Jackson v. City of Brooklyn Center

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Edell Jackson, Case No. 21-cv-2072 (SRN/DJF)

Plaintiff,

v. ORDER ON BROOKLYN CENTER

DEFENDANTS’ MOTION FOR

Brooklyn Center Police Dept., et al., JUDGMENT ON THE PLEADINGS

Defendants.

Nicholas Ratkowski, Contreras & Metelska, P.A., 663 University Ave. W., Ste. 200,

Saint Paul, MN 55104 Minneapolis, MN 55402, for Plaintiff.

Jason M. Hiveley, Aaron Mark Bostrom, and Julia Kelly, Iverson Reuvers, 9321 Ensign

Ave. S., Bloomington, MN 55438, for City of Brooklyn Center, Officers Jake Wilkins,

Stephen Pastor, Joel Iverson, Cooper Gauldin, Ryan Soliday, and Kate Deering,

Defendants.

SUSAN RICHARD NELSON, United States District Judge

This matter is before the Court on the Motion for Judgment on the Pleadings [Doc.

No. 43] filed by the City of Brooklyn Center (“the City”), and Brooklyn Center Police

Officers Jake Wilkins, Stephen Pastor, Joel Iverson, Cooper Gauldin, Ryan Soliday, and

Kate Deering (collectively, the “Brooklyn Center Defendants”). For the reasons set forth

below, the Brooklyn Center Defendants’ motion is granted.

I. BACKGROUND

Plaintiff Edell Jackson brings this action under 42 U.S.C. § 1983, alleging that his

apprehension and arrest by law enforcement officers with the Brooklyn Center Police

Department (“BCPD”) and the Hennepin County Sheriff’s Department on January 14,

2021 was unconstitutional.1

A. Apprehension and Arrest

Jackson asserts that on that day, he had just begun to back out of a parking space

adjacent to apartment buildings in Minneapolis when he was “suddenly surrounded by

police vehicles.” (Second Am. Compl. [Doc. No. 23] ¶¶ 92–93.) He contends that he was

unaware of officers’ intent to arrest him and was unaware of any existing warrants for his

arrest. (Id. ¶ 94.) Jackson alleges that next, “[w]ithout warning or provocation,” Officer

Jake Wilkins violently struck the driver’s side bumper of Jackson’s truck, preventing him

from exiting the parking lot. (Id. ¶ 95.) Jackson asserts that shortly thereafter, Officer

Ryan Soliday “forcefully, and at an excessive rate of speed, violently rammed his squad

car directly into the driver’s side of Plaintiff’s vehicle,” striking Jackson’s knee and leg

and causing him to hit his head on the truck’s interior grab bar. (Id. ¶¶ 97–98.) In addition,

Jackson alleges that the impact of the collision forced his truck backward into a snowbank.

(Id. at ¶ 98.) Jackson contends that while Officers Wilkins and Soliday blocked his truck

from the front and driver’s side, other officers blocked it from the rear, and a high fence

alongside the passenger side of the vehicle blocked any other means for the truck to exit.

(Id. ¶ 99.)

1 Pursuant to the parties’ stipulation, the Court has since dismissed the defendants

with the Hennepin County Sheriff’s Department [Doc. Nos. 66, 68]. Therefore, the Court

generally limits its background discussion to facts concerning the remaining Brooklyn

Center Defendants.

Effectively hemmed in, Jackson alleges that multiple officers then “descended upon

[his] vehicle with weapons drawn,” screaming at him to get out of the car and put his hands

up. (Id. ¶¶ 100–01.) As he attempted to unfasten his seatbelt, officers yelled that he was

reaching for a gun. (Id. ¶ 102.) After unfastening his seatbelt, he used the passenger side

front door to exit the truck, as the driver’s side door was dented inward from the collision

and was unusable. (Id. ¶¶ 103–04.) Jackson contends that he immediately raised his hands

and kept them above his head. (Id. ¶ 105.)

B. Tasing

Jackson alleges that one of the Defendants “immediately” tased him, striking his

left side. (Id. ¶ 106.) Consequently, he contends, he fell in the snow, and “[i]n the process,

[his] coat came off and was left behind[.]” (Id. ¶ 107.) “Panicked and dazed after being

tased,” Jackson alleges that he stood up and made his way out of the snow, around to the

driver’s side of the truck. (Id. ¶ 108.) At that time, he contends Officer Cooper Gauldin

and Sergeant Stephen Pastor both deployed their tasers, striking him simultaneously. (Id.

¶ 109.) Jackson alleges that he kept his hands up and repeatedly begged the officers not to

shoot him. (Id. ¶ 110.)

C. Tackling and Tasing

Jackson asserts that “[f]earing for his life,” he “continued to keep his hands up and

attempted to distance himself from Defendants and their tasers.” (Id. ¶ 111.) However, he

alleges that officers, including Officers Gauldin, Wilkins, Joel Iverson, and others, tackled

and beat him. (Id. ¶ 112.) Jackson asserts that as he was tackled, his arms were pinned

underneath his body. (Id. ¶ 113.) He contends that at this time, Officer Gauldin, and

possibly others, “punched him in the ribs repeatedly, while [he] could not move his arms

and posed no threat to officers.” (Id.)

Jackson alleges that officers tased him twice more while he was already restrained

and “completely defenseless on the ground in the prone position.” (Id. ¶ 114.) Specifically,

he asserts that Officer Wilkins tased him on the buttocks and an unknown officer tased him

on the back. (Id.) Jackson alleges that Defendants left him in a prone position for several

minutes before rolling him over, checking him for weapons, and finding him to be

unarmed. (Id. ¶ 115.)

D. Medical Care and Processing the Scene of Arrest

As officers brought him to his feet and escorted him to a squad car, Jackson alleges

that he felt numbness on his left side, and told officers that he could not breathe and had a

tingling sensation in his back and neck. (Id. ¶ 116.) An ambulance arrived at the scene to

treat Jackson and transport him to the hospital. (Id. ¶ 117.) As a result of Defendants’

conduct, Jackson asserts that he suffered bruising to his head and a split lip, and since his

arrest, has suffered from recurrent nervous twitches, frequent numbness in his forearms,

difficulty fully extending his wrists and fingers due to his hands seizing up, recurring pain

in his left knee, pain in his neck that feels like a pinched nerve, pain in his lower back

which now frequently makes a clicking noise when he moves; Post-Traumatic Stress

Disorder; difficulty sleeping, and fear of law enforcement officers. (Id. ¶¶ 164–70.)

While Jackson received medical attention, Officer Kate Deering assisted the

Hennepin County Crime Lab in processing the scene of his arrest, and recovered Plaintiff’s

jacket alongside his truck. (Id. ¶ 120.) In her police report, Officer Deering noted that the

imprint of a gun magazine was clearly visible through the pocket of the jacket, and when

she opened the pocket, she found a firearm. (Id.) Jackson, however, alleges that he was

unarmed during his confrontation with police officers and was “unaware where this firearm

came from.” (Id. ¶ 121.) In fact, he asserts that officers planted it there in order to frame

him for the offense of unlawful possession of a firearm. (Id. ¶¶ 120–21, 195–96.)

E. Brooklyn Center Police Department’s Policies and Customs

Jackson also alleges that the BCPD has a “long history of engaging in excessive

force against the civilians they are sworn to protect.” (Id. ¶ 122.) He contends that although

the BCPD has less than 50 active officers, it “was investigated at least 88 times for alleged

officer misconduct and other department policy violations from 2016 to 2020—more than

the majority of law enforcement agencies in the state of Minnesota.” (Id. ¶ 141.) However,

he asserts that about a third of investigations resulted in exonerations, while nearly 40%

lacked conclusive evidence. (Id. ¶ 142.)

More specifically, Jackson alleges that in 2013, Officer Soliday shot and killed

Edmond Fair during a traffic stop, and Soliday’s partner at the time was Officer Deering.

(Id. ¶ 124.) Jackson also asserts that in 2014, BCPD officers shot and killed 18-year-old

Jonathon Mar, after he led them on a high-speed chase, then exited his vehicle and

repeatedly stabbed himself. (Id. ¶¶ 125–26.) Jackson contends that in 2015, BCPD officers

tased Sinthanouxay Khottavongsa, causing him to fall, hit his head, and subsequently die.

(Id. ¶¶ 127–28.) He further asserts that in 2019, BCPD officers shot and killed Kobe

Dimock-Heisler, who, Jackson alleges, held a hammer and knife while fighting with his

grandparents, but was disarmed before police arrived. (Id. ¶¶ 130–31.) Jackson also

contends that in 2019, BCPD officers used unjustifiable and unreasonable force against a

Black teenager, who was applying for a job at a Michael’s store, and whose interaction

with the police was investigated by the Minnesota Department of Human Rights. (Id. ¶¶

132–35.) Finally, Jackson notes the 2021 killing of Daunte Wright by a former BCPD

officer who mistook her gun for a taser. (Id. ¶¶ 136–38.)

Jackson contends that these incidents and investigations gave the City an

opportunity to review and discipline its officers, but it has deliberately disregarded officers’

unlawful acts and has instead indemnified them, in violation of Jackson’s constitutional

rights. (Id. ¶¶ 143–44.)

In addition, Jackson alleges that while the BCPD’s Code of Conduct and Use of

Force Policy Manual mandate that officers use only “the amount of force that appears

reasonably necessary . . . to accomplish a legitimate law enforcement purpose,” the lack of

enforcement and discipline of violators shows that the BCPD and the City have failed to

enforce their written policies. (Id. ¶¶ 146–47.) In addition, Jackson cites to provisions in

the Use of Force Policy Manual that he contends Defendants violated here, including: (1)

the issuance of verbal warnings prior to the use of a taser; (2) the circumstances under

which officers should use tasers; and (3) the circumstances under which officers should

ram a suspect’s vehicle. (Id. ¶¶ 149–56.) Jackson contends that officers in the BCPD

regularly use tasers and pursuit intervention tactics that are impermissible under the

Department’s own policies, illustrating “the presence of a custom allowed and encouraged

by the BCPD and Brooklyn Center.” (Id. ¶¶ 158–59.)

F. Criminal Charges and Conviction

Based on the underlying events of January 14, 2021, described, in part, in Jackson’s

Second Amended Complaint, law enforcement authorities charged him in federal court for

being a felon in possession of a firearm. United States v. Jackson, 21-cr-51 (DWF/TNL)

[Doc. No. 6]. In Jackson’s pleadings in the instant civil matter, he acknowledges the then-

pending criminal case, stating that he does “not intend to plead guilty to that crime because

the gun that was alleged to have been found was not Plaintiff’s and has no connection to

Plaintiff.” (Second Am. Compl. ¶ 121.)

In March 2022, Jackson proceeded to trial. Testifying at trial, Jackson admitted that

he possessed the gun that officers recovered from his jacket. (BC Defs.’ Answer [Doc. No.

29]; BC Defs.’ Ex. 17 (Mar. 9, 2022 Tr.) at 15, 19–20.) The jury found him guilty,

Jackson, 21-cr-51 (DWF/TNL) [Doc. No. 67], and Jackson is now serving a sentence of

108 months. Id. [Doc. No. 108].

G. Claims at Issue

Approximately six months before his criminal trial, Jackson filed this civil rights

lawsuit on September 20, 2021, asserting three federal law claims2 and three state law

claims against the Brooklyn Center Defendants.3 Jackson raises the following federal

2 Jackson initially asserted an additional federal claim in Count 2, alleging a

violation of his right to procedural due process. (Second Am. Compl. ¶¶ 185–97.)

However, pursuant to the parties’ stipulation of dismissal, the Court has dismissed Count

2 with prejudice [Doc. No. 42].

3 As noted earlier, Plaintiff also initially sued sheriff’s deputies with the Hennepin

County Sheriff’s Department, (Second Am. Compl. ¶¶ 69–89), who are no longer part of

this lawsuit due to a stipulated dismissal [Doc. Nos. 66, 68].

claims under 42 U.S.C. § 1983: (1) Fourth Amendment violations for unreasonable seizure

and excessive force based on (a) Officer Soliday’s ramming of Jackson’s truck door; (b)

Sergeant Pastor and Officer Wilkin’s conduct in tasing him shortly after he exited the truck;

(c) Officer Gauldin’s takedown of Jackson; and (d) the conduct of Officers Gauldin,

Iverson, and Wilkins, and others, in beating and tasing him while he was in a prone position

and restrained, (Second Am. Compl., Count 1); (2) a claim against the City arising under

Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978), (id.,

Count 3); and (3) a claim against the City arising under City of Canton, Ohio v. Harris, 489

U.S. 378 (1989), (id., Count 4).

Jackson’s state law tort claims against the City and the Defendant Officers consist

of: (1) battery (id., Count 5); (2) negligence (id., Count 6); and (3) negligent infliction of

emotional distress (id., Count 7).

Pursuant to Federal Rules of Civil Procedure 12(c) and 12(b)(6), the Brooklyn

Center Defendants move for judgment on the pleadings, arguing that: (1) Officer Deering

must be dismissed because no claim is asserted against her; (2) the Defendant Officers are

entitled to qualified immunity on Plaintiff’s § 1983 excessive force claims; (3) Plaintiff

fails to establish a constitutional claim against the City of Brooklyn Center; and (4)

Plaintiff’s state law tort claims fail. (BC Defs.’ Mem. [Doc. No. 46] at 17–47.)

II. DISCUSSION

A. Standard of Review

Motions for judgment on the pleadings under Federal Rule of Civil Procedure 12(c)

are treated the same as motions to dismiss for failure to state a claim under Rule 12(b)(6).

That is, in evaluating a motion for judgment on the pleadings, the Court must accept as true

the factual allegations in the complaint, must construe all reasonable inferences from those

allegations in the light most favorable to the non-moving party, and must only grant the

motion if the complaint fails to state a “plausible” claim for relief. State Farm Auto. Ins.

Co. v. Merrill, 353 F. Supp. 3d 835, 837, 841 (D. Minn. 2018); see also Potthoff v. Morin,

245 F.3d 710, 715 (8th Cir. 2001) (“Judgment on the pleadings is appropriate only where

the moving party has clearly established that no material issue of fact remains and the

moving party is entitled to judgment as a matter of law.”). The Court need not accept as

true wholly conclusory allegations or legal conclusions couched as factual allegations.

Hager v. Arkansas Dep’t of Health, 735 F.3d 1009, 1013 (8th Cir. 2013).

Although a complaint need not contain “detailed factual allegations,” it must contain

facts with enough specificity “to raise a right to relief above the speculative level.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of

a cause of action, supported by mere conclusory statements,” are insufficient. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). Moreover, “because

granting a Rule 12(c) motion ‘summarily extinguish[es] litigation at the threshold and

foreclose[s] the opportunity for discovery and factual presentation,’ courts must treat such

motions with the ‘greatest of care.’” Acosta v. Reliance Tr. Co., No. 17-CV-4540

(SRN/ECW), 2019 WL 3766379, at *7 (D. Minn. Aug. 9, 2019) (quoting Comcast Cable

Commc’ns, LLC v. Hourani, 190 F. Supp. 3d 29, 32 (D.D.C. 2016)).

B. The Record

The Court ordinarily does not consider matters outside the pleadings on a motion

under Rule 12(c). See Fed. R. Civ. P. 12(d). The Court may, however, “consider the

pleadings themselves, materials embraced by the pleadings, exhibits attached to the

pleadings, and matters of public record.” Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th

Cir. 2011) (quoting Mills v. City of Grand Forks, 614 F.3d 495, 498 (8th Cir. 2010)). Here,

in addition to the Amended Complaint, the Court considers public records from Jackson’s

felon-in-possession criminal case in United States v. Jackson, 21-cr-51 (DWF/TNL),

which arose from the arrest at the center of this case.

The Court now turns to whether, at this stage in the proceedings, it may consider

Defendants’ exhibits consisting of video/audio recordings from the Defendants Officers’

body worn cameras (“BWCs”) and squad car dashboard cameras, without turning the

instant Rule 12 motion into a Rule 56 motion for summary judgment.

In Scott v. Harris, 550 U.S. 372, 381 (2007), on review of a summary judgment

ruling, the Supreme Court held that when “[one party’s] version of events is blatantly

contradicted by the [video] record,” courts must view the facts “in the light depicted by the

videotape.”

Jackson acknowledges that the Court may review videos that are necessarily

embraced by the pleadings. (Pl.’s Opp’n [Doc. No. 64] at 3–4 (citing Waters v. Madson,

No. 17-cv-93 (PAM/SER), 2017 WL 6403099, at *9 n.1 (D. Minn. Dec. 14, 2017), aff’d

921 F.3d 725 (8th Cir. 2019) (in granting defendants’ motion to dismiss, the court

considered security footage and squad car footage attached to their motions); McDowell v.

Gonzalez, 820 Fed. App’x 989, 992 (11th Cir. 2020) (holding that consideration of body

camera footage on a motion to dismiss was proper because it was “central to the amended

complaint and was undisputed”); Wagner v. City of Canton, Ohio, No. 5:19-CV-0377, 2020

WL 1514551, at *3 (N.D. Ohio Mar. 30, 2020) (concluding a video can be considered on

a Rule 12 motion if the video “utterly discredits” plaintiff’s version of events)).) Moreover,

Jackson concedes that the BWC and dashboard videos are necessarily embraced by the

pleadings “because their contents are alleged in the complaint and the parties do not

question their authenticity.” (Pl.’s Opp’n at 4 (citing Waters, 2017 WL 6403099, at *9

n.1).) However, he contends that “[a]t the Rule 12 stage, unlike at the summary judgment

stage, the Court must assume all facts as alleged are true, subject to the caveats noted above,

which will sometimes cause a video that might be dispositive at summary judgment to be

nondispositive on a Rule 12 motion.” (Id.) The Court construes this to reflect Jackson’s

understanding that a district court may consider, on a motion to dismiss, video evidence

that is undisputed, central to the case, and entirely inconsistent with the plaintiff’s

allegations.

Indeed, in this District, courts have found similar video and video evidence to be

embraced by the pleadings and properly considered on a motion to dismiss, without

converting the Rule 12 motion into a summary judgment motion. Ching v. City of

Minneapolis, __ F. Supp. 3d __, No. 21-CV-2467 (KMM/DTS), 2022 WL 4364790, at *3

(D. Minn. Sept. 21, 2022) (finding BWC videos proper to consider on motion to dismiss

where plaintiff did not dispute their authenticity, nor their completeness), appeal filed (8th

Cir. Oct. 18, 2022); Vernio v. Higgins, No. 19-cv-3024 (DWF/LIB), 2020 WL 3542757, at

*1 n.1 (D. Minn. June 30, 2020) (finding two dispatch calls and BWC video, submitted as

exhibits to motion to dismiss, were referenced in and embraced by the complaint, and

proper to consider); Anderson v. St. Luke’s Hospital, No. 19-cv-106 (MJD/LIB), 2019 WL

7882118, at *3 n.5 (D. Minn. Nov. 19, 2019) (considering dashcam videos on a motion to

dismiss where the incident depicted in videos was central to plaintiff’s complaint, videos

were referenced in and embraced by complaint, videos’ authenticity was unrefuted, and

videos “provided much needed context to the allegations in [the complaint].”), adopting

report & recommendation, 2020 WL 256176 (D. Minn. Jan. 17, 2020); Waters, 2017 WL

6403099, at *9 n.1; but see Yang v. City of Minneapolis, 607 F. Supp. 3d 880, 890 n.4 (D.

Minn. 2022) (declining to consider BWC footage at motion to dismiss stage and noting

plaintiff’s argument that footage was incomprehensible, failed to identify the individuals

depicted, and used inconsistent time-stamps).

In addition, on appeal of Rule 12 district court rulings, the Eighth Circuit has also

considered video evidence of underlying events. For example, in LeMay v. Mays, 18 F.4th

283, 288–89 (8th Cir. 2021), the Eighth Circuit reviewed two home security videos that

showed the defendant police officer’s backyard encounter with two dogs that the officer

shot. Id. at 289. However, the videos lacked any audio, and therefore the court found they

did not inform the question of whether the dogs were growling, and “[m]ore important,

neither video depict[ed] the dogs’ behavior leading up to the shootings in a manner entirely

inconsistent from the allegations in the complaint.” Id. Thus, while the court considered

the video evidence, it was unable to conclude from the footage “that the dogs presented an

objectively legitimate and immediate threat to [the police officer].” Id. Also, in Waters,

921 F.3d at 731 n.2, the Eighth Circuit considered defendants’ squad car footage and a

recording made by the plaintiff, noting that the district court found them to be embraced

by the pleadings, and neither party objected to the district court’s use of the videos. Id.

Consistent with this authority and the standards under Rules 12(b)(6) and 12(c), the

Court will accept Plaintiff’s allegations as true, but will also consider the BWC and squad

car footage to the extent they completely discredit Plaintiff’s allegations. Their contents

are embraced by the pleadings and the parties do not dispute their authenticity. In fact,

Jackson himself relies on video evidence in opposition to this Rule 12 motion. (See, e.g.,

Pl.’s Opp’n at 13–17, 31, 33.) As in Anderson, 2019 WL 7882118, at *3 n.5, the videos

here depict the incident that is central to Plaintiff’s complaint and “provide[] much needed

context [for] the allegations in [the complaint].” Subject to these standards, the Court

summarizes the relevant BWC and squad car videos below in its analysis of Jackson’s

claims and Defendants’ arguments for dismissal.4

C. Dismissal of Claims Against Officer Deering

As noted earlier, the Brooklyn Center Defendants move for the dismissal of Officer

Deering. (BC Defs.’ Mem. at 17.) After reviewing Defendants’ exhibits, Jackson does not

oppose her dismissal. (Pl.’s Opp’n at 4–4.) Accordingly, the Court grants the Brooklyn

Center Defendants’ motion in this regard and dismisses Defendant Kate Deering from this

action with prejudice.

4 The Brooklyn Center Defendants filed these video exhibits under seal and they are

reflected in the docket at Docket No. 30, Exs. 1–15.

D. Section 1983 Claims

In response to Jackson’s § 1983 claims against them, the Defendant Officers assert

qualified immunity from suit and move to dismiss on this basis.

1. Qualified Immunity

Qualified immunity protects government officers from § 1983 liability “unless the

official’s conduct violates a clearly established constitutional or statutory right of which a

reasonable person would have known.” Brown v. City of Golden Valley, 574 F.3d 491, 495

(8th Cir. 2009). Thus, the Court must perform a two-part analysis to determine if qualified

immunity applies: (1) decide whether the facts show the violation of a constitutional or

statutory right, and (2) determine whether that right was clearly established at the time of

the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing Saucier v.

Katz, 533 U.S. 194 (2001)). The Court may analyze either step first. Id. at 236. Qualified

immunity “is an immunity from suit rather than a mere defense to liability . . . [and] it is

effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472

U.S. 511, 526 (1985). Qualified immunity is a question of law for the court to decide.

Littrell v. Franklin, 388 F.3d 578, 584 (8th Cir. 2004).

2. Excessive Force Under the Fourth Amendment

The Fourth Amendment of the Constitution protects individuals against

“unreasonable searches and seizures.” U.S. Const. amend. IV. Excessive force claims are

“seizures” subject to the reasonableness requirement of the Fourth Amendment. See

Graham v. Connor, 490 U.S. 386, 395 (1989). Because “reasonableness” is an objective

standard, “an officer’s evil intentions will not make a Fourth Amendment violation out of

an objectively reasonable use of force; nor will an officer’s good intentions make an

objectively unreasonable use of force constitutional.” Id. Rather, “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.” Id.; see also

Kohorst v. Smith, 968 F.3d 871, 876 (8th Cir. 2020). Moreover, the analysis of

reasonableness must “allow[] for the fact that police officers 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.” Graham, 490 U.S. at

397.

The Supreme Court held in Graham that determining whether a police officer acted

“objectively reasonably” requires balancing the particular facts and circumstances of each

case in light of the following three factors (the “Graham factors”): (1) the severity of the

crime at issue; (2) whether the suspect posed an immediate threat to the safety of the

officers or to others; and (3) whether the suspect was actively resisting arrest or attempting

to evade arrest by flight. Id. at 396. Applying these factors to cases involving the use of

force, the Eighth Circuit has observed that “[t]he use of force is least justified against a

nonviolent misdemeanant who does not flee or actively resist arrest and poses little threat

to officers or the public, whereas “somewhat more force” may be required against a

passively resistant suspect. Kohorst, 968 F.3d at 876 (citations omitted). Failure to follow

officers’ instructions “may constitute passive resistance,” and the Eighth Circuit “[has]

upheld the use of force where a suspect is non-compliant and resists arrest or ignores

commands from law enforcement.” Id. (citations omitted).

Because “[l]iability for damages for a federal constitutional tort is personal, [] each

defendant’s conduct must be independently assessed.” Faulk v. City of St. Louis, 30 F.4th

739, 744 (8th Cir. 2022) (citing Wilson v. Northcutt, 441 F.3d 586, 591 (8th Cir. 2006)).

Accordingly, the Court considers Jackson’s § 1983 allegations against each Defendant

Officer.

a. Officer Soliday’s Conduct in Striking Plaintiff’s Vehicle

In order to determine whether qualified immunity applies, the Court first turns to

whether the facts show the violation of a constitutional or statutory right. Pearson, 555

U.S. at 232.

To recap, Jackson alleges that by “ramming the driver’s side of Plaintiff’s vehicle

while it was stopped and parked,” Officer Soliday violated his Fourth Amendment right to

be free from unreasonable seizures and excessive force (Second Am. Compl. ¶ 180.) He

contends that on January 14, 2021, he was in his truck and had just begun backing out of a

parking spot when police officers surrounded him. (Id. ¶¶ 92–93.) Officer Wilkins

allegedly drove toward him, blocking the front of his truck, and Officer Soliday rammed

the driver’s side door with his squad car, using such force it propelled Jackson’s truck into

a snowbank. (Id. ¶ 97.) Jackson contends that he had no knowledge of officers’ intent to

arrest him, he was unaware of any warrant for his arrest, and Officer Wilkins’ blocking

action was “without warning or provocation.” (Id. ¶¶ 94–95.) Jackson thus alleges and

suggests that officers surrounded him out of the blue, with no basis for doing so. (Id.)

The video evidence, which includes audio and squad car data, such as driving speed,

entirely contradicts any allegation or suggestion that Jackson’s police encounter occurred

in a vacuum, and provides much needed context. Accordingly, the Court will consider the

BWC and squad car videos that depict events leading up to and showing, in real time,

Jackson’s encounter with police. See Anderson, 2019 WL 7882118, at *17 (consulting

officers’ dashcam videos where Plaintiff failed to allege the circumstances under which

officers encountered him); cf. LeMay, 18 F.4th at 288–89 (considering home security

videos, but finding that they failed to depict dogs’ behavior leading up to police officer’s

shooting of them in a manner entirely inconsistent from the allegations in the complaint).

At approximately 4:00 p.m. on January 14, 2021, Brooklyn Center Police Officers

received a dispatch of a shots fired incident related to a domestic assault. (BC Defs.’ Ex.

11 (Deering BWC) at 4:01:20-4:03:04.) Officer Kate Deering met with the assault victim,

who identified Jackson as both her boyfriend and the perpetrator of the assault. (Id. at

4:16:11-12.) The victim, who gestured to facial injuries she attributed to the assault,

reported that Jackson had punched her in the head, torso, and arms, and kicked her on the

ground. (Id. at 4:17:53-4:18:15, 4:20:30-35, 4:23:10-25.) In addition, she stated that

Jackson had shot at her with a revolver, narrowly missing her feet, had a warrant out for

his arrest, and in the past, he had threatened her with a weapon, used a weapon against her,

and choked her. (Id. at 4:16:24-4:17:14, 4:30:43-4:31:12.) The victim also stated that

Jackson had a semiautomatic pistol with him that day, in addition to the revolver. (Id. at

4:16:34-42, 4:22:08-15, 4:30:54-4:31:07.) The victim provided Jackson’s birthdate and

digital images taken that day showing Jackson’s current clothing and appearance. (Id. at

4:18:03-4:19:21, 4:20:40-47, 4:33:21-37.) In addition, through a location-sharing service

on her cell phone, the victim shared Jackson’s cell phone location with Officer Deering

and provided the license plate number of his white Chevy Avalanche. (Id. at 4:16:42-

4:17:10, 4:20:48-4:21:13, 4:29:31-38.)

As Officer Deering gathered this information, she simultaneously relayed it over her

police radio, and either Officer Deering or a dispatcher provided it to the other responding

officers. (Id. at 4:19:20-45, 4:20:11-19, 4:21:29-50, 4:28:28-35, 4:32:50-4:34:22, 4:46:37-

52, 4:48:33-38; BC Defs.’ Ex. 2 (Soliday Squad) at 4:21:33-37; BC Defs.’ Ex. 7 (Pastor

BWC) at 4:19:01-:44.) One of the responding officers looked up Jackson’s information on

a law enforcement database, and stated over the police radio that the warrant issued against

Jackson was for fleeing from the police. (Pastor BWC at 4:19:45-:55.)

In preparation for a possibly “high risk stop” of Jackson, Officer Soliday gathered

with other officers in a parking lot a few blocks from where Jackson was located. (Pastor

BWC at 4:25:32-4:25:48, 4:53:52, 4:59:01-:03; Deering BWC at 4:27:37-4:28:19, 4:51:03-

56; Soliday Squad at 4:27:37-:53.) Officers had confirmed Jackson’s cell phone location

tracking information, finding a white Chevy Avalanche in that location, and they observed

a man who matched Jackson’s description going into a building, then coming out again.

(Deering BWC at 4:27:49-51, 4:42:50-:52, 4:44:37-39, 4:51:52-53; Pastor BWC at

4:58:11-:18.) At approximately 4:58 p.m., officers decided to “take this guy in . . . before

he has a chance to flee.” (Soliday Squad at 4:58:46-:56.)

Officers quickly drove a few blocks to Jackson’s location. (Soliday Squad at

4:59:40-47.) Led first by an unmarked squad car, Officer Wilkins followed in a marked

squad car with emergency lights and spotlight activated, with Officer Soliday behind him,

in an unmarked car. (Id. at 4:59:43-49; BC Defs.’ Ex. 4 (Wilkins Squad) at 4:59:36-47.)

As the officers entered the parking lot, Jackson, who was facing outward toward the

officers, quickly drove several feet in reverse, with enough speed to lodge a rear wheel in

a snowbank, and make contact with telephone pole support cables. (Wilkins Squad at

4:59:44-:51; Soliday Squad at 4:59:46-:50; Pastor BWC at 5:00:10-:14.) Seeing Jackson’s

actions, Officer Wilkins reported over the police radio, “He’s fleeing! He’s fleeing!” (BC

Defs.’ Ex. 3 (Wilkins BWC) at 4:59:50-:51; Soliday Squad at 4:59:50-:51; Pastor BWC at

4:59:50-:51; BC Defs.’ Ex. 9 (Gauldin BWC) at 4:59:50-:51.)

Officer Wilkins immediately drove his marked squad car forward, hitting or at least

blocking the front of Jackson’s truck, near Jackson’s driver’s side headlight. (Second Am.

Compl. ¶ 95.) Seconds later, Officer Soliday then drove his unmarked squad car into the

driver’s side door of Jackson’s truck in an effort to box in Jackson’s truck. (Id. ¶ 96.)

While Jackson alleges that Officer Soliday drove at an “excessive rate of speed” and

“violently rammed” his squad car into Jackson’s driver’s side door such that the impact

propelled his truck into the snowbank, (id. ¶¶ 95–97), the video evidence utterly refutes

these allegations. Jackson himself drove his truck backwards into the snowbank, (Wilkins

Squad at 4:59:44-:51; Soliday Squad at 4:49:46-:53), and Officer Soliday’s squad car video

recorded that he was traveling at only 11 miles per hour when he rammed Jackson’s truck.

(Soliday Squad at 4:59:52-:54.)

These facts do not show a violation of Jackson’s Fourth Amendment rights.

Applying the first of the three Graham factors—the severity of the crime at issue, 490 U.S.

at 396,—prior to the encounter between Jackson and the officers, officers were dispatched

because of a report of shots fired related to domestic assault, and were informed that

Jackson had just assaulted his girlfriend and shot his gun at her, was armed with two

firearms, and was the subject of an active arrest warrant for fleeing the police.

Jackson contests the existence of the arrest warrant as well as “Defendants’

unproven belief that Plaintiff was armed at the time of the arrest.” (Pl.’s Opp’n at 8–10;

18–20.) However, to determine whether Defendants are entitled to qualified immunity, the

Court considers the information available to law enforcement officers at the time. See

Bagby v. Brondhaver, 98 F.3d 1096, 1098 (8th Cir. 1996) (noting that qualified immunity

“gives ample room for mistaken judgments but does not protect the plainly incompetent or

those who knowingly violate the law.”) (citations omitted). In Jackson’s federal felon-in-

possession case arising from the same underlying events, the court found, in the context of

probable cause, “Under the totality of the circumstances, a reasonably prudent police

officer would believe that the male at this location in the white Avalanche with the

matching license plate had committed the alleged assault of [the victim], and evidence of

that assault—including but not limited to the firearm used—would be found in the

vehicle.”5 Jackson, 21-cr-51 (DWF/TNL), Aug. 25, 2021 R&R [Doc. No. 36] at 13,

adopted, Oct. 20, 2021 Order [Doc. No. 43] (emphasis added).

Jackson also argues that “[t]here is an open question as to whether each of the

Defendants who used force against Plaintiff factually or reasonably believed that Plaintiff

was armed.” (Pl.’s Opp’n at 20.) But that is not the applicable standard. Rather, the

5 While the question of whether officers could “prove” Jackson possessed a gun at

the time of the encounter is irrelevant for purposes of this analysis, at his criminal trial,

Jackson admitted that the gun in his jacket pocket was his. (Mar. 9, 2022 Tr. at 21.)

standard when evaluating qualified immunity in the context of an alleged Fourth

Amendment violation is whether the officers’ conduct was objectively reasonable, without

regard to individual officers’ subjective beliefs. Graham, 490 U.S. at 397.

Considering the information available to officers at the time, the Court finds a

domestic assault that involved firing a weapon is a violent crime, and an arrest warrant for

fleeing police indicates potentially dangerous conduct. Jackson, however, incorrectly

focuses on the crime for which he was ultimately charged and convicted—being a felon in

possession of a firearm. He characterizes this offense as “a public order crime that does

not categorically constitute a crime of violence, as possession of a weapon in and of itself

is not evil.” (Pl.’s Opp’n at 8–9 (citing legal authority arising under 18 U.S.C. §

822(g)(1)).) Furthermore, Jackson argues that if he had actually brutally assaulted his

girlfriend and shot at her with a revolver, “it is inconceivable that Plaintiff would not have

been charged with criminal domestic assault,” yet no such charges were filed. (Id. at 9.)

Jackson’s focus on the ultimate crime of conviction is misplaced.

Again, because excessive force claims are “judged from the perspective of the

reasonable officer on the scene, rather than with 20/20 vision of hindsight,” the Court must

focus on the information available to the defendant officers in the moments leading up to

their contact with Jackson. Graham, 490 U.S. at 396. Therefore, the Court must set aside

Jackson’s irrelevant, rank speculation about subsequent discretionary charging decisions

made by the Hennepin County Attorney’s Office and the U.S. Attorney’s Office. The facts

relevant to the severity of the crime at issue show a serious, violent crime—an alleged

domestic assault that involved the discharge of a firearm by a suspect believed to be

carrying two guns and who was the subject of an active warrant for fleeing the police.

As for the second Graham factor—whether Jackson posed an immediate threat to

the safety of the officers or to others, 490 U.S. at 396,—again, officers reasonably believed

that Jackson had fired a weapon at his girlfriend, was armed with two guns, and had a

history of flight, for which an active warrant was issued. Under these facts, an officer could

have reasonably believed that Jackson posed an immediate threat to the safety of others as

a general matter, and in particular, by attempting to drive away. See Hosea v. City of St.

Paul, 867 F.3d 949, 957 (8th Cir. 2017) (finding first two Graham factors satisfied where

“a reasonable officer on the scene could have concluded that Hosea had committed or was

committing domestic assault—a crime that threatens the safety of another individual.”)

(citing Minn. Stat. § 609.2242, subd. 1(1)).

As for the third Graham factor—whether the suspect was actively resisting arrest or

attempting to evade arrest by flight, 490 U.S. at 396,—the video evidence entirely

contradicts Jackson’s allegations that as officers arrived, he was merely reversing from a

parking spot, and the impact from Officer Soliday’s vehicle propelled Jackson’s truck into

the snowbank. (Second Am. Compl. ¶¶ 93, 97.) Rather, upon the arrival of multiple police

vehicles—nearly all of which were marked police cars with activated lights—Jackson

quickly put his vehicle in reverse with such force that it was partially lodged in a snowbank,

had made contact with telephone pole support cables, and his wheels continued to spin.

(Soliday Squad at 4:59:50-54.) Jackson’s wheels spun forward until after Officer Soliday

drove his squad car into Jackson’s driver’s side door. (Id. at 4:59:53-56.) Under these

circumstances, a reasonable police officer in Officer Soliday’s position could have

construed such actions as an attempt to flee or, at the very least, a refusal to stop in the

presence of Officer Wilkins’ marked squad car, with activated lights. See Ehlers v. City of

Rapid City, 846 F.3d 1002, 1011 (8th Cir. 2017) (finding that a reasonable officer could

have interpreted plaintiff’s behavior as noncompliant when he walked away from officer

who had ordered him to put his hands behind his back).

In Johns v. City of Florissant, No. 4:18-cv-1121 AGF, 2020 WL 7695416, at *2, 5

(E.D. Mo. Dec. 28, 2020), the court considered a police officer’s assertion of qualified

immunity in a case that began with a traffic stop from which the plaintiff fled in his car.

Ultimately, as an officer followed the plaintiff, a collision occurred between the two

vehicles. Id. at *2. The court noted that “[a]n officer is entitled to use reasonable force to

prevent a suspect from fleeing and evading arrest.” Id. at *5. It found the officer’s use of

his squad car to prevent the plaintiff from fleeing in his vehicle was not unreasonable under

the circumstances, as such flight poses an “obvious threat” “not just to the officer but also

to the public.” Id. at *5 (citing Gerling v. City of Hermann, Mo., No. 4:17-cv-02702-JAR,

2020 WL 619509, at *2 (E.D. Mo. Feb. 10, 2020)).

In Moore-Jones v. Quick, 909 F.3d 983, 986–87 (8th Cir. 2018), the Eighth Circuit

found that a police officer was entitled to qualified immunity for a § 1983 claim based on

his actions in using a Precision Immobilization Technique (PIT) maneuver during a low

speed chase after the plaintiff fled a routine traffic stop.6 Although the court resolved

qualified immunity based on whether the right to be free from a PIT maneuver in such

circumstances was clearly established at the time, the facts of the case show that even

though plaintiff was non-violent, he had refused commands to stop from an officer in a

marked police car, who had engaged his emergency lights, sirens, and spotlight. Id. Here,

Officer Soliday had reason to believe Jackson was violent, armed, and was fleeing the

police, posing a significant danger to others.

In opposition to the instant motion, Jackson urges the Court to consider his

subjective intent and knowledge at the time of his arrest. (Pl.’s Opp’n at 10.) While

conceding they are “somewhat tangential to the two-pronged qualified immunity analysis,”

but “not wholly unrelated,” he contends that at the time of his arrest, following the death

of George Floyd and the law enforcement response to ensuing protests, it was reasonable

to presume that Defendants’ actions “would have an outsized fear-inducing effect on a

Black male in Plaintiff’s position.” (Id.) While the Court does not diminish Jackson’s

concerns about his personal safety, “[a]n arrestee’s subjective motive does not bear on how

reasonable officers would have interpreted his behavior.” Ehlers, 846 F.3d at 1011. For

example, in Neal v. Ficcadenti, 895 F.3d 576, 581 (8th Cir. 2018), the Eighth Circuit

declined to consider a § 1983 plaintiff’s argument that his initial failure to follow officers’

commands was due to natural confusion under chaotic conditions. The court explained,

6 The PIT maneuver involves using a police car to strike a fleeing car from the side,

causing it to spin out. See Moore-Jones, 909 F.3d at 985.

“Law enforcement officers are not required to read a suspect’s motivations in failing to

obey commands—it is enough that the officer reasonably perceives that the suspect is not

following orders as given.” Id. Thus, the court found that the responding officer “was

reasonable in his initial inference that Neal was engaged in an act of passive resistance.”

Id. Accordingly, the Court does not consider Jackson’s subjective intent or knowledge.

In addition, Jackson argues that he failed to remain stationary in his truck and wait

for officers’ commands because one of the officer’s vehicles was unmarked, and he was

“temporarily blind[ed]” and disoriented by the police searchlight, such that he could not

determine whether the Defendant Officers were police officers. (See Pl.’s Opp’n at 11–

12.) However, the Second Amended Complaint contains no such allegations about

Jackson’s inability to determine whether the persons he encountered were police officers.

To the contrary, Jackson alleges that as he began to back out of his parking spot, “he was

suddenly surrounded by police vehicles,” and Officers Wilkins and Soliday struck his truck

with their “squad car[s].” (Second Am. Compl. ¶¶ 93, 95–96.)

Accordingly, the Court finds that a reasonable officer in Officer Soliday’s position

could have believed that Jackson had committed a violent assault, was armed, posed a

threat to others, and was fleeing from officers, posing a threat to others’ safety unless he

was stopped. Furthermore, contrary to Jackson’s allegation that Officer Soliday “violently

rammed” his truck at an “excessive rate of speed,” the video evidence, which recorded a

driving speed of 11 miles per hour, flatly refutes his claim. Under these facts, the Court

finds that Officer Soliday’s use of his car to prevent Jackson from fleeing was not

objectively unreasonable.

Moreover, under these circumstances, Officer Soliday did not violate a right that

was clearly established at the time. Pearson, 555 U.S. at 232. In order for a right to be

clearly established, it must be “sufficiently clear” that a reasonable official would

understand that his or her conduct violates that right. Dadd v. Anoka Cnty., 827 F.3d 749,

756 (8th Cir. 2016) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). In

determining whether the rights at issue here were clearly established as of the relevant time,

the Eighth Circuit takes a “broad view” of the sources of clearly established law and

permits courts to consider “all available decisional law, including decisions of state courts,

other circuits and district courts.” Buckley v. Rogerson, 133 F.3d 1125, 1129 (8th Cir.

1998). Even so, it has stated that a plaintiff must “identify[] controlling precedent with a

close correspondence to the particulars of the present case.” Rusness v. Becker Cnty., 31

F.4th 606, 615 (8th Cir. 2022) (citing Anderson, 483 U.S. at 639–41; Mullenix v. Luna, 577

U.S. 7, 12 (2015)).

Again, in Johns, 2020 WL 7695416, at *6, the court found an officer was entitled

to qualified immunity for using his squad car to prevent the plaintiff from escaping, even

though the officer hit the car at twice the speed as Officer Soliday hit Jackson’s truck, the

driver was unarmed, and had not committed a dangerous crime. Also, in Moore-Jones,

909 F.3d at 985–87, the Eighth Circuit found the right to be free from a PIT maneuver

performed in a marked police car with activated emergency lights, siren, and spotlight, to

disable the vehicle of a non-violent fleeing driver was not clearly established. Here, Officer

Soliday’s conduct in ramming his squad car into a suspect’s car door to prevent the escape

of a suspect believed to be actively fleeing, as well as violent, armed, and a flight risk, did

not violate a clearly established right.

For all of these reasons, Officer Soliday is entitled to qualified immunity based on

his actions in ramming his squad car into the door of Jackson’s truck.

b. Conduct of Sergeant Pastor and Officer Gauldin in

Tasing Jackson Near His Truck

Sergeant Pastor and Officer Gauldin seek qualified immunity for their actions in

simultaneously tasing Jackson as he moved between them, near his truck. While courts are

to assess each defendant’s conduct individually to assess liability under § 1983, Faulk, 30

F.4th at 744, because Jackson alleges that Sergeant Pastor and Officer Gauldin engaged in

identical conduct by simultaneously striking him on either side, (Second Am. Compl. ¶

109), the same qualified immunity analysis applies to both officers.

Jackson contends that after officers immobilized his truck, he exited on the

passenger side, and made his way around to the driver’s side. (Id. ¶ 106.) At that point,

he alleges that by “deploy[ing] their tasers, hitting [him] essentially simultaneously,”

Sergeant Pastor and Officer Gauldin violated his right to be free from unreasonable seizures

and excessive force. (Id. at ¶¶ 109, 181.) Jackson alleges that “[f]earing for his life,” he

“continued to keep his hands up” and “attempted to distance himself from Defendants and

their tasers.” (Id. ¶ 111.)

By omission, Jackson’s allegations suggest that he complied with officers’

commands, but the video evidence flatly demonstrates otherwise, and therefore is

appropriate for the Court to consider. (Supra at 10–13.) Officer Wilkins’ BWC video

shows that as officers commanded Jackson to exit the truck and raise his hands, rather than

complying, Jackson almost immediately removed his jacket while running between the

passenger side of his truck and the adjacent wall, without raising his hands. (Wilkins BWC

at 5:00:06-09.) His arms briefly flew up as he lost his footing on the snowbank, fell, and

stood up, even though officers commanded him to get on the ground. (Id. at 5:00:09-13.)

Jackson did not stop or stand still. (Id.) Instead, while moving forward with his hands

raised, he asked the officers not to hurt him, and jogged through a group of officers,

including Sergeant Pastor and Officer Gauldin. (Id. at 5:00:13-:15.) Sergeant Pastor and

Officer Gauldin stood on either side of Jackson, a similar distance away from him. (Id.)

As Jackson continued to jog forward with his hands raised, Pastor and Gauldin then

deployed their tasers at Jackson’s left and right sides, respectively. (Id. at 5:00:13-14.)

After they deployed their tasers, Jackson continued to run, sometimes raising his hands

while running past more officers, then running more quickly with his hands at his side as

he neared a long outdoor corridor between two apartment buildings. (Id. at 5:00:14-:21.)

To determine whether these two officers are entitled to qualified immunity, the

Court considers whether the facts show a violation of the Fourth Amendment. Pearson,

555 U.S. at 232. The video evidence discussed above, and earlier, clearly refutes Jackson’s

allegations that the simultaneous tasing arose in a vacuum. (Second Am. Compl. ¶¶ 93–

95.) Under the Graham factors, officers were investigating Jackson for a serious, violent

crime in which he allegedly fired a weapon at his girlfriend, officers believed him to be

armed and dangerous to others, they believed him to be the subject of an active arrest

warrant for fleeing police, and they witnessed him actively fleeing and ignoring officers’

commands. 490 U.S. at 396. In fact, Sergeant Pastor and Officer Gauldin’s tasings failed

to stop Jackson from running away. Jackson’s allegations concede as much, as he pleads

that he “attempted to distance himself from Defendants and their tasers.” (Second Am.

Compl. ¶ 111.) Furthermore, at his criminal trial, Jackson testified that his actions

constituted “flight.” (Mar. 9, 2022 Tr. at 47.)

While the Eighth Circuit has held that the “use of [a] taser on a nonfleeing,

nonviolent suspected misdemeanant [is] unreasonable,” Brossart v. Janke, 859 F.3d 616,

625 (8th Cir. 2016) (citations omitted), the court has identified “numerous cases permitting

officers to use tasers on noncompliant, violent suspects.” Franklin v. Franklin Cnty., Ark.,

956 F.3d 1060, 1062 (8th Cir. 2020) (finding that officer who tased a violent, defiant

arrestee at least five times did not violate arrestee’s right to be free from excessive force);

Zubrod v. Hoch, 907 F.3d 568, 572, 580 (8th Cir. 2018) (holding that officers who tased a

violent, resisting arrestee up to ten times did not violate the Fourth Amendment).

Defendants also point to additional cases in which courts have found the use of a taser or

stun gun against a person resisting arrest to be reasonable. (Defs.’ Mem. at 27–28 (citing

McKenney v. Harrison, 635 F.3d 354, 359–60 (8th Cir. 2011) (finding use of taser

reasonable even though suspect had committed minor crimes, never threatened officers,

was not suspected of having a weapon, and the force led to his death, because officers

“were not required to let him run free.”); Cooke v. Bella Villa, 582 F.3d 840, 851 (8th Cir.

2009) (holding that officer’s use of taser against suspect who stepped out of his vehicle and

took one step toward the officer was reasonable during a “rapidly escalating situation,”

although it was given without warning or after giving commands); Neely v. Jefferson Cnty.,

Ark., No. 5:10-cv-40-DPM, 2011 WL 3565585, at *3 (E.D. Ark. Aug. 12, 2011) (finding

that suspect’s felony warrants and flight from arrest “justified the Taser’s intermediate

level of force” even where suspect then fell into a pond and drowned).))

Under this legal authority, the facts here do not show a violation of the Fourth

Amendment. Pearson, 555 U.S. at 232. Rather, a reasonable officer in the position of

Sergeant Pastor and Officer Gauldin, with knowledge of Jackson’s suspected domestic

assault with a gun, his suspected possession of two guns, and his flight risk, would have

interpreted Jackson’s conduct as noncompliant. Ehlers, 846 F.3d at 1011.

Moreover, as to whether Jackson’s right to be free of tasing under these

circumstances was clearly established at the time, Pearson, 555 U.S. at 232, in light of the

legal authority cited above, the Court finds that the right of a person suspected of a violent

crime, reasonably believed to be armed and the subject of an active arrest warrant for

fleeing police, who was actively fleeing and ignoring police commands, to be free from the

use of a taser was not clearly established at the time.

Accordingly, Sergeant Pastor and Officer Gauldin are entitled to qualified immunity

for their actions in tasing Jackson near his truck.

c. Officer Gauldin’s Takedown of Jackson

As noted earlier, Jackson alleges that as he was “attempt[ing] to distance himself”

from the officers, they tackled and “thr[ew him] to the ground.”7 (Second Am. Compl. ¶¶

7 While Jackson generally alleges that “Defendants” tackled and beat him, he

believes that Officers Gauldin and Wilkins, along with other named officers who have

since been dismissed from this lawsuit, engaged in such conduct. (Second Am. Compl. ¶¶

112, 182.) In the Brooklyn Center Defendants’ Answer to the Second Amended

111–12.) Jackson does not allege that he was standing still when Officer Gauldin tackled

him. In fact, in his opposition memorandum, Jackson concedes that “to the extent the

Defendants truthfully and reasonably believed Plaintiff was fleeing after he was tased, the

takedown itself was constitutionally permissible under the circumstances.” (Pl.’s Opp’n at

30.) However, Jackson argues that it was unreasonable for officers to believe that he was

fleeing, and that the officers “did not factually believe that Plaintiff was fleeing, meaning

the takedown was unconstitutional.” (Id.) He contends that he was not fleeing from arrest,

but “fleeing from the unconstitutional pain and fear the Defendants sought to inflict.” (Id.)

Again, the focus here is on the objective reasonableness of the officers’ actions, not

their subjective beliefs, nor Jackson’s personal motivations. Graham, 490 U.S. at 395;

Ehlers, 846 F.3d at 1011. Application of the Graham factors weighs in favor of the

objective reasonableness of Officer Gauldin’s conduct. At the time of the takedown,

officers had reason to suspect that Jackson had committed a serious crime, believed he was

both armed and the subject of an arrest warrant, and observed his active flight.

Furthermore, their efforts to stop him by using tasers were unsuccessful.

In Poemoceah v. Morton Cnty., N. Dakota, No. 1:20-CV-00053, 2020 WL 8363156,

at *5 (D.N.D. Dec. 29, 2020), appeal filed (8th Cir. Jan. 28, 2021), where the plaintiff

acknowledged that he was running away from officers who were moving toward him, the

court found that “[t]ackling him was a reasonable way to get him to stop in this instance,”

Complaint, they admit that Officer Gauldin tackled Jackson, and Jackson does not dispute

this. (BC Defs.’ Answer ¶ 30). Accordingly, the Court’s analysis of the takedown of

Jackson solely relates to Officer Gauldin’s conduct.

even though the plaintiff sustained a broken pelvis as a result. See also Karels v. Storz,

906 F.3d 740, 745 (8th Cir. 2018) (describing takedowns as appropriate when officers face

noncompliant arrestees and circumstances fraught with danger and unpredictability). Here,

Jackson acknowledges that he was running away from officers under rapidly unfolding,

dangerous circumstances.

Jackson’s conduct stands in contrast to the excessive force used against a domestic

violence suspect in McReynolds v. Schmidli, who was attempting to comply with officer’s

commands when he was tackled. 4 F.4th 648, 653–54 (8th Cir. 2021) (reversing district

court’s application of qualified immunity and finding it was clearly established that the

level of force used against suspect who was not resisting, was not a threat, and was not a

flight risk, was unreasonable).

Under sufficiently similar circumstances, courts have found that officers have not

used excessive force by tackling a fleeing or noncompliant suspect. United States v. Dykes,

406 F.3d 717, 720 (D.C. Cir. 2005) (upholding reasonableness of use of force during Terry

stop, stating, “because Dykes was in full flight from officers who were justified in stopping

him, tackling him was a reasonable method of effectuating the stop.”); Bongiorno v. Perilli,

537 F. Supp. 3d 367, 377 (N.D.N.Y. 2021) (finding it was objectively reasonable for officer

to believe that urgent and forcible action was necessary to prevent plaintiff’s escape and to

effect the arrest, and reasonable for the officer to take plaintiff to the ground); Hosea, 867

F.3d at 958–59 (concluding that tackling of suspect was not unreasonable even after

suspect began to lower himself to the ground because “a reasonable officer on the scene

could have concluded that Hosea’s partial compliance was passive resistance.”); Wertish

v. Krueger, 433 F.3d 1062, 1066 (8th Cir. 2006) (finding officers did not use excessive

force where suspected drunk driver failed to comply with orders to exit his vehicle and

officers pulled him from the car and took him to the ground); Carpenter v. Gage, 686 F.3d

644, 647 (8th Cir. 2012) (holding that officers’ actions in taking plaintiff to the ground and

tasing him did not constitute excessive force where he had threatened a paramedic with a

baseball bat and refused to comply with officers’ orders to stop moving around); Kohorst,

968 F.3d at 877 (finding that officer’s arm-bar takedown and subsequent push to the ground

of a resistant, non-compliant suspect did not constitute unreasonable use of force).

Relying on state court authority in the context of criminal suppression motions,

Jackson attempts to distinguish between “mere flight” from “resisting arrest,” arguing that

he was not resisting arrest and had no time to comply with officers’ commands. (Pl.’s

Opp’n at 27–28 (citing State v. Olson, 634 N.W.2d 224, 230 (Minn. Ct. App. 2001); State

v. Ingram, 570 N.W.2d 173, 178 (Minn. Ct. App. 1997); State v. Bergerson, 659 N.W.2d

791, 798 (Minn. Ct. App. 2003)).) Viewing Jackson’s allegations as true, to the extent they

are not clearly contradicted by the video evidence, Jackson had ample time to comply with

officers before he led them on a foot chase. (See, e.g., Wilkins BWC at 4:59:49-5:00:20.)

Reasonable officers would interpret Jackson’s actions as flight or at least noncompliance.

Jackson further argues that “[i]t is notable that Plaintiff was not charged with

resisting arrest,” finding it inconsistent with Defendants’ “new theory that Plaintiff was

resisting.” (Pl.’s Opp’n at 28–29.) But under the third Graham factor, courts consider

whether the suspect “is actively resisting arrest or attempting to evade arrest by flight.”

490 U.S. at 396 (emphasis added). By continuing to move away from and through a group

of armed, uniformed police officers, with guns pointed directly at him, Jackson was not

complying with their continuing commands that he get on the ground or heed the obvious

need to stop moving. Reasonable officers would view his conduct in “distancing himself”

from them as noncompliant. Ehlers, 846 F.3d at 1011 (finding reasonable officer would

view plaintiff’s actions in walking away from officer who ordered him to put his hands

behind his back, even if plaintiff claimed to not hear him, as noncompliant). The fact that

Jackson was not charged with resisting arrest is not relevant, as the focus is on whether the

officers’ conduct on the scene was objectively reasonable.8 Graham, 490 U.S. at 395.

Accordingly, under the facts here, Officer Gauldin’s use of force in taking down

Jackson—who was believed to be armed, the suspect in a violent domestic assault, and the

subject of an active warrant for fleeing police, and who was actively fleeing and “distancing

himself” from the officers, even after being tased—was not objectively unreasonable.

Accordingly, these facts do not show a constitutional violation. Pearson, 555 U.S. at 232.

Moreover, Jackson cites no sufficiently analogous authority for the proposition that

at the time Officer Gauldin tackled him, the right of a fleeing suspect who was ignoring

officers’ commands, suspected of a violent crime, believed to be armed and the subject of

a warrant for fleeing police, to be free from physical tackling was clearly established. Id.

8 Moreover, as the Court has noted, supra at 21–22, even if the prosecuting

authorities’ charging decisions were relevant to this analysis, which they are not, such

decisions are both discretionary and subject to numerous considerations, and the Court will

not speculate or draw any inferences from them.

For all of these reasons, Officer Gauldin is entitled to qualified immunity for the

takedown.

d. Officers Iverson and Gauldin’s Conduct in Striking

Jackson and Officer Wilkins’ Use of a Drive Stun

Jackson also alleges that upon being tackled, Officers Gauldin, Iverson, and Wilkins

physically assaulted him.9 (Second Am. Compl. ¶ 112.) Specifically, he asserts that “[a]s

he was tackled, Plaintiff’s arms were pinned underneath his body. Defendants held him

down and Defendant Gauldin, and potentially others, punched him in the ribs repeatedly,

while Plaintiff could not move his arms and posed no threat to officers.” (Id. ¶ 113.)

Jackson further alleges that Defendant Wilkins tased him in the buttocks “while he was

already restrained and completely defenseless on the ground in the prone position,” and an

unknown officer tased him in the back. (Id. ¶ 114.)

Contrary to Jackson’s allegations that he was attacked and tased while he was

passive, defenseless, and restrained, the video evidence clearly shows otherwise. After the

initial takedown by Officer Gauldin, Jackson struggled with officers, who commanded him

9 Jackson alleges that Officer Weinzierl and Doe #1 also engaged in this conduct,

(Second Am. Compl. ¶ 112), but they have since been dismissed from this lawsuit pursuant

to the parties’ stipulation. (June 16, 2022 Order.) Jackson does not specifically allege or

argue that Officer Soliday or Sergeant Pastor engaged in the alleged assault, but refers to

the involvement of other “officers” or “Defendants” generally. (Second Am. Compl. ¶¶

112, 182.) In the Brooklyn Center Defendants’ Answer to the Second Amended

Complaint, they identify Officers Gauldin, Iverson, and Wilkins’ involvement in the

alleged conduct, (BC Defs.’ Answer ¶ 30), which Plaintiff does not appear to dispute, and

these three particular officers move to dismiss this claim. (BC Defs.’ Mem. at 32–37.)

Accordingly, the Court confines its discussion of this claim to the actions of these three

Brooklyn Center police officers.

to get on the ground and tried to gain control of him. (Wilkins BWC at 5:00:31-:40; BC

Defs.’ Ex. 5 (Iverson BWC) at 5:00:29-:40; Gauldin BWC at 5:00:25-:40.) As Jackson

ignored officers’ commands, repeatedly shouting over them, “Don’t hurt me! Don’t hurt

me!,” and continued to struggle, Officer Gauldin struck him in the ribs and stomach three

to four times, and Officer Iverson twice struck him in the midsection with his knees and

fists. (BC Defs.’ Answer ¶ 30.) In addition to commanding Jackson to put his hands behind

his back, officers ordered him to stop resisting. (Gauldin BWC at 5:00:34-35.) The video

evidence does not show Officers Gauldin and Iverson applied any physical force to Jackson

after he was restrained and handcuffed. (Id. at 5:00:45-:47.)

The Court finds no constitutional violation under these facts. See Graham, 490 U.S.

at 396. Based on shared police radio communications, Sergeant Pastor, Officer Gauldin,

and Officer Wilkins had reason to believe that Jackson had engaged in a violent assault

during which he had fired a weapon, that he was armed and posed a danger to others, and

that he was a flight risk. Moreover, during their rapidly evolving in-person encounter with

Jackson, Jackson had ignored their commands, led them on a foot chase, and continued to

struggle against them once he was taken to the ground. The analysis of objective

reasonableness in the use of force allows for consideration of such quickly unfolding,

uncertain circumstances. Id. at 397.

Officers may use physical force to gain control of a suspect who appears to be

resisting. Kohorst, 968 F.3d at 876 (finding removal of at an least passively resisting,

handcuffed suspect from squad car by lifting him with two hands and dropping him to the

ground, causing suspect to strike his head, “was not a “gratuitous and completely

unnecessary act of violence.”) ; Schoettle v. Jefferson City, 788 F.3d 855, 860 (8th Cir.

2015) (determining that it was not unreasonable for officers to strike arrestee in the head

and body in an attempt to gain control as he physically struggled with them); Mann v.

Yannell, 497 F.3d 822, 826 (8th Cir. 2007) (holding that it was not unreasonable for officers

to apply force to arrestee’s neck and use canine bite to subdue him after he refused to lie

on his stomach and continued to resist); Wertish, 433 F.3d at 1065, 1067 (finding, where

arrestee ignored commands to place his hands behind his back, it was not unreasonable for

officers to take him to the ground, climb on top of him and strike him in the head and ribs).

Jackson attempts to distinguish Carpenter, 686 F.3d at 849, arguing that there,

officers gave the suspect a chance to give his hands to officers and he chose not to comply.

(Pl.’s Opp’n at 32.) In contrast, Jackson argues that it was physically impossible for him

to comply with officers’ commands to put his hands behind his back because his hands

were pinned beneath the weight of his body and the weight of several officers who

“dogpiled” on top of him while they “cheekily command[ed] him to provide his hands.”

(Id. at 33.) Similarly, Jackson argues that officers gave him insufficient time to comply

with their commands, and distinguishes applicable legal authority on that basis. (Id. at 32–

35 (citations omitted).)

But the video evidence shows that officers were not literally piled on top of

Jackson’s body, nor that he was rendered immobile, as he continued to struggle with

officers after being tased and taken down. (HC Answer [Doc. No. 27], Ex. F (Hendrickson

BWC) at 2:25-2:31.) At no time during his entire police encounter, from exiting his truck

to being tackled, did he voluntarily stop moving or struggling. The Defendant Officers

here—who knew of Jackson’s alleged violent domestic assault, gun possession, and flight

history, and had witnessed his noncompliance and flight—could have reasonably believed

that Jackson was actively struggling with them, that he was armed and presented a risk to

their safety, and that he would not stop resisting unless they struck him.

As to the use of the taser, during the ongoing struggle, Officer Wilkins applied the

taser in drive-stun mode to Jackson’s right buttock. (Hendrickson at 2:33; Wilkins BWC

at 5:00:34-:42.) Jackson contends that Officer Wilkins applied the taser when officers

already had control of his hands, focusing on a still frame image taken from a BWC video

that depicts Jackson face down, with officers’ hands holding Jackson’s hands behind his

back while the taser is pressed against his buttock. (Pl.’s Opp’n at 33 (citing HC Answer,

Ex. G (Weinzierl BWC) at 22:08).) However, in context, the full video shows that Jackson

continued to struggle with officers while they attempted to secure his hands behind his

back, and the tasing occurred when officers were still attempting to hold his hands in place

in order to handcuff him. (Hendrickson BWC at 2:34-2:40; Wilkins BWC at 5:00:34-:42.)

The Eighth Circuit has held that officers may reasonably view such conduct as resistance,

for which the use of a taser is a reasonable amount of force to arrest or restrain the suspect.

See, e.g., Kohorst, 968 F.3d at 878 (finding no constitutional violation for use of taser as

“a reasonable officer in [the defendant officer’s] position could have perceived Kohorst as

resisting arrest and could have feared for his safety.”); Cravener v. Shuster, 885 F.3d 1135,

1140 (8th Cir. 2018) (“Unarmed, passively resisting subjects can pose a threat necessitating

the use of taser force.”); Carpenter, 686 F.3d at 649–50 (finding that officer could interpret

a suspect laying on his stomach with his hands underneath him and refusing to give his

hands to officers as resistant, such that use of taser was not unreasonable).

In sum, a reasonable officer in the positions of Sergeant Pastor, Officer Gauldin,

and Officer Wilkins would have interpreted Jackson’s ensuing struggle with officers as

noncompliance and active resistance, and a continuation of Jackson’s refusal to comply

with multiple orders. Under such circumstances, it was not objectively unreasonable for

Sergeant Pastor and Officer Gauldin to strike Jackson in the ribs and midsection in order

to subdue him. Likewise, it was not unreasonable for an officer in Officer Wilkins’ position

to apply a taser in drive-stun mode to a noncompliant, resisting suspect, whom officers had

difficulty handcuffing and restraining. None of these actions were gratuitous or

unnecessary, nor were they prolonged. Accordingly, the Court finds that the facts here do

not show a constitutional violation. Pearson, 555 U.S. at 232.

Moreover, the Court finds, consistent with the authority noted above, that it was not

clearly established at the time that an officer could not punch or use a taser in drive-stun

mode in order to subdue and restrain an actively resisting suspect who was believed to be

armed, involved in a violent assault, and a flight risk, who had just fled from these officers,

ignored their commands, and who was not stopped by other intermediate uses of force. Id.

Thus, for all of the foregoing reasons, the Court finds that Sergeant Pastor and

Officer Gauldin are entitled to qualified immunity for their actions in striking Jackson in

order to subdue him, and Officer Wilkins is entitled to qualified immunity for using a taser

in drive-stun mode in order to subdue and restrain him.

E. Monell & City of Canton Claims (Counts 3 & 4)

As noted, Plaintiff asserts a § 1983 claim under Monell v. Department of Social

Services of City of New York, 436 U.S. 658 (1978), and City of Canton, Ohio v. Harris,

489 U.S. 378 (1989), against the City. (Second Am. Compl., Counts 3 & 4.) Pursuant to

Monell, 436 U.S. at 690–95, a municipality is a “person” that can be held liable under §

1983, under certain circumstances. Under City of Canton, 489 U.S. at 378, Monell liability

may attach where a local government fails to train its employees.

1. Monell Claim (Count 3)

“Unlike the individual officers, the City does not enjoy qualified immunity.”

Mogard v. City of Milbank, 932 F.3d 1184, 1192 (8th Cir. 2019) (citing Eagle v. Morgan,

88 F.3d 620, 628 (8th Cir. 1996)). However, pursuant to Monell, municipal liability may

attach where a particular municipal action or policy itself violates federal law or directs an

employee to violate federal law, or where the municipal policy is lawful on its face, but

“municipal action has led an employee to violate a plaintiff’s rights, and that action was

taken with deliberate indifference as to its known or obvious consequences.”

Hollingsworth v. City of St. Ann, 800 F.3d 985, 992 (8th Cir. 2015) (cleaned up).

Jackson’s Monell claim appears to primarily arise under the second circumstance,

as he alleges that the City established or approved the BCPD’s written policies and training,

but deliberately disregarded “the known risk of harm that would result from BCPD’s

unconstitutional patterns and practices” and was “deliberately indifferent to and/or tacitly

authorized the same.” (Second Am. Compl. ¶¶ 203–07.) Jackson alleges that the City’s

unlawful customs or practices include the following: (1) failing to provide for the safety

of arrestees; (2) “turn[ing] a blind eye to and not interven[ing] with the use of excessive

force” by the BCPD; (3) “condon[ing] and requir[ing] officers to treat members of the

Black Community of Brooklyn Center differently,” including through the disproportionate

use of force “against Black men who d[o] not pose a threat to officers as compared with

any other race or sex demographic”; (4) rendering “the process of filing misconduct

complaints against BCPD officers a farce”; (5) tolerating excessive force used against

persons suspected of committing violent or firearm-related crimes, “even when those

suspicions prove to be ill-founded, and even when those suspicions cannot reasonably lead

the officers to believe the suspect will be violent towards the officers at the time of the

arrest”; (6) absolving police officers of responsibility for the use of excessive force, thereby

ratifying their conduct; and (7) refusing to discipline or terminate officers who have

committed misconduct, including the use of excessive force. (Id. ¶¶ 204–09.) Jackson

contends that the City’s failure to terminate or discipline its police officers for depriving

citizens of their civil rights “is part of its larger custom, policy, or practice of failing to

supervise, terminate, or properly discipline its officers for unconstitutional, unlawful, or

otherwise improper conduct,” resulting in the Defendant Officers engaging in “unlawful

acts” toward arrestees, including Plaintiff. (Id. ¶ 215.)

Again, for liability to attach to the City, Plaintiff must plausibly allege that “[the

City’s] action has led an employee to violate [his] rights.” Hollingsworth, 800 F.3d at 992.

However, as the Court has discussed, the facts here do not show any violation of Jackson’s

constitutional rights by the Defendant Officers. See Whitney v. City of St. Louis, 887 F.3d

857, 861 (8th Cir. 2018) (“[A]bsent a constitutional violation by a city employee, there can

be no § 1983 or Monell liability for the City.”) Jackson’s allegations to the contrary are

flatly contradicted by the BWC and squad car videos.

Furthermore, acts performed pursuant to an unofficial custom must be “so

widespread as to have the force of law,” consisting of a continuing, persistent pattern of

unconstitutional misconduct. Perkins v. Hastings, 915 F.3d 512, 521 (8th Cir. 2019)

(citation omitted); Marks v. Doe 1, 528 F. Supp. 3d 1008, 1013 (D. Minn. 2021) (citing

Jane Doe A ex rel. Jane Doe B v. Special Sch. Dist. St. Louis Cnty., 901 F.2d 642, 646 (8th

Cir. 1990)). Also, the plaintiff must demonstrate “[d]eliberate indifference to or tacit

authorization of such conduct by the entity’s policymaking officials after notice to the

officials of that misconduct,” and the custom in question must be “the moving force behind

the constitutional violation” to the plaintiff.” Marks, 528 F. Supp. 3d at 1013 (citing Jane

Doe A, 901 F.2d at 646).

Prior incidents of unconstitutional conduct must be factually similar to the incident

at issue. Mettler v. Whitledge, 165 F.3d 1197, 1205 (8th Cir. 1999) (finding no custom

established where plaintiff failed to show prior incidents were factually similar to officers’

confrontation with plaintiff’s son). Jackson alleges six specific incidents involving the use

of force by BCPD officers, including one allegation concerning Officer Soliday, all of

which the Court assumes as true. However, these incidents are not factually similar to the

facts here. (Second Am. Compl. ¶¶ 122–38.) None of the prior incidents involved

ramming, tackling, or striking a suspect, (see id.), and only one involved tasing. (Id. ¶

127.) Not only is the officers’ conduct different in the prior incidents that Jackson

identifies, none of these incidents involved a suspect in a violent domestic assault, believed

to be armed and a flight risk, who was ignoring officers’ commands, and who was actively

fleeing police—or even some combination of these facts.

In addition, these six prior incidents, including the single incident involving Officer

Soliday, are insufficient to demonstrate a custom that is so widespread that it has the force

of law. See Brewington v. Keener, 902 F.3d 796, 802 (8th Cir. 2018) (holding two incidents

of excessive force, even if assumed true, cannot be considered a pattern of widespread and

pervasive unconstitutional conduct) (citing Smith v. Watkins, 159 F.3d 1137, 1138 (8th Cir.

1998) (“two specific complaints and various rumors about an officer were not sufficient to

establish a policy or custom of condoning unconstitutional conduct.”); Roberts v. City of

Shreveport, 397 F.3d 287, 295 (5th Cir. 2005) (holding that evidence of an officer

brandishing his handgun during a traffic stop, committing one other incident of deadly

force, and receiving two complaints of excessive force insufficient to establish a pattern of

unconstitutional conduct); Pineda v. City of Houston, 291 F.3d 325, 329 (5th Cir. 2002)

(concluding that eleven incidents were insufficient to establish an unconstitutional

pattern)).

Likewise, Jackson’s allegations containing general statistics or general descriptions

of the BCPD’s use of force, the results of investigations, settlements, and “low rate” of

disciplinary action, (Second Am. Compl. ¶¶ 123, 139–42, 203–16), fail to allege the

specific conduct of the officers and the offenses in question. They do not sufficiently allege

a pattern of widespread, persistent conduct. See Perkins, 915 F.3d at 523 (finding that

statistical evidence of a pattern was insufficient, alone, to support a pattern of the city’s

failure to investigate).

Moreover, the facts here, as reflected in the BWC and squad car videos, blatantly

contradict any allegation that the City’s unofficial custom “was the moving force behind

the constitutional violation” to the plaintiff.” Marks, 528 F. Supp. 3d at 1013.

For all of these reasons, the Court finds that Jackson does not plausibly assert a

Monell claim against the City. The City’s motion is granted in this regard and Count 3 is

dismissed.

2. City of Canton Claim (Count 4)

Jackson also asserts a § 1983 claim under City of Canton. Jackson alleges that the

City acted with deliberate indifference when it failed to properly train or modify its police

training related to the use of force and vehicle pursuit intervention techniques, even though

it knew of the need for such training or modifications. (Second Am. Compl. ¶¶ 222–27.)

Under City of Canton, 489 U.S. 378, municipal liability may attach where: (1) a

city’s training policies are inadequate; (2) the city acts with deliberate indifference to the

rights of others when adopting its policies; and (3) the alleged deficiency actually causes

the plaintiff’s injury. Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996). However,

such a theory is typically not viable in the absence of an underlying constitutional violation

by the city employees. See, e.g., Murray v. Lene, 595 F.3d 868, 873 (8th Cir.2010) ( “[W]e

have consistently held that a municipality cannot be liable under § 1983 unless one of its

employees is found liable.”). As noted, the facts here do not establish a constitutional

violation by the Defendant Officers. Further, to the extent that Jackson alleges the City

failed to adequately train its officers to intervene in the excessive use of force, (Second

Am. Compl. ¶¶ 222–23), he does allege an underlying claim based on the failure to

intervene. Moreover, as with Jackson’s Monell claim alleging an unconstitutional custom

or policy, “[a] pattern of similar constitutional violations by untrained employees is

ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train.”

Connick v. Thompson, 563 U.S. 51, 62 (2011) (cleaned up); see also Perkins, 915 F.3d at

523. As the Court has found, Jackson has failed to adequately allege the existence of a

pattern of similar conduct.

In sum, Jackson does not plausibly assert a claim for failure to train under City of

Canton. Accordingly, the City’s Motion to Dismiss is granted in this regard and Count 4

is dismissed.

F. State Law Claims (Claims 5, 6, and 7)

As noted, Plaintiff also asserts Minnesota state law claims against the City and the

Defendant Officers for battery, negligence, and negligent infliction of emotional distress.

(Second Am. Compl., Counts 5–7.) The Brooklyn Center Defendants move to dismiss

these claims, arguing that the Defendant Officers are entitled to official immunity and the

City is entitled to vicarious official immunity.

The doctrine of official immunity provides that a public official “charged by law

with duties which call for the exercise of his judgment or discretion is not personally liable

to an individual for damages unless he is guilty of a willful or malicious wrong.” Anderson

v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004) (internal

quotation marks and citation omitted). Official immunity is intended “to protect public

officials from the fear of personal liability that might deter independent action.” Janklow

v. Minn. Bd. of Examiners, 552 N.W.2d 711, 715 (Minn. 1996). In contrast to discretionary

acts, public officials are not entitled to official immunity in connection with ministerial

acts, i.e., acts “involving merely the execution of a specific duty arising from fixed and

designated facts.” Vassallo ex rel. Brown v. Majeski, 842 N.W.2d 456, 462 (Minn. 2014)

(citation omitted). Under Minnesota law, “The conduct of police officers in responding to

a dispatch or making an arrest involves precisely the type of discretionary decisions, often

split-second and on meager information, that we intended to protect from judicial second-

guessing through the doctrine of official immunity.” Kelly v. City of Minneapolis, 598

N.W.2d 657, 665 (Minn. 1999). The Defendant Officers’ actions on January 14, 2021 in

responding to the dispatch call and apprehending and arresting Jackson required them to

exercise their judgment and discretion, based on the information available to them, under

tense and uncertain circumstances. Dokman v. County of Hennepin, 637 N.W.2d 286, 296

(Minn. Ct. App. 2001) (finding officers’ conduct in deploying chemical irritants into the

home of a person believed to be a danger to himself, who refused to comply with officers’

commands, was discretionary, as officers had no way of knowing suspect’s real intentions,

and were responding to available information under tense and uncertain circumstances).

In the official immunity context, malice “means intentionally committing an act that

the official has reason to believe is legally prohibited.” Kelly, 598 N.W.2d at 663. This

determination “contemplates less of a subjective inquiry into malice . . . and more of an

objective inquiry into the reasonableness of an official’s actions. State by Beaulieu v. City

of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994). A public official can defeat a claim

that he or she acted with malice by meeting any one of the three following tests: (1) that

the conduct was objectively legally reasonable, i.e., legally justified under the

circumstances; (2) that the conduct was performed in good faith; or (3) that the right

allegedly violated was not clearly established at the time. Mitchell v. Dakota Cnty. Soc.

Servs., 959 F.3d 887, 902 (8th Cir. 2020) (citing Gleason v. Metro Council Transit Ops.,

563 N.W.2d 309, 317, 318 n.3 (Minn. Ct. App. 1997)). While Jackson alleges that the

Defendant Officers “willfully or maliciously apprehended him in a manner that violated

his constitutional rights,” (Second Am. Compl. ¶¶ 240, 254, 262), such “bare allegations

of malice should not suffice to subject government officials either to the costs of trial or to

the burdens of broad-reaching discovery.” Harlow v. Fitzgerald, 457 U.S. 800, 817–18

(1982); see also Semler v. Klang, 743 N.W.2d 273, 279 (Minn. Ct. App. 2007) (stating that

a finding of malice must be based on specific facts showing bad faith). To the extent

Jackson asks the Court to infer that the Officers’ actions in ramming his car, tasing him,

and striking him constitute bad faith, the Court declines to do so. Any such inferences or

related allegations are implausible as they are utterly belied by the BWC and squad car

videos. For all the reasons previously stated, the Defendant Officers’ conduct was

objectively legally reasonable and justified under the circumstances. Mitchell, 959 F.3d at

902. Accordingly, the Brooklyn Center Defendant Officers are entitled to official

immunity, barring Jackson’s intentional and negligence tort claims. Accordingly, Claims

5, 6, and 7 against the Defendant Officers are dismissed.

As to the City’s request for vicarious official immunity, if official immunity applies

to a public official, vicarious official immunity generally applies to his or her government

employer based on claims arising from the employee’s conduct. Anderson, 678 N.W.2d at

663–64. The question of whether to extend vicarious official immunity to a government

employer remains a policy question for the court. Hayek v. City of St. Paul, No. 05-cv-867

DWF/AJB, 2006 WL 2883155, at *8 (D. Minn. Oct. 6, 2006), aff’d, 488 F.3d 1049 (8th

Cir. 2007) (citing Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992)). Here, the Defendant

Officers exercised discretion in deciding to use reasonable force against Jackson. Because

the Court finds no basis for imposing liability on the Officers, the Court likewise finds no

basis for imposing vicarious liability on the City. Id. (citing Dokman, 637 N.W.2d at 297

(“Vicarious official immunity protects a governmental entity from liability based on the

acts of an employee who is entitled to official immunity.”). Accordingly, the Court finds

that the City is entitled to vicarious official immunity, and Claims 5, 6, and 7 against the

City are dismissed.

Because the Court grants this portion of the Brooklyn Center Defendants’ motion

based on official immunity, the Court need not address Defendants’ alternative arguments

that Plaintiff’s state law tort claims fail on the merits.

III. CONCLUSION

In conclusion, the Court finds that Jackson’s claims must be dismissed under Rules

12(b)(6) and 12(c). In reaching this decision, the Court has relied on Jackson’s allegations,

assuming them as true, unless blatantly contradicted by the Defendant Officers’ BWC and

squad car videos—videos that both parties agree are authentic and embraced by the

pleadings. The Court has also relied, to a lesser extent, on matters of public record in

Jackson’s criminal case, United States v. Jackson, 21-cr-51 (DWF/TNL). Under the facts

here, repleading would not cure the deficiencies in the Second Amended Complaint,

particularly in light of the BWC and squad car videos. See Zutz v. Nelson, 601 F.3d 842,

850 (8th Cir. 2010) (noting that an amendment is considered futile when it “could not

withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure.”). Nor does Jackson offer any proposed amendments. In re K-tel Int’l, Inc.

Sec. Litig., 300 F.3d 881, 889 (8th Cir. 2002) (stating that plaintiffs failed to explain how

they would amend the pleading, and finding motion to dismiss was properly granted).

Therefore, based on the submissions and the entire file and proceedings herein, IT

IS HEREBY ORDERED that:

1. The Motion for Judgment on the Pleadings [Doc. No. 43] filed by

Defendants the City of Brooklyn Center, and Brooklyn Center Police

Officers Jake Wilkins, Stephen Pastor, Joel Iverson, Cooper

Gauldin, Ryan Soliday, and Kate Deering is GRANTED.

2. This matter is DISMISSED WITH PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: March 6, 2023 s/Susan Richard Nelson

SUSAN RICHARD NELSON

United States District Judge