attorney Michael E. Douglas Attorney at Law
  Personal Injury Attorney
  St. Paul Workers Compensation Lawyer work comp attorney
 > About Me
   :: My Commitment
   :: Our Community
 > Legal Practice Areas
  twin cities comsumer lawPersonal Injury
   :: Traffic Accidents
   :: Medical Malpractice
   :: Social Security Disability
   :: Premises Liability
   :: Wrongful Death
   :: Dog Bite
   :: Back/Spinal/Neck Injuries
   :: Whiplash
   :: Defective Medical Devices
   :: Defective Drugs
  Minnesota Personal InjuryWorkers Compensation
  St. Paul personal injuryConsumer Law
   :: Debt Collection
   :: Repossessions
   :: Foreclosures
   :: Loan, Credit, Banking
   :: Arbitration Agreements
   :: Deception and Fraud
   :: Auto Fraud / Lemon Law
   :: Warranties
   :: Predatory Lending
 > Contact Us
   :: Contact Us

Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551

 Saint Paul Lawyer


Jones v. Boerger: US District Court : 1983 - officer could reasonably believe plaintiff was ignoring commands to stop, use force

Prince Jones,
vs. Civil No. 07-3009ADM/JSM
Darryl R. Boerger, individually and in
his official capacity; Chad L. Degree,
individually and in his official capacity;
John M. Harrington, St. Paul Chief of
Police, individually and in his official
capacity; and the City of St. Paul,
Brendan R. Tupa, Esq., Entrepreneurs & Free Markets, PLC, Minneapolis, MN, appeared for and
on behalf of the Plaintiff Prince Jones.
Portia Hampton-Flowers, Esq., Assistant City Attorney, St. Paul, MN, appeared for and on
behalf of the Defendants.
On August 26, 2008, the undersigned United States District Judge heard oral argument
on the Motion for Summary Judgment [Docket No. 11] brought by Defendants Darryl R.
Boerger (Boerger), Chad L. Degree (Degree), St. Paul Chief of Police John M. Harrington
(Harrington), and the City of St. Paul (the City). In his Complaint [Docket No. 1], Plaintiff
Prince Jones (Jones) alleges Boerger and Degree used excessive force in violation of 42
U.S.C. 1983 and the Fourth Amendment, and alleges claims of assault and battery, false arrest,
and intentional infliction of emotional distress under Minnesota law. Jones also alleges
Harrington and the City engaged in negligent hiring, training, and supervision of Boerger and
1 On a motion for summary judgment, the Court views the evidence in the light most
favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).
Degree, and the City developed and maintained policies or customs exhibiting deliberate
indifference to the constitutional rights of persons in the City of St. Paul in violation of 42
U.S.C. 1983. During oral argument on the motion, Jones voluntarily dismissed all claims
against Harrington and the City, as well as the intentional infliction of emotional distress claim
against the individual officers. The remaining counts are the 1983 claim against the individual
officers, as well as the assault and battery and false arrest claims. For the reasons set forth
below, Defendants Motion for Summary Judgment is granted.
On January 27, 2006, Jones received a ride home from work from Deshaune Poe (Poe).
Tupa Aff. [Docket No. 17] Ex. H (Jones Aff.) 2. Jones and Poe stopped in front of Jones
house where Jones placed a call to his wife on his cell phone. Id. 3. At the same time,
approximately 9:00 p.m., Officers Boerger and Degree were on patrol driving on Central Avenue
in St. Paul, an area known to the officers for having a high crime rate. Hampton-Flowers Aff.
[Docket No. 14] Ex. D (Degree Depo.) at 7-8; Hampton-Flowers Aff. Ex. F (Boerger Depo.) at
8. Jones was in the passenger seat of Poes car and saw the police car drive past him in the
opposite direction. Jones Depo. at 54. As the officers passed Poes car, they noticed exhaust
coming from the car and the driver looking down into his lap manipulating something with his
hands. Degree Depo. at 9; Boerger Depo. at 7. Based on their training and experience, the
officers concluded this behavior was consistent with someone wrapping a marijuana cigarette.
Boerger Depo. at 7; Degree Depo. at 9. After the license plate check of the car revealed the
2 Both Boerger and Degree testified they identified themselves as police and commanded
Jones to get back in the car. Degree Depo. at 19; Boerger Depo. at 11. Neither Jones nor Poe
has contested this fact, Jones merely avers, and the Court accepts as true for the purposes of
summary judgment, that he did not hear these commands.
registered owner had a suspended license and that the description of the owner matched the
drivers appearance, the officers performed a U-turn and pulled behind Poes car. Id. at 9-10.
At this point, recollection of events by the officers and Jones and Poe diverge. Giving
Jones the favorable inferences he is entitled to on summary judgment, the contested facts will be
recited from the evidence he has produced. Jones recalls seeing the police car and a bright,
white light consistent with a spotlight. Jones Depo. at 41, 54, 58. After seeing the light, Jones
got out of the car and began to walk towards his house. Jones Depo. at 58. There was ankle
high snow on the ground, and ice on the sidewalk. Id. at 41; Degree Depo. at 23; Boerger Depo.
at 11. Jones avers he did not hear any verbal commands from the officers.2 Jones Aff. 7.
Jones at one point claimed he was then knocked unconscious immediately after exiting the car,
but later stated he had begun to walk up the walkway in front of his house before he was struck.
Id. at 58, 59. He testified he does not know who or what struck him. Id. at 41. Poe avers that
Jones was tackled by a St. Paul police officer immediately after exiting the car. Tupa Aff. Ex.
G (Poe Aff.) 4, 5. Boerger admits to pushing Jones causing him to slip on the ice, hit the left
side of his head on the sidewalk, and lose consciousness. Boerger Depo. at 14. The officers
radioed for medical help, and Jones received treatment at United Hospital. Id. at 15; Jones Depo.
at 62. The officers searched Jones and Poe and found marijuana on Jones and in Poes car.
Hampton-Flowers Aff. Ex. E (Incident Report).
Jones asserts that Boerger and Degree acted under color of state law to deprive him of his
right to be free from excessive force under the Fourth and Fourteenth Amendments of the United
States Constitution and that the officers violated state law by committing an unlawful arrest and
assault and battery. Compl. [Docket No. 1] 15-20.
A. Standard for Summary Judgment
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion
for summary judgment, the Court views the evidence in the light most favorable to the
nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). The nonmoving party
may not rest on mere allegations or denials, but must demonstrate on the record the existence of
specific facts which create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953,
957 (8th Cir. 1995).
B. 42 U.S.C. 1983 Claims Against Boerger
In order to survive a motion for summary judgment under 1983, the plaintiff must
raise a genuine issue of material fact as to whether (1) the defendants acted under color of state
law, and (2) the alleged wrongful conduct deprived the plaintiff of a constitutionally protected
federal right. Cooksey v. Boyer, 289 F.3d 513, 515 (8th Cir. 2002). Boerger, acting as a police
officer, does not dispute he acted under the color of state law. He argues, however, that if there
was any wrongful conduct, the doctrine of qualified immunity protects him from liability.
The standard for assessing qualified immunity is one of objective legal reasonableness.
Winters v. Adams, 254 F.3d 758, 766 (8th Cir. 2001) (citing Harlow v. Fitzgerald, 457 U.S. 800,
819 (1982)). The first question is whether, viewing the facts in the light most favorable to the
party asserting the injury, the officers conduct violated a constitutional right. Saucier v. Katz,
533 U.S. 194, 201 (2001). If the first question is answered in the affirmative, the second
question is whether the right violated was clearly established. Id. To determine whether a
particular right was clearly established, it must be viewed in a particularized, relevant sense:
The contours of the right must be sufficiently clear that a reasonable official would understand
that what he is doing violates that right. Anderson v. Creighton, 483 U.S. 635, 639-40 (1987).
The relevant, dispositive inquiry in determining whether a right is clearly established is whether
it would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted. Saucier, 533 U.S. at 202. Whether a given set of facts entitles the official to
summary judgment on qualified immunity grounds is a question of law. Greiner v. City of
Champlin, 27 F.3d 1346, 1352 (8th Cir. 1994). Defendants will not be immune if, on an
objective basis, it is obvious that no reasonably competent officer would have concluded that the
defendant should have taken the disputed action. Winters, 254 F.3d at 766.
A reasonable officer in Boergers position would not believe it was unlawful to tackle a
suspect who appears to be disregarding commands to stop. Boerger was in the midst of an
investigative stop in a high crime area after dark. The occupants of the vehicle were engaged in
activity the officers concluded was consistent with illegal drug use. The officers pulled behind
3 After Defendants submitted their Motion for Summary Judgment relying on the
testimony of Boerger and Degree that they commanded Jones to stop, Jones submitted to the
Court an affidavit stating that he did not hear any verbal commands from either officer. Jones
Aff. 7. Neither Jones nor Poes affidavits contest whether these commands were given. Rule
56(e) of the Federal Rules of Civil Procedure states, [w]hen a motion for summary judgment is
properly made and supported, an opposing party may not rely merely on allegations or denials in
its own pleading; rather, its response must by affidavits or as otherwise provided in this rule
set out specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). Since Jones had
an affirmative duty to contest whether the officers made their commands and did not, the Court
will assume the officers made these commands and Jones did not hear them.
the car and turned on the spotlight. Jones exited the car, and regardless of whether Jones heard
the officers command to stop,3 he continued to move away from the officers. A reasonable
officer in Boergers position could assume that Jones was ignoring his commands to stop. On
the icy sidewalk, Boerger pushed Jones resulting in the tackle Poe described. This minimal
level of force used to apprehend Jones would be appropriate to contain an uncooperative suspect.
Jones cites two cases to support his claim that Boergers tackle constituted excessive
force, but neither involves facts similar to this one. In Straundlund v. Hawley, the plaintiff
asserted an excessive force claim when he was tackled from behind by an officer after the
plaintiff inquired as to why his nephew was being detained by the police. 2007 WL 984268 at 4
(D. Minn. 2007). The court found there were no grounds for the officer to believe the plaintiff
was a threat and denied the officers motion for summary judgment. Jones case differs from
Straundlund because of the probable cause Boerger had for believing Jones may have been
involved in a crime, and Boergers reasonable belief Jones was ignoring his commands to stop.
In the second case Jones cites, the inmate plaintiff was tackled and pepper sprayed without
warning by a correctional officer. Johnson v. Blaukat, 453 F.3d 1108, 1113 (8th Cir. 2006). The
plaintiff in Blaukat was tackled with no warning but there was a history of animosity between
the officer and the plaintiff. Here, there is no evidence of any prior relationship at all between
the parties. Further, Boerger told Jones to stop and that command was not obeyed. Accordingly,
Boerger is entitled to qualified immunity on the excessive force claim.
C. False Arrest Claim Against Boerger
There is some confusion about the nature of Jones false arrest claim. It is unclear from
the face of the Complaint whether Jones raised this claim under 1983 or Minnesota law. In the
Complaint, Count One, the excessive force claim, is clearly labeled as a 1983 cause of action.
Count Two, the assault and battery claim, is under state law. Count Three, the false arrest claim,
lacks the 1983 label of Count One and follows the state law claim of assault and battery. The
Defendants addressed the false arrest claim under a 1983 analysis in their Memorandum in
Support of Summary Judgment. Defs. Mem. in Supp. for Mot. for Summ. J. [Docket No. 13] at
14-16. In the section of his reply brief dealing with joint and several liability, Jones recites the
standard for false imprisonment and official immunity under Minnesota law. Because Jones now
seems to assert the false arrest as a state law claim, the Court will address this claim under
Minnesota law.
The action for the tort of false imprisonment or false arrest protects the personal interest
in freedom from restraint of movement. The restraint may be imposed by the assertion of legal
authority, and if an arrest is made without proper legal authority, it is a false arrest . . . .
Lundeen v. Renteria, 224 N.W.2d 132, 135 (Minn. 1974). Jones asserts there was no legal
justification for his arrest. He argues that the arrest after merely stepping out of his vehicle in
front of his home in the Frogtown neighborhood without engaging in wrongdoing creates a fact
question inappropriate for summary judgment. Pl.s Mem. in Oppn of Summ. J. [Docket No.
16] at 10. The uncontested facts do not support this contention. In his testimony, Jones admits
he did more than merely exit his car. He saw the spotlight and began to walk away from the
officers. Moreover, Boerger had probable cause, as documented above, to arrest a noncompliant
suspect. Although the discovery of marijuana on Jones person after he was
apprehended may not be considered in the probable cause determination, it does show the
officers suspicions were confirmed. For these reasons, Boerger is entitled to summary judgment
on this claim.
D. Assault & Battery Against Boerger
Jones also alleges Boergers use of force constitutes assault and battery. Boerger argues
his actions are protected by the doctrine of official immunity. Official immunity is an
immunity from suit and the question may be appropriately resolved on summary judgment.
Reuter v. City of New Hope, 449 N.W.2d 745, 751 (Minn. Ct. App. 1990). Official immunity
prevents a public official charged by law with duties which call for the exercise of his judgment
or discretion from being held personally liable for damages, unless the official has committed a
willful or malicious act. Mumm v. Mornson, 708 N.W.2d 475, 490 (Minn. 2006) (citing
Elwood v. County of Rice, 423 N.W.2d 671, 677 (Minn. 1988) (quoting Sulsa v. State, 247
N.W.2d 907, 912 (Minn. 1976))). Official immunity enables public employees to perform their
duties effectively, without fear of personal liability that might inhibit the exercise of their
independent judgment. Mumm, 708 N.W.2d at 490. An official immunity analysis requires
courts to determine (1) whether the conduct at issue involves ministerial or discretionary duties,
and (2) if the duties are discretionary, whether the officials acted willfully or maliciously. Id.
A ministerial duty is one that is absolute, certain, and imperative, involving merely the
execution of a specific duty arising from fixed and designated facts. Anderson v. Anoka
Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 656 (Minn. 2004) (citations omitted). In
contrast, a duty is discretionary if it involves more individual professional judgment that
necessarily reflects the professional goal and factors of a situation. Mumm, 708 N.W.2d at
490-91 (citation omitted). The Minnesota Supreme Court has suggested, as a general matter,
that police charged with the duty to prevent crime and enforce the laws are not purely
ministerial officers in that many of their duties are of an executive character involving the
exercise of discretion. Elwood, 423 N.W.2d at 678 (citations omitted). Malice, in the
immunity context, means the intentional doing of a wrongful act without legal justification or
excuse, or, otherwise stated, the willful violation of a known right. Kari v. City of
Maplewood, 582 N.W.2d 921, 924 (Minn. 1998) (citations omitted).
Under this analysis, Boerger is entitled to official immunity. At the time of the incident,
he was an on-duty police officer conducting an investigatory stop. By exercising his
professional judgment in the context of preventing crime and enforcing the laws, Boerger was
engaged in a discretionary duty satisfying the first requirement for official immunity. There is
also no indication Boerger acted with malice. As indicated above, Boerger did not willfully
violate a known right but instead used the amount of force a reasonable officer confronted with a
non-complying suspect might feel was necessary. Accordingly, Boerger is entitled to official
immunity on the assault and battery claim.
E. The Claims Against Degree
Jones also alleges that Degree used excessive force in violation of 1983, and committed
false arrest and assault and battery. Even though there is no evidence that Degree used any force
or contributed to Jones injuries in any way, Jones argues liability extends to Degree through a
theory of joint and several liability. He cites the Minnesota Apportionment of Damages statute
for the proposition that if both Boerger and Degree engaged in a common scheme or plan that
resulted in his injury, or if they committed an intentional tort, they are each jointly and severally
liable for the entire award. Minn. Stat. 604.02, subd. 1. While Jones misunderstands the
nature of this statute as an apportionment mechanism rather than a source of liability, his
argument appears to be that Degree is liable because he acted as part of a common scheme or
plan with Boerger to use excessive force and engage in the intentional torts of assault and battery
and/or false arrest.
First, this Court can find no legal support for Jones novel theory the 1983 excessive
force claim would qualify as an intentional tort under the Minnesota statute. Second, Jones can
cite no evidence in the record that would indicate Degree and Boerger planned or schemed to
commit assault and battery or false arrest. At oral argument, Jones counsel highlighted the fact
Degree and Boerger were on patrol together at the time of the incident but failed to indicate how
this fact was evidence of a common plan or scheme. Since Jones has presented no evidence
Degree engaged in any wrongdoing or engaged in a common plan or scheme with Boerger,
Jones claims against Degree fail.
Based upon the foregoing, and all of the files, records and proceedings herein, IT IS
HEREBY ORDERED that Defendants Motion for Summary Judgment [Docket No. 11] is
s/Ann D. Montgomery
Dated: September 22, 2008.


  What day were you injured?

  / /

  What caused your injuries?
Traffic/Bicycle Accident
Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall

  How have your injuries affected

  your life?


  What kinds of medical care
  professionals have you seen?


  What has your treatment cost?


  Is Insurance Involved?
My insurance may cover

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement

I accepted a settlement

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report



          By visiting this page or clicking the
  "submit" button above, you agree
  that you have read and accept this   "disclaimer".
Copyright © Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights Reserved.
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.