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Brossart v. Janke

United States Court of Appeals, Eighth Circuit

June 16, 2017

Rodney Brossart, et al. Plaintiffs - Appellants
v.
Kelly Janke, et al. Defendants - Appellees

          Submitted: February 7, 2017

         Appeal from United States District Court for the District of North Dakota - Fargo

          Before LOKEN, COLLOTON, and KELLY, Circuit Judges.

          LOKEN, CIRCUIT JUDGE.

         During 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[1] 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 affirm.

         I. Background.

         A. Tasing of Rodney Brossart.

         On June 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.

          Near 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 that."[2]

         Braathen 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."[3] 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.

         The 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."

         Braathen 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 ...

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