BROWN v. VIGO COUNTY JAIL

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

DANIEL ADAM BROWN, )

)

Plaintiff, )

)

v. ) No. 2:20-cv-00184-JPH-MJD

)

KNOPP, )

)

Defendant. )

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Plaintiff Daniel Brown filed this lawsuit when he was confined at the Vigo

County Jail, alleging that defendant Officer Knopp used excessive force against

him when he was being booked into the Jail. Defendant Knopp has filed a motion

for summary judgment. Dkt. 91. For the reasons below, that motion is

GRANTED.1

I.

Standard of Review

Parties in a civil dispute may move for summary judgment, which is a way

of resolving a case short of a trial. See Fed. R. Civ. P. 56(a). Summary judgment

is appropriate when there is no genuine dispute as to any of the material facts,

and the moving party is entitled to judgment as a matter of law. Id.; Pack v.

1 Also pending is Mr. Brown's motion for leave to file a surreply. Dkt. 129. Local Rule

56-1(d) allows a surreply "only if the movant cites new evidence in the reply or objects

to the admissibility of the evidence cited in the response." Mr. Brown's surreply

essentially repeats arguments that are in his response to the motion for summary

judgment. The motion to file a surreply is GRANTED to the extent that the Court has

reviewed and considered the proposed surreply.

Middlebury Comm. Sch., 990 F.3d 1013, 1017 (7th Cir. 2021). A "genuine

dispute" exists when a reasonable factfinder could return a verdict for the

nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

"Material facts" are those that might affect the outcome of the suit. Id.

When reviewing a motion for summary judgment, the Court views the

record and draws all reasonable inferences from it in the light most favorable to

the nonmoving party. Khungar v. Access Cmty. Health Network, 985 F.3d 565,

572-73 (7th Cir. 2021). It cannot weigh evidence or make credibility

determinations on summary judgment because those tasks are left to the fact-

finder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). The Court is only

required to consider the materials cited by the parties, see Fed. R. Civ. P. 56(c)(3);

it is not required to "scour every inch of the record" for evidence that is potentially

relevant. Grant v. Tr. of Ind. Univ., 870 F.3d 562, 573-74 (7th Cir. 2017).

"[A] party seeking summary judgment always bears the initial

responsibility of informing the district court of the basis for its motion, and

identifying those portions of 'the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any,' which

it believes demonstrate the absence of a genuine issue of material fact." Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[T]he burden on the moving party

may be discharged by 'showing'—that is, pointing out to the district court—that

there is an absence of evidence to support the nonmoving party's case." Id. at

325.

II.

Factual Background

Because Defendant Knopp has moved for summary judgment under Rule

56(a), the Court views and recites the evidence "in the light most favorable to the

non-moving party and draw[s] all reasonable inferences in that party's favor."

Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted).

On May 6, 2019, officers from the Terre Haute Police Department arrested

Mr. Brown pursuant to a warrant. Dkt. 91-1 (Brown Dep. at 14:22-15:2; 19:19-

21). During the arrest, Mr. Brown was tased and his wrists and arm were injured.

Id. (Brown Dep. at 22:1-5; 32:10-18). After the arrest, Mr. Brown was transported

to the Vigo County Jail. Id. (Brown Dep. at 32:8-9). Officer Knopp and another

officer escorted Mr. Brown into the Jail. Id. (Brown Dep. at 34:6-8). Mr. Brown

and Officer Knopp knew each other from prior instances when Mr. Brown had

been arrested and incarcerated. Id. (Brown Dep. at 33:22-25).

Mr. Brown argued with the arresting officers during booking. Dkt. 91-2 ¶

10. Mr. Brown asked Officer Knopp to remove the handcuffs so that he could put

his hands up to the cameras to document his injuries. Dkt. 91-1 (Brown Dep. at

35:9-16); 91-2 ¶¶ 14, 16. After Officer Knopp removed Mr. Brown's handcuffs,

Mr. Brown turned around and said, "the cuffs are off now, bitch," while

aggressively gesticulating at one of the officers. Dkt. 91-1 (Brown Dep. at 36:11-

12); dkt. 118-1 (video at 3:06-3:10). Officer Knopp then placed Mr. Brown in a

vascular hold2 and took him down to the floor. Dkt. 91-2 ¶ 21; dkt. 118-1 (video

at 3:06-3:19). Officer Knopp released the vascular hold when Mr. Brown went to

the floor and submitted to handcuffs. Dkt. 91-2 ¶ 22; dkt. 91-1 (Brown Dep. at

39:15-20) ("Q. Do you believe Officer Knopp released the choke hold when you

went to the ground? A. Yes. We were on the ground for a few seconds, but yes,

when they handcuffed me."); dkt. 118-1 (video at 3:18-3:21). Officer Knopp

handcuffed Mr. Brown with the assistance of other officers. Dkt. 91-2 ¶ 24.

Mr. Brown was then lifted off the floor and placed in the restraint chair.

Dkt. 91-1 (Brown Dep. at 39:24-40:2); dkt. 118-1 (video at 4:20-4:35). Mr. Brown

asked not to be placed in the restraint chair. Dkt. 91-1 (Brown Dep. at 41:24-

42:1). When officers directed Mr. Brown toward the restraint chair, he braced

his legs and began flailing about to avoid the chair. Dkt. 118-1 (video at 4:21-

4:24).3 He continued to kick his legs as officers pushed him down into the chair.

Id. (video at 4:24-4:37). As officers were attempting to secure Mr. Brown to the

chair, Mr. Brown continued flailing and kicking, and Officer Knopp drive

2 Mr. Brown refers to this hold as a "chokehold." Regardless of nomenclature, the video

shows that Officer Knopp wrapped his arm around Mr. Brown's neck and took him to

the floor before securing him in handcuffs. Dkt. 118-1 (video at 3:08-3:19).

3 Mr. Brown disputes some of the facts regarding his placement in the restraint chair.

The Court's description of the events is taken from its review of the applicable video and

is therefore considered undisputed. See Scott v. Harris, 550 U.S. 372, 381 (2007) ("When

opposing parties tell two different stories, one of which is blatantly contradicted by [the

video and audio evidence] so that no reasonable jury could believe it, a court should not

adopt that version of the facts for purposes of ruling on a motion for summary

judgment.").

stunned4 him twice.5 Dkt. 91-1 (Brown Dep. at 43:5); 91-2 ¶ 28, 31; dkt. 118-1

(video at 4:24-4:37). Officers held Mr. Brown's legs as he was strapped into the

restraint chair. Dkt. 91-1 (Brown Dep. at 43:12-14). He tried to get the handcuffs

off and remove the pressure from his wrists as he was placed in the restraint

chair. Dkt. 91-1 (Brown Dep. at 43:15).

Mr. Brown was then taken to the multipurpose room in the restraint chair

and was removed from the chair a few minutes later. Dkt. 91-1 (Brown Dep. at

47: 3-15). Officer Knopp then escorted Mr. Brown to the medical department.

Dkt. 91-1 (Brown Dep. at 49:1-5).

III.

Applicable Law

A. Qualified Immunity

“[Q]ualified immunity shields officials from civil liability so long as their

conduct ‘does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Mullenix v. Luna, 577 U.S.

7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)). This

“clearly established” standard ensures “that officials can ‘reasonably . . .

anticipate when their conduct may give rise to liability for damages.’” Reichle v.

4 Officer Knopp refers to "drive stunning" or "tasing" Mr. Brown, and to the use of an

"electronic control device," while Mr. Brown stated that Officer Knopp "tased" him. The

Court understands all of these terms to refer to the same event and device.

5 While Officer Knopp testifies that he tased Mr. Brown twice, Mr. Brown asserts that

Officer Knopp tased him "multiple times." Dkt. 118 at 4. This statement is too vague to

raise an issue of fact regarding how many times Officer Knopp used the taser and the

Court therefore concludes that Officer Knopp tased Mr. Brown twice. Sommerfield v. City

of Chicago, 863 F.3d 645, 649 (7th Cir. 2017) ("Summary judgment is not a time to be

coy: conclusory statements not grounded in specific facts are not enough.") (cleaned up).

Howards, 566 U.S. 658, 664 (2012) (quoting Anderson v. Creighton, 483 U.S.

635, 646 (1987)). Qualified immunity thus “balances two important interests—

the need to hold public officials accountable when they exercise power

irresponsibly and the need to shield officers from harassment, distraction, and

liability when they perform their duties reasonably.’’ Pearson, 555 U.S. at 231

The “difficult part” of the qualified-immunity test is “identifying the level

of generality at which the constitutional right must be clearly established.”

Volkman v. Ryker, 736 F.3d 1084, 1090 (7th Cir. 2013). A “high level of

generality” is not appropriate; instead, the question is “whether the law was

clear in relation to the specific facts confronting the public official when he

acted.” Id. “Such specificity is especially important in the Fourth Amendment

context,” because “it is sometimes difficult for an officer to determine how the

relevant legal doctrine, here excessive force, will apply to the factual situation

the officer confronts.’’ Mullenix, 577 U.S. at 12 (quotation and citation omitted).

In excessive force cases, “the result depends very much on the facts of

each case,’’ so officers are entitled to qualified immunity unless precedent

‘‘squarely governs” the case at hand. Id. at 309 (emphasis in original) (quoting

Brosseau v. Haugen, 543 U.S. 194, 201 (2004)). While a case directly on point

is not required, “existing precedent must have placed the statutory or

constitutional question beyond debate.” Mullenix, 577 U.S. at 12.

“To overcome the defendant’s invocation of qualified immunity, [a

plaintiff] must show both (1) that the facts make out a constitutional violation,

and (2) that the constitutional right was ‘clearly established’ at the time of the

official’s alleged misconduct.” Abbott v. Sangamon Cty., Ill., 705 F.3d 706, 713

(7th Cir. 2013).

B. Fourteenth Amendment Standard

Because Mr. Brown was a pre-trial detainee following his arrest, the

Fourteenth Amendment governs his claim. Kingsley v. Hendrickson, 576 U.S.

389 (2015). Under the Fourteenth Amendment, "pretrial detainees (unlike

convicted prisoners) cannot be punished at all." Id. at 400. Thus, to prevail on

an excessive force claim, "a pretrial detainee must show only that the force

purposely or knowingly used against him was objectively unreasonable." Id. at

396-97.

Considerations such as the following may bear on the

reasonableness or unreasonableness of the force used: the

relationship between the need for the use of force and the amount

of force used; the extent of the plaintiff's injury; any effort made by

the officer to temper or to limit the amount of force; the severity of

the security problem at issue; the threat reasonably perceived by the

officer; and whether the plaintiff was actively resisting.

Id. at 397. This determination is made "from the perspective of a reasonable

officer on the scene, including what the officer knew at the time, not with the

20/20 vision of hindsight." Id.

IV.

Discussion

Mr. Brown claims that Officer Knopp used excessive force first when he

took him to the ground and then again when he tased him. Officer Knopp argues

that he is entitled to judgment as a matter of law because (1) he did not use

excessive force against Mr. Brown and (2) Mr. Brown's claims are barred by

qualified immunity. Whether Officer Knopp is entitled to qualified immunity is

tied to a fact question: Whether Mr. Brown was actively or passively resisting.

This matters because officers cannot “use significant force on nonresisting or

passively resisting suspects.” Abbott, 705 F.3d at 732. The Court evaluates

Officer Knopp's claim to qualified immunity with this in mind and exercises its

discretion to begin with the second, “clearly established law” prong of the

qualified-immunity test. See Pearson v. Callahan, 555 U.S. 223, 236 (2009);

Calderone v. City of Chicago, 979 F.3d 1156, 1162 (7th Cir. 2020).

A. Chokehold/Vascular Restraint

Officer Knopp argues that using a vascular restraint and taking Mr. Brown

to the floor was objectively reasonable in light of Mr. Brown's actions. Officer

Knopp explains that he took Mr. Brown to the floor because of Mr. Brown's

sudden movement and his belief that Mr. Brown might attack the officers. Mr.

Brown responds that he was simply in a verbal dispute with the officers,6 but he

does not dispute that he had verbally threatened the officers and had turned

away from the book-in counter and toward them. Dkt. 91-1 (Brown Dep. at 35:9-

16, 36:5-8, 36:11-12). Moreover, the video clearly shows Mr. Brown angrily

gesticulating at one of the officers. Dkt. 118-1 (video at 3:06-3:10). And Mr.

6 Mr. Brown refers to statements made by Officer Knopp and others regarding Mr.

Brown's behavior during this incident, apparently during the investigation of the

incident, that he claims are untrue. Dkt. 121 at 5-6. Specifically, Mr. Brown states that

the defendants state that he attacked the officers and attempted to get past Knopp. Id.

But in the motion for summary judgment, while the defendants assert that Mr. Brown

had been in an altercation with officers during his arrest and had verbally threatened

the officers while he was being booked into the Jail, they do not contend that Mr. Brown

had attempted to physically assault the officers at that time.

Brown had been in an altercation with one of the arresting officers earlier in the

day. Dkt. 91-1 (Brown Dep. at 22:1-5).

Based on these facts, no reasonable officer would have understood that

using a vascular hold to take Mr. Brown down and secure him with handcuffs

was unreasonable under the circumstances. First, the need for force was

apparent by Mr. Brown's actions earlier in the day, his physical gestures, and

his verbal threats. When Mr. Brown turned and verbally threatened officers,

Officer Knopp had to make an immediate decision regarding the amount of force

necessary to de-escalate the situation. See Dockery v. Blackburn, 911 F.3d 458,

464 (7th Cir. 2018) ("'[O]fficers are often forced to make split-second judgments—

in circumstances that are tense, uncertain, and rapidly evolving—about the

amount of force that is necessary in a particular situation.'") (quoting Graham v.

Connor, 490 U.S. 389 396-97 (1989)). Next, the video does not reflect that Officer

Knopp's hold on Mr. Brown was any longer or more restrictive than necessary to

respond to the perceived threat posed by Mr. Brown. And, while Mr. Brown

contends that Officer Knopp placed him in a "chokehold" that cut off his airway

for 10-11 seconds, the video reveals that Officer Knopp held Mr. Brown's neck

while he was flailing no longer than was necessary to gain his compliance. In

addition, Mr. Brown has demonstrated no further injury from that restraint.

Mr. Brown has pointed to no case that would lead a reasonable officer to

conclude that the takedown by Officer Knopp was an unreasonable use of force.

See Sparing v. Vill. of Olympia Fields, 266 F.3d 684, 688 (7th Cir. 2001) (qualified

immunity defense places the burden on the plaintiff to identify a closely

analogous case establishing the constitutional right). Considering all the

circumstances, Officer Knopp did not violate clearly established law when he

took Mr. Brown to the ground and held him in place until secured in handcuffs.

He is therefore entitled to qualified immunity with respect to that part of Mr.

Brown's excessive force claim.

2. Use of Taser in drive-stun mode

Officer Knopp argues that using the taser to drive-stun Mr. Brown twice

while officers were trying to get him secured into the chair was reasonable. After

Mr. Brown was taken to the floor and handcuffed, officers picked him up and

pushed him into the restraint chair.7 Mr. Brown contends that using the taser

was excessive because he was handcuffed, being restrained by several officers,

and not resisting officers as they were trying to secure him into the restraint

chair. Dkt. 119 at 6.

"Courts generally hold that the use of taser against an actively resisting

suspect either does not violate clearly established law or is constitutionally

reasonable." Abbott, 705 F.3d at 727. Here, the designated evidence shows that

Mr. Brown was actively resisting the officers as they were trying to secure him

into the restraint chair.

7 To the extent that Mr. Brown challenges the placement in the restraint chair, he has

not presented sufficient evidence that this action constituted an unreasonable use of

force. As already discussed, Mr. Brown was being unruly and had threatened officers.

Mr. Brown has identified no caselaw to suggest that placement in the restraint chair for

a short time was unreasonable under these circumstances. Further, the video reflects

that he did not initially submit to handcuffs and did not passively submit to the restraint

chair.

Mr. Brown compares his claims to those raised in Abbott. In that case,

police arrested and tased two suspects. The first was handcuffed but had moved

his hands to the front of his body and admitted that he "continued fighting" with

officers after one tasing. Abbott, 705 F.3d at 727. The court found that the

officers were entitled to summary judgment on this plaintiff's claims because he

was an actively resisting suspect. Id. (citing cases); see also Dockery, 911 F.3d

at 467 ("declining to follow instructions while acting in a belligerent manner" can

amount to active resistance that would make use of a taser objectively

reasonable) (citing Forrest v. Prine, 620 F.3d 739, 745–46 (7th Cir. 2010)). On

the other hand, the court noted that an officer may not use significant force (like

a taser) against a "nonresisting or passively resisting" subject. Id. (citing Abbott,

705 F.3d at 732).

Here, as already explained, the video reflects that Mr. Brown resisted being

placed in the restraint chair by bracing, flailing about, and kicking his legs. Dkt.

118-1 (video at 4:21-4:26). He continued to kick his legs and flail after being

pushed down into the chair. Id. (video at 4:26-4:35). The designated evidence

shows that Mr. Brown actively resisted.

Mr. Brown has pointed to no case that would lead a reasonable officer to

conclude that Officer Knopp's use of the taser to drive-stun Mr. Brown twice

until secured in the restraint chair was an unreasonable use of force. See

Sparing, 266 F.3d at 688. Considering all the circumstances, Officer Knopp did

not violate clearly established law when he used his taser to drive-stun Mr.

Brown twice until he was secured in the restraint chair and subdued. A

reasonable officer in these circumstances would not have been aware that using

a taser to gain compliance would constitute unreasonable force. See Abbott, 705

F.3d at 727; cf. Clarett v. Roberts, 657 F.3d 664, 674–75 (7th Cir.

2011) (affirming defense verdict where defendant used taser three times on

plaintiff when she blocked the doorway to her son's bedroom after several officers

had entered and defendant heard a commotion in the bedroom and believed

officers needed help; the second and third tasings were deployed because

plaintiff was kicking and flailing and continuing assaultive behavior as defendant

was arresting her).

Mr. Brown suggests it was unnecessary to tase him more than once

because he was not resisting. He states instead that footage of his body jerking

reflects a response to being tased—not resistance. Dkt. 119 at 8. But review of

the video demonstrates that Mr. Brown appeared to kick his legs and resist from

the time he was placed in the restraint chair. Dkt. 118-1 (video at 4:26-4:35). No

reasonable officer would have understood that tasing an apparently actively

resisting suspect was unreasonable under the circumstances. See Clarett, 657

F.3d at 674–75 (7th Cir. 2010) (including "kicking and flailing" as examples of

"active resistance"); Oakley v. Adrian, No. 10-CV-110-JPG-PMF, 2012 WL

967505, at *3 (S.D. Ill. Jan. 24, 2012), report and recommendation adopted as

modified, No. 10-CV-110-JPG, 2012 WL 966576 (S.D. Ill. Mar. 21, 2012)

(granting qualified immunity when plaintiff was tased after he "had been secured

in handcuffs but was still fighting"); contra Morfin v. City of East Chicago, 349

F.3d 989, 1005 (7th Cir. 2003) (holding that a suspect was nonresisting when

they were "docile and cooperative").

Again, Mr. Brown has not identified a case closely analogous to this case

that would have put a reasonable officer on notice that drive stunning him twice

while he appeared to be resisting would constitute excessive force.® Officer

Knopp is therefore entitled to qualified immunity on Mr. Brown's claim that the

use of the taser constituted excessive force.

IV.

Conclusion

Officer Knopp's motion for summary judgment, dkt. [91], is GRANTED.

Mr. Brown's motion for leave to file a surreply, dkt. [129], is GRANTED.

Judgment consistent with this Order shall now issue.

SO ORDERED.

Date: 9/29/2022 <) 1 Pataick tb 0

James Patrick Hanlon

United States District Judge

Southern District of Indiana

8 In addition to Abbott, Mr. Brown compares his claims to those in several other cases,

but those cases are not similar enough to this case to clearly establish the right Mr.

Brown asserts here. See Smith v. Finkley, 10 F.4th 725 (7th Cir. 2021) (questions of fact

existed regarding whether totality of circumstances justified police officers’ use of deadly

force); Williams v. City of Chicago, 733 F.3d 749 (7th Cir. 2013) (officers were not entitled

to qualified immunity on false arrest claim) Cyrus v. Town of Mukwonago, 624 F.3d 856

(7th Cir. 2010) (summary judgment not appropriate on excessive force claim when

questions of fact regarding the extent to which the suspect resisted and how many times

the taser was used, but it was used at least 6 times and suspect subsequently died);

Orem v. Rephann, 523 F.3d 442 (4th Cir. 2008) (officer not entitled to summary

judgment on excessive force claim when he used taser on suspect who was handcuffed

and in foot restraints); Parker v. Gerrish, 547 F.3d 1 (1st Cir. 2008) (it was reasonable

for the jury to find that the use of stun gun during arrest was excessive when arrestee's

resistance to handcuffs was de minimis).

13

Distribution:

DANIEL ADAM BROWN

189035

PUTNAMVILLE - CF

PUTNAMVILLE CORRECTIONAL FACILITY

Electronic Service Participant – Court Only

David P. Friedrich

WILKINSON GOELLER MODESITT WILKINSON AND DRUMMY

dpfriedrich@wilkinsonlaw.com