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Emery v. Salt Lake City Corp.

United States District Court, D. Utah, Central Division

March 30, 2018

DON EMERY, Plaintiff,
v.
SALT LAKE CITY CORPORATION, OFFICER TIMOTHY STUMM, OFFICER KEVIN STAYNER of the SALT LAKE CITY POLICE DEPARTMENT, and UNNAMED OFFICERS OF THE SALT LAKE POLICE DEPARTMENT, individually and in their official capacity, and JOHN DOES 1-10, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGEMENT

          Honorable Robert J. Shelby, U.S. District Court Judge.

         Plaintiff Don Emery seeks in this case to recover for injuries he allegedly received during a traffic stop in Salt Lake City in the early evening of March 30, 2010. Emery was stopped for driving with an expired car registration, but it was soon determined that his car would need to be impounded because his driver's license was suspended. After he removed his belongings from his car, and a tow truck driver got his car onto a flatbed truck, Emery realized he was missing his house keys. He approached his car, opened the passenger side door, reached inside, got his keys from the ignition, and walked away. Salt Lake City Police Officers Timothy Stumm and Kevin Stayner then tackled and pinned him to the ground, punched, and Tased him multiple times.

         Emery has sued Officers Stumm and Stayner, as well as Salt Lake City Corporation. He asserts against Officers Stumm and Stayner a claim pursuant to 42 U.S.C. § 1983 for excessive force in violation of the Fourth Amendment's prohibition of unreasonable seizures. There is no clearly-articulated claim separately asserted against Salt Lake City.

         Salt Lake City and both Officers now move the court for summary judgment.[1] They ask the court to conclude as a matter of law that: 1) there is no basis for municipal liability against Salt Lake City, and 2) the Fourth Amendment claim against the Officers[2] fails as a matter of law because they enjoy qualified immunity.

         For the reasons discussed below, the court concludes Salt Lake City is entitled to summary judgment in view of the Complaint's allegations, prior rulings, and the evolution of the summary judgment briefing. But Officers Stumm and Stayner have not established that summary judgment on qualified immunity grounds is appropriate. Though the parties will undoubtedly advance starkly different versions of the facts at trial, the court at this summary judgment stage generally must accept Emery's version of disputed facts. And Emery has come forward with evidence and legal authority to support a conclusion that-at least under the version of the facts the court must accept now-the Officers violated his Fourth Amendment rights under law that was clearly established at the time of his traffic stop. The court thus cannot rule as a matter of law that the Officers are immune from suit.

         I. Background

         Below, the court sets forth below the facts that are established for purposes of evaluating Defendants' motion. But the court first resolves two evidentiary objections Defendants raise in response to an affidavit Emery submitted in opposition to Defendants' motion.

         A. Defendants' Evidentiary Objections to Emery's Affidavit

         Emery testifies in an affidavit in support of his opposition to Defendants' motion that:[3]

[t]he car was not moving, and the tow driver had turned the key to unlock the steering wheel lock without turning the car on. I opened the passenger door, reached into the car, and removed the ignition key from the ignition, which I believed had the remainder of my house and personal keys on it. I did not have any contact with the tow driver. I realized I did not have house keys or other necessary keys, so I went to the vehicle to retrieve my keys from the ignition. The tow truck driver was preparing to remove the vehicle and I did not believe the driver needed my keys to take the vehicle.[4]

         Defendants object to this testimony on two grounds. First, they claim that Emery's statement that the “car was not moving” contradicts his prior deposition testimony, and thus is merely an attempt to create a “sham” issue of fact to avoid summary judgment. Second, they urge the court to disregard as lacking foundation Emery's statement that the tow driver “turned the key to unlock the steering wheel lock without turning the car on” because Emery was not in the car and directly viewing the steering wheel at that time, and thus lacked personal knowledge of those facts. The court addresses these objections in turn, overruling both.

         1. Affidavit testimony that “the car was not moving”

         If a party submits an affidavit in opposing summary judgment that conflicts with prior testimony, the court will disregard it “when it ‘constitutes an attempt to create a sham fact issue.'”[5] “Factors to be considered in determining whether an affidavit presents a sham issue include ‘whether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain.'”[6] As discussed below, the court finds Defendants have failed to establish that there is a conflict between Emery's deposition testimony and the testimony he offers in the new affidavit.

         Defendants contend Emery's affidavit testimony that the car was not moving when he opened the door and reached in conflicts with the following prior deposition testimony:

Q. Okay. So tell me what you remember about the tow truck driver arriving and what the tow truck driver did.
A. He got in -- first of all, he hooked up the chain to the front, I think on both sides, and he had put it into neutral and was winching it on, and I realized I didn't have my keys.
Q. Okay.
A. So I jumped up, hang onto the car, and I went to the door, and I opened the door and reached for the keys, and I took the keys, and I stepped back away from the car, and there was no other keys. My keys were gone.
Q. Oh, so you went back to go get your house keys out of --
A. Out of the car.
Q. And they didn't -- A. And there was no keys except for the ignition key. And I'm sitting there, where's my keys, in my mind.
Q. Okay.[7]

         But upon comparing the affidavit and the deposition testimony, the court cannot conclude that there is a conflict. Emery's deposition testimony was in response to an open-ended question from Defendants' counsel about “what the tow truck driver did.” Emery answered that he recalled that the tow truck driver chained the car, put the car in neutral, and was winching it when Emery then realized he did not have his keys. Upon this realization, Emery jumped up and went to the car. The deposition testimony is silent as to whether the car was in motion or still when Emery opened the door and reached inside for his keys. And Defendants' counsel did not seek clarification on that issue by asking Emery whether the car was moving or stopped when those actions occurred. That question, or something like it, was not asked; thus no answer to it is before the court. Emery's affidavit suggesting that the car was stopped when he opened the door and reached inside is therefore not in clear conflict with the deposition testimony.[8]

         2.Affidavit testimony that the tow driver “turned the key to unlock the steering wheel lock without turning the car on”

         Rule 56(c)(4), Federal Rules of Civil Procedure, provides that an affidavit “used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Defendants argue Emery lacks this requisite personal knowledge to testify what the tow truck operator did because he “was not in the vehicle and he did not personally observe the tow truck operator unlocking the steering wheel.”[9]

         But Defendants offer no citation to any testimony for the proposition that Emery was not observing the tow truck driver. And while it is true he was not sitting inside the car, it does not follow from that fact alone that Emery could not have observed the tow truck driver taking his car, or is otherwise so lacking in personal knowledge of what the tow truck driver did that this statement must be excluded.

         The evidence suggests Emery was close to the car as it was placed onto a flatbed truck, and he testified at some length in his deposition about what the tow truck driver was doing when Defendants' counsel questioned him on that subject. Some of that deposition testimony is set forth above-including that the driver put the car into neutral. The driver was also moving Emery's car, and it is reasonable to infer that Emery was familiar with how his car operated and sounded. It is also reasonable to infer that where Emery was not far away from the car, he might have heard the engine if the car were started. Indeed, he testified multiple times in his deposition upon questioning by Defendants' counsel that the car was not on:

Q. Okay. But you don't remember him-was the engine on in the car?
A. No.
Q. It wasn't on?
A. No.[10]
* * *
Q. Q. Okay. And you don't remember the tow truck driver ever turning the car engine on?
A. No. Never did. . . .[11]

         Emery could see the car had been moving, but that the engine had not been started. Emery also testified in his affidavit that he had previously worked as a tow truck driver. And, it is undisputed that Emery reached into the car and got the keys. He reasonably could have perceived at that close range if the car was on and the position of the keys.

         Based upon the foregoing, both of Defendants' evidentiary objections to Emery's affidavit testimony are overruled.

         B. Facts Relating to the Stop and the Officers' Conduct

         Where genuinely disputed, the court “view[s] the facts and draw[s] reasonable inference[s] in the light most favorable to” Emery, as he is “the party opposing the summary judgment.”[12] But because the case concerns a qualified immunity defense, the court considers “only the facts that were knowable to the defendant officers.”[13]

         The parties in their briefing dispute only a few facts, most notably: 1) whether Emery heard the tow truck driver turn a key and unlock the steering wheel on his car; 2) whether Emery's car was in motion due to winching or to actually being driven by the tow truck driver when Emery reached into the car to get his keys; 3) whether Emery was ever told he was going to be handcuffed; 4) whether Emery was screaming profanity at the Officers and accusing them of wanting to steal his property; and 5) whether Emery's left arm was pinned underneath his body by the Officers, making it impossible for him to comply with commands to show both of his hands. The court has overruled Salt Lake City's objection to Emery's testimony concerning whether he could have heard the driver unlock the steering wheel and the car's lack of movement at the time he reached inside. And, Emery's version of the underlying facts-that he had not been told he was going to be handcuffed, was not screaming, and that his left arm was pinned under his body by Officers Stumm and Stayner-governs at this stage when the court considers the Defendants' entitlement to summary judgment.

         Other purported disputes the parties identify in the briefing largely are not genuine disputes of facts, but are differing characterizations of facts, supplementations of the other side's facts, or disputes about whether offered facts are relevant to the court's analysis.[14] Though the characterizations and supplementations may be disputed at another stage, the court at summary judgment views the facts and reasonable inferences from them in a light favorable to Emery. With this in mind, the court considers the following facts in resolving Defendants' Motion.

         On March 30, 2010, Salt Lake City Police Officer Timothy Stumm pulled over a car that Don Emery was driving for having an expired registration tag on the license plate. The stop occurred at 55 South on 700 East Street in Salt Lake City, in the early evening.[15] Officer Stumm notified Emery of the reason for the stop, retrieved Emery's driver's license without incident, and returned to his car to run checks.[16] The checks confirmed that the car registration was expired and further revealed that Emery's driver's license was suspended.[17]

         Officer Stumm wrote a citation for the two violations and, knowing he needed to impound Emery's car, called for another officer to help. This was standard practice in those circumstances, [18] and Officer Stumm knew people may become upset when their car is towed.[19]Salt Lake City Police Officer Kevin Stayner responded to the scene to assist Officer Stumm. Officer Stumm then approached Emery's car again to inform him of the citations and that his car would be impounded. Officer Stumm asked Emery to exit his car. Emery complied. Officer Stumm then searched Emery's person, giving him a “pat-down.”[20] This too was accomplished without incident.

         Officer Stumm told Emery he would need to remove any valuables from his car. Emery did so without help, though he does walk with an obvious limp. He placed his belongings on a grassy area east of the sidewalk running along 700 East.[21] The Officers watched Emery as he removed an oxygen tank from the car, but could not recall other specific items he removed.[22]Officer Stumm did not observe anything of concern as Emery emptied his car.[23] Then, the car was inventoried.[24]

         At some point, a flatbed tow truck arrived at the scene. The Officers gave the tow truck driver Emery's car key, which the Officers had earlier obtained from Emery. Emery was at that time on the grass by his belongings, just east of the vehicles.[25] The Officers were standing together, some distance from Emery, at the front of Officer Stump's patrol car, behind (south of) the tow truck and Emery's car.[26] There is no evidence that Officer Stumm or Officer Stayner gave Emery any orders, let alone any instructions or suggestions, on where he was required to be or what he was required to do while the tow truck driver worked-such as that he was to sit and wait in a certain area, or that he was no longer allowed to approach his car.[27]

         The tow truck driver hooked a chain to the front of the car, put the car into neutral, and was winching it onto the flatbed truck while sitting inside the car in the driver's seat.[28] At that point, Emery realized he did not have his house keys.[29] He walked toward his car, which was not moving at that time and had the engine turned off.[30] There is no evidence in the record now before the court that Officers Stumm or Stayner saw Emery heading toward his car and ordered him to stop. When he got to his car, Emery said nothing to the tow truck driver, opened the passenger door, reached into the car, and took the key from the ignition-thinking his house keys would be attached.[31]

         Apparently by that point, Officers Stumm and Stayner saw Emery at his car and became concerned that he was attacking, or about to attack the tow truck driver. They moved to respond.

         But Emery had not attacked the driver at all. And before the Officers got to him, he had gotten out of the car with the key in his left hand, turned and walked about three feet from the car to the sidewalk, and realized despite his efforts he still did not have his house keys.[32]

         Officers Stumm and Stayner nonetheless together grabbed and tackled Emery onto the grassy area east of the sidewalk alongside the road.[33] Officer Stayner was on Emery's right side, and had partial control of his right arm. Officer Stumm was on Emery's left side, where Emery's left arm was under his body, making it impossible for the Officers to cuff both hands.

         Emery contends he was never told he was being arrested or warned he was going to be handcuffed. The Officers instructed Emery to stop struggling, give them his keys, and show his hands. But his left arm, with the keys in hand, was pinned under his body. His right arm was extended and pinned under an officer's arm.[34] Officer Stumm then punched Emery's left shoulder three times with a closed fist. After warning Emery that if he continued to struggle and did not give the Officers his hands, [35] Officer Stayner used his Taser on Emery's right shoulder for about five seconds, applying the Taser's ‘drive stun' mode[36] and causing Emery to writhe in pain but leaving his left arm still pinned underneath him.[37] Officer Stumm tried to use a baton to pry out Emery's left arm, but the arm was still pinned beneath his body.[38] Officer Stumm then kneed Emery's side, [39] resulting in a fractured rib and bruised kidney.[40] Officer Stayner then Tased Emery once again, using drive stun mode, for an extended period.[41] Emery's body relaxed, the Officers placed his hands into cuffs, and he was taken to an emergency room via ambulance.[42]

         C. Procedural Background

         Emery filed suit in September 2013.[43] In June 2014, Defendants filed a Motion for Judgment on the Pleadings, [44] arguing based only on the Complaint, Emery's claims failed as a matter of law. Briefing on that motion concluded on September 23, 2014.[45] On September 26, 2014, the court set a hearing for January 13, 2015. At that hearing, the parties stipulated to the dismissal of all Emery's causes of action except his first, for Excessive Force in Violation of the Fourth Amendment brought pursuant to 42 U.S.C. § 1983 against Officers Stumm and Stayner. Applying the same qualified immunity legal principles relevant to the present Motion and discussed below, the court ruled that this cause of action survived Defendants' motion.[46]

         Two and a half years later, on June 22, 2017, Defendants filed the present Motion for Summary Judgment.[47] After receiving Emery's opposition in September, the court set a hearing for January 2018. At the parties' request, the court moved the hearing to February 20, 2018. The court heard argument on the Motion on February 20, 2018. David Pace appeared for Emery. Samantha Slark appeared for Officer Stumm, Officer Stayner, and Salt Lake City.

         II. Summary Judgment Motion

         Under Federal Rule of Civil Procedure 56(a), the court may grant Defendants' Motion for Summary Judgment only if they “show[] that there is no genuine dispute as to any material fact and [are] entitled to judgment as a matter of law.”[48] Below, the court first considers whether Salt Lake City is entitled to summary judgment, then turns to the arguments advanced by Officers Stumm and Stayner.

         A. Emery Has Not Established, and Does Not Even Argue, a Basis for Liability against Salt Lake City

         The City moves for summary judgment, arguing Emery has set forth no basis under which it may be liable to him. Emery asserts no distinct claim against Salt Lake City in his Complaint, and he does not contest the portion of the Defendants' motion relating to Salt Lake City. For these reasons, the court concludes that Salt Lake City is entitled to summary judgment.

         B. The Officers are Not Entitled to Qualified Immunity as a Matter of Law

         Officers Stumm and Stayner move the court for summary judgment on Emery's lone Fourth Amendment excessive force claim, arguing that qualified immunity shields them from suit. Public officials sued for alleged constitutional violations may assert this defense, which “provides ‘immunity from suit rather than a mere defense to liability' . . . [and] prevents undue interference with public affairs by cutting short baseless litigation against government actors.”[49]Qualified immunity “attaches when an official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[50]

         Because Officers Stumm and Stayner assert this defense, Emery bears a “heavy two-part burden”[51] to show that: 1) the Officers violated a constitutional right; and 2) the right was clearly established at the time of the alleged violation in March 2010.[52] In evaluating whether Emery has met this burden, the court is guided by the Supreme Court's refrain that qualified “immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.'”[53]

         With these principles in mind, the court discusses below whether Emery has overcome the Defendants' Motion for Summary Judgment by showing Officers Stumm and Stayner violated his Fourth Amendment rights, and that those rights were clearly established at the time of the traffic stop.

         1. Constitutional Violation

         The Fourth Amendment ensures the right of citizens “to be secure in their persons ... against unreasonable . . . seizures.” The “threshold inquiry in the qualified immunity analysis is whether, taking [Emery's allegations] as true, ” Officers Stumm and Stayner violated his “Fourth Amendment right to be free from unreasonable seizers.”[54] “Police officers can violate that right by employing excessive force when making a seizure or an arrest.”[55] The inquiry into whether the force an officer uses is “excessive” or “reasonable” is an objective one, “depending on the ‘facts and circumstances of each particular case.'”[56]

         In conducting this inquiry, the court focuses “on the facts confronting the officers, not ‘their underlying intent or motivation.'”[57] In evaluating the reasonableness of the seizure the Defendant Officers effected, the court balances the “nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.”[58] And “reasonableness is judged ‘from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'”[59] This inquiry recognizes “the fact that the officers may be forced to make split-second judgments” under trying conditions.”[60] Here, the “qualified immunity analysis . . . is limited to ‘the facts that were knowable to the defendant officers' at the time they engaged in the conduct in question.'”[61]“Facts an officer learns after the incident ends-whether those facts would support granting immunity or denying it-are not relevant.”[62] Ultimately, the question that must be answered is “whether the officers' actions are objectively reasonable in light of the facts and circumstances confronting them.”[63]

         The Supreme Court in Graham v. Connor[64] enunciated factors to be weighed in this analysis. They “include, but are not limited to, ‘[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.'”[65] And a police officer “who has a reasonable but mistaken belief about a suspect's dangerousness may nevertheless be justified in using more force than is necessary.”[66] As discussed below, and viewing the facts before it in the light most ...


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