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Case 2:09-cv-00076-RFC-RWA Document 140 Filed 02111/13 Page 1 of 33
BRENDONJ.ROHAN,ESQ.POORE, ROTH & ROBINSON, P.C.1341 Harrison AvenueP.O. Box 2000Butte, Montana 59702Telephone: (406) 497-1200Facsimile: (406) [email protected]
Attorneys for Defendants Marek Ziegler and Greg Megargel
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MONTANA
BUTTE DIVISION
ROGER T. SEGAL, Trustee,
CITY OF BOZEMAN, CITY OFBOZEMAN POLICE DEPARTMENTSERGEANT GREG MEGARGEL, in hisindividual and official capacity; CITY OFBOZEMAN POLICE DEPARTMENTOFFICER MAREK ZIEGLER, in hisindividual and official capacity,FORMER CITY OF BOZEMANPOLICE DEPARTMENT CHIEF MARKTYMRAK, in his individual and officialcapacity, CITY OF BOZEMAN POLICEDEPARTMENT INTERIM CHIEF,MARTIN KENT, and JOHN DOES 110,
Plaintiffs,
Defendants.
v.
)))) CAUSE NO. CV-09-76-RFC) RWA))) BRIEF IN SUPPORT OF) MOTION FOR SUMMARY) JUDGMENT RE: ZIEGLER) AND MEGARGEL)))))))))))
--------------)
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TABLE OF CONTENTS
TABLE OF CONTENTS 1
TABLE OF AUTHORITIES........................................................ 11, 111
INTRODUCTION 1
BACKGROUND 1
ARGUMENT 12
Summary Judgment Standards........................................... 12
Plaintiff Has No Viable Claim For Relief Based OnAlleged "Excessive Force" 13
Under Any Circumstance, Ziegler and Megargel AreEntitled To Qualified Immunity Against PlaintiffsFourth Amendment Excessive Force Claim 19
The Sanction Order Does Not Preclude SummaryJudgment............................................................................ 22
All Remaining Claims Against Ziegler and Megargelin Their Individual Capacities Should Be DismissedBased on Statutory Immunity 24
CONCLUSION 26
CERTIFICATE OF COMPLIANCE 27
CERTIFICATE OF SERVICE BY MAILING............................ 28
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TABLE OF CASES
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,249 ..
Arpin v. Santa Clara Valley Trans. Agency, 261 F.3d 912,922 (9th Cir. 2001) .
Bryan v. MacPherson, 630 F.3d 805, 832 (9th Cir. 2010) .
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) .
Deorle v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001) .
First National Bank ofArizona v. Cities Service Co.,391 U.S. 253 (1968) .
Franklin v. Foxworth, 31 F.3d 873, 876 (9 th Cir. 1999) .
Germann v. Stephens, 2006 MT 130 ..
Graham v. Connor, 490 U.S. 386,395-96 (1989) .
Groves v. Croft, 2011 WL 5509028 (D. Mont. 2011) ..
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) .
Heiat v. Eastern Montana College, 275 Mont. 322,331,912 P.2d 787,793 (1996) .
Jackson v. Johnson, 797 F.Supp.2d 2057 (D. Mont. 2011) .........
Katz v. US, 194 F.3d 962, 967 (9th Cir. 1999) .
Kenyon v. Stillwater County, 254 Mont. 142,835 P.2d 742 (1992) ..
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13
19
14,15,20,21,22
12
20
13
15
26
13, 14,15,16,23,24
16,22
19
26
16,21
14
25
Case 2:09-cv-00076-RFC-RWA Document 140 Filed 02111/13 Page 4 of 33-lll-
Kiely Const. LLC v. City ofRed Lodge, 202 MT 241 .. 26
Law v. City ofPost Falls, 772 F.Supp.2d 1283 (D. Id. 2011)...... 19
Luchtel v. Hagemann, 623 F.3d 975, 980 (9th Cir. 2010) 16
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 587 (1986)................................................... 13
Mattos v. Agarano, 661 F.3d 433,440 (9th Cir. 2011)................. 20,22
Muehler v. Mena, 544 U.S. 93 (2005).......................................... 17
Pearson v. Callahan, 555 U.S. 223 (2009) 20
Peschel v. City ofMissoula, 664 F.Supp.2d 1137(D. Mont. 2009).................................................................. 23
Phillips v. Hust, 477 F.3d 1070, 1079 (9th Cir. 2007)... ....... ........ 19
Ricci v. DeStefano, 557 U.S. 537,586 (2009) 18
Saucier v. Katz, 533 U.S. 194,204-06 (2001) 14,20
Scott v. Harris, 550 U.S. 372 (2007)............................................ 17, 18
Smith v. City ofHemet, 394 F.3d 629, 702 (9th Cir. 2005)........... 16
Wilkinson v. Torres, 610 F.3d 546 (9th Cir. 2010) 18
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TABLE OF STATUTES
Rule 56(a), Fed. R. Civ. P 12
Rule 56(c)(1)(A), Fed. R. Civ. P. 12
Fed. R. Civ. P. 56, Notes of Advisory Comm.on 2010 Amendments 13
Mont. Code Ann. § 2-9-305 25
Mont. Code Ann. § 2-9-306(6) (a)-(d) 25
42 U.S.C. 1983 25
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INTRODUCTION
Summary judgment should be granted in favor of Defendants Marek Ziegler
and Greg Megargel. As a matter of law, they did not use excessive force against
Jesse Verdi (Verdi) on the evening of August 12, 2007. The use of a taser against
Verdi was objectively reasonable based on the totality of the factual circumstances
presented to them. Alternatively, they are entitled to qualified immunity because,
at the time of the disputed use of force, the law relating to the use of a taser in dart
mode was not clearly established. The court's Sanction Order cannot defeat
summary judgment because it is contrary to and inconsistent with the "objective
reasonableness" standard that must be followed in deciding if the use of a taser,
based on the facts and circumstances confronting the officers, constituted excessive
force. All other claims against Ziegler and Megargel should be dismissed based on
statutory immunity.
BACKGROUND
At approximately 9:52 p.m. on the evening of August 12, 2007, Rae Ann
Becker, a female friend of Verdi, telephoned the Bozeman 911 center because she
was "really scared * * * [t]hat something had happened to [Verdi]." Earlier in the
day, Verdi sent Becker a text message stating: "I'm done." Becker texted to Verdi
that unless he responded to her texts or telephone calls, she would notify the police
to check on him. She was concerned about Verdi because he "had life things"
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going on and she had a "gut feeling" he needed to be checked because of prior
experiences she had had with persons possibly expressing suicidal thoughts.
Becker was aware that Verdi had recently been in the hospital and she brought him
back because he was hallucinating and he was allegedly over medicated. SUF at 8-
11.
Five days earlier, on August 7, 2007, Verdi presented himself to the
emergency department at Bozeman Deaconess Hospital seeking alcohol
detoxification. He was an alcoholic with a long history of alcohol and drug
problems. As of March 7, 2007, Verdi was reporting to his healthcare providers
that he was suffering from anxiety, stress, was not properly sleeping or eating, and
these symptoms were worsening. He also experienced panic-type symptoms.
When Verdi arrived at the emergency department, he reported that he had
recently been drinking up to a fifth of whiskey a day, plus several beers. While in
the hospital, he was treated by Dr. Omohundro, who prescribed Ativan while Verdi
was in the hospital and for him on an outpatient basis. However, Dr. Omohundro
carefully explained to Verdi not to consume alcohol while taking Ativan. Based
on Verdi's report of how much he was drinking, Dr. Omohundro confirmed that
his level of alcohol can "definitely cause a person to become very violent,
combative, cause memory loss and blackouts, and other mental disorders including
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depression or suicidal ideation." Verdi was released from the hospital on
August 10,2007. SUP 1-6.
Shortly after Becker called 911, Officer Marek Ziegler and Sergeant Greg
Megargel were dispatched to the apartment complex where Verdi lived. Ziegler
joined the Bozeman Police Department in December of 2006. He had previous
law enforcement experience and training as a U.S. Customs Service Officer. He
served in the Air National Guard. After joining the Bozeman PD, he received
additional training at the Montana Law Enforcement Academy and at the PD itself.
He was trained in the "use of force" and was trained and certified in the use of a
taser.
Sergeant Megargel had been with the Bozeman PD for approximately
thirteen (13) years. He, too, had significant law enforcement training through the
Montana Law Enforcement Academy and the department. He was trained and
certified in the use of a taser. He was Ziegler's shift supervisor at the time they
responded to the call at Verdi's apartment complex. SUF 13-19,42-45.
When Ziegler and Megargel arrived at the apartment complex, they spent 40
to 45 minutes attempting to locate Verdi. They knocked on his apartment door
several times without an answer. They did identify his car by checking the license
plate. They talked with at least one person who stated he saw Verdi earlier in the
day. They attempted to obtain a key for Verdi's apartment from the apartment
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complex manager. They also tried to call him on his cell phone, all to no avail.
SUF 20-21; 45, 47.
Megargel was attempting to locate Verdi because he was unsure if Verdi
was injured, if he injured himself, or if he was even in his apartment, "so we had to
cover every avenue." SUF 46. After approximately 45 minutes of looking for
Verdi, they again knocked on the door. They heard some rustling and mumbling in
the apartment. Megargel stepped to the right and back from the door, looking
toward the door, with his service weapon drawn and held in a "low ready" position
at his side. Ziegler moved to the left of the door and drew his taser. This
positioning allowed for officer safety with both lethal and less-than-Iethal uses of
force in the ready positions. SUF 22, 47-49.
When Verdi finally opened the door, he was naked, mumbled something
unintelligible, and began to move, out looking directly at Megargel. He was told
they were there to check on him. He was asked several times to "have a seat - take
a seat." Verdi moved out of his apartment, and Ziegler moved back a couple of
feet. Without warning, and in a split second, Verdi charged toward Megargel, who
was approximately 5 to 6 feet from him. Ziegler deployed his taser because he
"felt [Sergeant Megargel] was in danger." He did not have time to warn Verdi he
intended to deploy his taser. Ziegler was approximately 6 feet away from Verdi
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when he deployed his taser. One taser dart struck Verdi in his back and one dart
hit him in the back ofhis right arm. SUF 23-30.
When Verdi opened his door, Megargel quickly observed that he did not
have anything in his hands. He holstered his pistol because he recognized lethal
force would not be necessary. Megargel attempted to communicate with Verdi,
telling him to sit down. A couple of seconds later, unprovoked, Verdi charged
directly toward him fast enough that he was immediately on top of him. Megargel
reacted and struck Verdi in the chest with his left hand, shoving him back. Verdi
went backwards, fell against the wall, and then fell to the ground. Megargel was
unaware that Ziegler deployed his taser until after Verdi was on the ground. SUF
31-32, 50-54.
According to Megargel, he reacted to Verdi charging him because he felt his
safety was at stake: "I felt 1 had to react or 1 could be injured, so I reacted in the
manner which I did. * * * 1 had a naked guy charging me and 1 didn't know his
intent, and 1 had no time to think about it. 1 had to react." SUP 55. Ziegler
believed Megargel was at risk of being injured and his deployment of the taser was
to protect a fellow officer. SUP 27.
After Verdi went to the ground, he was initially unresponsive. He later
became responsive but did not answer any questions from Ziegler. Per police
department policy, and in order to make the scene safe for the officers, the
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responding emergency medical personnel, and Verdi, he was rolled over and
handcuffed in the back. The handcuffs were adjusted at least once to ensure they
were fitting properly, i.e., not too tight or too loose. At the time of Verdi's
confrontation with the officers, he had a blood alcohol concentration of at least
.291. SUF 32-35, 57.
While Ziegler and Megargel were waiting for the arrival of emergency
personnel, Ziegler advised Megargel: "Hey, man, he came after you." Megargel
responded: "I shoved him, but you got him. That's the way it is." Later, but while
still at the scene, Ziegler advised Megargel: "I was afraid for you - dude." SUF
27,39-40.
Later, at the hospital, Ziegler advised one of the nurses that Verdi "start[ed]
going after the sergeant so I tased him in the back." SUF 69. He reaffirmed when
talking to Rae Ann Becker at the hospital that Verdi "did become aggressive
towards the sergeant, and I ended up tasing him and took him into custody. * * *
[W]e just wanted to talk to him, make sure he's okay. And he comes out and he
comes out the door and went in an aggressive manner straight for - for the
sergeant." SUF 12.
Both Megargel and Ziegler believed they could have charged Verdi with
criminal offenses for attacking Megargel. However, based on the totality of the
circumstances, they both decided it was in Verdi's best interests not to do so.
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Rather, the best outcome for the entire situation was to place Verdi in protective
custody. They believed their goal and job in responding to a welfare check is to
assist the person who is apparently having problems: "Our goal is not to go and
charge them with a crime, our goal is to help them with what problems they're
having. I believe that's what our intent was when we arrived there .... There's no
need for this person to be charged with an assault crime, and we could have
charged him with a crime." SUF 36-37, 58-59.
Verdi was transported by ambulance to the emergency department of
Bozeman Deaconess Hospital. Empty bottles of Ativan and Atonal accompanied
him. He as initially described by an emergency department nurse as crying and
combative, requiring the application of restraints. He was combative the entire
time he was in the emergency department up to the point he was transferred to a
room on the floor. There was no evidence of injury to Verdi's wrists from
handcuffs when restraints were placed on him.
The emergency department doctor who evaluated and treated Verdi
described him as "non-cooperative, agitated, combative, threatening staff." He
was diagnosed as suffering from drug overdose, alcohol intoxication, suicide
attempt, and having a scalp contusion. He was placed in four-point restraints
(wrists and ankles), for the safety of the staff, as well as Verdi himself. He
remained in four-point restraints until the following morning at 9:00 a.m. The
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Gallatin County Psychological Emergency Response Team was called to the
hospital to deal with Verdi. SUP 68-82.
Prior to August 12, 2007, Verdi was an admitted alcoholic who knew he
should not drink alcohol. He had checked himself into different hospitals because
of drug and alcohol problems, his most recent admission only five days before the
August 12 incident. In a follow-up office visit with Dr. Omohundro, it was noted
that Verdi was readmitted to the hospital on August 12, 2007, because after he was
released on August 10, he took more Ativan than was prescribed and started
drinking again and "was making suicidal gestures." SUP 83-86, 88.
Verdi admits that on August 12, 2007, he sent a disturbing text message to
Becker stating: "I'm done." He claims he cannot recall why he sent the message,
why he did not respond to Becker's attempts to contact him, whether he wanted
Becker to contact the police, or whether he was trying to kill himself on that
particular day. He does agree he drank a significant amount of alcohol, resulting in
a blood alcohol level of .291. He cannot recall if he was in a fight before August
12, 2007, or how he ended up with scratches on his chest that were noted in the
emergency department records. SUF 60-66.
Verdi claims no memory of when he started drinking on August 12, where
he was drinking, with whom he was drinking, why he started drinking, when he
stopped drinking, or how he got back to his apartment. SUF 60-67. However,
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Verdi's testimony of no recollections of the events of August 12, 2007, and his
confrontation with Ziegler and Megargel is contradicted by numerous sources,
including Verdi's brother.
Verdi's brother, David Monaghan, testified:
According to [Verdi], he was passed out, drunk on a couch,door knock, like a banging on the door, and they wouldn't stop.So he got up and went over and opened the door and basicallysaid that, no, they came in. He wasn't sure who the hell thiswas. * * * They just kind of came in on him, and a scuffleensued. And he was basically tased, he fell, hit his head, and hewas - - I think he was out at that point. Basically said he hadthe crap beat out of him, you know, and that was that.
Monaghan confirmed that Verdi told him the cops "beat the crap out of him," a
"scuffle" occurred inside his apartment, he had been sleeping on the couch kind of
passed out. heard the knocking, remembered getting up and opening the door, the
police were there and a "scuffle" ensued, resulting in the cops beating the crap out
of him and tasing him. SUF 91-92.
Verdi admits telling at least one co-worker named Tim that he was injured in
a bar fight. On September 27, 2007, Verdi told a physician's assistant in Midvale,
Utah, that on August 13, 2007, he got in a yelling match with some college kids in
Montana and "they had their way with me." According to Verdi's closest Montana
friend and a co-worker, he was with Verdi before the incident, Verdi was drinking
and taking "medications." Verdi knew he should not be drinking and taking
medication. Verdi told his friend that after he left, he went to a house party with9. BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT RE: ZIEGLER AND
MEGARGEL
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some neighbors, drank until he became "pretty intoxicated," walked upstairs to his
apartment, played some guitar, and basically passed out naked in his house. SUF
90, 93, 95. Verdi's friend and co-worker also confirmed that Verdi told other co-
workers he was injured in a scuffle in a bar. SUF 94.
A December 11, 2007, email to one of Verdi's female friends, agam,
contradicts his testimony of lack of recollection and provides insight into his true
intent. He advised that before the August 12, 2007, incident, he was planning on
moving from Montana because he was lonely, living in a college town, and
partying like he was 21 again. He was running himself into a drinking rut. He
explained:
[D]on't say anything, but that's how my injuries happened, a coupleof cops beat the shit out of me in my house for no reason but being tanand drunk.
Verdi went on to tell his friend he did not want to jinx himself, but he expected to
receive lots of"duckets," i.e., money: "Hopefully there's a large settlement." SUF
96-98.
On January 4, 2009, an eerily similar incident involving Verdi and local law
enforcement happened. Verdi started drinking, blacked out, and after law
enforcement officers were called to his home, he pointed a pistol, later determined
to be a BB gun, at the responding officers. He also cut and stabbed himself. He
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was physically restrained, taken it custody, and involuntarily committed for
psychiatric watch. SUF 99.
The incident began because Verdi was drunk, acting strange, calling and
texting his family telling them he was going to kill himself. Verdi's brother, and
his brother's father-in-law, notified local police because they were concerned about
Verdi's welfare. They met officers at Verdi's residence. His brother explained to
the officers that Verdi had previously been involved in another incident where he
was threatening suicide and fought with officers who tased him. His brother told
the officers that Verdi had previously attempted "suicide by cop," meaning that he
could do something to make it so law enforcement would have to kill him. SUF
99-113.
All present, including the law enforcement officers, agreed that when the
door to Verdi's home was opened, he was at the top of the stairs with what
appeared to be a weapon. Just as in the August 12, 2007, incident, one of the
responding officers reported that as verbal commands were yelled to Verdi "he was
looking at some point, but he - it was like he couldn't hear him. He wasn't - or
just chose not to obey his commands." (Emphasis added.) When officers
attempted to take Verdi into custody, he tensed up, resisted their efforts to handcuff
him, and only complied after one of the officers drew his taser, placed it against his
back, and threatened to use it. SUF 102-108, 110-111.
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Although not clearly defined, the Second Amended Complaint alleges
Ziegler and Megargel violated Verdi's Fourth Amendment rights by supposedly
using excessive force. Second Amended Complaint, Dkt. 82 at 13-14. It also
asserts a "due process" violation based on the same allegation of excessive force.
Id. The only "force" alleged is the use of a taser by Ziegler and the application of
handcuffs, admittedly by Megargel. With this background established, Ziegler and
Megargel now show why the are entitled to summary judgment.
ARGUMENT
Summary Judgment Standards
Pursuant to Rule 56(a), Fed. R. Civ. P., [t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law. Ziegler and
Megargel have cited to particular parts of materials in the record, including
deposition testimony, to support their Motion, all in compliance with Rule
56(c)(1)(A). They have met their initial burden ofinfonning the court of the ~ases
for their Motion and identifying those portions of the pleadings and depositions
that they rely on to demonstrate the absence of any genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It is appropriate to rely on
case law decided before the 2010 amendments to Rule 56 as "[t]he standard for
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granting summary judgment remains unchanged." Fed. R. Civ. P. 56, Notes of
Advisory Comm. on 2010 Amendments.
A plaintiff opposing a properly supported motion for summary judgment
may not rest on his allegations alone to defeat summary judgment without "any
significant probative evidence tending to support the Complaint." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249, citing First National Bank ofArizona v.
Cities Service Co., 391 U.S. 253 (1968). "If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted." Anderson, 477
U.S. at 249-250. Only disputes over facts that might affect the outcome of the
lawsuit under the governing law are "material," and will properly preclude entry of
summary judgment. Id. at 248. When the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party, there is no "genuine issue for
trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). Based on these standards, summary judgment should be granted in favor
of Ziegler and Megargel.
Plaintiff Has No Viable Claim For Relief Based On Alleged "Excessive Force"
Plaintiffs federal Constitutional claim based on alleged excessive force is
analyzed under a Fourth Amendment "objective reasonableness" standard, taking
into account the totality of the factual circumstances presented to Ziegler and
Megargel at the time force was used. Graham v. Connor, 490 U.S. 386, 395-96
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(1989). "[All! claims that law enforcement officers have used excessive force ...
should be analyzed under the Fourth Amendment and its 'reasonableness'
standard, rather than under a 'substantive due process approach.'" Id. at 395; Katz
v. u.s., 194 F.3d 962, 967 (9th Cir. 1999). Consequently, Plaintiff's "due process"
claim should be summarily dismissed.
The standard of objective reasonableness under the totality of the
circumstances confronting law enforcement officers is the touchstone of the
analysis. Id. at 397-98. "Objective reasonableness" is not capable of "precise
definition or mechanical application." A careful analysis must be made of the
specific facts and circumstances presented to the officers at the time the disputed
force is utilized. Graham, 490 U.S. at 396-97. See also, Saucier v. Katz, 533 U.S.
194, 204-06 (2001).
In evaluating objective reasonableness, based on the totality of the specific
facts, a court may consider: 1) the severity of the crime at issue; 2) whether the
suspect posed an immediate threat to the safety of the officers or others; and 3)
whether he is actively resisting or attempting to evade arrest by flight. Graham at
396-97. "These factors, however, are not exclusive. Rather, we examine the
totality of circumstances and consider 'whatever specific factors may be
appropriate in a particular case,' whether or not listed in Graham." Bryan v.
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MacPheson, 630 F.3d 805, 826 (9 th Cir. 2010), citing Franklin v. Foxworth, 31
F.3d 873, 876 (9th Cir. 1999).
Objective reasonableness IS always judged from the perspective of a
reasonable officer on the scene taking into account "split-second judgments
officers are required to make in 'tense, uncertain, and rapidly-evolving' situations."
The Court in Graham also stressed: "[t]he 'reasonableness' of a particular use of
force must be judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight." [d. at 396.
The Court cautioned not to consider the "underlying intent or motivation" of
the officers when force was used. Rather, "the 'reasonableness' in an excessive
force case is an objective one: the question is whether the officers' actions are
'objectively reasonable' in light of the facts and circumstances confronting them
without regard to their underlying intent or motivation." [d. at 396-398.
An officer's evil intentions will not make a Fourth Amendmentviolation out of an objectively reasonable use of force; nor will anofficer's good intentions make an objectively unreasonable use offorce constitutional * * * The Fourth Amendment inquiry is one of"objective reasonableness" under the circumstances, and subjectiveconcepts like 'malice' and 'sadism' have no proper place in thatmqUIry.
Id. at 398-99.
The Ninth Circuit Court of Appeals and the Montana federal district courts
have adopted the Graham standards in evaluating the objective reasonableness of a
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law enforcement officer's use of force. See, e.g., Luchtel v. Hagemann, 623 F.3d
975,980 (9 th Cir. 2010); Jackson v. Johnson, 797 F.Supp.2d 2057 (D. Mont. 2011);
Groves v. Croft, 2011 WL 5509028 (D. Mont. 2011).
The Ninth Circuit, in conformity with the Supreme Court, follows the rule
that of the three Graham factors, whether a person poses an "immediate threat to
the safety of the officers or others" is the "most important." Luchtel, 623 FJd at
980; Groves at 16. The record establishes that the safety of Megargel was
threatened when Verdi unexplainably charged him. He posed an "immediate threat
to the safety of [Megargel]." Thus, under the totality of the circumstances known
to Ziegler, it was objectively reasonable to deploy his taser at Verdi. Luchtel, 623
F.3d 975, 980, citing Smith v. City ofHemet, 394 F.3d 629, 702 (9th Cir. 2005).
Based on the facts of this incident, the other commonly cited Graham factors
do not come into play. At the time the officers initiated their welfare check and
were seeking to provide assistance to Verdi, they were not contemplating that he
was engaged in criminal activity. Nor were they concerned about him attempting
to resist or evade arrest. But, because of Verdi's unprovoked and totally
unexpected conduct, Ziegler was faced with making a "split second judgment" in
what suddenly became "a 'tense, uncertain, and rapidly-evolving situation. '" See
Graham, 490 U.S. at 396-97.
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The focus of the objective reasonableness inquiry rests on the actual conduct
presented to the officers. At the time the taser was deployed or handcuffs applied,
whether they believed Verdi committed a crime or not, is irrelevant. The question
is whether an objectively reasonable officer confronted with the totality of factual
circumstances known to Ziegler and Megargel was justified in using force.
Considering the unprovoked attack on Megargel, the use of force by Ziegler was
justified. And, the brief application of handcuffs was appropriate to protect
everyone's safety. See, e.g., Muehler v. Mena, 544 U.S. 93 (2005) (use of
handcuffs for safety of law enforcement officers did not constitute Fourth
Amendment violation. ld. at 98,100, 102.)
The admissions by Verdi to his family and friends, even though he told his
friends - "don't say anything" - make clear there was some type of confrontation
and "scuffle" between the officers and Verdi. Verdi's own brother confirms in
graphic detail that Verdi's feigned of lack of memory, for purposes of this lawsuit,
is simply unbelievable. The audio from Ziegler's personal recorder indisputably
captured the sounds of at least a "scuffle," as repeatedly reported by Verdi to his
friends and family.
The Supreme Court in Scott v. Harris, 550 U.S. 372 (2007), made clear that
"[w]hen opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court
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should not adopt that version of the facts for purposes of ruling on a motion for
summary judgment." [d. at 380. In Scott, there was a videotape from a pursuing
police car that contradicted the fleeing subject's version of the alleged disputed
events. The Supreme Court rejected the notion that the trial court must accept the
opposing party's facts for purposes of ruling on defendant's summary judgment
motions. Rather, it relied upon what it could see and hear itself in the videotape.
The same is true here regarding Ziegler's audio. Coupled with Verdi's own
admissions, it is undisputed that Verdi's conduct prompted the use of Ziegler's
taser. See also, Ricci v. DeStefano, 557 U.S. 537, 586 (2009) ("facts must be
viewed in the light most favorable to the non-moving party only if there is a
'genuine' dispute as to those facts," id. at 586, citing Scott) (emphasis added);
Wilkinson v. Torres, 610 F.3d 546 (9th Cir. 2010) ("when the facts, as alleged by
the non-moving party, are unsupported by the record such that no reasonable jury
could believe them, we need not rely on those facts for purposes of ruling on [a]
summary judgment motion." [d. at 550.)
The court must consider separately the claims of excessive force. The use of
the taser by Ziegler cannot be imputed to Megargel. Megargel's application of
handcuffs cannot be imputed to Ziegler. The unprovoked attack on Megargel
justified Ziegler's use of his taser, all as fully explained above.
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The conclusory allegation of the Second Amended Complaint that the
officers "repeatedly tightened the handcuffs over a period of 5 minutes ...," Dkt.
82 at 6, , 17, is totally unsupported by the factual record. The only evidence in the
record confirms the handcuffs were adjusted to ensure they were not too tight or
loose. SUF 33-34. The handcuffs were only in place for a few minutes until they
were removed per the request of emergency medical personnel. Ex. 2 (0168 -
0169). Verdi produced no medical evidence that he was injured by the handcuffs.
However, there is undisputed medical evidence that no injury was caused by the
brief handcuffing. SUF 72. See, Law v. City ofPost Falls, 772 F.Supp.2d 1283
(D. Id. 2011) (conclusory allegations unsupported by factual support of excessive
force in handcuffing insufficient to defeat summary judgment, lack of medical
support that handcuffs caused injury. [d. at 1300); Arpin v. Santa Clara Valley
Trans. Agency, 261 F.3d 912,922 (9th Cir. 2001).
Under Any Circumstance, Ziegler and Megargel Are Entitled To QualifiedImmunity Against Plaintiff's Fourth Amendment Excessive Force Claim.
Qualified immunity protects government officials from civil liability to the
extent their conduct does not violate clearly established Constitutional rights of
which a reasonable law enforcement officer would have known. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); Phillips v. Hust, 477 F.3d 1070, 1079 (9th
Cir.2007).
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A two-tiered analysis must be employed by the court when examining the
issue of qualified immunity. First, do the facts show that the officers' conduct
violated a Constitutional right? If not, the inquiry ends and plaintiff cannot prevail.
If yes, the court must determine whether the right was clearly established. This
inquiry is objective but fact specific. Saucier v. Katz, 533 U.S. 194, 200-202
(2001); Mattos v. Agarano, 661 F.3d 433,440 (9th Cir. 2011). The court may first
look to step two of the analysis to resolve the qualified immunity question.
Pearson v. Callahan, 555 U.S. 223 (2009). In this case, it is clear that the conduct
of the officers did not violate any Constitutional right of Plaintiff. Consequently,
liability cannot be imposed against them.
Qualified immunity applies to Plaintiff s allegations of excessive force. "If
an officer's use of force was 'premised on a reasonable belief that such force was
lawful,' the officer will be granted immunity from suit, notwithstanding the fact
that excessive force was deployed." Bryan, 630 F.3d at 832, citing Deorie v.
Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001). The qualified immunity analysis
asks: "whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202
(2001). In other words, was it reasonable for the officers to conclude that the level
of force utilized, i.e., Ziegler's use of a taser to stop Verdi's charge at Megargel,
was reasonable? See Bryan, 630 F.3d at 832. Here, it was objectively reasonable
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for these officers to utilize the level of force they did. Consequently, under all
circumstances, they would be entitled to qualified immunity.
Judge Molloy addressed the issue of qualified immunity in the context of a
law enforcement officer deploying his taser in a dart mode in Jackson v. Johnson,
797 F.Supp.2d 1057 (D. Mont. 2011). He cited to Bryan, supra, for the
proposition that in that case "the officer was entitled to qualified immunity because
prior to the Bryan opinion there had been no Ninth Circuit case declaring a taser to
constitute an intermediate use of force. Id. at 1071. He established the "effect" of
the Bryan decision when a law enforcement officer seeks qualified immunity based
on taser use in a dart mode:
The effect of Bryan's qualified immunity analysis is that before theBryan opinion, a police officer was entitled to qualified immunityagainst any excessive force claim based on the use of a taser, providedthat at least some degree of force was reasonable under thecircumstances. Whether Deputy Johnson is entitled to qualifiedimmunity therefore turns on whether it was reasonably necessary touse any level of force under the circumstances.
Id.
Judge Molloy then examined the factual circumstances underlying the
deputy's use of his taser and concluded "this is a case in which no force was
reasonably necessary." He determined that because the deputy illegally arrested
Jackson in the first instance, "[n]o level of force can be reasonably justified in such
circumstances." Id. at 1072. However, he recognized that in Bryan, in which the
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only criminal infraction was related to seatbelt use, "the officers had probable
cause to believe a crime had been committed and therefore were justified In
effecting an arrest," including doing so with the use of a taser. Id.
Ziegler's use of a taser to stop Verdi's attack on Megargel occurred three
years before Bryan was decided. Because there is no question that Ziegler had the
right to utilize "some degree of force," just as Judge Molloy recognized in Jackson,
he and Megargel are entitled to qualified immunity. See also, Groves at 22; Mattos
v. Agarano, 661 F.3d 433 (9th Cir. 2011) (qualified immunity granted to officer
who tased "the potential non-threatening victim of the domestic dispute whom the
officers ostensibly came to protect," and officers who tased woman seven months
pregnant because she refused to accept a traffic citation for speeding. 661 F.3d
448, 452.) In both cases referenced in Mattos, the alleged wrongful conduct
occurred prior to the court's decision in Bryan v. MacPherson.
The Sanction Order Does Not Preclude Summary Judgment
The Sanction Order recently issued by the court cannot be used to deny
summary judgment to Ziegler and Megargel on Plaintiffs excessive force claim
brought pursuant to the Fourth Amendment. The Sanction Order interjects
subjective factors into what must be a purely objective analysis of reasonableness
based on the totality of the circumstances at the time the officers utilized force.
The Sanctions Order is based solely on events or conduct allegedly occurring after
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the disputed force was utilized. Under the objective reasonable standard, the
alleged conduct forming the factual bases of the Sanctions Order cannot be relied
upon in deciding the excessive force issue against Ziegler and Megargel. Reliance
upon the Sanctions Order to defeat summary judgment in favor of the officers on
the excessive claim, based on the alleged events or conduct post use of force,
would be totally inconsistent with and contrary to 24 years of established federal
precedent first articulated in Graham v. Connor.
The Sanctions Order makes numerous factual and legal findings and
conclusions disputed by Ziegler and Megargel. There is no dispute, however, that
the factual findings all relate to alleged conduct that occurred long after Verdi was
tased, handcuffed, and after numerous independent emergency services personnel,
including ambulance and fire, were on scene and with Verdi and the officers. The
Order cites to and relies upon Peschel v. City ofMissoula, 664 F.Supp.2d 1137 (D.
Mont. 2009), as legal authority for imposing the sanction. But, Peschel is
critically, factually distinguishable from the present case.
In Peschel, the missing in-car video depicted events and conduct before, up
to, and contemporaneous with the disputed use of force by the involved police
officers. In other words, the missing video arguably contained relevant evidence
because it depicted "the facts and circumstances confronting [the officers] ..."
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upon which the objective reasonableness standard would be based. Graham, 490
U.S. at 398.
Conversely, the Sanctions Order in this case is based entirely upon "facts
and circumstances" having nothing whatsoever to do with what "confront[ed]"
Ziegler and Megargel when Verdi was tased. It is noteworthy, though, that the
"facts and circumstances confronting [the officers]" at the time force was used was
captured on Ziegler's audio and was preserved for purposes of the "objective
reasonableness" analysis, as fully explained and documented above. Reliance
upon the Sanctions Order to defeat summary judgment would impute the alleged
"officers' evil intentions" to be substituted for the objective reasonableness
standard. Again, as directed by the Supreme Court: "[a]n officer's evil intentions
will not make a Fourth Amendment violation out of an objectively reasonable use
of force. * * * The Fourth Amendment inquiry is one of 'objective
reasonableness' under the circumstances, and subjective concepts like 'malice' ...
have no proper place in that inquiry." Graham at 398-99.
All Remaining Claims Against Ziegler and Megargel in Their IndividualCapacities Should Be Dismissed Based on Statutory Immunity
The alleged wrongful conduct of Ziegler and Megargel occurred while each
officer was acting in the course and scope of his employment for the City of
Bozeman and its police department. Answer to Second Amended Complaint
(Megargel/Ziegler) at ~ II, Dkt. 83 at 2.24. BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT RE: ZIEGLER AND
MEGARGEL
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Mont. Code Ann. § 2-9-305 provides in relevant part:
[i]t is the purpose of this section to provide for the immunization,defense, and indemnification of public officers and employees civillysued for their actions taken within the course and scope of theiremployment.
In any non-criminal action brought against any employee of a state,county, city, town, or other governmental entity for a negligent act,error, or omission, including alleged violations of civil rights pursuantto 42 U.S.C. 1983, or other actionable conduct of the employeecommitted while acting within the course and scope of the employee'soffice or employment, the governmental entity employee, except asprovided in subsection (6), shall defend the action on behalf of theemployee and indemnify the employee.
* * *.
In any non-criminal action in which a governmental entity employeeis a party defendant, the employee must be indemnified by theemployer for any money judgment or legal expense, includingattorney fees either incurred by the employee or awarded to theclaimant, or both, to which the employee may be subject as the resultof the suit unless the employee's conduct falls within the exclusionsprovided in subsection (6).
Id. at (1), (2), and (4). (emphasis added)
The exceptions identified in the statute set out in subsection (6) do not apply
because there has been no judicial determination that the conduct of the individual
officers constitute oppression, fraud, or malice, that their conduct was criminal,
that they settled or compromised the claim without consent, or that they failed or
refused to cooperate reasonably in the defense of this lawsuit. Id. at § 2-9-
306(6)(a)-(d). The officers are entitled to statutory immunity. See, Kenyon v.
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Stillwater County, 254 Mont. 142, 835 P.2d 742 (1992) [overruled on other
grounds in Heiat v. Eastern Montana College, 275 Mont. 322, 331, 912 P.2d 787,
793 (1996)]; Kiely Const. LLC v. City of Red Lodge, 202 MT 241; Germann v.
Stephens, 2006 MT 130.
CONCLUSION
For all the foregoing reasons, summary judgment should be granted to
Marek Ziegler and Greg Megargel.
DATED this 11 th day ofFebruary, 2013.
/s/ Brendon J. RohanBrendon J. RohanPoore, Roth & Robinson, P.C.Attorneys for Defendants Greg Megargel
and Marek Ziegler
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CERTIFICATE OF COMPLIANCE
Pursuant to Local Rules 7.1(d)(2) and 10.1 (a), I certify that this brief is
printed in font size of 14 points; is double spaced; and the word count calculated
by Microsoft Word is 6,153 words, excluding the caption, Certificate of Service
and Certificate of Compliance.
DATED this 11 til day of February, 2013.
/s/ Brendon J. RohanBrendon J. RohanPoore, Roth & Robinson, P.C.Attorneys for Defendants Greg Megargel
and Marek Ziegler
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CERTIFICATE OF SERVICE
I certify that on February 11, 2013, a copy of the foregoing document was
served on the following persons by the following means:
1,2,3,4,5 CMIECF___.Hand Delivery___.Mail___Overnight Delivery Service
Fax---'E-mail---'
1. Clerk, U.S. District Court
2. Ryan K. Jackson, Esq.Jackson Law P.C.Attomey(s) for Plaintiff, Roger G. Segal
3. Thomas D. Shea, Jr., Esq.Shea Law Firm, P.L.L.C.Attomey(s) for Plaintiff, Plaintiffs Roger G. Segal
4. Michael J. Lilly, Esq.Berg, Lilly & Tollefsen, P.C.Attomey(s) for Defendants, City of Bozeman and City of Bozeman PoliceDepartment
5. Michele 1. Braukmann, Esq.Ross W. McLinden, Esq.Moulton Bellingham PCAttorney(s) for Defendants, Mark Tymrak and Martin Kent
lsi Brendon J. RohanBrendon J. RohanPoore, Roth & Robinson, P.C.Attomeys for Defendants Greg Megargel
and Marek Ziegler
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