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Felder v. King: US District Court : 1983 - excessive force (shot to death) claims to proceed to trial on conflicting evidence; no Monell liability regarding lack of training

Katie J. Felder, as trustee )
for the next of kin )
of Dominic Aries Felder )
v. ) ORDER
Jason King, Lawrence )
Loonsfoot, and City of )
Minneapolis )
This case arises out of the tragic death of Dominic Aries
Felder. He died on September 20, 2006, at the age of 26, from
gunshots fired by Minneapolis Police Officers, Lawrence Loonsfoot
and Jason King. Katie Felder, his mother, and trustee for the next
of kin, claims King and Loonsfoot are liable for assault, battery,
and the use of excessive force. She further claims the City of
Minneapoliss policies and improper employee training led to his
Defendants move for summary judgment, claiming qualified and
official immunity, and maintaining plaintiff failed to establish a
cause of action against the City of Minneapolis (the City).
Plaintiff opposes summary judgment, asserting genuine issues of
material fact preclude granting defendants motion. Defendants
motion is granted in part and denied in part. Summary judgment is
granted as to plaintiffs Monell claim against the City. Summary
judgment is denied as to defendants claims of qualified and
official immunity. Plaintiffs assault, battery, and use of
1 The parties significantly disagree about the events leading
to Felders death. For purposes of this motion, premised on Rule
56 of the Federal Rules of Civil Procedure, the Court views all
facts most favorably to plaintiff, the non-moving party. Facts
set forth in this Opinion are taken from the parties pleadings,
and are not determinations on the merits.
excessive force claims against the Officers will proceed to trial.
I. Background1
Dominic Felder (Felder) was just over five feet tall and
weighed 155 pounds. He worked full time as a telemarketer. He
lived with Tiana Wilson (Wilson), his significant other, and
their daughter, Destiny.
On September 20, 2006, Felders relatives were concerned about
his mental health. Felder told Wilson he believed people were
trying to kill him. Wilson called her mother, Teri Williams, and
asked her to come over and pray with [Felder] because . . . he
[was] not all there. (Compl. 20.) When Wilson asked Felder
what she could do, he told her he wanted to be helped. (Compl.
Wilson also called a family friend, Pangia Vang, for advice.
At 11:30 p.m. Vang called 911, saying Felder was experiencing a
mental attack. The 911 operator asked if Felder had a history of
mental health problems. Vang did not know of any.
Four minutes later, Felders next door neighbor called 911 to
report a domestic dispute, and said Felder was pounding on his
door and yelling he would kill a bunch of people. Seconds later,
Williams phoned 911 asking for a police squad and reporting Felder
was crazy . . . talking crazy saying all kinds of crazy things.
No one who called 911 claimed Felder had a weapon.
After the neighbors 911 call, Officers Loonsfoot and King
were dispatched to check on a secondhand report of a domestic
argument. Minutes later, police dispatch relayed the message that
the ex-boyfriend involved now is out in front threatening to kill
a resident and her son. The Officers were given Felders physical
description, but no other information, before they arrived at the
A. Witness Accounts
1. The Officers Accounts
When the Officers arrived, Felder voluntarily approached the
police car and told Loonsfoot, I need to talk to you guys.
Loonsfoot stated he would first need to pat Felder down for weapons
before they could speak. Felder replied aint got nothing,
pulled up his shirt, and began to back away. Felder then turned
and jogged away from the Officers. Wilson and her mother watched
from Wilsons front yard. According to Wilson, Felder jogged away
as if in slow motion.
Loonsfoot says Felder put both hands towards the front of his
waistband as he ran, as though he was drawing a weapon, leading
Loonsfoot to draw his gun. Wilson and Williams deny seeing Felder
dig in his pants as if trying to pull something out.
Wilson and Williams approached the Officers when Felder began
to run. King says Wilson yelled, Dont shoot him, he aint got no
gun. (King Dep. 65:8-11.) Officer Loonsfoot states one of the
women said Felder was mental, and, He just broke my window. You
got to go get him. (King Dep. 64:24-25; Loonsfoot Dep. 59:8-23.)
Wilson and Williams claim one of the Officers responded, She
want[s] us to get him, but she dont want us to shoot him.
(Wilson Dep. 50:14-16; Williams Dep. 51:18-25.) Loonsfoot then
holstered his gun, and the Officers began to follow Felder in their
squad car. Wilson and Williams followed on foot.
When the Officers caught up to Felder, King drew his weapon
and ordered Felder to the ground and onto his stomach. Felder
complied immediately. King says he knelt next to Felder to cuff
him, and began to holster his gun. Loonsfoot approached Felder
with his hand on his holstered gun.
According to Loonsfoot, Felder began to raise himself up off
the ground. (Loonsfoot Dep. 81:4-8.) Loonsfoot pushed down on his
back as King straddled Felders waist. Despite the Officers
efforts, Felder returned to a standing position, at which time
Loonsfoot placed Felder in a headlock. Each Officer states they
tried to force Felder to the ground. King claims he struck Felder
twice in the head with the butt of his gun. The blows did not
appear to faze Felder.
The Officers then wrestled Felder onto his stomach; Felder
immediately flipped over onto his back. King sat on Felders knees
while holding his gun with both hands. King says Felder reached
toward his waistband again. The Officers admit they never saw
Felder with a weapon.
At this point, King says Felder grabbed his gun and [pulled]
it towards himself. Loonsfoot, who was behind Felder, attempted
to get Kings gun, which was only inches away from his own face.
(Loonsfoot Dep. 104:13-18.) King claims he and Felder engaged in
a brief tug of war over the weapon. King states he fired his
weapon at Felder after realizing he could not get the gun. (King
Dep. 113:7-9.)
Thereafter, Loonsfoot says he rolled to Felders side, jumped
to his feet, and moved away from Felder and King. Even after being
shot, the Officers state Felder clung to the barrel of Kings gun.
Loonsfoot claims he then moved behind King, facing Felder. King
then yelled, Hes got my gun, at which point Loonsfoot began
shooting Felder. Felder was shot six times, and, according to
Loonsfoot, remained in the same position holding Kings gun until
he stopped firing. By the time medical assistance arrived, Felder
was dead.
2. Williams and Wilsons Account
Williams and Wilson observed the altercation from across the
street. Wilson says she saw the Officers holding Felder up off the
ground by his arms, as Felder begged the Officers to let him go.
Wilson heard one of the Officers say get down on the ground. She
then lost sight of Felder and heard the shots.
B. Medical and Forensic Evidence
1. Medical Evidence
Plaintiff argues the medical and forensic evidence contradicts
the Officers testimony. Officer King claims he shot Felder once
in the chest area. Officer Loonsfoot claims he shot Felder six
times while standing behind King facing Felder, who was sitting on
the ground.
Plaintiff relies on the autopsy and the opinions of retired
FBI Special Agent Fred Robinette. The autopsy report shows Kings
shot was not fired into Felders chest, but actually entered
Felders groin. (Robinette Aff. Ex. 1, 6.) From this fact
Robinette concludes, Felder must have been lying on his back or
his stomach when this shot was fired. (Id.) Robinette further
opines, based on the autopsy report, that four of the shots fired
by Loonsfoot entered Felders body from behind. (Id. at 7.) One
shot entered the back of Felders shoulder, one entered the back of
his arm, one entered the backside of his right chest, and one
entered the back of his right forearm. (Id.)
Defendants counter with the expert analysis of Dr. Lindsey
Thomas. Dr. Thomas concludes that, while Kings shot and one of
Loonsfoots shots are consistent with the Officers testimony, the
remaining gunshot wounds are inconsistent with Officers King and
2 Dr. Thomas, a medical examiner, is apparently qualified as
a pathologist, and from her letter appears to have a certain
expertise in ballistics. These qualifications do not make her an
expert on perjury, and the Court gives no weight to her views in
that regard.
Loonsfoots description of Mr. Felder remaining in a sitting
position until after Officer Loonsfoots sixth shot was fired.
(Lathrop Aff. Ex. 9, 3.) Dr. Thomas suggests that the
inconsistencies do not reflect perjured testimony, but simply
reflect the level of chaos and confusion that occurred during this
shooting. (Id.)2
2. Ballistics Evidence
Plaintiff also offers the expert report of Richard Ernest,
Forensic Ballistics Consultant. Mr. Ernest analyzed the autopsy
and gunshot residue report, as well as the physical evidence. He
notes very little in the way of gunpowder particles on Felders
clothing. (Ernest Aff. Ex. 1, 5.) He found the lack of gunpowder
surprising in light of Kings statement that he shot Felder at
close range. Additional analysis also revealed gunshot residue on
Felders left hand, but none on his right. This finding is
inconsistent with Officer Kings statement that Felder held the
barrel of his gun with both hands. (Behrenbrinker Aff. Ex. 10.)
3. DNA Evidence
Finally, plaintiff points to DNA analysis. While King
reported hitting Felder in the head with the butt of his gun,
examination did not reveal Felders DNA on the bottom grip area or
3 Counts Two and Six are procedural claims asserting federal
punitive damages and vicarious liability.
bottom magazine of Kings weapon. (Behrenbrinker Aff. Ex. 8.)
Plaintiff also cites an absence of injury to Felders scalp
suggesting King did not strike him in the head.
Defendants counter, noting the Minnesota Bureau of Criminal
Apprehensions DNA analysis found DNA consistent with Felders on
the guns trigger guard, slide, equipment rail, and front sight.
(Id.) Defendants expert also suggests the absence of a head
injury from Kings strikes may be because Felders hair cushioned
the blows, or King did not strike Felder forcefully. (Lathrop Aff.
Ex. 9.)
In short, plaintiff says the physical evidence is contrary to
the Officers version of the facts, while defendants claim opinions
regarding bullet trajectories are irrelevant to the issue before
this Court. (Defs. Reply Mem. 6.)
C. Procedural History
Plaintiff, Katie Felder, as trustee for Dominic Felders next
of kin, sued King, Loonsfoot, and the City of Minneapolis in
Minnesota state court. Count One of her complaint accuses King and
Loonsfoot of using excessive force against Felder, in violation of
42 U.S.C. 1983. Count Three3 accuses the City of maintaining
unconstitutional customs or policies under which Minneapolis failed
to train its officers and 911 operators in proper methods to
respond to mental crisis situations. She claims the City is liable
because the crisis training it offers is voluntary, rather than
mandatory. Counts Four and Five accuse defendants King and
Loonsfoot of state law assault and battery.
On December 21, 2007, defendants removed the matter to federal
court and filed for summary judgment seeking dismissal of all
II. Discussion
Summary judgment is appropriate when there are no material
facts in dispute and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). The party opposing summary judgment may not rest
upon the allegations set forth in its pleadings, but must produce
significant probative evidence demonstrating a genuine issue for
trial. See Anderson, 477 U.S. at 250.
A. Section 1983: Qualified Immunity
Defendants move for summary judgment claiming qualified
immunity. Qualified immunity shields officers from suit for
official acts, as long as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known. Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). A court is to resolve qualified immunity
questions at the earliest possible stage of litigation. Gorra v.
Hanson, 880 F.2d 95, 97 (8th Cir. 1989).
Prior to the Supreme Courts decision, in Pearson v. Callahan,
129 S. Ct. 808, 815 (2009), courts were mandated, by Saucier v.
Katz, to engage in a structured two-step sequence for resolving
government officials qualified immunity claims. This means the
Court first decided whether the facts alleged show[ed] the
officers conduct violated a constitutional right. Saucier v.
Katz, 533 U.S. 194, 201 (2001). Following this inquiry, a court
had to determine whether the right violated was clearly established
when violation occurred. Id. Pearson modified this formula, when
the Supreme Court reconsidered Sauciers rigid order of battle.
As a result, district courts may exercise their sound discretion
in deciding which of the two prongs to address first.
Given this choice, the Court opts for the Saucier procedure.
Having done so, the Court finds plaintiff has asserted a clear
violation of a constitutional right. The right to be free from
excessive force is a clearly established right under the Fourth
Amendments prohibition against unreasonable seizures of the
person. Guite v. Wright, 147 F.3d 747, 750 (8th Cir. 1998). To
determine the reasonableness of the Officers seizure, the Court
asks whether their actions were objectively reasonable in light
of the facts and circumstances confronting them, without regard to
their underlying intent or motivation. Graham v. Connor, 490 U.S.
386, 397 (1989). An officers use of deadly force is subject to
this reasonableness requirement. Tennessee v. Garner, 471 U.S. 1,
11 (1985). The Supreme Court has held that, where the suspect
poses no immediate threat to the officer and no threat to others,
the harm resulting from failing to apprehend him does not justify
the use of deadly force to do so. Id.
This case presents a clear jury question: if the jury credits
plaintiffs evidence, it could conclude the Officers use of force
was objectively unreasonable. If the jury believes the Officers,
there was no violation of Felders rights. The Officers have
testified to one version of the facts. Williams and Wilson offer
contrary testimony. A reasonable jury could well find the forensic
evidence inconsistent with the Officers testimony. Six of seven
shots fired into Felder do not facially match the Officers
testimony. DNA evidence is, at best, equivocal. Under these
circumstances, a reasonable jury could find excessive force was
Having established a general right to be free from
unreasonable seizure, the Court turns to whether the right at issue
was clearly established at the time of the Officers alleged
violations. See Saucier, 533 U.S. at 201. The Officers deny
clearly established law prevented them from using deadly force
where they believed Felder pos[ed] a significant threat of death
or serious physical injury to the officer or others. Hernandez v.
Jarman, 340 F.3d 617, 622 (8th Cir. 2003) (quotations omitted).
4 It is not at all clear why a person who had a gun in his
waistband, and two free hands to wrestle for a gun, would not use
one of his hands to grab his own weapon, rather than engage in a
wrestling match with a police officer.
The Officers swear Felder repeatedly dug in his pants and reached
for his waistband as he jogged away from them, leading them to
believe he had a weapon. They claim he resisted arrest, and
struggled to a standing position after being ordered to the ground.
The Officers state they believed Felder had a weapon, and was
seeking to take Kings weapon,4 resulting in a legitimate fear for
their own safety. The Officers deny that any case holds officers
fearing death or serious injury are not allowed to use deadly
This argument proves too much. The fact that no opinion
describes their specific situation does not mean that, in the
absence thereof, their actions are approved. See Hope v. Pelzer,
536 U.S. 730, 739 (2002). Constitutional rights are clearly
established when it is sufficiently clear that an officer would
understand that his actions violate that right. Id. And, as
stated by the Eighth Circuit Court of Appeals, A right is clearly
established when that right is so clear that a reasonable official
would understand that what he is doing violates that right.
Craighead v. Lee, 399 F.3d 954, 962 (8th Cir. 2005). Highly
relevant to this case, in Craighead, the Eighth Circuit found
officers have been on notice for nearly 20 years that they may not
use deadly force unless the suspect poses a significant threat of
death or serious physical injury to the officer or others. Id. at
For example, in Ribbey v. Cox, the Eighth Circuit affirmed a
denial of qualified immunity to an officer accused of shooting an
unarmed man. 222 F.3d 1040, 1041 (8th Cir. 2000). There, the
officer approached a suspects car with his weapon drawn after a
high speed chase. Id. at 1041-43. The officer shot the suspect
when he turned, as if to reach for a weapon under his car seat.
Id. A genuine question of fact existed as to whether the officer
had probable cause to believe the suspect reached for a gun, and
the Eighth Circuit distinguished the case from situations where an
officer had actually viewed a suspects gun. Id. at 1043.
Here, the Court finds a genuine issue of fact, as in Ribbey,
as to whether the Officers used deadly force when they should have
known Felder did not present an immediate threat of death or
serious physical injury. Summary judgment is inappropriate where
plaintiff challenges the officers description of the facts and
presents a factual account where a reasonable officer would not be
justified in his actions. See Arnott v. Mataya, 995 F.2d 121, 124
(8th Cir. 1993).
B. Monell Claim
In Monell v. Department of Social Services, the Supreme Court
held a municipality may be liable to a citizen under 1983 for an
unconstitutional deprivation of rights. 436 U.S. 658, 690 (1978).
Here, plaintiff offers two bases to claim the City is liable for a
deprivation of Felders rights. First, plaintiff argues police
policy led to Felders death. See Ware v. Jackson County, 150 F.3d
873, 880 (8th Cir. 1998) (A plaintiff may establish municipal
liability under 1983 by proving that his or her constitutional
rights were violated by an action pursuant to official municipal
policy.) (quotations omitted). Second, plaintiff claims the City
constitutionally erred in its failure to properly train its
employees. (Pl.s Mem. Oppn Summ. J. 40.)
1. Unconstitutional Policy
Plaintiffs complaint states the City has a policy to
inadequately and improperly train police officers, including the
individual Defendants, regarding the use of unreasonable deadly
force. (Compl. 65.) In particular, plaintiff claims the Citys
voluntary - as opposed to mandatory - training policy for Crisis
Intervention Team training (CIT) violated Felders constitutional
rights. Plaintiff states Felder suffered from a mental health
crisis, yet neither Officer employed any de-escalation techniques
in the absence of training on the issue. According to plaintiff,
if the City required CIT training, the Officers would not have
violated Felders constitutional rights. The Court disagrees.
To establish Monell liability, the policy complained of must
be the moving force of the constitutional violation. Monnell,
436 U.S. at 694. Where a citys policy is constitutional on its
face, a plaintiff must show the policys inadequacies were a
product of deliberate or conscious choice by policymakers. Szabla
v. City of Brooklyn Park, 486 F.3d 385, 390 (8th Cir. 2007). Here,
plaintiff does not argue voluntary CIT training violates any
constitutional right. She argues, instead, that the municipality
should have done more to prevent constitutional violations by its
employees by requiring all officers to complete CIT training. Id.
The Court finds plaintiff has failed to make a submissible
case of deliberate indifference. Id. at 392. When determining
whether a city acted with deliberate indifference, courts look for
clear constitutional guideposts for municipalities in the area.
Id. at 393 (quotations omitted). Plaintiff cites no case requiring
a city to provide mandatory crisis intervention training. See id.
(refusing to hold a municipal policymaker liable for a right that
has not yet been clearly established). In addition, plaintiff
offers no evidence showing Minneapolis police officers have a
history of violent encounters with those in mental crisis. There
is no showing the City refused to act on prior knowledge of
unconstitutional acts by officers; it merely offers additional
training to officers who seek it. Such a policy cannot rise to the
level of a constitutional violation.
2. Failure to Train
Beyond faulting City policy, plaintiff claims the City failed
to train its officers and emergency communications center
employees. A city may be liable for failure to train employees
where (1) the citys training practices are inadequate; (2) the
city acted with deliberate indifference towards the rights of
citizens when adopting its policies; and (3) the alleged deficiency
actually caused plaintiffs injury. Andrews v. Fowler, 98 F.3d
1069, 1076 (8th Cir. 1996). Again, plaintiff has failed to show
the City acted with deliberate indifference causing Felders death.
Plaintiff claims the Citys failure to give CIT training to
all of its officers violates 1983 and demonstrates deliberate
indifference. She is incorrect. To withstand summary judgment,
she must show the City had notice that its procedures were
inadequate and likely to result in a violation of constitutional
rights. Id. (citation omitted). In light of the varied duties
undertaken by police officers, it is not at all obvious that all
officers deal with individuals in mental health crisis. Most
importantly, plaintiff cannot show that an officer trained in CIT
intervention would have acted differently, or that a failure to
provide the training caused the Officers to shoot and kill Felder.
Voluntary CIT training does not give rise to a failure to train
Plaintiffs claim that the Citys failure to train the
emergency communications center employees violated 1983 must also
fail. Plaintiffs brief does not discuss where the training
failed, how it could be improved, or even what is currently
involved in training. The Court grants summary judgment on
plaintiffs Monell claims.
C. State Law Claims
Under Minnesota law, a police officer is not liable for
assault or battery unless the act was committed willfully or
maliciously. In determining an officers liability, a court asks
whether an officer intentionally committed an act he should have
known was prohibited. State by Beaulieu v. City of Mounds View,
518 N.W.2d 567, 571-72 (Minn. 1994). Whether or not an officer
acted willfully or maliciously is usually a question of fact to be
resolved by the jury. Johnson v. Morris, 453 N.W.2d 31, 42 (Minn.
For the same reasons this Court denied summary judgment on the
use of excessive force claim, summary judgment is denied on the
state law tort claims. Disputed factual questions cannot be
resolved on summary judgment, and must be left for the jury.
III. Conclusion
Plaintiff claims the Officers shot an unarmed man who complied
with their orders and instructions. The Officers claim the
decedent did not comply, and may have been reaching for a weapon or
attempting to gain control of a police firearm in a fashion which
directly threatened their lives. Each position is supported by
evidence. Under these circumstances, the Court finds there are
unresolved issues of fact which must be resolved by a jury, thus
precluding summary judgment or a finding of qualified or official
immunity. Contrariwise, there are no triable issues concerning the
Monell claims, as to which summary judgment is granted.
Accordingly, IT IS ORDERED that
1. Defendants motion for summary judgment is granted as to
Count 3 [Docket No. 14];
2. Defendants motion is denied as to the remaining counts
[Docket No. 14].
Dated: March 24, 2009
s/ James M. Rosenbaum
United States District Judge


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