octavius johnson v city of omaha, 8-14-cv-00004-les-fg3 (29 may 2015) doc 103, brief in opposition...

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

OCTAVIUS JOHNSON, DEMETRIUS )

JOHNSON, JUAQUEZ JOHNSON, )

SHARON JOHNSON, and SHAREE )

JOHNSON, individuals, )

)

Plaintiffs, ) Case No. 14-cv-0004

)

vs. )

)

CITY OF OMAHA, a political subdivision; )

TODD SCHMADERER, in his capacity of )

Chief of the Omaha Police Department; ) PLAINTIFFS OPPOSITION TO

AARON P. VON BEHREN, individually and as ) MOTIONS FOR SUMMARY

an officer of the OPD; BRADLEY D. ) JUDGMENT FOR QUALIFIED

CANTERBURY, individually and as an officer ) IMMUNITY

of the OPD; JAMES T. KINSELLA, individually )

and as an officer of the OPD; JUSTIN A. )

REEVE, individually and as an officer of the )

OPD; JOSEPH E. KOENIG, individually and )

as an Officer of the OPD; JOHN D. PAYNE, )

Individually and as an officer of the OPD; )

DYEA L. ROWLAND, individually and as an )

Officer of the OPD; MATTHEW C. WORM, )

individually and as an Officer of the OPD; )

CHRISTOPHER J. OLSON, and JOHN and )

JANE DOES 2 24, ) )

Defendants. )

COME NOW the Plaintiffs and offer the following brief in opposition to the Motions for

Summary Judgment on grounds of Qualified Immunity filed by Defendants Dyea Rowland

(Rowland Motion, Doc. 94); Bradley D. Canterbury (Canterbury Motion, Doc. 88 ), and the

Motion of Defendants Von Behren, Kinsella, Reeve, Koenig, Payne, Worm, and Olson (OPD

Motion, Doc. 91).

8:14-cv-00004-LES-FG3 Doc # 103 Filed: 05/29/15 Page 1 of 32 - Page ID # 1138

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STATEMENT OF CONTROVERTED FACTS

Plaintiffs have set out below, the statements of fact contained in the Motions for

Summary Judgment which are not contested and those which Plaintiffs dispute. The facts are

identified by which Motion for Summary Judgment the specific facts are contained in. In

addition, following the responses to factual allegations contained in the Defendants statements

of fact, Plaintiffs set forth those facts which they believe specifically provide genuinely disputed

issues of fact which are material and preclude the granting of Defendants Motions for Summary

Judgment.

Following the numbered statement of facts there is a relatively brief narrative statement

of facts which hopefully puts the factual issues in some context.

I. Rowland Motion (Brief in Support Doc. 95)

1. Plaintiffs admit the allegations contained in Paragraphs 1 through 9 of the

Statement of Facts in the Brief in Support of Motion for Summary Judgment filed by Dyea

Rowland [Doc. 95] except the characterization of Jacquez arrival on scene as being sudden.

Plaintiffs accept the admission that Officer Rowland was informed by Officer Worm that the

Johnson family was anti-police.

2. Plaintiffs admit the statement in paragraph 10 of Doc. 95 that a blue truck arrived

on the scene. Plaintiffs dispute the statement in paragraph 10 that the truck arrived suddenly or

that it parked up over the curb. The video of the incident shows the truck was not parked on the

curb. [Doc. 90 Ex. 15.] The state of Michael Lynch to the police also contradicts this

description. [Doc. 102-5 p.2.]


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3. Plaintiffs deny the statement in paragraph 11 of Doc. 95 that Octavius physically

confronted the officers. [Doc. 90-16 61:15-24, 63:25-65:10; Doc. 90 Ex. 151; Doc. 102-5 p.2.]

4. Plaintiffs admit the statement in paragraph 12 of Doc. 95 that Octavius was

backing up toward the truck. However, according to Octavius, the video of the event, and

Michael Lynch, Octavius was ordered by Officer Canterbury to turn around and Octavius was

turning to place his hands on the hood of the truck to allow himself to be frisked by Officer

Canterbury [Doc. 90-16 74:12-77:11; Doc. 102-5 p.2.] While Octavius was complying and

turning away from Officer Canterbury, Officer Canterbury grabbed Octavius around the neck

with no warning and threw him to the ground using a hip toss. [Doc. 90-16 76:6-16; Doc. 90-7

13.]

5. Plaintiffs admit the fact statements in paragraphs13 through 15 of Doc. 95.

6. Plaintiffs deny that Octavius was resisting being put into handcuffs by Officer

Rowland as stated in paragraph 16 of Doc. 95. Plaintiffs allege that Octavius was thrown to the

ground in a way that trapped his arm under his body. [Doc. 90-16 76:18-77:11.] Because

Officer Canterbury had his knee on Octavius back at this point, Octavius could not free his hand

to allow Officer Rowland to handcuff him. [Doc. 90-16 88:19-89:2.]

7. Plaintiffs admit the fact statements in paragraphs 17 through 20 of Doc. 95.2

8. Plaintiffs deny the fact statement in paragraph 21 of Doc. 95 that Jacquez was

violating Worms instructions. [Doc. 96-4 53:20-55:1.]

9. Plaintiffs admit the remaining fact statements contained in paragraphs 21 through

24 of Doc. 95.

1 References to Doc. 90 Ex. 15 are to the videotape of the incident and no hyperlink is available. 2 The actions of Dyea Rowland that violated the Plaintiffs civil rights occurred primarily after she entered the residence.


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10. Plaintiffs admit the fact statement in paragraph 25 of Doc. 95 that Sharon Johnson

was just inside the door of the Johnson home in her wheelchair. Plaintiffs admit that when

Officer Rowland entered the Johnson residence Sharon Johnson had already been thrown to the

floor and was lying underneath her wheelchair as stated in Officer Rowlands affidavit. [Doc.

96-1 p. 4.]

11. Plaintiffs deny that Officer Rowland merely called Demetrius name before

placing him in handcuffs as stated in paragraph 26 of Doc. 95. Plaintiffs allege that Demetrius

was already on the floor before Officer Rowland entered the house and then Officer Koenig

jumped on Demetrius while he was sitting and used excessive force in placing him in handcuffs.

[Doc. 90-17 33:21-34:9, 36:2-12, 40:16-19; Doc. 102-3 101:17-22; Doc. 102-7 p.105.]

12. Plaintiffs admit the statements in paragraphs 27 and 28 of Doc. 95.

13. Plaintiffs deny that Rowland left the Johnson residence prior to conspiring with

officers Kinsella, Von Behren, and others regarding the confiscation and destruction of property

owned by the Johnson family. [Doc. 102-3 103:10-105:10 (describing officers in house

searching cellphone).]

14. Plaintiffs deny the statement in paragraph 30 of Doc. 95.

II. Canterbury Motion (Brief in Support Doc. 89)

15. Plaintiffs admit the fact statements contained in paragraphs 1 and 2 of Doc. 89.

16. Plaintiffs deny the fact statement in paragraph 3 of Doc. 89 that Jacquez appeared

he might physically interfere with the towing of the vehicles. [Doc. 90 Ex. 15.]

17. Plaintiffs admit the statement in paragraph 4 of Doc. 89 that Octavius Johnsons

truck was loud when it arrived on the scene and deny that Octavius immediately confronted the


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officers. Octavius truck was loud because of a mechanical issue, not reckless driving. [Doc.

90-16 55:19-56:10.]

18. Plaintiffs admit the statement in paragraph 5 of Doc. 89 that something occurred

during the incident at issue which drew the attention of a neighbor and awakened Demetrius

Johnson.

19. Plaintiffs admit that Demetrius Johnson was the registered owner of the black

1999 Ford Mustang described in paragraph 7 of Doc. 89. Plaintiffs allege that the officers used

force on Octavius without properly ascertaining his identity. [Doc. 90-16 85:25-86:16.]

20. Plaintiffs deny the fact statements contained in paragraph 8 of Doc. 89. [Doc. 90-

16 74:8-77:11.]

21. Plaintiffs admit the fact statements in paragraph 9 of Doc. 89.

22. Plaintiffs deny the fact statement in paragraph 10 of Doc. 89 that Octavius

Johnson resisted police after being taken to the ground. Rather, Octavius was thrown to the

ground on top of his right arm and was unable to move his right arm from under his body while

Officer Canterbury was kneeling on Octavius back. [Doc. 90-16 74:8-77:11.] Plaintiffs admit

that Officer Canterbury struck Octavius.

23. Plaintiffs admit the fact statement in paragraph 11 of Doc. 89 that Octavius was

placed into handcuffs and held to the ground. Plaintiffs deny that Octavius was resisting after

being thrown to the ground and placed in handcuffs. [Doc. 102-7 p.5.]

24. Plaintiffs admit the statement in paragraph 12 of Doc. 89 that Juaquez Johnson

began to flee from Officer Worm but deny that Juaquez was attempting to avoid arrest. Juaquez

did not hear anyone say he was under arrest, had done nothing warranting arrest, and he was fearful


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that he would be attacked in the same way he had seen his brother Octavius attacked. [Doc. 96-4

24:17-24, 52:9-53:1.]

25. Plaintiffs deny the statement in paragraph 13 of Doc. 89 that Octavius began to

move underneath Officer Canterbury in a manner to make Officer Canterbury reasonably believe

Octavius was attempting to resist arrest or physically harm Officer Canterbury. [Doc. 102-5 p.2-

3.] Plaintiffs admit that Officer Canterbury struck Octavius at least three times while Octavius

was completely helpless lying face down, prone in the street, with his hands handcuffed behind

his back and the only movement of Octavius was to turn his head. [Doc. 90-16 98:23-99:19.]

26. Plaintiffs admit the fact statements in paragraph 14 of Doc. 89.

III. OPD Motion (Brief in Support Doc. 92)

27. Plaintiffs admit the fact statement in paragraph 1 of Doc. 92 that prior to Juaquez

being chased into the house no officer stopped Juaquez from videotaping any police conduct.

28. Plaintiffs deny the factual assertion/legal conclusion stated in paragraph 2 of Doc.

92 that probable cause existed to arrest Juaquez Johnson. Plaintiffs also deny that there was

probable cause to arrest Demetrius Johnson because he was not properly identified as the person

with the warrant until he was already in handcuffs and in the patrol car on his way to jail. [Doc.

90-17 39:18-23.]

29. Plaintiffs deny the factual assertion/legal conclusion in paragraph 3 of Doc. 92

that Officer Worm entered the Johnson residence in pursuit of a person who he had probable

cause to arrest. Plaintiffs admit that other officers entered the residence after observing Officer

Worms pursuit of Juaquez and after Officer Woolmans help an officer call. Plaintiffs deny

any implication in the statements in paragraph 3 of Doc. 92 that Officer Wollmans distress call

was justified by anything done by Demetrius or Juaquez Johnson.


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STATEMENT OF UNDISPUTED MATERIAL FACTS SHOWING THE OFFICERS

ARE NOT ENTITLED TO QUALIFIED IMMUNITY

30. The Omaha Police Department determined that Officer Canterburys reported use

of force varied in multiple respects from the force observed on the video taken by Michael

Lynch. [Doc. 102-4.]

31. Officer Kinsella used strikes while assisting Officer Worm in arresting Juaquez.

[Doc. 102-6; Doc. 102-7 p.70.]

32. Sharon Johnson, an individual requiring the use of a wheelchair for mobility, was

knocked to the floor by officers and was subsequently placed in handcuffs. [Doc. 102 -3 43:18-

47:9.]

33. Sharon Johnson was handcuffed with three pairs of handcuffs. [Doc. 102-7 p.61.]

34. After entering the Johnson home, officers including Von Behren, Kinsella,

Rowland, Payne, and Reeve remained in the home after determining there were no exigent

circumstances requiring a warrantless search. [Doc. 102-6.]

35. Officers seized a cell phone, removed its memory card, and destroyed the memory

card. [Doc. 102-6.]

36. All charges against Demetrius, Octavius, and Juaquez Johnson arising from the

incident at the Johnson home on March 21, 2015 were dismissed.

37. An internal police investigation determined that officers Von Behren, Kinsella,

Rowland, Payne, and Reeve illegally seized and destroyed evidence. [Doc. 102-6.]

38. An internal police investigation also found that certain officers who went inside

the Johnson residents conspired to conceal actions taken inside the Johnson residents. [Doc.

102-6.]


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39. An internal police investigation determined that Officer Canterbury provided false

information to the police department regarding his use of force. [Doc. 102-4.]

40. The officers allegedly believed that Octavius was Demetrius when Octavius was

placed under arrest but Officer Rowland subsequently claimed that when she went into the

Johnson home she said Demetrius name and he responded. [Doc 102-3 p. 38.]

STATEMENT OF MATERIAL FACTS IN DISPUTE

41. Whether Officer Canterbury directed Octavius to get inside his truck or ordered

him to turn and place his hands on the hood of the pickup.

42. Whether Octavius was complying with the directions of Officer Canterbury when

Officer Canterbury grabbed Octavius in a choke hold.

43. Whether Octavius behavior after arriving at the scene of the cars being towed

justified officer Canterburys use of force.

44. Whether Octavius was attempting to resist Officer Canterburys putting cuffs on

him or was merely startled by being grabbed by the neck from behind with no warning.

45. Whether Officer Canterbury had probable cause to arrest Octavius.

46. Whether Octavius was attempting to resist being handcuffed after he was taken to

the ground by officer Canterbury.

47. Whether Octavius attempted to get away from or harm officer Canterbury after

Officer Rowland went into the Johnson family residence.

48. Whether Juaquez was obstructing or interfering with the police when officer

Worm began chasing him.

49. Whether Officer Worm had probable cause to arrest Juaquez.


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50. Whether Officer Rowland learned that Demetrius was not the individual detained

by Officer Canterbury before she went into the Johnson family residence.

51. Whether Demetrius was already on the floor when Officer Rowland entered the

residence. (If he was already on the floor, Officer Rowlands statement that Demetrius

responded to her stating his name must be false.)

52. Whether Officers Rowland and Koenig utilized excessive-force when arresting

Demetrius.

53. Whether Officers Rowland and Payne improperly restrained Sharon Johnson.

54. Whether excessive force was used to arrest Juaquez.

55. Whether a call to help an officer was justified under the circumstances.

56. Whether the officers should have immediately left the house when it was clear

there had not been probable cause to enter.

57. Whether there was any justification for a warrantless search of the Johnson family

home.

58. Whether there were any exigent circumstances allowing Officer Worm to pursue

Juaquez into the Johnson residence.

59. If exigent circumstances existed, whether they were created solely by the police.

NARRATIVE STATEMENT OF FACTS

On March 21, 2013, Officer Worm called a tow truck to the street in front of the

residence at 3321 Seward Street to remove certain vehicles for violation of city ordinances.

[Doc. 90-8 1.] Based on prior contacts with the family Officer Worm believed they were anti-

police and, therefore, asked for additional officers on the scene. [Doc. 96-1 7.] Officers

Canterbury and Rowland responded to Worms request. [Doc. 96-1 5-7.] When Officers


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Canterbury and Rowland arrived, Sharon Johnson, who is confined to a wheelchair and could not

leave the homes porch because of stairs, shouted at the officers so they could hear her, asking

for an explanation of why the cars were being towed. [Doc. 96-3 17:19-22, 18:0-19:9, 31:17-

32:13.] Juaquez Johnson arrived at the Johnson home and went to ask the officers what was

occurring. [Doc. 96-4 33:6-34:1.] Shortly thereafter, Octavius Johnson, the eldest of the three

Johnson brothers, arrived at the scene driving a blue pickup truck heavily loaded with scrap

metal. [Doc. 96-4 34:9-14; Doc. 90-16 126:20-127:6; Doc. 90 Ex. 15.] Octavius got out of the

pickup and he and the officers moved toward each other. [Doc. 90-16 63:21-64:5.] The officers

allege that they told Octavius to get back in his truck. [Doc. 102-3 p.22-23.] Neither Octavius or

Juaquez heard officers tell Octavius to get back into his truck. [Doc. 90-16 70:16-25, 73:23-

74:1, 74:12-25; Doc. 96-4 41:14-18.]

According to Octavius, Officer Canterbury directed him to turn around and put his hands

on the hood of the truck. [Doc. 90-16 74:8-20.] Octavius thought he was going to be frisked and

was turning to put his hands on the hood of the truck when he heard someone say cuff him

which caused him to look over his right shoulder at Officer Rowland who he believed would be

putting handcuffs on him. [Doc. 90-16 75:16-76:1.] As Octavius turned his head to his right,

Officer Canterbury came up behind Octavius, put him in a choke hold and used a hip toss to

throw Octavius to the ground. [Doc. 90-16 74:12-77:11; Doc. 90-7 13.] According to the

police officers, they knew that the owner of the black Mustang which was being hooked up to the

tow truck had a misdemeanor warrant out for his arrest and they believed Octavius was the

owner of the vehicle. [Doc. 96-1 8; Doc. 90-7 12.] Octavius had not yet shown them

identification so they had no reason not to believe he was the owner of the vehicle and had a

warrant for his arrest. [Dec. 90-17 64:15; Doc. 90-7 8.]


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After Officer Canterbury grabbed Octavius in a choke hold, Octavius fell to the ground

on top of one of his arms, trapping it beneath his body. [Doc. 90-16 76:18-77:11.] Octavius was

unable to move his arm from under his body because Officer Canterbury was holding him down

to the ground. [Id.] Officer Canterbury struck Octavius several times because Octavius could

not offer his uncuffed arm to Officer Rowland. [Doc. 90-7 14.] After the first set of blows,

Octavius was handcuffed and remained on the ground, face down, with his hands cuffed behind

his back until he was lifted up by two officers who later arrived on the scene and who placed him

in a police cruiser. [Doc. 90-16 100:19-101:18.] At all times after being handcuffed until he was

placed in the police cruiser, Octavius was prone in the street lying face down. [Doc. 90-16

100:19-101:18; Doc. 102-7 p.5.]

When the police took Octavius to the ground and put him in handcuffs, Juaquez Johnson

began recording the incident. [Doc. 96-4 46:21-25.] Juaquez stepped into the street and moved

toward the officers but was escorted back to the sidewalk by Officer Worm. [Doc. 90-8 9.]

Juaquez then remained on or within a foot or two of the sidewalk at all times. [Doc. 90 Ex. 15.]

While he was videotaping, Juaquez was yelling at the officers that they were abusing Octavius,

there was no need to use the level of force being used on Octavius, and Officer Canterbury

should not have his knee on Octavius neck. [Doc. 90 Ex. 15.] Once Octavius was on the

ground in handcuffs Officer Worm returned to his police cruiser and opened the vehicle door.

[Doc. 90 Ex. 15.] Juaquez was on the sidewalk with the videocamera, stepped slightly off the

curb and then back up onto the sidewalk. [Doc. 90 Ex. 15.] After Juaquez had returned to the

sidewalk, Officer Worm suddenly began chasing Juaquez. [Doc. 90 Ex. 15; Doc. 96-4 51:12-

20.] Juaquez had previously told Officer Worm that Juaquez was not comfortable with Officer

Worm being close to him. [Doc. 90 Ex. 15; Doc. 96-4 50:20-51:8, 53:2-12.] Officer Worm did


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not tell Juaquez he was under arrest and according to Juaquez the only command given by

Officer Worm was to give him the camera. [Doc. 96-4 24:19-21, 51:17-22.]

Frightened by Officer Worm, Juaquez ran into the Johnsons home. [Doc. 96-4 52:18-

53:4, 54:18-22.] Sharon Johnson remained in her wheelchair in the doorway of the home where

she had been since she learned the police were in front of her house to tow cars but backed up

away from the door when Juaquez began running to the house. [Doc. 96-3 62:19-24.] When

Juaquez began running Demetrius Johnson was asked by his aunt to find a cell phone to begin

recording the events. [Doc. 90-17 26:25-27:8.] Demetrius located a cell phone and returned to

the doorway area, standing slightly behind his aunt near the doorway and attempting to use a cell

phone to record the events. [Doc. 90-17 26:19-24, 28:6-29:9.]

When Juaquez got to the door of the house he was able to get by his aunt, but Officer Worm

grabbed for Juaquez shirt and the momentum of Officer Worms actions threw Sharon Johnson

from her wheelchair and left the wheelchair on top of Sharon. [Doc. 96-3 68:5-24; Doc. 90-8 12.]

Demetrius Johnson was knocked to the floor at the same time. [Doc. 96-3 68:18-24; Doc. 90-8

12.] Demetrius remained on the floor but scooted out of the way until his back was up again a

part of the entryway into the dining room. [Doc. 90-17 33:21-34:9.] Officer Worm continued into

the house and threw himself on Juaquez. [Doc. 102-7 p.70.]

Officers Kinsella and Reeve were the next officers to arrive on the scene and entered the

house seconds after Officer Worm. [Doc. 102-7 p.2.] Officer Kinsella then assisted Officer Worm

to cuff Juaquez. [Doc. 102-7 p. 70.] It was at this time Officer Kinsella used strikes on Juaquez.

[Doc. 102-6; Doc. 102-7 p.70.]

Officer Wollman arrived on the scene shortly thereafter and upon entering the house issued

an help an officer call. [Doc. 102-3 p.100.] Officer Rowland left Officer Canterbury and


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Octavius and ran into the house. [Doc. 96-1 25.] When Officer Rowland entered the house she

removed the wheelchair from on top of Sharon Johnson and then, without checking to see if Sharon

was hurt, proceeded into the house. [Doc. 102-3 p. 35.] Just after Officer Rowland went into the

house and other officers ran into the residence leaving Officer Canterbury alone with Octavius,

Officer Canterbury looked both right and left and then delivered a second series of blows striking

Octavius head and/or shoulder. [Doc. 90 Ex. 15; Doc. 102-5 p.3.] Octavius was handcuffed

during this set of blows and had not offered any resistance. [Doc. 102-5 p.3; Doc. 102-7 p.5.]

Demetrius was already on the floor when Officer Rowland entered the home and did not

ever hear anyone call his name. [Doc. 90-17 33:23-34:22.] Even though Demetrius was already

on the floor he was tackled by an officer believed to be Officer Koenig who then assisted

Officer Rowland in cuffing Demetrius.3 [Doc. 90-17 33:21-35:21.] When Demetrius was pushed

face down some officer banged his face against the floor. [Doc. 90-17 33:23-34:22.] When he

was handcuffed Demetrius felt his cell phone being ripped out of his hand. [Doc. 90-17 46:13-

17.] A cell phone was later found in pieces and reassembled by one of the officers, believed to be

Officer Payne. [Doc. 102-7 p.105.] Although Officer Koenig later allegedly bragged about

kneeing Juaquez, no use of force report was filed by Officer Koenig and he later denied he had

used any force cuffing Juaquez. [Doc. 102-7 p.111.] Demetrius was not asked his name until he

was in the police cruiser on the way to jail. [Doc. 90-17 39:18-23.]

Despite having committed no crime and having been thrown out of the wheelchair she

required for mobility, Sharon Johnson had three sets of handcuffs placed on her arms, handcuffing

3 It was rumored that Officer Koenig used a flying lunge to take Demetrius all the way to the ground which is consistent with Demetrius report that he was tackled even though he was already sitting down. [Doc. 102-7 p. 68.]


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her behind her back while she sat on the living room floor. [Doc. 96-3 82:14-25, 97:11-98:15;

Doc. 102-7 p. 61.]

After Juaquez and Demetrius were in handcuffs, Officers Van Behren, Kinsella, Rowland,

and Reeve remained in the Johnson home. [Doc. 102-7 p.61-62.] These officers stood in the

kitchen of the Johnson household attempting to view whatever video had been taken by Demetrius

with the cell phone. [Doc. 102-3 50:8-23; Doc. 102-7 p.61-62.] Despite finding no video on the

phone, Officer Kinsella took the SIM Card from the camera and put it in his pocket. [Doc. 102-

6; Doc. 102-7 p.64.] Officer Kinsella threw the SIM Card out of the window of his patrol cruiser

as he and his partner drove away from the scene. [Doc. 102-7 p.74.]

All the charges against Octavius, Juaquez, and Demetrius Johnson arising from the events

on March 21, 2013 were dropped.

ARGUMENT AND AUTHORITIES

I. SUMMARY JUDGMENT IS NOT PROPER IN THIS CASE.

The standard of review for summary judgment is well established. Summary judgment is

appropriate when there are no genuine issues of material fact in dispute. Fed. R. Civ. P. 56(c).

A genuine issue of material fact exists when a reasonable jury could render a verdict for the non-

moving party. Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005).

The party seeking summary judgment must prove there is no genuine issue of material

fact to be decided by the finder of fact. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398

U.S. 144, 157 (1970). In determining if the moving party has met this burden, the Court must

construe all evidence as benefitting the non-moving party and, if there is a factual dispute

demonstrated, the court must consider that all the facts favoring the nonmoving party are true.

Mettler v. Whitledge, 165 F.3d 1197, 1200 (8th Cir.1999). Further, the non-moving party is


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entitled to any reasonable inferences in its favor that may be drawn from the facts

presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202

(1986); Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076 (8th Cir. 1980). It is not appropriate

to grant summary judgment on the issue of qualified immunity where a dispute remains

regarding facts material to the qualified immunity issue. Rohrbough v. Hall, 586 F.3d 582, 585

(8th Cir. 2009).

In the present case, not only are there disputed facts on almost every point related to the

claims of qualified immunity, there are inferences that can be drawn from the factual disputes

that make it clear Defendants are not entitled to summary judgment on the issue of Qualified

Immunity.

II. STANDARD FOR QUALIFIED IMMUNITY

The United States Court of Appeals for the Eighth Circuit has established the standard for

a court to reject the defense of qualified immunity. According to the Eighth Circuit:

To overcome the defense of qualified immunity, a plaintiff must show: (1) the

facts, viewed in the light most favorable to the plaintiff, demonstrate the

deprivation of a constitutional or statutory right; and (2) the right was clearly

established at the time of the deprivation.

Smith v. Kansas City, Missouri Police Dept., 586 F.3d 576, 580 (8th Cir. 2009).

The Supreme Court of the United States has instructed that A Court required to rule

upon the qualified immunity issues must consider, then, this threshold question: Taken in light

most favorable to the party asserting the injury, do the facts alleged show the officers conduct

violated a constitutional right? Saucier v. Katz, 533 U.S. 194, 201 (2001). The Eighth Circuit

has explained, To establish a constitutional violation under the Fourth Amendments right to be

free from excessive force, the test is whether the amount of force used was objectively


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reasonable under the particular circumstances. Brown v. City of Golden Valley, 574 F.3d 491,

496 (8th Cir. 2009) (internal quotations omitted).

In its decision in Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443

(1989) the United States Supreme Court established the three factors to be utilized in

determining if the use of force was reasonable. According to the Court the factors to be

considered are:

[T]he severity of the crime at issue, whether the suspect poses an immediate threat

to the safety of the officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.

Id., 490 U.S. at 396.

The analysis employed by the United States District Court, for the Southern District of

Iowa, in the matter of Davis v. City of Albia, 434 F. Supp. 2d 692 (S.D. Iowa 2006), citing

Winters v. Adams, 254 F.3d 758, 766 (8th Cir. 2001), is instructive. In that case, the Court noted

that the suspects conduct was very low on the severity scale under either of the two possible

public offenses for which Davis could have been arrested; nonviolent, simple misdemeanors.

III. NONE OF THE OFFICERS IS ENTITLED TO QUALIFIED IMMUNITY

A. Officer Canterbury

1. Canterburys Use of Force was Objectively Unreasonable

In Small v. McCrystal, 708 F.3d 997 (8th Cir. 2013), the Eighth Circuit decided a case

with many factual similarities to the present case. The plaintiff had claimed excessive force

claim, and the defendants asserted qualified immunity. In deciding whether the officers were

entitled to a finding of qualified immunity on a motion for summary judgment the court said:

Viewing the facts most favorably to Small: He was charged with nonviolent

misdemeanors. He did not pose an immediate threat to the safety of the officers or

others. He was walking away from them, toward his trailer. He was not in flight

or resisting arrest. McCrystal had not advised him he was under arrest. It was


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unreasonable for McCrystal to use more than de minimis force against Small by

running and tackling him from behind without warning.

Small, 708 F.3d at 1005.

Force may unreasonable and unnecessary even if that force resulted in de minimus injury.

Chambers v. Pennycook, 641 F.3d 898 (8th Cir. 2011).

2. Canterburys Conduct Violated a Well Established Right

In determining if qualified immunity exists, a court must also consider whether the

Constitutional rights allegedly infringed were clearly established at the time of the arrest.

Saucier v. Katz, 533 U.S. 194, 205 (2001). See also Burton v. St. Louis Bd. of Police Commrs,

731 F.3d 784, 791-92 (8th Cir. 2013). A claim of qualified immunity must fail if on an

objective basis, it is obvious that no reasonably competent officer would have concluded the

defendants should have taken the disputed action. Davis v. City of Albia, supra.

The Eighth Circuit has repeatedly held, 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).

On a more fact specific basis, there is a plethora of case law placing Officer Canterbury

and the Omaha Police Department on notice that their conduct in using force to take Octavius to

the ground when he was complying with their commands and without ascertaining his identity

was impermissible.

One instructive case is Atkinson v. City of Mountain View, Mo., 709 F.3d 1201 (8th Cir.

2013). Atkinson involved a police officer, dressed in street clothes who charged (without first

identifying himself as law enforcement) at Atkinson and slammed into him causing serious

injuries. The district court determined that the defendants bull rush was reasonable as matter

of law. However, the 8th Circuit Court of Appeals disagreed. The Atkinson Court noted that the


18

officer could not have reasonably assumed that the suspect was actively resisting or attempting to

flee because Saunders [the officer] did not identify himself as a police officer and because, as

Saunders admits, he did not attempt to arrest Atkinson [the suspect] peacefully before physically

charging at Atkinson. Atkinson, 709 F.3d at 1210. The Court went on to state:

A reasonable officer in Sanders positionwithout either of the first two Graham factors to justify a forceful arrestwould not have thought it appropriate to charge Atkinson without first identifying himself as a law enforcement official

and giving Atkinson a chance to return the cell phone peacefully. By remaining

anonymous, Sanders never gave Atkinson the opportunity to comply with a

legitimate request by a law enforcement official.

Id. 709 F.3d at 1210. The Atkinson Court ultimately concluded that:

Viewing the record in the light most favorable to Atkinson, we decide the

unlawfulness of Sanders charging Atkinson would be clear to a reasonable

officer in Sanders situation. Saucier, 533 U.S. at 202, 121 S.Ct. 2151. As a

general matter, [t]he 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). Although we have

not previously confronted a situation identical to this case, [t]here is no

requirement that the very action in question [be] previously ... held unlawful.

Vaughn v. Ruoff, 253 F.3d 1124, 1129 (8th Cir.2001) (quoting Anderson, 483 U.S.

at 640, 107 S.Ct. 3034). It is enough that earlier cases ... g[a]ve Sanders fair

warning that [his] alleged treatment of Atkinson was unconstitutional. Meloy

v. Bachmeier, 302 F.3d 845, 848 (8th Cir.2002) (quoting Hope v. Pelzer, 536 U.S.

730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). On August 31, 2007, Sanders

had fair warning that charging at a non-resisting individual without first

identifying himself as a police officer was unconstitutional in the context of an

arrest.

Id. 709 F.3d at 1212.

The videotape of the event shows clearly that Octavius was not fleeing or moving toward

Officer Canterbury. The case of Sloan v. Dulak, 868 F. Supp. 2d 535 (W.D. Va. 2012), involved

a dispute regarding whether a man had stopped fleeing from police and complied with law

enforcement prior to the officers exercise of force. The United States Court of Appeals for the

Sixth Circuit held:


19

[H]ad Sloan been stopped for a sufficient amount of time to indicate he was no

longer evading or resisting arrest and posed no threat to the Officers safety, the Officers would likely not have been justified in tackling him and would not be

entitled to protection under the qualified immunity doctrine. Conversely, if Sloan

was still actively evading arrest or had only just stopped, such that the Officers

did not have sufficient time to evaluate and react to Sloans changed course of conduct, the Officers conduct would be analyzed in accordance with Grahams protection for split-second judgments.

Dulak, 868 F. Supp. 2d at 542.

In this instance, Octavius made no sudden moves and, in fact, according to Octavius

testimony was turning to place his hands on the hood of his truck at the direction of Officer

Canterbury when Canterbury came up behind him and seized Octavius without warning from

behind. [Doc. 90-16 76:6-16; Doc. 90-7 13.] Canterbury asserts that Octavius stiffening

following Canterburys grabbing his neck was a form of resistance. However, it is virtually

impossible to imagine that someone being seized by the neck from behind without warning or

knowledge that he or she is being placed under arrest would not reflexively stiffen in a

spontaneous effort to protect against injury from the anticipated fall. According to the officers,

when they decided to arrest Octavius he had not presented identification and they believed that

he was the owner of the black Mustang and the owner of the Mustang had an outstanding

misdemeanor arrest warrant.4

In Blackenhorn v. City of Orange, 485 F.3d 463 (9th Cir. 2007), the Court concluded:

Blankenhorn was suspected of having committed a misdemeanor trespass. When

Nguyen and Gray stopped him, he was talking with an adult friend and was

accompanied by two young boys. Nguyen asked Blankenhorn what he was doing

at the mall, and Blankenhorn responded that he was talking with some friends. At

some point, Nguyen grabbed his arm and, when Blankenhorn pulled free,

threatened to spray him with mace. Blankenhorn threw his drivers license on the ground, but he did not take a combative stance, clench his fists, or otherwise make

threatening gestures. When Nguyen asked him to kneel down so he could be

handcuffed, Blankenhorn refused. Almost immediately, Nguyen, Ross, and South

4 Demetrius Johnson, Octavius youngest brother, had a warrant for failure to appear on a ticket for first offense littering. [Doc. 90-18 50:14-51:6.]


20

gang-tackled him. Nguyen did not try to handcuff Blankenhorn before the three

officers tackled him. Blankenhorn struggled for several moments before the

officers brought him to the ground. Once on the ground, however, Blankenhorn

did not attempt to prevent the officers from handcuffing him. Even so, Nguyen

punched him several times, and an officer or officers pushed his face into the

pavement by shoving a knee into the back of his neck. Once Blankenhorn was

subdued, the officers placed hobble restraints on his ankles, which made it

difficult for Blankenhorn to move and breathe. If Blankenhorn can prove the

events as set forth above, some or all of the Defendants would probably be liable

for excessive force, both in their gang tackling, use of hobble restraints, and in Nguyens punching of Blankenhorn.

Id. at 485 F.3d 478.

In this case although Octavius heard the words cuff him, or something to that effect, he

did not hear that statement until he was moving to put his hands on the hood of the truck to allow

the officers to frisk him. [Doc. 90-16 74:12-77:11.] Without asking Octavius to put his hands

behind his back or telling him he was under arrest and without any other warning, Officer

Canterbury seized Octavius by the neck and threw him to the ground. [Doc. 90-16 76:6-16; Doc.

90-7 13.] Then, despite the fact that Octavius could not move his arm in accordance with the

instructions of the officers, Officer Canterbury hit Octavius a number of times.

The case of Wysong v. City of Heath, 260 Fed. Appx. 848 (6th Cir. 2008) (not selected for

publication), involved a diabetic who claimed to be unconscious, and thus, was not resisting

during any arrest. The Sixth Circuit determined that, [I]f Wysong was not resisting, the

officers use of force was excessive and we hold that if the officers struck him when he was

not resisting, they will not receive qualified immunity. The same cases holding that police may

not use force on a subdued, non-resisting subject hold that the right to be free from physical force

when one is not resisting the police is a clearly established right. Id. 260 Fed. Appx. at 855.

The Eighth Circuit held in Brown v. City of Golden Valley, 574 F.3d 491,499 (8th Cir.

2009) that [I]t is clearly established that force is least justified against nonviolent


21

misdemeanants who do not flee or actively resist arrest and pose little or no threat to the security

of the officers or the public.5

Finally, in Herrera v. Bernalillo Cnty. Bd. of Cnty. Commrs, 361 F. Appx. 924, 928

(10th Cir. 2010) (not selected for publication), the Court determined that a jury could find

excessive force was used based on the following facts:

Mr. Herrera claims that he neither evaded the deputies nor resisted their efforts to

arrest him, yet in spite of this, as they arrested him, three deputies gang-tackled

him and applied sufficient force to tear ligaments in his knee. Mr. Herrera

emphasizes that, when the deputies instructed him to stop and threatened to shoot

him if he did not, he promptly complied, lying face down on the ground with his

arms and hands visibly extended. He adds that, at the time the deputies ordered

him to stop, he was not running but simply walking through the field. And he

claims that he never said anything to the deputies to suggest disobedience to their

commands.

Id.

In this case, if the jury believes Octavius testimony that he was not attempting to escape

or resist, Canterbury is not entitled to immunity. It is clearly established that when a person is

subdued and restrained with handcuffs, a gratuitous and completely unnecessary act of violence

is unreasonable and violates the Fourth Amendment. Blazek v. City of Iowa City, 761 F.3d 920

(8th Cir. 2014) quoting Henderson v. Munn, 439 F.3d 497, 503 (8th Cir. 2006). In this case the

videotape evidence shows that before his second set of strikes Officer Canterbury looked up,

checked two directions, and then struck Octavius again. [Doc. 90 Ex. 15; Doc. 102-5 p.3; Doc.

102-7 p.5.] In addition, other officers examining Officer Canterburys report against what could

be seen from the videotape concluded that it was unlikely that Octavius could have attempted to

grab Officer Canterburys trousers prior to the second set of punches to Octavius. [Doc. 102-6.]

By striking a non-resisting handcuffed individual Defendant Canterbury failed to abide by

5 The City of Golden Valley case involved the use of force through deployment of a taser.


22

clearly established constitutional limits on the use of force and failed to follow the procedures

established by the Omaha Police Department. Prior to a trial on the disputed factual issues

Office Canterbury is not entitled to qualified immunity and his motion for summary judgment

should be denied.

B. Officer Rowland

Several different actions by Officer Rowland raise questions regarding her qualified

immunity. First, she went inside a private residence and made a very forceful arrest of

Demetrius. Second, she chose to handcuff Sharon Johnson, an individual who was inside her

home, had done nothing beyond being loud and obnoxious and who was never under arrest.

Third, Officer Rowland re-entered the home after all the residents were restrained and then

participated in a warrantless search of a cell phone taken from Demetrius when he was

handcuffed.

It is well-established that warrantless searches and seizures inside a home are

presumptively unreasonable. Mitchell v. Shearrer, 729 F.3d 1070 (8th Cir. 2013). Crucial issues

in determining if a search and seizure is lawful include the location of the individual and the

individuals reasonable expectation of privacy. Duncan v. Storie, 869 F.2d 1100, 1102 (8th Cir.

1989). Therefore, we must examine each of Officer Rowlands actions to determine if her

actions are entitled to immunity.

1. Arrest of Demetrius

Although Demetrius had a warrant for his arrest, Plaintiffs are entitled to an inference

that Officer Rowland did not know when she entered the house that it was Demetrius inside the

house. The inference arises from the fact that Officers Worm, Canterbury, and Rowland testified

that part of the reason that they arrested Octavius was because they believed he was the owner of


23

the black Mustang and, therefore, was Demetrius the brother with the outstanding warrant.

[Doc. 90-7 8.] Contradicting this testimony, however, Officer Rowland testified in her

deposition in the criminal proceeding against Officer Kinsella and in her affidavit in this case

that she spoke Demetrius name when she entered the house and he responded. [Doc. 102-3

p.38.] However, watching the tape it is clear that there was no time after Octavius was taken to

the ground when Officer Rowland could have determined Octavius identity. [Doc. 90 Ex. 15.]

In addition, Demetrius testified that he never heard his name called when the officers entered the

home and that no one even bothered to ask him his name until he was in the police cruiser, under

arrest and on the way to jail. [Doc. 90-17 39:18-23.] Demetrius version of the events is further

supported by the testimony of Officer Worm who also testified that Demetrius was knocked

down when Officer Worm chased Juaquez into the residence and threw Sharon from her

wheelchair.6 [Doc. 90-8 12.] Officer Worms testimony is consistent with Demetrius

statement that he was on the floor when the officers entered the residence.

Officer Rowlands testimony, however, which should not be believed under the standard

for a motion for summary judgment, was that Demetrius was standing when she entered the

residence and that he responded to his name. [Doc. 102-3 p.38.] This Court cannot decide on

these disputed facts if Officer Rowland in fact knew Demetrius identity and that he was the

brother with the warrant. Rather, Plaintiffs are entitled to the inference that Officer Rowland did

not know when she entered the house that she was arresting someone who had a warrant and,

therefore, the seizure of Demetrius inside the home is presumptively unreasonable. Mitchell v.

6 Officer Worm originally told IA investigators that Juaquez dumped Sharon from her

wheelchair but at a subsequent interview admitted that he, Officer Worm, caused Sharon to be

thrown to the floor from her chair but that he believed it was Juaquez responsibility because Juaquez ran into the house. [Doc. 102-7 p. 53-54.]


24

Shearrer, supra. Even if Officer Rowlands testimony that she had realized the person inside the

house was Demetrius is truthful, she is not entitled to claim exigent circumstances to justify

her entrance into the home. According to the United States Supreme Court, if the underlying

offense is relatively minor, the governments interest is reduced and the presumption that a

warrantless search is unreasonable is difficult to rebut. Welsh v. Wisconsin, 466 U.S. 740, 749-

50, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984).

2. Handcuffing Sharon Johnson

Starting from the point that any warrantless search and seizure inside a residence is

presumptively unreasonable, Officer Rowland is clearly not entitled to qualified immunity for

placing handcuffs on Sharon Johnson. In fact, the only justification offered by Officer Rowland

for handcuffing Sharon was that Sharon had not obeyed Officer Rowlands direction to stay

put, when Sharon was lying just inside the hallway of her own home and the fact that because

Sharon uses a wheelchair Officer Rowland feared Sharon might have exceptional upper body

strength. [Doc. 102-3 p.46-47.] However, even assuming that Officer Rowland believed she had

probable cause to be in the house to arrest one of the brothers, she had absolutely no probable

cause to restrain Sharon Johnson for anything. Any use of force violates the Fourth Amendment

if it is objectively unreasonable under the facts and circumstances of the particular situation.

Hemphill v. Hale, 677 F.3d 799, 800 (8th Cir. 2012). Because Sharon Johnson could not stand or

walk without her wheelchair and was out of her wheelchair, Officer Rowlands alleged level of

concern is not reasonable. Officer Rowland is not entitled to qualified immunity for placing

Sharon Johnson in handcuffs.


25

3. Warrantless Search of the Cell Phone

Officer Rowland has tried to downplay her participation in searching the cell phone that

Demetrius was attempting to use to record the events that incurred inside the Johnsons home.

However, it should have been clearly understood by all involved that they had no right without a

warrant to be viewing recordings or other material on the cell phone found on the floor after

Demetrius arrest. [102-1 17.] The officers had no reason to believe the telephone was

evidence of a crime. Rather, the cell phone was the personal property of one of the Johnson

family members and, therefore, not subject to warrantless search or seizure. Finally, and most

importantly in the context of summary judgment, the only reasonable inference that can be

drawn from the actions of the officers reviewing the video on the cell phone and destroying the

SIM-card from the phone is that the officers believed that there was something on that cell phone

that would have revealed improper conduct on their part. For this reason alone, Rowland and the

other officers should not be granted qualified immunity on a motion for summary judgment.

C. Officer Worm

The crime of obstructing a police officer requires the intent to interfere or obstruct the

actions of officers in the performance of their duties. [Doc. 90-5.] The first time Juaquez went

into the street and was escorted back to the sidewalk by Officer Worm could possibly have been

construed as demonstrating intent to interfere with the officers. [Doc. 90 Ex. 15.] However,

after being walked back to the sidewalk by Officer Worm, Juaquez never moved more than a

step or two away from the curb remaining far enough away from Officer Canterbury and

Octavius to demonstrate that he did not have any intent to interfere with the officers. In fact, the

video of the event shows that Juaquez was back on the grass strip near the sidewalk and not in


26

the street when Officer Worm suddenly bolted from his police cruiser and began chasing

Juaquez. [Doc. 90 Ex. 15.]

In addition, there are disputed material facts which must be construed in favor of the

Plainitiffs. Officer Worm alleges that he believed he had probable cause to arrest Juaquez but he

does not say he told Juaquez he was under arrest. [Doc. 90-8 11.] Juaquez, however, states that

he was never told he was under arrest and that the only command given to him by officer

Worm was for Juaquez to give the video camera to Officer Worm. [Doc. 96-4 24:17-24, 52:9-

53:1.] If Juaquez account is believed as it must be for purposes of summary judgment

Juaquez ran from Officer Worm only because he was frightened and did not want to give up his

camera. [Doc. 96-4 24:17-24, 52:9-53:1.] According to commentary in the internal affairs

summary report, Worm lacked probable cause for his arrest of Juaquez. According to the report:

WORM said he arrested Juaquez for obstructing because he diverted their

attention away from Octavius arrest and towing the cars; the disorderly conduct charge was for Juaquezs verbal obscenities while he was outside and in the street. (Juaquez did not seem to meet any of the elements of a disorderly conduct arrest

because) WORM said Juaquez never squared off on him or take a fighting stance

with him, Juaquez seemed to avoid WORM when WORM approached or

confronted him, WORM said Juaquez did not resist while WORM escorted him in

an arm bar back to the sidewalk; WORM said Juaquez started swearing when

Octavius arrived but while Juaquez was on the sidewalk and in the street during

Octavius arrest his main concern was the well-being of his brother Octavius; and WORM said Juaquez was not combative or resistive inside the house.

[Doc. 102-7 p. 56 (emphasis in original).]

Officer Worms actions are very similar to those addressed in Robinson v. Fetterman,

378 F. Supp.2d 534 (E.D. Penn. 2005). In that case, an officer arrested an individual for

videotaping police officers making truck inspections and charged the individual with harassment,

a misdemeanor which, like obstruction, requires intent. In finding the officer was not entitled to

qualified immunity, the court said:


27

No reasonable trooper could have believed that Robinsons videotaping on October 23, 2002 constituted harassment under [Pennsylvania statutes]. That

statute provides, in relevant part: [a] person commits the crime of harassment when, with the intent to harass, annoy or alarm another, the person . . . (2) follows

the other person in or about a public place or places; [or] engages in a course of

conduct or repeatedly commits acts which serve no legitimate purpose.

Id. 378 F. Supp. at 541.

Because it was not reasonable for the trooper to believe the crime of harassment had been

commited, the officer was not entitled to immunity. See also Gilk v. Cunniffe, 655 F.3d 78 (1st

Cir. 2011) in which the United States Court of Appeals for the First Circuit found it was not

reasonable for officers to arrest an individual openly recording the police actions for a potential

wiretap violation on the basis that the recording was secret because the officers did not know if

there was actually audio being recorded. Id., 655 F.3d at 88.

If Officer Worm lacked probable cause to arrest Juaquez then he certainly lacked

probable cause to enter the house pursuing Juaquez, causing injury and humiliation to Sharon by

knocking her out of her wheelchair. According to the United States Supreme Court:

The Fourth Amendment has drawn a firm line at the entrance to the house.

Absent exigent circumstances, that threshold may not reasonably be crossed

without a warrant.

Payton v. New York, 445 U.S. 573, 584, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980).

Entering a house without a warrant and without probable cause is a violation of a clearly

established Constitutional right.

Further, the defense of exigent circumstances is not available in this case because the

right violated is of much greater importance than the seriousness of the crime. See Welsh v.

Wisconsin, supra, holding that one of the factors that must be considered in determining the

reasonableness of a warrantless search and seizure is the seriousness of the crime.


28

Also in this case, to the extent Juaquez flight could be considered exigent

circumstances the only reason Juaquez ran was because Officer Worm, without warning, began

chasing Juaquez. [Doc. 96-4 24:17-24, 52:9-53:1; Doc. 90 Ex. 15 Doc. 96-4 24:17-24, 52:9-

53:1.] Therefore, any exigent circumstances were created solely by Officer Worm. If exigent

circumstances relied on by officers to enter a private residence are created by the officers, the

officers are not entitled to qualified immunity. Kentucky v. King, 131 S. Ct. 1849, 179 L. Ed. 2d

865, 79 U.S.L.W. 4306 (2011). Under the police created exigency doctrine, police law

enforcement officers must be responding to an unanticipated exigency rather than simply

creating the exigency for themselves. United States v. Chambers, 395 F.3d 563, 566 (6th Cir.

2005). Further, exigent circumstances are generally justified only if they are intended to

preserve evidence or prevent imminent danger or harm to an officer. See Brigham City v. Stuart,

547 U.S. 398, 403, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006). In this case it was obvious or

should have been obvious to Officer Worm that Juaquez express intent in running from him

after being told to give up his camera, was to preserve, not destroy evidence. Officer Worm is

not entitled to qualified immunity at this stage of the proceedings

D. Officers Kinsella, Von Behren, Reeve, Payne, and Koenig

Officers are not entitled to qualified immunity if the situation shows facts demonstrating

a violation of a well-established Constitutional right. In the present case, although the Officers

initial entry into the house after observing Officer Worm pursuing Juaquez and assuming that

Worm had probable cause may have been reasonable, the officers actions after that point violate

clearly established Constitutional rights guaranteed by the Fourth and Fifth Amendments to the

Constitution.


29

1. Officer Kinsella

Officer Kinsella violated rights in a number of ways. First, it is well-established that the

use of force is not always permissible in an arrest. In this case, Kinsella admitted that he used

strikes on Juaquez even though he did not complete a use of force report. [Doc. 102-6; Doc.

102-7 p.70.] Kinsella was also the officer who was holding Demetrius camera while the other

officers were looking at it. [Doc. 102-6.] Officer Kinsella also removed the memory card from

the phone and threw it out the window of the patrol car. Id.

The inference to be drawn from Officer Kinsellas conduct is that he knew that his use of

force was unjustified, he did not intend to report his use of force, and he destroyed the SIM-card

to destroy any evidence that might exist documenting his use of force on Juaquez. Officer

Kinsella is not entitled to qualified immunity.

2. Officer Von Behren

Officer Von Behren was one of the officers who directed other officers to search the

home even after he knew or should have known that Officer Worm and the other officers did not

have probable cause to enter the home. [Doc. 102-7 p.61.] Officer Behren did direct some

officers not to enter the home but it was after telling those officers not to enter the home that Von

Behren was involved in the unauthorized search of Demetrius cell phone. [Doc. 102-7 p.61.] In

addition, Officer Von Behren admitted that he believed force had been used inside the house,

creating the inference that he believed such force might have been unjustified and that was the

reason for the concern over what was on the cell phone that might have recorded what occurred

in the house. [Doc. 102-7 p.66.]


30

3. Officer Reeve

Officer Reeve was also involved in the unauthorized search of the cell phone and,

although he may not have known about its destruction, engaged in conversations with his fellow

officers intended to keep the information about the cell phone and the SIM-card from coming to

light during the investigation into the incident that occurred March 21, 2013. [Doc. 102-6.]

4. Officer Payne

Officer Payne was involved in the arrest of Demetrius. Although Demetrius had a

warrant for his arrest for the serious crime of first offense littering no one properly identified

Demetrius until he was actually under arrest and in the police car. Officer Payne did not observe

Demetrius do anything that would have caused his arrest and there is no evidence that he asked

any of the other officers what Demetrius had done. It is a well-established right to be free from

arrest absent probable cause or a warrant. The officers cannot rely on the existence of a warrant

to arrest Demetrius because they did not ascertain his identity prior to the arrest and, in fact, had

arrested Octavius in part because they believed he was Demetrius.

In addition, Officer Payne was one of the officers who handcuffed Sharon Johnson.

[Doc. 102-7 p. 61.]

5. Officer Koenig

Officer Koenig was involved in the arrest of Demetrius. [Doc. 102-7 pp.2,70.] Even

though Demetrius was already on the floor, he was tackled when he was taken to the ground

and cuffed. [Doc. 90-17 34:15-35:19.] It is possible Officer Koenig used a flying lunge in

arresting Demetrius which is consistent with Demetrius description of the events. [Doc. 102-7

p.66.] Other officers also heard Officer Koenig bragging about using his knees against

Demetrius. [Doc. 102-7 p.114.] The use of force in any situation is contrary to the Fourth


31

Amendment if the force is excessive under objective standards of reasonableness. Saucier,

533 U.S. at 201-02. Demetrius Johnson was already on the floor when he was tackled. There

is no testimony even suggesting that Demetrius was attempting to resist. Even Officer

Rowlands questionable testimony that Demetrius was standing and responded to his name

acknowledges that Demetrius was not resisting. [Doc. 102-3 p.41-42.] Officer Koenigs use of

force against a suspect who was already on the ground and who offered no resistance to being

arrested is unreasonable as a matter of law.

CONCLUSION

In this case, there are internal inconsistencies and variations of facts between the

testimony of various officers as well as between the Plaintiffs and the Defendants and

independent eye witness accounts. When such inconsistencies exist, summary judgment is not

proper. As stated in a similar case by the United States Court of Appeals for the Eighth Circuit:

Because of the internal discrepancies and variations in the officers testimony, among other things, there remain factual issues in dispute that prohibit a grant of

summary judgment. The current record does not conclusively establish the

reasonableness of the officers actions or beliefs. Therefore, we agree with the District Court that summary judgment on the basis of qualified immunity is

inappropriate.

Wilson v. City of Des Moines, Iowa, 293 F.3d 447 (8th Cir. 2002).

Because of the unresolved factual issues that must examined to determine if the actions of

the officers were reasonable under the circumstances, this Court should deny each of the

Defendants motions for summary judgment on the issue of qualified immunity.


32

Dated this 29th day of May, 2015.

OCTAVIUS JOHNSON, JUAQUEZ

JOHNSON, DEMETRIUS JOHNSON,

SHARON JOHNSON and SHAREE JOHNSON

By: /s/ Diana J. Vogt

Diana J. Vogt, NE Bar #19387

SHERRETS BRUNO & VOGT LLC

260 Regency Parkway Drive, Suite 200

Omaha, NE 68114

(402) 390-1112 (phone)

(402) 390-1163 (fax)

[email protected]

AMERICAN CIVIL LIBERTIES UNION

COOPERATING ATTORNEY

and

Amy Miller, NE Bar #21050

ACLU Nebraska Foundation, Inc.

941 O Street, #706

Lincoln, NE 68508

(402) 476-8091 (phone)

(402) 476-8135 (fax)

[email protected]

CERTIFICATE OF SERVICE

I hereby certify that on this 29th day of May, 2015, I filed a true and correct copy of this

document with the United States District Court for the District of Nebraska, using the EC/CMF

electronic filing system, which will electronically serve a copy on all parties registered with this

Court for electronic service. I further certify that I am aware of no parties who are not registered

with the electronic filing service.

/s/ Diana J. Vogt


octavius johnson v city of omaha, 8-14-cv-00004-les-fg3 (29 may 2015) doc 103, brief in opposition...

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