drive-stun mode) against Mr.
Warren’s right leg.129 At 8:14:04 p.m., Officer Krupin administered a five-second drive stun to
Mr. Warren’s leg.130 At the end of the taser cycle, Mr. Warren rolled onto his stomach and Officer
Berumen placed his weight on Mr. Warren’s back.131 Mr. Warren continued to lightly kick his
legs.132 At 8:14:44 p.m., Officer Krupin placed Mr. Warren’s ankles into handcuffs.133 Officer
Krupin then stood up and placed his foot on the handcuff chain between Mr. Warren’s ankles.134
At 8:14:59 p.m., Officer Driskill can be seen on the left side of Officer Krupin’s video feed
126 Ex. 2A (Bodycam Collage Video – Officer Driskill) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
127 At approximately 8:14:03 p.m., a foot can be momentarily seen in the upper righthand side of Officer Berumen’s video feed. Ex. 2A (Bodycam Collage Video – Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2). The Court finds that this was Officer Driskill’s foot, as Officers Berumen and Krupin are laying on the ground struggling with Mr. Warren. At 8:14:18 p.m., Officer Berumen asks Officer Driskill if he has any leg shackles. Officer Driskill’s response appears to come from somewhere behind Officers Berumen and Krupin. Ex. 2A (Bodycam Collage Video – Officer Krupin and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2). Officer Driskill is never seen assisting Officers Berumen and Krupin in either of their videos. By 8:14:52 p.m., the shadows verify that Officer Driskill is not near the other Officers and Mr. Warren. Ex. 2A (Bodycam Collage Video – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2). At 8:14:59 p.m., Officer Driskill can be seen on the left side of Officer Krupin’s screen sitting down in the grass a few feet to the left of Mr. Warren and behind Officer Berumen. Id. At approximately 8:15:40 p.m., Officer Driskill can be seen standing against one of the police cruisers in the background. Id.
128 Ex. 2A (Bodycam Collage Video – Officer Krupin and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
129 Id.
130 Id.
131 Id.
132 Id.
133 Id.
134 Id.
sitting down in the grass a few feet to the left of Mr. Warren and behind Officer Berumen. 135
Officers Krupin and Berumen remarked that Mr. Warren was “tripping on something,” but that
Mr. Warren did not appear to be suffering from an overdose.136 Shortly thereafter, Officer
Berumen rose to his feet, placed his hand on Mr. Warren’s back for a few seconds, and then shifted
to placing his right foot on Mr. Warren’s back.137
At 8:15:40 p.m., Officer Driskill came back into view.138 He was standing against one of
the police cruisers well away from Mr. Warren. At 8:16:14 p.m., Officer Berumen asked Officer
Driskill if Officer Driskill needed to go to the hospital.139 At 8:17:14 p.m., Officer Krupin stated
that Mr. Warren must have “got some bad meth.”140 At 8:17:22 p.m., Officer Driskill turned his
bodycam back on.141 He was still standing next to the police cruiser a good distance away from
Mr. Warren. At 8:17:54 p.m., Officer Krupin reported to EMS that Officer Driskill “messed his
ankle up fighting with the suspect.”142 Officers Berumen, Driskill, and Krupin sprayed themselves
with bug spray. They did not spray Mr. Warren.
At 8:18:07 p.m., Officer Driskill sat down on the ground a few feet away from Mr.
Warren.143 Mr. Warren was still muttering unintelligibly. At 8:18:11 p.m., Officer Berumen
removed his foot from Mr. Warren’s back.144 At 8:18:20 p.m., Mr. Warren can be seen sitting
135 Ex. 2A (Bodycam Collage Video – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
136 Ex. 2A (Bodycam Collage Video – Officer Krupin and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
137 Id.
138 Ex. 2A (Bodycam Collage Video – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
139 Ex. 2A (Bodycam Collage Video – Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
140 Ex. 2A (Bodycam Collage Video – Officer Krupin and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
141 Ex. 2A (Bodycam Collage Video – Officer Driskill) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
142 Ex. 2A (Bodycam Collage Video – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
143 Ex. 2A (Bodycam Collage Video – Officer Driskill and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27- 2).
144 Ex. 2A (Bodycam Collage Video – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
upright on the ground between Officers Driskill, Berumen, and Krupin.145 None of the Officers
were holding him down. At 8:18:28 p.m., Mr. Warren rocked forward, as if he were attempting to
stand up, and then asked Officer Krupin if he could stand up for a minute.146 Officer Krupin said
no and told Mr. Warren to stay seated.147 Mr. Warren then repeatedly tried to stand.148 At 8:18:44
p.m., Officer Driskill verbally urged Mr. Warren to sit with him.149 By approximately 8:21:07
p.m., EMS had arrived on the scene.150
Additional Excessive Force Allegations
The last time Officer Driskill was physically engaged with Mr. Warren was approximately
8:13:51 p.m., when Officer Driskill let go of Mr. Warren’s leg right before Officer Krupin took
control and administered the second drive-stun tasing. The Court has already detailed some of
what happened after Officer Driskill ceased contact with Mr. Warren. In particular, Officer Krupin
tased Mr. Warren in drive-stun mode in the leg, and Officers Krupin and Berumen handcuffed Mr.
Warren’s legs.
Plaintiff also notes that, after EMS arrived, the paramedic became aggressive with Mr.
Warren.151 At 8:24:28 p.m., Mr. Warren began kicking his legs as Officers Krupin and Berumen
and the paramedic attempted to prepare Mr. Warren for transfer.152 After Mr. Warren began
145 Ex. 2A (Bodycam Collage Video – Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
146 Ex. 2A (Bodycam Collage Video – Officer Krupin and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
147 Id.
148 Id.
149 Ex. 2A (Bodycam Collage Video – Officer Driskill) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
150 Ex. 2A (Bodycam Collage Video – Officer Krupin and Officer Driskill) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
151 The only paramedic on the scene was Mr. Anthony Johnson. His partner that night was Trevor Orr, an EMT. See Pl.’s Resp. to Defs.’ Statement of Material Facts (Doc. 44) ¶ 34.
152 Ex. 2A (Bodycam Collage Video – Officer Krupin and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
kicking, the paramedic stated that Mr. Warren was about to “kick the wrong person.”153 Mr.
Warren continued to kick, and the paramedic attempted “pain compliance” tactics to subdue Mr.
Warren.154 Specifically, at 8:25:04 p.m., the paramedic began kneeing Mr. Warren in the side.155
Mr. Warren’s conduct did not abate despite the paramedic’s force.
At 8:25:58 p.m., the paramedic began to hog-tie Mr. Warren.156 At 8:26:09 p.m., Officer
Krupin informed the paramedic that he could not hog-tie Mr. Warren.157 At 8:27:03 p.m., Mr.
Warren yelled one last time and then went silent.158 Once again, Officer Driskill had no contact
with Mr. Warren during this interaction. Indeed, Officer Driskill had left the scene to retrieve his
vehicle from where he had originally parked it when the foot chase with Mr. Warren first began.159
At 8:28:15 p.m., the paramedic rolled Mr. Warren onto Mr. Warren’s back.160 At 8:28:21
p.m., the paramedic stated, “hold your breath, that’s good.”161 At approximately 8:30:00 p.m., all
of the Officers’ bodycams went dark.162 A little over a minute later, at 8:31:04 p.m., Officer
Krupin’s video feed returned.163 Officer Krupin was taking Mr. Warren’s pulse. Officer Krupin
153 Id.
154 Id.
155 Ex. 2A (Bodycam Collage Video – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
156 Ex. 2A (Bodycam Collage Video – Officer Krupin and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
157 Id.
158 Ex. 2A (Bodycam Collage Video – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
159 At approximately 8:26:25 p.m., a vehicle can be seen pulling in behind the ambulance in the background of Officer Krupin’s video feed. Ex. 2A (Bodycam Collage Video – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2). Someone asked whether the car belonged to a state trooper, to which Officer Krupin responded, “no, that’s Driskill.” Ex. 2A (Bodycam Collage Video – Officer Krupin and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2). At approximately 8:26:55 p.m., Officer Driskill can be seen getting out of his vehicle and walking towards Officer Krupin. Ex. 2A (Bodycam Collage Video – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2). At 8:27:09 p.m., as Officer Driskill is walking back towards Officer Krupin, his body camera turns back on and it becomes all the more apparent that it was Officer Driskill in the vehicle. Ex. 2A (Bodycam Collage Video – Officer Driskill) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
160 Ex. 2A (Bodycam Collage Video – Officer Krupin and Officer Driskill) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
161 Ex. 2A (Bodycam Collage Video – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
162 Ex. 2A (Bodycam Collage Video) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
163 Ex. 2A (Bodycam Collage Video – Officer Krupin) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
began CPR at 8:31:49 p.m.164 At 8:32:19 p.m., Officer Driskill bent down and began assisting
Officers Krupin and Berumen in removing the handcuffs from Mr. Warren.165 This was the first
time that Officer Driskill physically contacted Mr. Warren in over nineteen minutes. Shortly
thereafter, EMS took Mr. Warren into its custody and transported Mr. Warren to the hospital.
As stated above, Mr. Warren never regained consciousness; he spent the remainder of his
life in a vegetative state until he died. Ms. Anderson maintains that Defendants’ conduct resulted
in Mr. Warren suffering a crushed trachea, which she alleges ultimately caused Mr. Warren’s
death.166 She cites little to no evidence supporting this contention.167 Defendants assert that Mr.
Warren died from cardiac arrest (which they say was caused by the amphetamines in Mr. Warren’s
system on the night of the arrest).168 Defendants’ theory has more support in the record,169 but it
too is not without holes.170 Ultimately, however, the Court need not decide this issue. Although
the dispute here is genuine, its outcome is not dispositive for reasons described in the Court’s
164 Ex. 2A (Bodycam Collage Video – Officer Krupin and Officer Berumen) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
165 Ex. 2A (Bodycam Collage Video – Officer Hancock) to Defs.’ Mot. for Summ. J. (Doc. 27-2).
166 Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 43) at 13.
167 Ms. Anderson generally alludes to reports from the St. Bernards Medical Center indicating that Mr. Warren had a crushed trachea. The only St. Bernards report contained in the record mentions only that Mr. Warren’s physical exam, on October 26, 2018, revealed that Mr. Warren’s neck was supple and his trachea was midline. Ex. 14 to Defs.’ Statement of Material Facts (Doc. 27-14) at 5–8. Dr. Stephen Pirtle, the doctor that first treated Mr. Warren after the incident, testified that Mr. Warren had a stable airway and that he did not diagnose Mr. Warren with a crushed trachea. Ex. 13 to Defs.’ Statement of Material Facts (Doc. 27-14) at 8.
168 Defs.’ Br. in Supp. of Defs.’Mot. for Summ. J. (Doc. 26) at 8.
169 Ex. 4 to Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 51-3) at 2 (EMS report noting Mr. Warren’s drug habit and noting a secondary impression of drug abuse on the night in question); Ex. 1 to Defs.’ Reply to Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 55-1) at 6–8 (paramedic Anthony Johnson explaining that Mr. Warren was in defib when Mr. Johnson hooked Mr. Warren up to the cardiac monitor); Ex. 13 to Defs.’ Statement of Material Facts (Doc. 27-14) at 10 (Dr. Pirtle noting that Mr. Warren tested positive for marijuana and amphetamines when he first arrived at the hospital); Ex. 14 to Defs.’ Statement of Material Facts (Doc. 27-14) at 3 (St. Bernards discharge papers noting that Mr. Warren suffered from acute cardiac arrest, which was “probably associated with substance abuse”).
170 Ex. 4 to Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 51-3) at 3 (EMS report indicating no cardiac arrest); Ex. 13 to Defs.’ Statement of Material Facts (Doc. 27-14) at 12 (Dr. Pirtle stating that there was apparently no cardiac disorder shown on the EKG when Mr. Warren arrived to the hospital). But see Ex. 1 to Defs.’ Reply to Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 55-1) at 7–8 (paramedic Anthony Johnson explaining that he believed Mr. Warren was in cardiac arrest despite indicating in the report that Mr. Warren was not in cardiac arrest).
analysis below.
Discussion
Ms. Anderson, as Guardian of the Person and Estate of Rayshawn Warren, sued Officer
Driskill in his individual and official capacities for allegedly violating Mr. Warren’s constitutional
rights under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. She also sued
Officer Driskill for state law claims of assault and battery. Ms. Anderson sued Chief Thompson
in his individual and official capacities for allegedly violating Mr. Warren’s constitutional rights
under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments because Chief Thompson
allegedly failed to properly train and supervise “Defendant Police Officer(s) . . . .”171 (Aside from
Chief Thompson himself, Officer Driskill is the only “Defendant Police Officer” in this case.)
Finally, Ms. Anderson asserts that the City of Blytheville violated Mr. Warren’s constitutional
rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments by failing to train and
supervise its officers, and by permitting the use of unconstitutional customs and policies.
I. Officer Driskill – Excessive Force Under the Fourth Amendment
The primary question in this case is whether Officer Driskill used excessive force in
apprehending Mr. Warren. “Excessive force claims under the Constitution are governed by the
Fourth Amendment’s right of the people to be secure against unreasonable seizures.”172
“Assessing the reasonableness of a seizure ‘requires a careful balancing of the nature and quality
of the intrusion on the individual’s Fourth Amendment interests against the countervailing
governmental interests at stake.’”173
171 Pl.’s Compl. (Doc. 2) ¶ 28.
172 Liggins v. Cohen, 971 F.3d 798, 800 (8th Cir. 2020) (citing Graham v. Connor, 490 U.S. 386, 394 (1989)).
173 Shelton v. Stevens, 964 F.3d 747, 751–52 (8th Cir. 2020) (internal quotations omitted) (quoting Graham, 490 U.S.
Reasonableness must be determined from “the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.”174 The Court considers the particular
circumstances of the case, including (but not limited to) “the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.”175 “The degree of a plaintiff’s
injury is also relevant ‘insofar as it tends to show the amount and type of force used.’”176 And, as
Plaintiff argues and Defendants acknowledge, a suspect’s mental illness is a proper factor to be
considered in the mix to the extent the officer knows about the illness.
This case also implicates qualified immunity. As a general rule, qualified immunity
protects police officers from liability for civil damages so long as their conduct “does not violate
clearly established constitutional or statutory rights of which a reasonable person would have
known.”177 To determine whether qualified immunity applies, the Court asks two questions: “(1)
whether the facts, viewed in the light most favorable to the plaintiff, demonstrate the deprivation
of a constitutional or statutory right; and (2) whether the right was clearly established at the time
of the deprivation.”178
If the Court determines that Officer Driskill used reasonable force under the circumstances,
then the analysis ends because there was no deprivation of a constitutional or statutory right. On
at 396).
174 Id. at 752 (quoting Graham, 490 U.S. at 396).
175 Id. (quoting Graham, 490 U.S. at 396). The Court may also consider “any effort made by the officer to temper or to limit the amount of force[,]” “the severity of the security problem at issue” (as opposed to the severity of the underlying crime), and “the threat reasonably perceived by the officer . . . .” Lombardo v. City of St. Louis, Mo., 141 S. Ct. 2239, 2241 (2021) (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)). Again, this is not an exhaustive list of factors appropriately considered.
176 Stevens, 964 F.3d at 752 (quoting Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011)).
177 MacKintrush, 987 F.3d at 770 (quoting City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019)).
178 Id. (quoting Ehlers v. City of Rapid City, 846 F.3d 1002, 1008 (8th Cir. 2017)).
the other hand, if the Court determines that officer Driskill did not use reasonable force under the
circumstances, the Court must then determine whether the right that Officer Driskill violated “was
clearly established at the time of the deprivation.”179 It is important to note that “clearly established
law” is not to be defined at “a high level of generality.”180 For a right to be clearly established,
“existing precedent must have placed the statutory or constitutional question beyond debate.”181
Said differently, “[q]ualified immunity protects ‘all but the plainly incompetent or those who
knowingly violate the law.’”182 “Even where an officer’s action is deemed unreasonable under the
Fourth Amendment, he is entitled to qualified immunity if a reasonable officer could have
believed, mistakenly, that the use of force was permissible—if he was ‘reasonably
unreasonable.’”183
That is not to say that a law is clearly established only if there is a “case directly on
point.”184 Nor is it to say that the exact conduct must have been deemed unconstitutional before
the incident. But it does mean that, “in the light of preexisting law[,] the unlawfulness must be
apparent.”185
A. The Attempted Armbar
“[T]he right to make an arrest or investigatory stop necessarily carries with it the right to
use some degree of physical coercion or threat thereof to effect it.”186 When Officer Driskill
179 Id. (quoting Ehlers, 846 F.3d at 1008).
180 Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).
181 Ryan v. Armstrong, 850 F.3d 419, 427 (8th Cir. 2017) (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)).
182 Shelton, 964 F.3d at 753 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
183 Id. (quoting Anderson v. Creighton, 483 U.S. 635, 643 (1987)).
184 Ashcroft, 563 U.S. at 742.
185 Langford v. Norris, 614 F.3d 445, 461 (8th Cir. 2010) (quoting Anderson, 483 U.S. at 640).
186 Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 43) at 3 (quoting Graham, 490 U.S. at 396).
initially approached and questioned Mr. Warren, a seizure had not yet occurred.187 But the moment
Officer Driskill applied physical force to the body of Mr. Warren, a seizure occurred.188 Ms.
Anderson contends that the force used to effectuate the seizure was objectively unreasonable.189
In particular, she asserts that Officer Driskill’s attempt to use an armbar constituted an excessive
use of force.190
Ms. Anderson’s assertion is hard to reconcile with Kohorst v. Smith, a case in which the
Eighth Circuit held that a successful armbar takedown did not rise to the level of a constitutional
violation where the plaintiff “at minimum appeared to be resisting and was not complying with
commands.”191 The facts in Kohorst are not on all fours with facts of the case at bar, but they are
close enough.192
At first blush, the severity of Mr. Warren’s suspected crime appears relatively minor. Mr.
Warren was knocking on doors, walking through yards, and screaming. At worst, Mr. Warren was
a suspected misdemeanant.193 But a closer look from the perspective of Officer Driskill suggests
187 See California v. Hodari D., 499 U.S. 621, 626 (1991) (“An arrest requires either physical force . . . or, where that is absent, submission to the assertion of authority.”) (emphasis added).
188 Torres v. Madrid, 141 S. Ct. 989, 994 (2021). Even though the initial attempt did not ultimately succeed in subduing Mr. Warren, a Fourth Amendment seizure still occurred. See id.
189 Pl.’s Compl. (Doc. 2) ¶¶ 17, 27. Ms. Anderson also vaguely quibbles with the propriety of the seizure itself. Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 43) at 6. But only indirectly. And she does not cite any law or develop any arguments contesting the propriety of the seizure itself.
190 Pl.’s Compl. (Doc. 2) ¶¶ 13, 27.
191 Kohorst, 968 F.3d at 877.
192 See also Ehlers, 846 F.3d at 1010–11 (affirming the district court’s grant of qualified immunity where the police used a spin takedown and taser on a nonviolent misdemeanant who defied police orders); McVay ex rel. Est. of McVay v. Sisters of Mercy Health Sys., 399 F.3d 904, 908 (8th Cir. 2005) (finding no excessive force where a police officer tackled a man who appeared “disoriented and [was] exhibiting signs of lacking mental control” because the man’s running towards a glass door “posed a threat at least to himself”).
193 Mr. Warren was ultimately charged with public intoxication, fleeing on foot, disorderly conduct, and resisting arrest. Ex. 4 to Defs.’ Statement of Material Facts (Doc. 27-4) at 2; Ex. 16 to Defs.’ Statement of Material Facts (Doc. 27-16) at 1–4. His initial charges (before resisting arrest) were relatively minor. But despite Mr. Warren being only a suspected misdemeanant when Officer Driskill first made contact, Officer Driskill was “not required to let [Mr. Warren] run free.” McKenney v. Harrison, 635 F.3d 354, 360 (8th Cir. 2011) (“Although the charges were limited to misdemeanors, the officers executing the warrant were not required to let Barnes run free.”). In fact, the Eighth Circuit has held that “officers may seize a person ‘in order to ensure the safety of the public and/or
there were legitimate reasons for heightened concern. Indeed, multiple residents in the area had
called 911 to report the disturbance. Mr. Warren’s conduct was brazen; he gave no regard to whom
he disturbed or whether he was caught. And he was on the move. Additionally, the first resident
Officer Driskill spoke with stated that Mr. Warren had tried to “snatch the door open,”194 that it
“was scary,” and that the man’s “eyes were big,” as if the man “was on something.”195
Initially, Officer Driskill simply called out to Mr. Warren. But when Mr. Warren abruptly
began to run down a public road in the dark, Officer Driskill was forced to react. Throughout this
brief chase, Officer Driskill (who was alone at this point) repeatedly instructed Mr. Warren to stop
running, but to no avail. When Officer Driskill finally caught Mr. Warren, he attempted an armbar
takedown. In light of Mr. Warren’s suspected conduct, his refusal to comply with repeated verbal
demands, and his flight, the attempted armbar takedown was objectively reasonable. Moreover,
the attempted armbar was just that, an attempted (unsuccessful) armbar. And there is no indication
in the record that Mr. Warren suffered any injury whatsoever from this initial, two-second seizure
and attempted armbar.196
Ms. Anderson alleges that Officer Driskill “knew that Rayshawn Warren had a clinical
diagnosis of bipolar disorder” and that Mr. Warren was entitled to certain accommodations as a
result of his mental disorder.197 The record reveals that Officer Driskill had arrested Mr. Warren
the individual, regardless of any suspected criminal activity.’” Cravener v. Shuster, 885 F.3d 1135, 1140 (8th Cir. 2018) (quoting Winters v. Adams, 254 F.3d 758, 763–65 (8th Cir. 2001)).
194 Ex. 3 (Driskill Bodycam) to Pl’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 54) beginning at 00:59:40.
195 Id. beginning at 00:59:45.
196 “The fleeting nature of some seizures by force undoubtedly may inform what damages a civil plaintiff may recover . . . .” Torres, 141 S. Ct. at 999. “‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’ violates the Fourth Amendment.” Graham, 490 U.S. at 396 (internal citation omitted). The only specific injury that Ms. Anderson alleges is a crushed trachea. Ms. Anderson did not put forth any evidence indicating that Mr. Warren suffered a crushed trachea as a result of the attempted armbar. See, e.g., Pl.’s Resp. to Defs.’ Statement of Material Facts (Doc. 44) ¶¶ 61–72.
197 Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 43) at 5.
on one previous occasion for criminal trespass during the early morning hours of June 28, 2017.198
According to an incident report, Mr. Warren “admitted that he knew he wasn’t suppose[d] to be
on the property,” and Mr. Warren admitted to using meth “two days ago.”199 The report also
indicated that Mr. Warren “was restless and couldn’t stop talking,” and that Mr. Warren “began
having a conversation with himself.”200 But nothing in the report or the rest of the record indicates
that Officer Driskill knew that Mr. Warren suffered from bipolar disorder.201 And there is no
indication that Officer Driskill recognized Mr. Warren during the initial and brief physical
interaction at issue today.202
Even if Officer Driskill did know that Mr. Warren had a mental illness, knowledge of a
person’s disability is but one of the circumstances considered in determining whether the use of
force was reasonable.203 And the Eighth Circuit has been clear in holding that knowledge of a
198 Ex. 3 to Defs.’ Affidavit re Motion for Leave to File Supp. Record (Doc. 67-3) at 3.
199 Id.
200 Id.
201 The Court took judicial notice of, among other things, a petition Mr. Warren’s aunt “filed on August 24, 2015 for the Involuntary Admission of the Plaintiff’s son, Rayshawn Warren, due to mental illness in case number 47B- PR2015-114.” Mot. for Judicial Notice (Doc. 71) ¶ 1.a. Ms. Anderson asserts that knowledge of Mr. Warren’s mental illness can be imputed to Officer Driskill under the theory of constructive or “collective knowledge.” The “collective knowledge” theory requires “communication” among members of a team or investigation. See, e.g., Wood v. Wooten, 986 F.3d 1079, 1081 (8th Cir. 2021) (stating that officers may rely on the “collective knowledge of all law enforcement officers involved in the investigation … if there is some degree of communication”) (quoting United States v. Edwards, 891 F.3d 708, 711–12 (8th Cir. 2018)); United States v. Collins, 883 F.3d 1029, 1032 (8th Cir. 2018) (“When a team of law enforcement officers is involved in an investigation, the issue is whether all the information known to the team provided ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant’ the investigative stop.”) (quoting United States v. Winters, 491 F.3d 918, 921 (8th Cir. 2007)). Ms. Anderson has not provided any evidence that the officers involved in Mr. Warren’s admission to a mental hospital in 2015 had any involvement in the instant arrest or otherwise communicated information about Mr. Warren to Officer Driskill. Although the Court takes judicial notice of the public record, the information is not imputed to Officer Driskill.
202 McKenney, 635 F.3d at 360 (“Accepting, however, that the mental capacity of the citizen bears on the reasonableness of the officer’s conduct, the record does not support a finding that these officers knew that Barnes was mentally retarded. That Barnes did not say anything in response to Harrison’s orders or ask the officers any questions did not place the officers on notice of a mental disability.”).
203 Sok Kong Tr. for Map Kong v. City of Burnsville, 960 F.3d 985, 993 (8th Cir. 2020) (“Though Kong appeared high on meth, the cases establish that mental illness or intoxication does not reduce the immediate and significant threat a suspect poses.”); Frederick v. Motsinger, 873 F.3d 641, 647 (8th Cir. 2017) (“Even if she was suffering from mental illness or other impairment, the relevant inquiry is whether she posed a threat, not what prompted her
disability cannot foreclose officers from protecting themselves or the general public when faced
with a threat.204 Likewise, knowledge of mental illness cannot foreclose an officer from using
some degree of force to stop a fleeing suspect who refuses to listen to verbal commands. Based
on all of the circumstances, and from “the perspective of a reasonable officer on the scene,” the
Court finds that the force applied during this initial seizure was objectively reasonable. Ms.
Anderson has failed to identify a genuine question of material fact that would permit a rational
juror to rule in her favor with respect to the attempted armbar. Because the force used was
objectively reasonable, Ms. Anderson cannot demonstrate the deprivation of a constitutional or
statutory right. Officer Driskill is therefore entitled to qualified immunity with respect to the initial
seizure and the corresponding force employed.205
B. The Takedown
While much of the armbar analysis applies to the takedown, a separate analysis must still
be conducted. “[T]he Fourth Amendment does not recognize any ‘continuing arrest during the
period of fugitivity.’”206 “A seizure by force—absent submission—lasts only as long as the
application of force.”207 When Mr. Warren broke free of Officer Driskill’s initial grasp, the first
seizure ended. When Officer Driskill made physical contact with Mr. Warren for a second time,
threatening conduct.”); Est. of Morgan v. Cook, 686 F.3d 494, 498 (8th Cir. 2012) (“But Morgan’s intoxication does not alter our finding that Cook’s use of deadly force was objectively reasonable.”); Hayek v. City of St. Paul, 488 F.3d 1049, 1055 (8th Cir. 2007) (“Even if William were mentally ill, and the officers knew it, William’s mental state does not change the fact he posed a deadly threat to the officers.”); Hassan v. City of Minneapolis, Minn., 489 F.3d 914, 919 (8th Cir. 2007) (“However, even if Jeilani were mentally ill, Jeilani’s mental state does not change the fact he posed a deadly threat to the officers and the public.”); Sanders v. City of Minneapolis, Minn., 474 F.3d 523, 527 (8th Cir. 2007) (quoting Bates ex rel. Johns v. Chesterfield County, Va., 216 F.3d 367, 372 (4th Cir. 2000) (“Knowledge of a person’s disability simply cannot foreclose officers from protecting themselves, the disabled person, and the general public when faced with threatening conduct by the disabled individual.”)).
204 See supra note 203.
205 MacKintrush, 987 F.3d at 770 (quoting Ehlers, 846 F.3d at 1008).
206 Torres, 141 S. Ct. at 999 (quoting Hodari D., 499 U.S. at 625).
207 Id.
a second, new seizure began.
The biggest change from the first seizure analysis to the second seizure analysis is Mr.
Warren’s erratic conduct during the first seizure and his subsequent evasiveness.208 At first
contact, Mr. Warren was a suspected misdemeanant, albeit a concerning suspected misdemeanant.
But when Mr. Warren resisted arrest by fighting with Officer Driskill, pushing him to the ground,
and running away, the threat Mr. Warren posed to Officer Driskill and the community evolved.
He had now committed additional crimes (resisting arrest and fleeing from an officer) witnessed
by Officer Driskill—crimes that showed a willingness to resist police with force.209
Another change from the first seizure to the second seizure is the type and degree of force
applied. This time, Officer Driskill (who was still alone at this point) knocked Mr. Warren onto
Mr. Warren’s back. Officer Driskill then mounted Mr. Warren and held his hands down for a little
over one minute. There is no indication in the record that Mr. Warren suffered any injury
whatsoever from this takedown.210 Nor is there any indication that Mr. Warren was harmed by
Officer Driskill’s conduct in pinning Mr. Warren to the ground. Most importantly, Mr. Warren
208 The Eighth Circuit has repeatedly recognized that police officers are often faced with making “split-second judgments” in “‘tense, uncertain, and rapidly evolving’ circumstances.” See, e.g., Shelton, 964 F.3d at 752 (emphasis added) (quoting Graham, 490 U.S. at 396). As the situation escalates, the officer’s use of corresponding force may escalate with it. Bahl v. Cty. of Ramsey, 695 F.3d 778, 785 (8th Cir. 2012) (noting that even routine traffic stops can escalate out of control and that officers must “respond fluidly to changing situations and individuals they encounter”) (quoting Tucker v. Tennessee, 539 F.3d 526, 536 (6th Cir. 2008), abrogated on other grounds by Anderson v. City of Blue Ash, 798 F.3d 338 (6th Cir. 2015)). Conversely, when a situation de-escalates, “a reasonable officer is not permitted to ignore changing circumstances.” Masters v. City of Indep., Mo., 998 F.3d 827, 836 (8th Cir. 2021) (quoting Neal v. Ficcadenti, 895 F.3d 576, 581 (8th Cir. 2018)).
209 See Ark. Code Ann. § 5-54-103. Indeed, on September 29, 2018, Officer Driskill filed an incident report with the Blytheville Police Department characterizing Mr. Warren as committing a resisting arrest crime. Ex. 1 to Defs.’ Statement of Material Facts (Doc. 27-1) at 1; see also Ex. 16 to Defs.’ Statement of Material Facts (Doc. 27-16).
210 “‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’ violates the Fourth Amendment.” Graham, 490 U.S. at 396 (internal citation omitted). “A de minimis use of force is insufficient to support a claim, and it may well be that most plaintiffs showing only de minimis injury can show only a corresponding de minimis use of force.” Robinson v. Hawkins, 937 F.3d 1128, 1136 (8th Cir. 2019) (quoting Chambers, 641 F.3d at 906). As noted earlier, the only specific injury that Ms. Anderson alleges is a crushed trachea. Ms. Anderson did not put forth any evidence indicating that Mr. Warren suffered a crushed trachea as a result of the takedown. See, e.g., Pl.’s Resp. to Defs.’ Statement of Material Facts (Doc. 44) ¶¶ 61–72.
had been actively fleeing from Officer Driskill and continued to struggle to break free of Officer
Driskill’s grip.
When Officer Krupin arrived on the scene, Officer Krupin identified Mr. Warren by name.
Given that Officer Driskill arrested Mr. Warren a little over a year earlier, this may have triggered
Officer Driskill’s memory of Mr. Warren. The record does not indicate either way. But even
assuming it did spark a connection, there is still nothing in the record indicating that Officer
Driskill knew of Mr. Warren’s history of mental illness. And as stated above, even if he did know,
mental illness is just one factor to consider in determining what constitutes reasonable force.
Officer Driskill was still justified in using some amount of force to tackle and restrain a fleeing
and resistant suspect and to control the situation near a public road after dark.211
Considering all of the facts previously identified, as well as the additional developments
just discussed, the Court finds that the force applied to this point during the second seizure was
objectively reasonable. Ms. Anderson has failed to identify a genuine question of material fact
that would permit a rational juror to rule in her favor with respect to the takedown. Because the
force used was objectively reasonable, Ms. Anderson cannot demonstrate the deprivation of a
constitutional or statutory right. Officer Driskill is therefore entitled to qualified immunity with
respect to the takedown.
C. The First Tasing
Defendants urge the Court to stop its analysis of Officer Driskill’s conduct at this juncture.
Defendants contend that the Complaint only alleges facts pertaining to Officer Driskill’s
involvement in the attempted armbar and the takedown.212 In response, Ms. Anderson asserts that
211 See, e.g., Sok Kong, 960 F.3d at 993.
212 Defs.’ Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 26) at 5–8; Defs.’ Reply to Pl.’s Resp. to Defs.’ Mot. for
the Complaint’s language is broad enough to encompass all of Officer Driskill’s involvement in
Mr. Warren’s arrest, even where his involvement is in a supporting role.213 Defendants have a
pretty strong point. There is no question that the thrust of the Complaint is about the attempted
armbar restraint. But, to be safe, let’s assume arguendo that the Complaint is broad enough to
encompass all of Officer Driskill’s physical interactions with Mr. Warren during the arrest.214
This assumption does not open the floodgates for Plaintiff nor does it allow Plaintiff to
sidestep the Court’s prior denial of Plaintiff’s Motion to Amend. The Eighth Circuit has been clear
that “[a]n officer may be held liable only for his or her own use of excessive force.” 215 Indeed,
“[l]iability for damages for a federal constitutional tort is personal, so each defendant’s conduct
must be independently assessed.” 216 “Section 1983 does not sanction tort by association,”217 and
the Court must therefore consider “the actions of each officer ‘from the perspective of a reasonable
officer on the scene . . . .’”218 Thus, Officer Driskill’s liability is confined to his personal conduct.
He can’t be tagged with the conduct of the other Officers.
It is true that the Eight Circuit recognizes that an officer can be liable for failing to intervene
Summ. J. (Doc 55) at 1–6.
213 Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 43) at 1–2, 15.
214 Under Federal Rule of Civil Procedure 8(d), “[e]ach allegation” in a pleading “must be simple, concise, and direct.” And the Court must construe the pleadings “so as to do justice.” FED. R. CIV. P. 8(e). The Complaint generally alleges that Officer Driskill deprived Mr. Warren of his constitutional rights by “using a degree of force that was unreasonable.” Pl.’s Compl. (Doc. 2) ¶ 27; Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 43) at 1–2, 15. The Complaint also broadly states that “the force used to restrain Rayshawn Warren was extremely excessive.” Pl.’s Compl. (Doc. 2) ¶ 17. And the Complaint notes that the alleged excessive force can be seen on “at least three (3) officer body camera[s]” that were recording during the arrest. Id. ¶ 18. Considering Federal Rule of Civil Procedure 8(e), it’s not entirely unreasonable to argue that the Complaint fairly includes all of Officer Driskill’s physical interactions with Mr. Warren and sufficiently placed Defendants on notice of the same.
215 Smith v. Kansas City, Mo. Police Dep’t, 586 F.3d 576, 581 (8th Cir. 2009) (citing Hayek, 488 F.3d at 1055).
216 Heartland Acad. Cmty. Church v. Waddle, 595 F.3d 798, 805–06 (8th Cir. 2010) (quoting Wilson v. Northcutt, 441 F.3d 586, 591 (8th Cir. 2006)).
217 Id.
218 Ryan, 850 F.3d at 427 (emphasis added) (quoting Graham, 490 U.S. at 396).
to stop another officer from using excessive force219 and for conspiring to use excessive force.220
But both of those claims are distinct from an excessive force claim, meaning they must be pleaded
in a plaintiff’s complaint. Ms. Anderson did not allege a failure-to-intervene claim or a conspiracy
claim.221
From 8:10:28 p.m. until 8:10:52 p.m., Officer Driskill’s conduct consisted of little more
than holding Mr. Warren’s hands to the ground and attempting to roll Mr. Warren onto his stomach
to handcuff him safely. In light of all the circumstances, this conduct was objectively reasonable.
Mr. Warren was actively resisting arrest and was blatantly defying the Officers’ verbal commands.
Even together, Officers Driskill and Krupin were unable to flip Mr. Warren over. The police must
be able to secure a suspect in handcuffs, especially one that has shown a willingness to flee and is
still resisting. At this point, Officer Driskill was part of an effort to do this with the least force
possible.
Subsequently, in an attempt to get Mr. Warren to roll over, Officer Krupin administered a
five-second drive stun to Mr. Warren’s abdomen after issuing four verbal warnings to Mr.
Warren.222 As explained above, Officer Driskill is not liable for the conduct of another officer.
But even assuming Officer Krupin’s conduct could somehow be imputed to Officer Driskill, the
219 Nance v. Sammis, 586 F.3d 604, 612 (8th Cir. 2009) (“A police officer who fails to act to prevent the use of excessive force may still be held liable where (1) the officer observed or had reason to know that excessive force would be or was being used, and (2) the officer had both the opportunity and the means to prevent the harm from occurring.”) (quoting Floyd v. City of Detroit, 518 F.3d 398, 406 (6th Cir. 2008)).
220 Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999) (“To prove a § 1983 conspiracy claim against a particular defendant, the plaintiff must show: that the defendant conspired with others to deprive him or her of a constitutional right; that at least one of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and that the overt act injured the plaintiff.”).
221 Johnson v. Carroll, 658 F.3d 819, 828 n.2 (8th Cir. 2011) (refusing to address a failure to intervene claim because the plaintiff “failed to state such a claim in her complaint”).
222 The Eighth Circuit has “eschewed a bright-line rule requiring officers to issue a warning before deploying a taser against a suspect.” Boudoin v. Harsson, 962 F.3d 1034, 1043 (8th Cir. 2020) (citing Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009)).
use of a drive-stun taser was not unreasonable under the circumstances. “[I]t is excessive force to
use a taser on a nonfleeing, nonviolent misdemeanant.”223 But the Eighth Circuit routinely
“permit[s] officers to use tasers on noncompliant, violent suspects.”224 In fact, the Eighth Circuit
has said that even “passively resisting subjects can pose a threat necessitating the use of taser
force.”225 And the Eighth Circuit has repeatedly held that “a tasing in drive-stun mode ‘only causes
discomfort and does not incapacitate the subject,’ suggesting that the effects of such force are de
minimus.”226
Mr. Warren (who at that point had already resisted arrest and fled from an officer) was
noncompliant, and he was actively fighting with Officers Krupin and Driskill in what appeared to
be an effort to free himself from their grasps. Even if Mr. Warren’s motive for resisting was
innocent, and even if he had a mental illness that the Officers knew of, Officers Krupin and Driskill
could have reasonably interpreted Mr. Warren’s actions as resistance and responded with an
amount of force that was reasonable to effectuate the arrest.227 They had already tried verbal
commands and simple arm/body strength to get Mr. Warren to acquiesce to being handcuffed. A
single drive-stun tase—designed to cause only discomfort—was a reasonable use of force under
the circumstances and from the perspective of a reasonable officer reacting in the heat of the
moment after other, lighter tactics failed. Moreover, this use of force appeared wholly ineffective
223 Franklin v. Franklin Cty., Arkansas, 956 F.3d 1060, 1062 (8th Cir. 2020).
224 Id.
225 Cravener, 885 F.3d at 1140.
226 Franklin, 956 F.3d at 1062 (quoting Brossart v. Janke, 859 F.3d 616, 626 (8th Cir. 2017)).
227 Carpenter v. Gage, 686 F.3d 644, 650 (8th Cir. 2012) (“Even if Carpenter’s motive was innocent, the deputies on the scene reasonably could have interpreted Carpenter’s actions as resistance and responded with an amount of force that was reasonable to effect the arrest.”) (citing McKenney, 635 F.3d at 360). Defendants assert that Mr. Warren “suffered cardiac arrest and subsequent respiratory arrest most likely secondary to methamphetamine or substance abuse.” Defs.’ Statement of Material Facts (Doc. 27) ¶ 73. Ms. Anderson denies this theory of injury and maintains that Mr. Warren’s injury was a crushed trachea. Pl.’s Resp. to Defs.’ Statement of Material Facts (Doc. 44) ¶¶ 73, 61–72. Ms. Anderson did not put forth any evidence indicating that Mr. Warren suffered a crushed trachea as a result of the first tasing. See, e.g., id.
in tempering Mr. Warren’s defiance; its ineffectiveness suggests its de minimus nature.
Even if Officer Krupin’s conduct could be imputed to Officer Driskill, and even if the
tasing could be deemed unreasonable, Officer Driskill would still be entitled to qualified immunity
under the second step in the qualified immunity analysis. In De Boise v. Taser International, Inc.,
the Eighth Circuit held that it was not clearly unconstitutional to tase (at least six times “in barb
mode” and twice in “drive stun mode”) a suspect known to the officers to be suffering from a
mental illness where the suspect was noncompliant, violent, and aggressive.228 If Officer Krupin’s
administration of the drive stun did not violate a clearly established right, “then [Officer Driskill]
would not have had ‘fair notice’ that [Officer Krupin] was using unconstitutionally excessive force
against [Mr. Warren] either.”229
Considering all of the facts previously identified, as well as the additional developments
just discussed, the Court finds that the force applied thus far was objectively reasonable. Ms.
Anderson has failed to identify a genuine question of material fact that would permit a rational
juror to rule in her favor with respect to the first tasing. Because the force used was objectively
reasonable, Ms. Anderson cannot demonstrate the deprivation of a constitutional or statutory right.
Moreover, even if Officer Krupin’s conduct were unconstitutional, and even if it somehow could
be imputed to Officer Driskill, the Court finds that no reasonable officer observing Mr. Warren’s
behavior “would have understood the actions taken to be so disproportionate and unnecessary as
to amount to a violation of [Mr. Warren’s] rights.”230 Therefore, Officer Driskill is entitled to
qualified immunity with respect to the events culminating in the first drive-stun tasing.
228 De Boise, 760 F.3d at 897–98.
229 McManemy v. Tierney, 970 F.3d 1034, 1040 (8th Cir. 2020) (discussing failure to intervene).
230 De Boise, 760 F.3d at 897–98.
D. The Chokehold (Vascular Restraint)
Officer Driskill filled a supporting role in ultimately subduing Mr. Warren. He was not
the Officer who applied the chokehold to Mr. Warren. In fact, at times, Officer Driskill had
difficulty finding a way to effectively assist Officers Krupin and Berumen. But Officer Driskill
was the one who applied the handcuffs to Mr. Warren once Mr. Warren fell unconscious. Thus,
while Officer Driskill was involved in this part of the arrest, there is no question that he played a
smaller role than Officers Krupin and Berumen.
Before the application of the chokehold, the Officers had tried a number of verbal and
physical maneuvers to obtain compliance from Mr. Warren. None worked. Officer Krupin tried
a five-second drive stun. It did not work. Mr. Warren’s active resistance persisted. Indeed, Mr.
Warren’s erratic and belligerent behavior escalated. It is indisputable that Mr. Warren was kicking
and wrestling with the Officers. And it is indisputable that Mr. Warren refused to comply with
multiple commands to roll over, to stop resisting, and to relax his arm. All this at night, adjacent
to a public road, and with a suspect that had already once fled from a police officer at the start of
this incident. Even after Officer Krupin applied a chokehold, Mr. Warren still refused to give his
arm to Officer Driskill. Only with the combined effort of all three Officers, and only after Mr.
Warren fell unconscious, were the Officers able to finally subdue Mr. Warren.
Chokeholds (vascular restraints) are dangerous maneuvers. It is obvious that they should
not be performed unless (1) other lighter intervention techniques have been tried and failed, and
(2) there is a serious and immediate need to gain control over the suspect. In the case at bar, both
prongs are met. Officers were facing a stark choice—either get Mr. Warren handcuffed, continue
fighting with him (which could have led to injury), or let him flee into the night down a dark public
road in a highly agitated state. Considering Officer Driskill’s conduct under the circumstances
and from the perspective of a reasonable officer, the Court finds that Officer Driskill used an
objectively reasonable degree of force. The Court also finds that it was objectively reasonable for
Officer Driskill to have supported Officers Krupin and Berumen. Ms. Anderson has failed to
identify a genuine question of material fact that would permit a rational juror to rule in her favor
with respect to Officer Driskill’s participation in the events surrounding the chokehold.
As stated above, Officer Driskill can “be held liable only for his . . . own use of excessive
force.”231 But even assuming that Officer Driskill could somehow be held liable for Officer
Krupin’s conduct, the Court would find Officer Driskill entitled to qualified immunity. The Eighth
Circuit has clearly established that “it violates the Fourth Amendment to choke a suspect who is
handcuffed and not resisting.”232 But the Eighth Circuit has not spoken so plainly on the use of
chokeholds when a suspect is not handcuffed and is actively resisting arrest and fighting with
officers. Ms. Anderson has not pointed the Court to any caselaw on the topic.
Thus, even assuming the use of a chokehold was unreasonable, the right to be free from
chokeholds under these particular circumstances was not “clearly established at the time of the
deprivation.”233 Nor was it clearly established at the time of the deprivation that Officer Driskill
could be liable for Officer Krupin’s administration of a chokehold outside of a claim alleging a
failure to intervene.234 Officer Driskill is entitled to qualified immunity with respect to the events
surrounding the chokehold.235
231 Smith, 586 F.3d at 581.
232 Tatum v. Robinson, 858 F.3d 544, 552 (8th Cir. 2017).
233 MacKintrush, 987 F.3d at 770 (quoting Ehlers, 846 F.3d at 1008).
234 As stated above, “clearly established law” is not defined at “a high level of generality.” Ashcroft, 563 U.S. at 742. For a right to be clearly established, “existing precedent must have placed the statutory or constitutional question beyond debate.” Ryan, 850 F.3d at 427 (quoting White, 137 S. Ct. at 551).
235 Even assuming the Officers knew of Mr. Warren’s mental illness, the outcome is the same. Under the circumstances of this arrest, the fact that Mr. Warren’s crimes and resistance could be attributed to a mental illness does not outweigh the other factors that suggest the reasonableness of Officer Driskill’s conduct. And it certainly
E. The Leg Slam, Second Tasing, and Leg Shackles
“[A] reasonable officer is not permitted to ignore changing circumstances.”236 Of course,
that is not to say that what had happened up to this point is irrelevant.237 Rather, it is to say that
each use of force should be considered separately under the circumstances as they exist at the time
the force is applied, which is naturally informed by the events that have already transpired.238
The big change at this point is that Mr. Warren was now in handcuffs. “[W]hen a person
is subdued and restrained with handcuffs, a ‘gratuitous and completely unnecessary act of
violence’ is unreasonable and violates the Fourth Amendment.”239 But reasonable force is still
constitutional. For instance, in Brossart v. Jake, the Eighth Circuit affirmed the district court’s
dismissal of a plaintiff’s claim that an officer used excessive force against him when the officer
tased the plaintiff while the plaintiff “was handcuffed and detained in the back seat of a squad car
. . . .”240 The Eighth Circuit noted that the plaintiff had been violent before he was handcuffed,
that after the plaintiff was handcuffed he continued to “verbally resist” the officers, and that the
plaintiff continued to resist lawful arrest by refusing to comply with the officers’ lawful
commands.241 On balance, the Eighth Circuit reasoned that the use of a taser in drive-stun mode
was not excessive given the plaintiff’s continued resistance and the relatively minor infliction of
doesn’t make the use of force a violation of a clearly established right.
236 Masters, 998 F.3d at 836 (quoting Neal, 895 F.3d at 581).
237 Brossart, 859 F.3d at 626 (“Plaintiffs argue the district court inappropriately considered facts preceding Thomas’s arrest in granting Braathen qualified immunity. This contention is frivolous. Graham v. Conner requires taking all relevant circumstances into account . . . .” (internal citation omitted)).
238 See, e.g., Jackson v. Stair, 944 F.3d 704, 712 (8th Cir. 2019) (finding error where the district court did not analyze as a separate use of force a second tasing that nearly instantaneously and without warning followed a first tasing).
239 Kohorst, 968 F.3d at 878 (quoting Blazek v. City of Iowa City, 761 F.3d 920, 926 (8th Cir. 2014)).
240 Brossart, 859 F.3d at 626.
241 Id.
harm.242
In the case at hand, the circumstances changed when Mr. Warren was handcuffed.
Although Mr. Warren could still be characterized as a belligerent misdemeanant that fled and
resisted arrest, he was now restrained by handcuffs and clearly under police control. At this point,
Mr. Warren presented little to no danger to the public. But he still posed some degree of danger
to himself and the Officers.243 Indeed, Mr. Warren had shown himself to be a formidable opponent,
having for some time successfully resisted three trained Officers’ attempts to subdue him. It was
only after Mr. Warren fell unconscious that the Officers were finally able to handcuff him.
When Mr. Warren regained consciousness, his obstinance resumed. It is indisputable that
Mr. Warren remained defiant even after he was handcuffed. And it is indisputable that Mr. Warren
was erratically kicking his legs into the air. When Officer Driskill knelt beside Mr. Warren to try
to verbally calm Mr. Warren down, Mr. Warren kicked Officer Driskill at least once. In response,
Officer Driskill slammed Mr. Warren’s legs to the ground and then secured one of Mr. Warren’s
legs against Officer Driskill’s chest. Almost immediately thereafter, Officer Driskill rose to his
feet, separated himself from Mr. Warren, and never physically reengaged with Mr. Warren.
Perhaps Officer Driskill could have simply stepped back from Mr. Warren at this point.
But Officer Driskill’s conduct was not a gratuitous and completely unnecessary act of violence.
To the contrary, Officer Driskill responded to an act of aggression from Mr. Warren by controlling
the precise part of his body Mr. Warren was using to be aggressive. Moreover, there is nothing in
the record to suggest that slamming Mr. Warren’s leg to the ground caused Mr. Warren any injury
or inflicted any damage. Plaintiff does not argue otherwise. This use of force was transient and
242 Id.
243 The Eighth Circuit has repeatedly recognized that “[a] person in handcuffs can still present a danger to officers.” Franklin, 956 F.3d at 1062–63.
de minimis. Officer Driskill’s conduct was reasonable under the circumstances; at a minimum it
did not violate clearly established law.244
As to the tasing that occurred around this time, Officer Driskill was not physically assisting
Officers Krupin and Berumen when Officer Krupin administered the second drive stun. But even
assuming he had been assisting, and even assuming that Officer Krupin’s conduct could somehow
be imputed to Officer Driskill, the use of a drive stun was not an unreasonable use of force in light
of the Eighth Circuit’s ruling in Brossart.245 Although there was a far lower likelihood of Mr.
Warren fleeing while his arms were handcuffed behind him, the chance was not zero. This arrest
took place outside in the dark near a public road. It was not an entirely controlled or controllable
situation. Moreover, at some point police must be allowed to stop a handcuffed suspect from
kicking at them. After all, they need to interact with such a suspect to bring him to a detention
facility. After verbal attempts to get this conduct to stop, a short drive stun is not unreasonable.
Moreover, even if the force were unreasonable, the right to be free from the administration
of a drive-stun tase under these particular circumstances was not “clearly established at the time
of the deprivation.”246 Nor was it clearly established at the time of the deprivation that Officer
Driskill could be liable for Officer Krupin’s administration of a drive stun outside of a claim
alleging a failure to intervene.247 Ms. Anderson has not pointed the Court to any caselaw to the
contrary. Thus, Officer Driskill is entitled to qualified immunity.
244 Ultimately, Officers Berumen and Krupin were able to handcuff Mr. Warren’s legs. The remainder of the bodycam footage reveals that Mr. Warren continued to try to stand up and move around in a way that the Officers could reasonably believe was an attempt to flee, even after his legs and feet were handcuffed. And Mr. Warren continued to kick and resist as Officer Krupin, Officer Berumen, and the paramedic attempted to prepare Mr. Warren for transport.
245 Brossart, 859 F.3d at 626–27.
246 MacKintrush, 987 F.3d at 770 (quoting Ehlers, 846 F.3d at 1008).
247 See supra note 234.
F. Additional Excessive Force Allegations
The Court wishes to be plain. The facts set forth in the Corresponding Bodycam section
above regarding “Additional Excessive Force Allegations” (see supra text pp. 17–19) are
disturbing. But these facts don’t involve Officer Driskill. Officer Driskill is not liable for any
excessive force during this period of time because he was no longer physically engaged with Mr.
Warren. As noted in Defendants’ Brief, § 1983 claims necessarily fail “when the plaintiff fails to
factually allege that the Defendant had any involvement in the claim.”248 And as stated above,
Ms. Anderson did not allege claims for failure to intervene or conspiracy under which Officer
Driskill might more reasonably be tagged with liability. Accordingly, Officer Driskill is entitled
to summary judgment with respect to any allegations of excessive force that occurred after Officer
Driskill was no longer physically engaged with Mr. Warren or directly assisting those who were
physically engaged with Mr. Warren.
II. Chief Thompson – Failure to Train and Supervise
Ms. Anderson asserts that Chief Thompson (and the City of Blytheville) is liable for
violating Mr. Warren’s constitutional rights because Chief Thompson failed to train and supervise
“Defendant Police Officer(s) . . . .”249 Aside from Chief Thompson himself, Officer Driskill is the
only “Defendant Police Officer” in this case.
“A supervisor may be held individually liable under § 1983 if he directly participates in
the constitutional violation or if he fails to train or supervise the subordinate who caused the
248 Defs.’ Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 26) at 11 (citing Beck v. LaFleur, 257 F.3d 764, 766 (8th Cir. 2001)); Ellis v. Norris, 179 F.3d 1078, 1079 (8th Cir. 1999) (explaining that a plaintiff must allege the defendant was involved in or responsible for the constitutional violation to state a § 1983 claim).
249 Pl.’s Compl. (Doc. 2) ¶ 28.
violation.”250 To succeed on a failure to train or supervise claim, Ms. Anderson must show that
Chief Thompson “(1) had ‘notice of a pattern of unconstitutional acts committed by [Officer
Driskill]’; (2) was deliberately indifferent to or tacitly authorized those acts; and (3) failed to take
‘sufficient remedial action’; (4) proximately causing injury to [Mr. Warren].”251 To show
deliberate indifference or tacit authorization, Ms. Anderson must show that Chief Thompson “had
notice that the training procedures and supervision were inadequate and likely to result in a
constitutional violation.”252
Ms. Anderson argues that Chief Thompson (and the City) failed to train Officer Driskill in
“crisis intervention” and on how to constitutionally arrest a person with mental illness.253 She
similarly argues that Chief Thompson (and the City) failed to properly supervise its officers by
failing to send an officer that was properly trained in crisis intervention. Aside from these
conclusory assertions, Ms. Anderson failed to identify any facts or law to support her claims that
Chief Thompson’s failure to train and supervise Officer Driskill deprived Mr. Warren of his
constitutional rights.
It is true, as Plaintiff’s counsel argued at the motion hearing, that Officer Driskill was not
trained in crisis intervention at the time of the incident.254 But there is no legal requirement for
Officer Driskill to be a “crisis intervention team officer” before he can respond to a crime. Indeed,
Arkansas Code Annotated section 20-47-801 et. seq. does not limit an officer’s ability to confront
and arrest a mentally impaired criminal suspect. Rather, it simply broadens the scope of options
250 Brockinton v. City of Sherwood, Ark., 503 F.3d 667, 673 (8th Cir. 2007).
251 Livers v. Schenck, 700 F.3d 340, 355 (8th Cir. 2012) (quoting Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996)).
252 Id. (quoting Andrews, 98 F.3d at 1078).
253 Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 43) at 20.
254 See, e.g, April 8, 2021 Hr’g Tr. at 59–60, 70.
available to a trained officer working within a “crisis intervention team.”
The record evidence suggests Officer Driskill was well trained and highly experienced in
all the areas required for him to legally engage with Mr. Warren. It is undisputed that at the time
of the incident, “Officer Driskill attended and completed the 13-week Law Enforcement Training
Academy (“LETA”) in 2016, totaling 577 hours of training.”255 It is likewise undisputed that
“Officer Driskill . . . attended and completed the Federal Law Enforcement Academy from May
2007 until September 2007, totaling 647 hours of training.”256 And it is undisputed that, “[i]n
addition to his four years with the BPD, Officer Driskill also worked as Border Patrol for almost
a year, with the Jonesboro Police Department as a patrol officer for approximately a year, and as
a military police officer from 1997-2007.”257
In any event, even if crisis intervention training were a necessity, Ms. Anderson’s failure
to train and supervise claims are fundamentally flawed because Officer Driskill’s conduct did not
result in an unconstitutional deprivation of Mr. Warren’s rights. As noted above, the Eighth Circuit
has been clear in holding that knowledge of a disability cannot foreclose officers from protecting
themselves or the general public when faced with a threat.258 In Sok Kong Trustee for Map Kong
v. City of Burnsville, the Eighth Circuit found that the use of deadly force against a mentally
impaired man (high on meth) was reasonable even though the police department’s “training” and
“policy” “advised that ‘taking no action or passively monitoring the situation may be the most
reasonable response to a mental health crisis.’”259 The Eighth Circuit further explained that
255 Pl.’s Resp. to Defs.’ Statement of Material Facts (Doc. 44) ¶ 83.
256 Id. ¶ 84.
257 Id. ¶ 85.
258 See supra note 203.
259 Sok Kong, 960 F.3d at 993.
“[e]ven if officers ‘created the need to use’ deadly force by trying to disarm a mentally ill person,”
they were still entitled to use reasonable force to subdue the suspect.260
Ms. Anderson has failed to identify any facts that would permit a rational juror to conclude
that Chief Thompson’s (or the City’s) alleged failure to train or supervise Officer Driskill
proximately caused a constitutional deprivation. Chief Thompson is therefore entitled to qualified
immunity and judgment as a matter of law.261
III. First, Fifth, Sixth, Eighth, and Fourteenth Amendment Claims
Ms. Anderson also alleges federal claims under the First, Fifth, Sixth, Eighth, and
Fourteenth Amendments.262 Specifically, Ms. Anderson contends that Defendants inflicted
punishment on Mr. Warren “for the purpose of quelling [Mr.] Warren’s verbal expression” in
violation of the First Amendment.263 Ms. Anderson alleges that Defendants’ use of force and
policies (or lack thereof) deprived Mr. Warren of his right to a trial by jury in violation of the Sixth
Amendment and constituted cruel and unusual punishment under the Eighth Amendment.264 And
Ms. Anderson alleges that Defendants’ use of force and policies (or lack thereof) resulted in
“unwanted and unreasonable restraints” in violation of the Fifth and Fourteenth Amendments.265
Defendants assert that none of these claims are cognizable in this case.266 Defendants are correct
with respect to the claims under the Fifth, Sixth, Eighth, and Fourteenth Amendments.
260 Id. at 993–94 (citing Schulz v. Long, 44 F.3d 643, 649 (8th Cir. 1995)).
261 It’s also worth noting that there is no record evidence that Officer Driskill acted poorly in prior policing situations or evidence that Chief Thompson or the City of Blytheville knew that Officer Driskill needed closer supervision or training.
262 Pl.’s Compl. (Doc. 2) ¶¶ 2, 26–29; Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc 42) at 21.
263 Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc 43) at 21.
264 Pl.’s Compl. (Doc. 2) ¶ 27.
265 Pl.’s Compl. (Doc. 2) ¶¶ 27–29; Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc 43) at 21.
266 Defs.’ Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 26) at 20.
“[T]he Fifth Amendment applies only to the federal government or federal actions.”267
Defendants are not federal actors, so the Fifth Amendment does not apply.268 Similarly, courts
have repeatedly held that Sixth Amendment rights do not attach until “at or after the initiation of
adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment.”269 Although Mr. Warren had been arrested, no judicial
criminal proceedings had commenced, so the Sixth Amendment does not apply. With respect to
the Eighth Amendment, the Eighth Circuit has plainly stated that the Eighth Amendment applies
only to convicted prisoners, not pre-trial detainees.270 Mr. Warren was not a convicted prisoner,
so the Eighth Amendment does not apply. Finally, the Supreme Court and the Eighth Circuit have
held that “the Fourteenth Amendment does not apply to excessive force claims involving arrests,
which are appropriately reviewed under a Fourth Amendment analysis.”271
Ms. Anderson’s First Amendment claim is at least cognizable. But beyond mere cognition,
it utterly fails. To succeed on her claim, Ms. Anderson must show “(1) that [Mr. Warren] engaged
in a protected activity; (2) that [Officer Driskill] took adverse action against [Mr. Warren] that
267 Stair, 944 F.3d at 709 (citing Barnes v. City of Omaha, 574 F.3d 1003, 1005 n.2 (8th Cir. 2009)); see also Dusenbery v. United States, 534 U.S. 161, 167 (2002).
268 See Pl.’s Compl. (Doc. 2) ¶¶ 4–8.
269 United States v. Ingle, 157 F.3d 1147, 1151 (8th Cir. 1998) (quoting United States v. Gouveia, 467 U.S. 180, 188 (1984)). Most of the U.S. Supreme Court and Eighth Circuit cases that discuss when Sixth Amendment rights attach specifically refer to the right to counsel. See Moran v. Burbine, 475 U.S. 412, 428 (1986) (explaining that the Sixth Amendment right to counsel “attaches only after the first formal charging procedure”); Ingle, 157 F.3d at 1151 (explaining that the Sixth Amendment right to counsel “does not attach until after the initiation of formal charges”). However, the Court has no reason to believe that the Sixth Amendment right to a trial by jury is any different, such that it attaches before the initiation of formal charges. Indeed, this District has stated that the entire Sixth Amendment does not attach until that point. Wren v. Tucker, No. 3:09-cv-00118 JMM, 2012 WL 369929, at *3 (E.D. Ark. Feb. 6, 2012) (“The Sixth Amendment attaches at or after the initiation of adversary judicial criminal proceedings . . . ”) (internal quotations omitted).
270 Hott v. Hennepin Cty., Minn., 260 F.3d 901, 905 (8th Cir. 2001).
271 Stair, 944 F.3d at 709 (citing Graham, 490 U.S. at 395 (“Today we make explicit what was implicit in Garner’s analysis, and hold that all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.”)).
would chill a person of ordinary firmness from continuing the activity; and (3) that the adverse
action was motivated at least in part by the exercise of the protected activity.”272
Even if Mr. Warren’s excited ramblings as he resisted arrest constitute protected activity,
no rational juror could conclude from this record that Officer Driskill (or any other officer for that
matter) took adverse action against Mr. Warren for his excited ramblings. It is true that Officers
Krupin, Berumen, and Driskill repeatedly instructed Mr. Warren to stop talking. But there is no
evidence that any of the Officers used force on Mr. Warren to suppress Mr. Warren’s speech. As
discussed above, Officer Driskill’s conduct was reasonably aimed at controlling Mr. Warren’s
physically belligerent and dangerous behavior.273 Once Mr. Warren’s physical aggression was
controlled, Mr. Warren continued to speak unimpeded. And he was allowed to do so.
Defendants are entitled to judgment as a matter of law on Ms. Anderson’s Fifth, Sixth,
Eighth, and Fourteenth Amendment claims. And because Ms. Anderson failed to allege that Mr.
Warren was engaged in First Amendment protected activity, and because no rational juror could
conclude that Officer Driskill’s conduct was motivated by a desire to thwart Mr. Warren’s speech,
Defendants are entitled to judgement as a matter of law on Ms. Anderson’s First Amendment
claim.
IV. Claims Against the City of Blytheville
Defendants argue that they are entitled to judgment as a matter of law on all the claims
against the City of Blytheville, which include the claims against Officer Driskill and Chief
Thompson in their official capacities.274 In particular, they assert that Ms. Anderson has failed to
272 Santiago v. Blair, 707 F.3d 984, 991 (8th Cir. 2013).
273 “[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” Stair, 944 F.3d at 709 (quoting United States v. O’Brien, 391 U.S. 367, 376 (1968)).
274 Defs.’ Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 26) 13–14. “Claims against individuals in their official
establish any underlying constitutional violation and, even if she has, Ms. Anderson has failed to
identify an official policy or custom that caused a constitutional violation. Defendants are correct
on both accounts.
Section 1983 does not establish any substantive rights on its own.275 “Rather, it simply
serves as a vehicle for ‘vindicating federal rights elsewhere conferred by those parts of the United
States Constitution and federal statutes that it describes.’ Accordingly, an underlying
constitutional or statutory violation is a predicate to liability under section 1983.”276 “[A]bsent a
constitutional violation by a [municipal] employee, there can be no § 1983 or Monell liability for
the [municipality].”277 As explained in great detail above, Officer Driskill did not violate the
Constitution under the First, Fourth, Fifth, Sixth, Eighth, or Fourteenth Amendments. Neither did
Chief Thompson. Thus, the City of Blytheville is entitled to summary judgment on Ms.
Anderson’s Monell claim.
Even if Ms. Anderson had established a constitutional violation, her claims against the City
would still fail because she failed to identify an official policy or custom that caused the violation.
Indeed, a municipality cannot be held vicariously liable for its employees’ unconstitutional
conduct.278 It can only be held liable when a municipal policy or custom is the “moving force”
behind a constitutional violation.279
Municipal policy may be found in written ordinances and regulations, in certain affirmative decisions of individual
capacities are equivalent to claims against the entity for which they work; they require proof that a policy or custom of the entity violated the plaintiff’s rights . . . .” Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (quoting Hafer v. Melo, 502 U.S. 21, 24–27 (1991)).
275 Henley v. Brown, 686 F.3d 634, 640 (8th Cir. 2012).
276 Id. (internal citation omitted) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).
277 Kingsley v. Lawrence Cty., Mo., 964 F.3d 690, 703 (8th Cir. 2020) (quoting Whitney v. City of St. Louis, 887 F.3d 857, 861 (8th Cir. 2018)).
278 Wedemeier v. City of Ballwin, Mo., 931 F.2d 24, 26 (8th Cir. 1991).
279 Id.
policymaking officials, or in certain omissions on the part of policymaking officials that manifest deliberate indifference to the rights of citizens. Outside of such formal decisionmaking channels, a municipal custom may arise if a practice is so “persistent and widespread” and “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.”280
At the time of the incident, it is undisputed that the City of Blytheville had a policy on the
use of force.281 Ms. Anderson argues that the City of Blytheville’s policy was unconstitutional
because it permitted its officers to use discretion in deciding “whether to take a mentally ill person
who is in a crisis to the county jail or to a hospital for treatment of their condition,” thereby
permitting officers to “override the judgment of medical professionals and to use any means
necessary to effectuate an arrest . . . .”282 Ms. Anderson has not cited any authority supporting her
contention that such a policy is unconstitutional. And the Eighth Circuit has made clear that it is
not unconstitutional.
In Sok Kong, the city of Burnsville enacted a training and department policy that advised
that “taking no action or passively monitoring the situation may be the most reasonable response
to a mental health crisis.”283 But the policy also provided that “[n]othing in this policy shall be
construed to limit an officer’s authority to use reasonable force when interacting with a person in
a crisis.”284 The officers in Sok Kong exercised their discretion to use deadly force, rather than
taking no action or passively monitoring the situation.285 The Eighth Circuit reasoned that the
officers did not act contrary to the policy, given the provision affording them discretion.286 And
280 Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999) (cleaned up).
281 Pl.’s Resp. to Defs.’ Statement of Material Facts (Doc. 44) ¶ 82.
282 Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 43) at 19.
283 Sok Kong, 960 F.3d at 993.
284 Id.
285 Id. at 990.
286 Id. at 993.
the Eighth Circuit further noted that, even had the discretionary provision not existed, acting
“contrary to training ‘does not itself negate qualified immunity . . . so long as a reasonable officer
could have believed that his conduct was justified.’”287 In other words, police officers may
exercise discretion in using reasonable force whether or not a policy allows for it. Like the policy
in Sok Kong, the City of Blytheville’s policy permitted its officers to use discretion in how best to
handle a criminal suspect suffering from a mental health crisis.
The Court finds that the City of Blytheville’s use of force policy at the time of the incident
was not unconstitutional on its face because it did not require the City’s law enforcement officers
to act unconstitutionally. Because Ms. Anderson failed to identify an underlying constitutional
violation, and because she failed to identify an unconstitutional custom or policy, her claims
against the City of Blytheville fail as a matter of law. Defendants are therefore entitled to judgment
as a matter of law with respect to these claims.
V. State Law Assault and Battery
Ms. Anderson alleges that Officer Driskill committed the torts of assault and battery against
Mr. Warren.288 Under Arkansas law, “[b]attery is a wrongful or offensive physical contact with
another through the intentional contact by the tortfeasor and without consent of the victim . . . .”289
Assault is an “intentional attempt by a person, by force or violence, to do an injury to the person
of another, or as any attempt to commit a battery, or any threatening gesture showing in itself or
by words accompanying it an immediate intention, coupled with a present ability, to commit a
battery.”290
287 Id. (quoting City of San Francisco v. Sheehan, 575 U.S. 600, 615 (2015)).
288 Pl.’s Compl. (Doc. 2) ¶ 30.
289 Costner v. Adams, 82 Ark. App. 148, 156, 121 S.W.3d 164, 170 (Ark. App. 2003).
290 Id.
Arkansas protects police officers from liability when effectuating an arrest. Indeed,
Arkansas Code Annotated section 5-2-610 states that “a law enforcement officer is justified in
using nondeadly physical force . . . upon another if the law enforcement officer reasonably believes
the use of nondeadly force is necessary to [e]ffect an arrest or prevent the escape from custody of
an arrested person unless the law enforcement officer knows that the arrest is unlawful.”291 A law
enforcement officer is further justified in using nondeadly force to “defend himself . . . or a third
person from what the law enforcement officer reasonably believes to be the use or imminent use
of physical force while effecting or attempting to effect an arrest or while preventing or attempting
to prevent an escape.”292
As already explained in great detail above, Officer Driskill used a reasonable degree of
force in arresting Mr. Warren given Mr. Warren’s belligerent behavior. Because Officer Driskill’s
conduct was justified, his physical contact with Mr. Warren was not “wrongful” and thus not
battery. For the same reason, Officer Driskill cannot be said to have attempted to commit battery
sufficient to establish a claim of assault. Ms. Anderson does not cite any caselaw to the contrary.
Rather, she repeats her same assertions that Officer Driskill’s conduct was tortious and
unconstitutional because Mr. Warren had a mental illness. For all the reasons discussed above,
that argument fails. Officer Driskill is therefore entitled to judgment as a matter of law.293
Federal Rule of Civil Procedure 56(d) Request
There’s a final issue for the Court to address. Ms. Anderson appears to believe that the
291 Ark. Code Ann. § 5-2-610(a)(1).
292 Id. at § 5-2-610(a)(2).
293 To the extent Officer Driskill was not justified in any of his conduct, for the reasons stated in the rest of this opinion, he is still entitled to qualified immunity under Arkansas law. Ms. Anderson does not dispute that Arkansas law is currently interpreted as including the qualified immunity doctrine. She says this understanding of Arkansas law is incorrect and she invites this Court to abolish the doctrine entirely. That’s not something a District Court can do.
Court should allow additional discovery before resolving the Motion for Summary Judgment. As
the Court explains below, she has not made a timely and proper 56(d) request. But even if she had
done so, she does not meet the standard set out by the Eighth Circuit for 56(d) relief.
The Discovery deadline set by the Court’s Second Amended Final Scheduling Order
expired on June 19, 2020.294 Defendants’ filed the instant Motion for Summary Judgment on July
20, 2020, which was the last day allowable. Under the Scheduling Order and Local Rule 7.2(b),
Ms. Anderson had fourteen days to “file with the Clerk a concise statement in opposition to the
motion with supporting authorities.”295 Defendants could then file a reply within 7 days. The
Scheduling Order and the Local Rule make clear that “[n]o surresponse or surreply will be
permitted, absent express direction by the Court.”296
On July 29, 2020, Ms. Anderson asked the Court to stay the case or extend the deadline for
responding to summary judgment because her counsel had late-stage terminal cancer.297 She asked
to extend the response deadline by at least 60 days, which she said “will allow her counsel time to
engage the assistance of someone to review the files and prepare [a] response[]” to the Motion for
Summary Judgment.298 Finding this a very reasonable request, the Court extended the deadline
for responding to summary judgment by 90 days, making the new deadline October 2, 2020.299
On September 16, 2020, Ms. Anderson (now with new counsel) moved once again to
amend the schedule.300 She asked to “extend all outstanding deadlines set forth in the Second
294 Second Am. Final Scheduling Order (Doc. 24) ¶ 2.
295 Third Am. Final Scheduling Order (Doc. 41) ¶ 7.
296 Id.
297 Mot. for Stay (Doc. 31) ¶¶ 2, 5, 6.
298 Id. ¶ 6.
299 Text Order (Doc. 32). The 90-day extension fell on a Saturday, thus Plaintiff’s response was due the following Monday.
300 Pl.’s Third Mot. to Amend the Scheduling Order (Doc. 37).
Amended Final Scheduling Order by one hundred and eighty days . . . .”301 Although the discovery
and pleading deadlines (having already passed) were not outstanding, the context of the motion
suggests that Ms. Anderson was asking for an extension of those deadlines in addition to the
deadline for her response to summary judgment.302 For reasons discussed in prior Orders by the
Court303 and discussed to some extent below, the Court denied the request to re-open discovery or
the time for amendment of the complaint.304 But the Court partially granted the request for
additional time to respond to the Summary Judgment Motion.305 The Court gave Ms. Anderson
an additional 45 days (approximately) to file a Response, making the deadline November 30, 2020.
On November 30, 2020, Ms. Anderson filed a Response, a Brief in Support of her
Response, and a Statement of Facts.306 She did not file a Rule 56(d) motion or affidavit. After a
short extension of time, Defendants filed a Reply on December 14, 2020.307 Then, on February 2,
2021, Ms. Anderson filed a document titled “Supplemental Affidavit Under Rule 56(f) of the
Federal Rules of Civil Procedure.”308 Since subsection (f) is now “Judgment Independent of the
Motion,” I am going to assume Ms. Anderson meant her Affidavit to be a Rule 56(d) Affidavit. In
relevant part, the Affidavit stated that her prior counsel “never took the depositions that we need
301 Id. ¶ 5.
302 See id. (stating that the extension would “allow counsel for Plaintiff to familiarize themselves with the case, adequately investigate the claims, and amend the pleadings as necessary”) (emphasis added).
303 See Text Order (Doc. 40); Order Denying Mot. to Amend (Doc. 70).
304 Text Order (Doc. 40).
305 Id.
306 Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 42); Pl.’s Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 43); Pl’s Resp. to Defs.’ Statement of Material Facts (Doc. 44).
307 Defs.’ Reply to Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 55).
308 Affidavit re Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 66). In the meantime, the parties had filed dueling papers on Ms. Anderson’s Motion to Amend the Complaint, which the Court addressed in its Order Denying the Motion to Amend. Order Denying Mot. to Amend (Doc. 70); see also Pl.’s Mot. to Amend (Doc. 50); Defs.’ Resp. to Pl.’s Mot. to Amend (Doc. 52); Defs.’ Br. in Supp. of Defs.’ Resp. to Pl.’s Mot. to Amend (Doc. 53).
to respond fully to the defendants’ Motion for Summary Judgment . . . .”309 It also stated that “we
never received discovery of relevant documents and other materials from the defendants before
the discovery deadlines and [the deadlines] for amendment of pleadings . . . .”310
There are several problems with Ms. Anderson’s Rule 56(d) affidavit. First, it is not clear
that a Rule 56(d) request is in order after the expiration of the discovery deadline in a Court’s
scheduling order. The Eighth Circuit has made clear on numerous occasions that “[t]he purpose
of this rule is ‘to prevent a party from being unfairly thrown out of court by a premature motion
for summary judgment.’”311 Rule 56(d) is essentially a protective mechanism to effectuate “[t]he
general rule . . . that summary judgment is appropriate ‘only after the nonmovant has had adequate
time for discovery.’”312
Still, it is fair to say that the language of the Rule does not expressly limit itself to situations
where the discovery period is ongoing. So let’s assume that a Rule 56(d) request can, in theory,
be made even after the expiration of the discovery deadline. A second problem for Ms. Anderson
is that the Court’s Scheduling Order (as further amended) and the Local Rules (1) clearly required
all responses to summary judgment to be made by November 30, 2020, and (2) clearly prohibited
surrresponses. If Ms. Anderson wanted to raise a 56(d) issue, she was required to do so at the time
of her response to the Summary Judgment Motion—not more than 2 months later. The violation
of the Local Rules and the Court’s Scheduling Order are by themselves sufficient grounds to deny
the 56(d) request.
Even if Ms. Anderson’s request was timely and proper, it fails to meet the Eighth Circuit’s
309 Affidavit re Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 66) ¶ 10.
310 Id.
311 Jackson v Riebold, 815 F.3d 1114, 1121 (8th Cir. 2016).
312 Id. (quoting Toben v. Bridgestone Retail Opers., LLC, 751 F.3d 888, 894 (8th Cir. 2014)).
standard for granting 56(d) relief. “[T]o obtain a Rule 56(d) continuance, the nonmovant ‘must
file an affidavit affirmatively demonstrating … how postponement of a ruling on the motion will
enable him, by discovery or other means, to rebut the movant’s showing of the absence of a
genuine issue of fact.’ A district court has ‘wide discretion’ in ruling on a Rule 56(d) motion.”313
Ms. Anderson’s Affidavit doesn’t say anything of the sort. Instead, it vaguely and generally asserts
that her prior lawyer didn’t take several depositions and get unidentified discovery that would
allow a “full[er]” response to the Summary Judgment motion.314
It is likely that Ms. Anderson realized the substantive shortcomings of her Affidavit. On
the evening of April 7, 2021, the day the Court held a hearing on the Motion for Summary
Judgment, Ms. Anderson filed a document titled “Third Affidavit in Support of Plaintiff’s Partial
Response to Defendants’ Motion for Summary Judgment.”315 Although the title does not suggest
it is a Rule 56(d) Affidavit, the substance of the document does.316 And it states more specifically
than the First Affidavit what information Ms. Anderson believes additional discovery would
uncover. Upon request of the Defendants, the Court struck this document as untimely.317 This
document was even more out of time than the first 56(d) Affidavit. Ms. Anderson cannot simply
file documents responding to Summary Judgment whenever she wants and in a piecemeal fashion.
Doing so makes it impossible for the Defendants to fairly respond to arguments and for this Court
to resolve the outstanding issues in an orderly fashion. There was no good reason for the delay.
Even if I were to consider the substance of the Affidavit, it still does not meet the Eighth
313 Id. (internal citation omitted) (quoting Toben, 751 F.3d at 894).
314 Affidavit re Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 66) ¶ 10.
315 Third Affidavit in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 79).
316 Id. ¶ 5.
317 Text Order (Doc. 102).
Circuit’s substantive standard for Rule 56(d) relief. For example, consider Paragraphs 5A and
5B.318 These paragraphs contain the exact type of general and vague assertions that fail the test.
In paragraph 5C, Ms. Anderson says that “[i]f additional discovery is allowed, I will be
able to take the deposition of Dr. John Thomas at St. Bernard’s Medical Center regarding his
statement that my son’s vegetative state was a result of being deprived of air. . . . This deposition
is necessary to authenticate medical records and to show that my son’s vegetative state was caused
by being choked and deprived of air by Defendant . . . Driskill and the other police officers who
assisted Driskill in the September 29, 2018 arrest of my son, and not from a ‘drug overdose.’”319
But authentication of the medical records that the parties have presented is unnecessary at this
stage—the Court has assumed for purposes of summary judgment that the medical records are
authentic. More importantly, the Court has assumed for purposes of summary judgment that
Plaintiff is correct in its position that a crushed trachea was the cause of death. In light of these
assumptions, the information Ms. Anderson describes is not the sort of information that is
necessary to rebut the movants’ showing of an absence of a genuine issue of material fact. Put
another way, even if Ms. Anderson secured the facts she seeks, it would not alter the outcome of
the pending Summary Judgment Motion.
In paragraph 5D, Ms. Anderson says she “would like to take the deposition of Defendant .
. . Driskill to prove that he did not have the crisis intervention training and de-escalation training
that was required to respond to a call of a person having a mental health crisis, including a bad
reaction to drugs.”320 But a failure-to-train claim would only be viable if Officer Driskill had
committed a constitutional violation and did so because of the purported failure to train. Because
318 Third Affidavit in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 79) ¶ 5.
319 Id.
320 Id.
the Court has concluded that Driskill did not commit a constitutional violation, there is no potential
for a viable failure-to-train claim regardless of what information might come out at a deposition.321
In paragraph 5E, Ms. Anderson says she “would like to take the deposition of the custodian
of records of the Blytheville Police Department and the Blytheville Chief of Police regarding the
police department’s policies and procedures regarding mentally ill persons and persons having a
‘mental health crisis’ who are going to be placed under arrest.”322 What has already been written
about paragraph 5D—in both text and footnote—applies equally here. Moreover, this request
seems more like the proverbial fishing expedition than a narrow request calculated to be able to
rebut a movant’s showing of the absence of a genuine issue of material fact.
In paragraph 5F, Ms. Anderson says she “would like to take the depositions of Officers
Santos Berumen, Nathan Krupin, and Doyne Driskill regarding the approximately 3-4 minutes of
body camera footage that is missing from the materials provided by the Defendants in their
disclosures to the Plaintiff.”323 She says that “[t]he whereabouts and actions of each officer is
critical to establishing that my son was being intentionally deprived of air and was unable to
breath[e] during that time.”324 There are at least three problems here. First, Ms. Anderson is
essentially going on a fishing expedition. She hopes a deposition would reveal something
nefarious about the whereabouts and conduct of Officer Driskill; but she has no evidence to suggest
321 In any event, Rule 56(d) “is designed to minister to the vigilant, not to those who slumber on perceptible rights.” Beatty v. Synthes (USA), 101 Fed. App’x 645, 646 (8th Cir. 2004) (unpublished) (quoting Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 92 (1st Cir.1996)). From the very outset of this case (back in October of 2018), Ms. Anderson knew that Officer Driskill was the arresting officer and knew that that her son had mental illness issues. Very shortly after that, Ms. Anderson knew her son had been on illegal substances the night of the arrest. Ms. Anderson had approximately one year to depose Officer Driskill before anyone even suggested that her prior counsel’s illness got in the way of work. There were other depositions scheduled and conducted in that time. And Officer Driskill’s deposition was scheduled, but then cancelled by Plaintiff’s side.
322 Third Affidavit in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 79) ¶ 5.
323 Id.
324 Id. As explained in note 321, Ms. Anderson had more than enough time to depose these persons already.
it would. Indeed, to the extent there is anything in the record on this point, it suggests that Officer
Driskill was away from the immediate area around Mr. Warren at this point. “Rule 56(d) does not
condone a fishing expedition where a plaintiff merely hopes to uncover some possible evidence of
unlawful conduct.”325 Second, Ms. Anderson has already had the opportunity to depose the
paramedic at the scene.326 She had (and used) the opportunity to ask about the whereabouts of
Officer Driskill and others during the time frame in question. And third, as discussed in footnote
321, Ms. Anderson had more than enough time to depose the persons she now asks to depose.
In paragraph 5G, Ms. Anderson says she “would like to take the depositions of Officers
Santos Berumen, Nathan Krupin, and Doyne Driskill to discuss records that establish that the
officers knew about Rayshawn Warren’s mental disorder before” the night of the arrest. 327 In
addition to the other problems previously identified with the request to depose a bunch of persons
who could have been deposed earlier, Ms. Anderson does not require this information for purposes
of effectively challenging summary judgment. That is because the Court has concluded above that
summary judgment is appropriate even under the assumption that Officer Driskill knew of Mr.
Warren’s mental illness.328
In paragraph 5H, Ms. Anderson says she “would like to take the deposition of Blytheville
city officials who were involved in the previous arrest and prosecution of Rayshawn Warren that
325 Toben, 751 F.3d at 895 (quoting Duffy v. Wolle, 123 F.3d 1026, 1041 (8th Cir. 2014)).
326 See Ex. 10 to Defs.’ Statement of Material Facts (Doc. 27-10); Ex. 6 to Pl.’s Amended Resp. to Defs.’ Mot. for Summ. J. (Doc. 51-5).
327 Third Affidavit in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 79) ¶ 5.
328 See supra pages 25, 26, and 28; note 203. To the extent the Court did not explicitly make reference to mental illness in every subsection above, the Court wishes to make clear that its conclusion in each subsection (analyzing each particular physical interaction) remains the same even assuming Officer Driskill knew about Mr. Warren’s mental illness. That factor is certainly part of the mix in analyzing each physical interaction, but it does not in the circumstances present in this case alter the reasonableness of any of the force used.
led to him being placed on misdemeanor probation in the City of Blytheville, Arkansas.”329 But
Ms. Anderson doesn’t say why. So, she cannot meet the 56(d) standard. If Ms. Anderson wants
to impute knowledge of Mr. Warren’s mental illness to Officer Driskill, that is not a good
justification for 56(d) relief in this case. As just discussed, the Court’s decision above concludes
that summary judgment is appropriate even under the assumption that Officer Driskill knew of Mr.
Warren’s mental illness.
In the end, Ms. Anderson has no persuasive justification for seeking Rule 56(d) relief to
delay a ruling on summary judgment. While there is no question that her original attorney could
have served her better and more aggressively conducted discovery (in the time period before his
illness interfered with his work), Ms. Anderson cannot identify further information that she would
likely obtain from additional discovery which would allow her to overcome the Defendants’
Motion for Summary Judgment. She has the three bodycam videos; she has deposition testimony
from the paramedic at the scene; she has medical reports regarding the cause of death; she has
reports about Mr. Warren’s mental status. In short, this case is appropriate for summary judgment
resolution now. There’s no persuasive reason to wait longer.
329 Third Affidavit in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 79) ¶ 5.
Conclusion
For all of the foregoing reasons, Defendants’ Motion for Summary Judgment is
GRANTED in its entirety. Judgment will be entered in Defendants’ favor.
IT IS SO ORDERED this 26th day of July 2021.
________________________________
LEE P. RUDOFSKY UNITED STATES DISTRICT COURT
Anderson v. Driskill (Anderson v. Driskill) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.