Rodney Brossart, et al. Plaintiffs - Appellants
Kelly Janke, et al. Defendants - Appellees
Submitted: February 7, 2017
from United States District Court for the District of North
Dakota - Fargo
LOKEN, COLLOTON, and KELLY, Circuit Judges.
confrontations that extended over two days at the Brossart
family farmstead in Nelson County, North Dakota, Deputy
Sheriff Eric Braathen tased both Rodney Brossart and his son,
Thomas Brossart. The Brossarts, including Rodney's wife,
Susan, brought this action against Braathen, his supervisor,
Sheriff Kelly Janke, and Nelson County, asserting federal
claims under 42 U.S.C. § 1983 that Braathen used
excessive force in violation of the Fourth Amendment, Janke
is liable for the violations in his supervisory capacity, and
Nelson County is liable for adopting an unconstitutional
Taser Policy and for failing to train Braathen. The Brossarts
also asserted pendent state law claims. The district
court dismissed the state law claims as
time-barred in a December 2014 Order. After the Brossarts
filed an Amended Complaint, the district court granted
defendants summary judgment and dismissed the Amended
Complaint with prejudice in a January 2016 Order. The
Brossarts appeal both orders. Reviewing the grant of summary
judgment de novo and viewing the facts in the light
most favorable to the Brossarts, the non-moving parties, we
Tasing of Rodney Brossart.
22, 2011, the Brossarts discovered six loose cattle on their
property. They did not own these cattle but secured them in
an old missile silo that evening without giving the notice to
the county sheriff or to the chief brand inspector required
by a North Dakota estray statute. See N.D.C.C.
§ 36-13-01 (2012). The following morning, Rodney's
neighbor, Chris Anderson, tracked the cattle to the Brossarts
property and spoke to Rodney, who declined to release the
cattle and said Anderson should contact his insurance company
regarding damage the cattle caused. Anderson left and phoned
a complaint to the Nelson County Sheriff's Department,
which was referred to Deputy Braathen. Braathen contacted the
State's attorney, who advised that a criminal violation
of the estray laws might be in issue. Braathen next contacted
Fred Frederickson, a licensed peace officer and brand
inspector for the North Dakota Stockman's Association.
Braathen and Frederickson met with Anderson, who said he
found his cattle at the Brossart missile silo, and Rodney
said Anderson would have to pay to get them back. Anderson
provided Frederickson brand papers for the cattle. Braathen
and Frederickson set out for the Brossart farm in a patrol
car to investigate.
the farm, the officers encountered Rodney and his son Jacob
blocking the rural road while using a pump to drain water
from a ditch. The summary judgment record includes a
transcript of the recorded conversation. Braathen first
introduced Frederickson to Rodney, who refused to shake hands
and questioned Frederickson's authority. Frederickson
asked for permission to inspect the cattle, explaining he had
brand papers and the officers had received a complaint.
Rodney said, "Well, when I get done here." Braathen
said, "We're going to do it now, Rodney."
Rodney replied, "if you can step foot on that property,
mister, you're not going to be walking away."
Frederickson interjected, "Hey, you don't want to
make threats, okay? Don't make threats like
then said they were going to see the cattle. Rodney replied,
"I'll be done here after a bit, " turned away
from Braathen, and walked towards his equipment to remove his
pump from the roadway, ignoring Braathen's warning,
"We're not giving you a choice here." When
Rodney insisted he would finish his work, Braathen said,
"You're going to go to jail if we don't
cooperate now." Rodney replied, "Where's the
writ? Give me the writ." Braathen said, "All right,
you're under arrest." The confrontation escalated. The
Amended Complaint described the following sequence:
At that point, Deputy Sheriff Braathen pulled out his pair of
handcuffs and grabbed Rodney Brossart's right hand to
secure him in handcuffs. Rodney resisted by backing away,
according to Deputy Sheriff Braathen's testimony. Then
Braathen pulled out his Taser gun, activated it, and pointed
it at Brossart, while instructing him to get to the ground.
He said, 'I commanded him at least three times.'
. . . Rodney Brossart yelled to his son, Jacob, to 'get
it' and pointed at the pickup.
Jacob Brossart was detained by Inspector Frederickson and
place[d] in his car.
Then Deputy Sheriff Braathen decided to activate his Taser.
patrol car recording supports these allegations. After
Braathen informs Rodney that he is under arrest, Rodney
inquires "for what, " and is heard saying
"[g]et, get." Braathen testified that Rodney said
those words to his son, Jacob, who headed for the pickup
truck but was intercepted by Frederickson before he reached
it. The truck contained two firearms and ammunition. Braathen
is heard saying: "Rodney! Down on the ground! Down on
the ground! Down on the ground! Down on the ground."
then deployed his taser for the first time, firing two probes
in dart-mode into Rodney's pectoral region. Rodney
stumbled backward to the edge of the road. On the patrol car
recording, Braathen is heard saying "[d]on't move!
Stay on the ground . . . . Down on the ground, Rodney!"
The Amended Complaint alleged, "Brossart goes down on
one knee and then gets back up again." Braathen
re-activated the taser when Rodney continued to ignore
commands to stay down. Rodney fell down and rolled into the
ditch. On the recording, Braathen tells Frederickson to
"cuff him" and calls for back-up. Rodney says,
"I want some proof of that guy's authority." In
response to Braathen's repeated commands to "stay
down, " Rodney first accuses Deputy Braathen of stepping
on his phone and then repeatedly says, "Where's my
glasses?" Braathen repeatedly warns, "You move
again Rodney, and you're going to get tased . . . Stay
down! . . . Rodney, if you move at all I'll tase you
again!" The patrol car recording reveals that Rodney
would not stay on his knees or otherwise cooperate:
OFFICER FREDERICKSON: Put your hands behind your back.
RODNEY BROSSART: (inaudible) my phone!
DEPUTY BRAATHEN: Rodney! Down! Get down on your knees!
RODNEY BROSSART: There it is!
DEPUTY BRAATHEN: Down on your knees!
RODNEY BROSSART: Where's my glasses?
DEPUTY BRAATHEN: Rodney!
RODNEY BROSSART: Where's my ...