Dreyer v. McCall

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

RONALD DREYER, )

)

Plaintiff, )

)

v. ) Case No. 19-cv-1265-JES-JEH

)

BRYAN McCALL, )

)

Defendant. )

ORDER AND OPINION

This matter is now before the Court on Defendant’s Motion (Doc. 29) for Summary

Judgment, Plaintiff’s Response (Doc. 31), and Defendant’s Reply (Doc. 34). For the reasons set

forth below, Defendant’s Motion (Doc. 29) is granted.

BACKGROUND

The following facts are undisputed by the parties unless otherwise noted. On August 11,

2018, Bryan McCall was employed as a patrol deputy for the McLean County Sheriff’s

Department. On August 11, 2018 just after midnight, McCall was conducting a routine traffic

stop in a residential area near the intersection of North Lee Street and West Empire Street in

Bloomington, Illinois. After completing the unrelated traffic stop, McCall pulled up to the curb

of the southbound lane of Lee Street to classify information and end the recording from the

traffic stop. McCall was sitting in his patrol vehicle when he observed a truck (which McCall

would later learn was being driven by Plaintiff) pass his vehicle closely in the southbound lane of

Lee Street while honking the vehicle’s horn.1 McCall perceived the driver’s conduct in driving

1 Plaintiff lists this statement as disputed because, “[a]s Mr. Dreyer was attempting to go around the officer, he

pulled out in front of Mr. Dreyer and dipped back in; that’s when Mr. Dreyer honked his horn.” Doc. 31 at 1.

the truck close to his patrol vehicle and honking the horn to be very unusual and out of the

ordinary behavior for the average motorist when passing a patrol vehicle. Doc. 29 at 2.

Plaintiff claims McCall pulled his patrol vehicle out in Lee Street without signaling or

yielding the right of way and that Plaintiff had to swerve to avoid colliding with McCall’s patrol

vehicle. Plaintiff admits he honked his horn at McCall when passing. After observing Plaintiff’s

truck pass the patrol vehicle, McCall pulled out on southbound Lee Street to catch up to

Plaintiff’s truck. At this time, McCall had not activated his emergency lights. While Plaintiff’s

truck was still ahead of McCall’s patrol vehicle, Plaintiff brought his truck to an abrupt stop in

the middle of the roadway approximately 30 feet from the nearest stop sign before the

intersection of Lee Street and Locust Street and activated his hazards. McCall perceived the

driver’s conduct in stopping his truck in the middle of the roadway as out of the ordinary and

thought there may be something wrong with the driver or that the truck had mechanical

problems. McCall proceeded to stop his patrol vehicle behind Plaintiff’s truck, grab his police

radio and begin to let dispatch know where he was and what he was doing when he observed

Plaintiff open the driver’s side door of the truck, get out and begin approaching the patrol vehicle

while pointing his finger and yelling. Id. at 3.

There was approximately 15 feet between the back of Plaintiff’s truck and McCall’s

patrol vehicle. Plaintiff was angry and agitated as he approached McCall’s patrol vehicle yelling

obscenities including, “What the fuck is your problem, motherfucker?”2 McCall quickly exited

his patrol vehicle and observed what appeared to be an unknown item in Plaintiff’s left hand.

Because the basis for the stop is no longer at issue (see id. at 3), this dispute is not material to whether Defendant

used excessive force on Plaintiff.

2 Plaintiff lists this statement as disputed but does not explain the basis for the dispute. Doc. 31 at 1. The Court

therefore considers the statement undisputed.

McCall then instructed Plaintiff to stop walking towards him and to show his hands.3 Plaintiff

fails to comply with McCall’s instructions, stopping only momentarily, and continues yelling at

McCall and then turns around and walks back towards his truck.4 As Plaintiff is walking back

towards his truck, McCall instructs him again to stop walking and show him his hands.5 Plaintiff

disregards McCall’s commands, continues walking back to his truck and yells “fuck you” to

McCall. At this point, McCall believes it is clear that Plaintiff is not going to listen to any

commands and quickly closes the distance between he and Plaintiff as McCall does not know

what Plaintiff intends to do once he reaches the truck, i.e. whether he is going to drive away or

possibly retrieve a weapon from the truck. Id. at 4.

As Plaintiff is getting back inside his truck and trying to close the driver’s side door,

McCall holds his hand against it in hopes of preventing Plaintiff from shutting it. McCall’s

attempts to prevent Plaintiff from shutting the door are not successful and Plaintiff is able pull

the door shut and lock it with the window remaining rolled down. McCall continues to instruct

Plaintiff to get out of the truck, but Plaintiff disregards his order and tells McCall “fuck you.”

Defendant asserts McCall observed Plaintiff reaching for something on the floorboard of the

truck; Plaintiff disputes this and asserts his hands were outside the window. McCall then drew

his Taser, aimed it at Plaintiff, and instructed him to place his hands on the steering wheel.

Plaintiff proceeds to place his hands on the steering wheel but refuses to exit the vehicle, instead

telling McCall he would not exit the vehicle until McCall’s shift supervisor showed up. McCall

instructs Plaintiff several more times to get out of the truck, but Plaintiff persists in his refusal to

3 Plaintiff disputed this fact on the basis that Plaintiff does not recall being told by the officer to stop approaching

him. However, a Plaintiff’s lack of recollection is insufficient to create a material factual dispute.

4 Plaintiff lists this statement as undisputed and material, but then goes on to list it as disputed and immaterial

because “fails to comply” is a conclusion. Because Plaintiff does not properly dispute this statement, the Court

considers it undisputed.

5 Plaintiff disputed this fact on the basis that Plaintiff does not recall being told by the officer to stop walking.

However, a Plaintiff’s lack of recollection is insufficient to create a material factual dispute.

do so. According to Defendant, when McCall first aimed the Taser at Plaintiff, he pointed it at

Plaintiff’s chest and shoulder area. After Plaintiff placed his hands on the steering wheel, McCall

brought the Taser aim off him a bit. According to Plaintiff, McCall aimed the Taser at his head,

face, and neck. Id. at 5.

At this point, McCall alerts dispatch that he has an individual at Taser point and asks to

expedite a response to the scene. McLean County patrol deputy Werts arrives first on the scene

as back up, approaches Plaintiff’s truck and gives verbal commands for Plaintiff to get out of the

truck.6 Plaintiff refuses Werts’ commands as well.7 Deputy Werts then reaches through the

driver’s side window and unlocks the door while McCall opens the truck door. McCall then

grabs Plaintiff’s left arm and pulls him from the truck using a straight arm take down—a

maneuver to remove someone from a vehicle while causing the least amount of pain.8 Once on

the ground, Plaintiff was handcuffed, mirandized, and walked back to McCall’s patrol vehicle for

transport to the McLean County Detention Facility without visible injuries. Plaintiff was

thereafter charged with a traffic violation for standing/stopping in the roadway and for the

misdemeanor offense of resisting/obstructing a law enforcement officer. Plaintiff was found

guilty of the resisting/obstructing offense and sentenced to serve two days in jail. Id. at 6–7.

Plaintiff has included a number of additional material facts in his Response, but none of

them are relevant to the issue before the Court: whether Defendant used excessive force in

arresting Plaintiff. Doc. 31 at 1–2. This order follows.

6 Plaintiff disputes this statement because he does not recall any events between the Taser being pointed at him and

being pulled out of the vehicle. Doc. 31 at 1. Again, a lack of recollection is insufficient to create a material factual

dispute at summary judgment.

7 Again, Plaintiff’s dispute of this statement is based on his lack of recollection. Id.

8 Plaintiff lists this statement as disputed, stating “Mr. Dreyer was pulled out of the vehicle and thrown to the

ground.” Id. The Court is unable to discern the unstated basis for the dispute, and thus considers the statement

undisputed.

LEGAL STANDARD

Summary judgment is appropriate where the movant shows, through “materials in the

record, including depositions, documents, electronically stored information, affidavits or

declarations, stipulations … admissions, interrogatory answers, or other materials” that “there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56. In resolving a motion for summary judgment, “[t]he court has one task

and one task only: to decide, based on the evidence of record, whether there is any material

dispute of fact that requires a trial.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir.

1994).

In order to withstand a motion for summary judgment, the nonmovant must “set forth

specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250 (1986). When presented with a motion for summary judgment, the Court must

construe the record “in the light most favorable to the nonmovant and avoid[] the temptation to

decide which party’s version of the facts is more likely true.” Payne v. Pauley, 337 F.3d 767, 770

(7th Cir. 2003). If the evidence, however, is “merely colorable, or is not significantly probative

or merely raises ‘some metaphysical doubt as the material facts,’ summary judgment may be

granted.” Liberty Lobby, 477 U.S. at 249–50. Thus, in order to overcome the undisputed facts set

forth in a defendant’s motion for summary judgment, a plaintiff cannot rest on the allegations in

his complaint but must point to affidavits, depositions or other evidence of an admissible sort

that a genuine dispute of material fact exists between parties. Fed. R. Civ. P. 56(e)(2); Behrens v.

Pelletier, 516 U.S. 299, 309 (1996).

DISCUSSION

Defendant moves for summary judgment in his favor, arguing (1) Plaintiff’s unlawful

arrest claim is barred by Heck v. Humphrey, and (2) McCall did not employ excessive force in

arresting Plaintiff. Doc. 29 at 8–19. In his Response, Plaintiff concedes summary judgment is

appropriate in Defendant’s favor on the unlawful arrest claim. Doc. 31 at 3. Accordingly, the sole

issue before the Court is whether Defendant is entitled to summary judgment on Plaintiff’s

excessive force claim.

Excessive Force

Plaintiff alleges Defendant McCall9 used excessive force in arresting him by pointing his

Taser at Plaintiff’s head and neck and by pulling him from the vehicle and taking him to the

ground. Doc. 31 at 3. “Excessive-force claims in the context of an arrest are reviewed under the

Fourth Amendment’s objective-reasonableness standard.” Cyrus v. Town of Mukwonago, 624

F.3d 856, 861–62 (7th Cir. 2010) (citing Graham v. Connor, 490 U.S. 386, 395 (1989); Abdullahi

v. City of Madison, 423 F.3d 763, 768 (7th Cir. 2005)). Under this standard, courts must examine

the “totality of the circumstances to determine whether the intrusion on the citizen’s Fourth

Amendment interests was justified by the countervailing governmental interests at stake.” Id.

(citing Jacobs v. City of Chicago, 215 F.3d 758, 773 (7th Cir. 2000)). Thus, “[t]he nature and

extent of the force that may reasonably be used to effectuate an arrest depends on the specific

circumstances of the arrest, including ‘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.’” Id. (citing Graham, 490 U.S. at 396,

9 Plaintiff makes reference to the lawfulness of Deputy Werts’ conduct at times, but he is not a defendant in this case.

Doc. 31 at 3.

109). The reasonableness of an officer’s actions are viewed “from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight[.]” Id.

In his Motion, Defendant argues that pointing a Taser at Plaintiff and removing him from

the vehicle were reasonable actions under the circumstances of the arrest. Doc. 29 at 13.

Specifically, Defendant asserts,

Plaintiff continuously gave McCall reasons to have a heightened level of concern

for his own safety. Plaintiff was willfully defiant and showed continued disregard

for McCall’s lawful authority. McCall reasonably believed that Plaintiff had already

showed disregard for McCall’s safety, and made statements and engaged in actions

that McCall reasonably believed to be veiled threats. McCall also reasonably

believed that Plaintiff may have access to a weapon in his truck and Plaintiff was

not complying with McCall’s repeated commands. These are precisely the sort of

“tense, uncertain, and rapidly evolving” circumstances to which the Supreme Court

referred in Graham v. Connor. In light of the tense, uncertain, and rapidly evolving

circumstances that McCall confronted, it was objectively reasonable for McCall to

display and point his Taser at Plaintiff.

Doc. 29 at 13–14.

In his Response, Plaintiff argues that,

Although [Defendant] denies aiming the taser at the Plaintiff’s head, neck or face,

contending it was aimed in the general area of the Plaintiff’s chest and shoulders,

the video clearly demonstrates that the Plaintiff’s head, face and neck were within

the target area had the Deputy fired the taser. Given the fact Plaintiff was seated in

his truck, the Plaintiff’s head, face and neck were within the area of where the taser

was aimed; it was unavoidably so.

Doc. 31 at 3. In support of his argument, Plaintiff relies on Abbott v. Sangamon County, 705 F.3d

706, 732 (7th Cir. 2013). There, the Seventh Circuit held “that it was clearly established on June

25, 2007, that it is unlawful to deploy a taser in dart mode against a nonviolent misdemeanant

who had just been tased in dart mode and made no movement when, after the first tasing, the

officer instructed her to turn over. Prior to 2007, it was well-established in this circuit that police

officers could not use significant force on nonresisting or passively resisting suspects.” Abbott v.

Sangamon Cty., Ill., 705 F.3d 706, 732 (7th Cir. 2013).

Viewed in the light most favorable to Plaintiff and resolving all factual disputes in his

favor, the evidence shows Plaintiff belligerently yelling at McCall and appearing agitated while

approaching him with an unknown object in his hands, initially refusing to obey McCall’s

commands to stop approaching and raise his hands, struggling with McCall to shut himself inside

his vehicle against McCall’s commands, and then refusing to exit his vehicle despite numerous

directives to do so. Regardless of where McCall pointed the Taser10 or whether Plaintiff’s hands

were on the steering wheel instead of actively reaching for something, McCall’s conduct of

pointing a Taser at Plaintiff but not pulling the trigger was reasonable under the circumstances. In

short, McCall used the Taser to ensure Plaintiff’s continued detention while backup arrived;

McCall had a legitimate interest in protecting himself from the possibility that the agitated

individual refusing his commands would reach for a weapon to harm McCall or others, and to

prevent Plaintiff from fleeing. Even if Plaintiff’s hands were indeed on the steering wheel the

entire time, McCall could reasonably believe that Plaintiff could reach for a weapon faster than

he could unholster and aim his. And this case is nowhere near the circumstances addressed in

Abbott, since that case involved the use of Tasers, not the mere pointing of Tasers. Abbott v.

Sangamon Cty., Ill., 705 F.3d 706, 728 (7th Cir. 2013) (“Indeed, it is undisputed that Sweeney

used the taser until Travis stopped fighting but did not use it thereafter, suggesting that Sweeney

used no more force than was necessary to gain control of the actively resisting Travis.”). In fact,

Plaintiff is unable to point to any case where the mere pointing of a Taser was found to amount to

excessive force.

10 Though the Court notes Plaintiff appears to concede McCall had no choice but to point the Taser at his head. Doc.

31 at 3 (“Given the fact Plaintiff was seated in his truck, the Plaintiff’s head, face and neck were within the area of

where the taser was aimed; it was unavoidably so.”).

Plaintiff also argues the amount of force used to arrest Plaintiff was excessive. On this

subject, Plaintiff argues, “[a]t the time Plaintiff was forcefully removed from the vehicle, he was

seated with his hands on the steering wheel. All he did was not exit the vehicle before the

Defendant, with the assistance of a second officer, forcefully removed him from the vehicle.”

Doc. 31 at 4. There are at least two problems with this argument. First, officers conducting a

lawful traffic stop may demand the driver exit the vehicle. Pennsylvania v. Mimms, 434 U.S. 106,

109 (1977). In contrast, Plaintiff has not directed the Court to any case law, statute, or

constitutional provision conferring a right upon traffic stop detainee to speak with the officer’s

supervisor prior to complying with the officer’s lawful orders. Second, Plaintiff’s argument

completely fails to discuss the “excessive” aspect of his excessive force claim. Rather, his

grievance seems to be that he was arrested at all. With the benefit of viewing the video exhibits

in the record, it is abundantly clear in this case that McCall and his fellow officer used only the

amount of force reasonably necessary to remove Plaintiff from his vehicle.

Finally, even if McCall’s use of force could be deemed excessive by a reasonably jury,

McCall would be entitled to qualified immunity under the circumstances presented here.

Qualified immunity, in effect, affords enhanced deference to officers’ on-scene

judgments about the level of necessary force. This is so because, even if the

plaintiffs demonstrate that excessive force was used, they must further establish

that it was objectively unreasonable for the officer to believe that the force was

lawful—i.e., they must demonstrate that the right to be free from the particular use

of force under the relevant circumstances was “clearly established.” A

constitutional right is “clearly established” for qualified-immunity purposes where

“the contours of the right are sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” In other words, existing

precedent must have placed the constitutional question beyond debate.

Abbott v. Sangamon Cty., Ill., 705 F.3d 706, 725 (7th Cir. 2013) (cleaned up). Here, Plaintiff is

unable to point to clearly established precedent showing that the mere pointing of a Taser

amounts to excessive force. Further, Plaintiff’s reliance on Morfin v. City of E. Chicago is

misplaced, as in that case “Mr. Morfin did not resist arrest in any way prior to the officers’ use of

excessive force.” Morfin v. City of E. Chicago, 349 F.3d 989, 1005 (7th Cir. 2003). Here, unlike

in Morfin, Plaintiff had actively resisted arrest, including struggling with McCall to close his

vehicle’s door. Thus, even if McCall’s use of force was excessive (it clearly was not), McCall

would still be entitled to qualified immunity.

CONCLUSION

For the reasons set forth above, Defendant’s Motion (Doc. 29) for Summary Judgment is

granted. The Clerk is directed to close the case.

Signed on this 16th day of August, 2021.

s/ James E. Shadid

James E. Shadid

United States District Judge