Jonathon Ziesmer v. Derrick Hagen

785 F.3d 1233, 2015 U.S. App. LEXIS 7713, 2015 WL 2167220
CourtCourt of Appeals for the Eighth Circuit
DecidedMay 11, 2015
Docket14-2229
StatusPublished
Cited by11 cases

This text of 785 F.3d 1233 (Jonathon Ziesmer v. Derrick Hagen) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jonathon Ziesmer v. Derrick Hagen, 785 F.3d 1233, 2015 U.S. App. LEXIS 7713, 2015 WL 2167220 (8th Cir. 2015).

Opinion

KELLY, Circuit Judge.

Jonathon Ziesmer appeals the district court’s grant of summary judgment in favor of the defendant, Trooper Derrick Lee Hagen, on his claim for relief under 42 U.S.C. § 1983. Ziesmer alleges that Ha-gen used excessive force during an unlawful arrest. Under the facts viewed in a light most favorable to Ziesmer, we conclude that Trooper Hagen is not entitled to judgment as a matter of law, and we therefore reverse. 1

I. Background

On August 22, 2010, Ziesmer was driving brothers Travis and Tyler Jones back home on Interstate 94 from a restaurant in St. Paul, Minnesota. Travis Jones attempted to flick a cigarette out the passenger-side window, but the butt flew back in through the rear window and landed on the floor of the backseat. Ziesmer pulled the car over so the cigarette could be retrieved. Moments later, Trooper Hagen pulled his patrol car up behind Ziesmer’s car and approached to see if the vehicle’s occupants required assistance.

Trooper Hagen approached the front passenger side of the car, where Travis Jones was seated with his window rolled halfway down. Trooper Hagen later testified that Travis Jones was “moving around” and “quickly bent over as if he was reaching for something.” Travis Jones denied making any furtive movements. As Trooper Hagen approached, he claims he saw a hammer lying on the floor of the car; Ziesmer, however, contends the hammer was concealed beneath the seat and that Hagen could not possibly have been aware of it until after a later search. Trooper Hagen also reports that the smell of marijuana was coming from the car, though all three of the passengers contest this fact. Answering Trooper Hagen’s inquiries, Travis Jones and Ziesmer explained that they were pulled over in order to extinguish a cigarette. Trooper Hagen then requested each of the passengers’ identification and went back to his patrol car to run their names through the police database. No relevant information concerning Ziesmer, his car, or the two Jones brothers appeared.

Trooper Hagen returned to the car and asked Travis Jones to get out. Once Travis Jones complied, Trooper Hagen told him that he was going to be searched. He reports that as he was placing his hands on the car to be searched, Trooper Hagen shoved him, though Trooper Hagen disputes this. After Trooper Hagen frisked Travis Jones, he instructed him to go stand underneath a highway overpass, about 15 or 20 yards away, and Travis Jones complied.

Trooper Hagen then came to the driv- . er’s side of the car and instructed Ziesmer to exit the car. According to Ziesmer, he “calmly” asked why he had to exit the vehicle, which led to Trooper Hagen screaming, “Get ,out of your car right now, I do not have to have a reason to pull you out of your car.” Trooper Hagen admits that he raised his voice but denies screaming. Ziesmer also reports that he attempted to call 911 on his cell phone, but Trooper Hagen “just reached in my window ... and he hung up my phone and threw it on the passenger floor.” While Trooper Ha-gen claims he does not remember Ziesmer ever having a phone, the St. Paul Police Department has a record of the received 911 call.

Trooper Hagen testified that he believed Ziesmer was going to flee the scene by *1236 driving away. In response, he reached in through the window, unlocked the driver’s side door, unfastened Ziesmer’s seatbelt, and pulled him out of the car. Ziesmer claims that Trooper Hagen threw him against the car and then onto the ground. Trooper Hagen then asked Ziesmer to stand up and wait on the grass by the side of the road. Ziesmer testified that he went and stood on the grass, waiting while Trooper Hagen stared at him for “almost a minute.” After this pause, Ziesmer testified that Trooper Hagen tackled him to the ground and dug his knee into his back, while pulling Ziesmer’s hands behind his back, causing his shoulder to pop out of its socket. Trooper Hagen popped Ziesmer’s shoulder back into its socket and then punched him in the back of the head four to eight times. Travis Jones testified that he observed Trooper Hagen using his forearm to push Ziesmer’s face into the ground several times, even after placing handcuffs on Ziesmer. Trooper Hagen denies tackling and hitting Ziesmer and instead says that once Ziesmer was on the ground outside the car, he handcuffed him, searched him, and stood him up.

When Trooper Hagen searched Ziesmer he found a small amount of marijuana in a baby food jar and a pipe with marijuana residue in a pocket of Ziesmer’s pants. Trooper Hagen also searched Tyler Jones, as well as Ziesmer’s vehicle. After placing Ziesmer in the back of his squad car, Hagen activated his dashboard camera, which had not been recording while the altercation took place. He then questioned Ziesmer about what had just occurred. Travis Jones testified that Trooper Hagen also questioned him repeatedly about why Ziesmer had resisted, although he himself did not believe Ziesmer had resisted.

Ziesmer was given a written citation for possession of marijuana and released. The charges were later dropped. He did not call for an ambulance or go to the hospital, but instead dropped the Jones brothers off at their home before continuing home himself. Immediately after the incident Ziesmer reports that he had bruising and scrapes on his face and a large knot on the back of his head. He took pictures of his bruised face when he got home. Tyler Jones testified that there was a welt on Ziesmer’s head the day after the incident. Five days after the incident Ziesmer went to a physician for x-rays of his spine, head, and neck area. Ziesmer claims that a few days or weeks later he “called the state patrol office to get the audio and video footage” of the incident, but the office informed him that there was no footage available.

Ziesmer did not see a doctor again until almost three months later. On November 8, 2010, he underwent a magnetic resonance imaging (MRI) and was diagnosed with “minimal disc bulging” and neck and upper-back pain. He next saw a doctor in March, four months later, for a computerized tomography (CT) scan to diagnose neck pain. He was advised to see if the pain would subside with time. Ziesmer did not return again to the doctor for a year and a half, and in October 2012 he complained of continued neck pain, at which point he began receiving physical therapy. In December, after many physical-therapy sessions, Dr. David Spight from the Institute of Low Back and Neck Care noted that there is “no change in right neck pain” and “limited cervical right side bending and rotation” due to “post-traumatic right neck pain.” Dr. Spight also noted that he thought the symptoms were “not consistent with permanent injury.”

. Ziesmer did not begin to complain of shoulder pain until January 2013, about two and a half years after the altercation *1237 with Trooper Hagen occurred. In July 2013 Dr. Christopher Meyer reported:

I do not think there is anything to be done for his shoulder.- This appears to be neck discogenic pain that radiates to the parascapular region quite commonly. I would continue to treat this through the Institute for Low Back and Neck, but I do not believe that he needs intervention for his shoulder.

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Cite This Page — Counsel Stack

Bluebook (online)
785 F.3d 1233, 2015 U.S. App. LEXIS 7713, 2015 WL 2167220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jonathon-ziesmer-v-derrick-hagen-ca8-2015.