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Arnold v. Washington County

United States District Court, W.D. Arkansas, Fayetteville Division

September 30, 2018




         Plaintiff Drancy Arnold alleges that police conducted a traffic stop without probable and then used excessive force to effectuate his arrest. Arnold seeks vindication of his rights under the Constitution and damages for violations of the Arkansas Civil Rights Act (“ACRA”), outrage, battery, and assault. Named as Defendants are the three officers involved in the stop and subsequent arrest: Washington County Deputy T.J. Rennie and Fayetteville Police Officers Jason McDaniel and Tanner Jones. Arnold has also sued Washington County and its Sheriff, Tim Helder; as well as the City of Fayetteville, and its Police Chief, Greg Tabor.

         The case is now before the Court on Motions for Summary Judgment filed on behalf of Deputy Rennie, Sheriff Helder, and Washington County (collectively, the “County Defendants”) (Doc. 31); and separately by Officers McDaniel and Jones, Chief Tabor, and the City of Fayetteville (collectively, the “FPD Defendants”) (Doc. 28). For the reasons explained below, the County Defendants' Motion is GRANTED IN PART AND DENIED IN PART, and the FPD Defendants' Motion is GRANTED.

         I. BACKGROUND

         On the morning of November 27, 2013, along a busy interstate highway near West Fork, Arkansas, Deputy Rennie initiated a traffic stop of Mr. Arnold after observing that he was following a vehicle too closely. (Doc. 28-2 at 6). Once stopped on the highway's shoulder, Rennie approached Arnold's passenger side door to explain the purpose of the stop. Identifying information was obtained and a records check performed. Officer McDaniel arrived on the scene and spoke briefly with Rennie. Rennie to returned to Arnold's passenger side door, while McDaniel approached the driver's side. Officer Jones arrived a few minutes later and stood next to McDaniel. Rennie told Arnold that he was smelled the odor of marijuana and needed him to step out of the car. Arnold refused, denied the possession of marijuana, and protested the stop as a totally bogus pretext. In the course of this lengthy dialogue, Arnold refused multiple more commands to exit his vehicle. Rennie and Jones upholstered their Tasers and warned Arnold that he would be tased if necessary. Arnold remained steadfast in his defiance. But when McDaniel applied physical force to Arnold's left hand and arm, he succumbed and agreed to voluntarily exit his vehicle. The undisputed events described thus far occurred over 15 minutes.

         The parties disagree, however, about what happened during the course of the next 30 seconds-beginning with Arnold freely walking to the back of his car, and ending with Rennie tasing Arnold in the back of the neck. Arnold contends that he was complying with the officers' commands when Rennie unlawfully tased him. The officers contend that Arnold was resisting their efforts to cuff him, and the resulting use of the Taser was reasonable and necessary to effectuate to effectuate the arrest.

         A. Arnold's Version of Events

          Arnold, a barber, testified that he was traveling from Little Rock to Fayetteville to cut hair for his clients, who were athletes at the University of Arkansas-something he did “once every two weeks or so.” (Doc. 8 at 18). Arnold was a few miles south of Fayetteville when he first saw Rennie's blue lights. Although he initially believed that a different vehicle was being stopped for speeding, when Arnold realized that he was being stopped, he complied and pulled over to the shoulder of the highway.

         Rennie approached on foot, leaned into Arnold's passenger-side window, and began asking questions. After “talk[ing] back and forth” for ten to fifteen minutes, Rennie said that he smelled marijuana and asked Arnold to get out of his vehicle. Arnold refused. (Doc. 33-8 at 27). Arnold explained that he “was on a time frame. [He] was trying to get up there and cut hair and get back home to be with [his] family for Thanksgiving.” Id. at 88. Arnold denied possessing any marijuana, but said that his cousin had been driving the vehicle the night before-so perhaps that was the residual source of the odor. Arnold complained that he had not been following the vehicle in front of him too closely, and that Rennie had no legitimate reason to pull him over in the first place.

         Arnold, an African American, subsequently explained that he was reluctant to get out of his car and feared for his life, because of police encounters he had seen on television and the Internet. Id. at 27. He believed the police pulled “a lot of black people over just for nothing.” Id. at 33. Arnold told Rennie that he had been “pulled over a lot, ” id., perhaps more than fifteen times between 2007 and 2013, id. at 34. Arnold later testified that he wanted a police supervisor present before he exited the vehicle, but admitted that he did not ask Rennie to call for one. Id. at 37.

         According to Arnold, Rennie “started pointing the Taser at [his] head” and said if he did not get out of the vehicle, Rennie was “going to shoot him with the Taser right there in [his] face.” Id. at 27. Arnold believed the situation was getting intense. He testified to being scared, and that his heart was beating fast. Id. at 28, 35. Arnold claims the fear for his life occurred when Rennie took aim with his Taser. Id. at 35.

         It was around this time that Arnold recalls the two Fayetteville police officers arriving on the scene. Id. at 27-28. Arnold admits that all three officers told him to get out of his car, and in fact, they did so “quite a few times.” Id. at 94. Nevertheless, he refused, “because there's no telling what would've happened. Somebody could lose control; you could get hit by a vehicle; or there's just a whole bunch of stuff that could happen.” Id. at 35. Arnold said just being on the side of the interstate made him “scared because you've got cars going 70 mph, and you never know what could happen.” Id. at 35. He concedes, however, that he never expressed these concerns to the officers. Id. at 87.

         Arnold testified that the FPD officers then “kind of started trying to yank [him] out of the vehicle.” Id. at 91. One officer was pulling Arnold's arm, and one was pulling his leg. Eventually, Arnold exited his vehicle because he thought “the officer was going to break [his] arm; it was hurting pretty bad.” Id. at 92. After getting out of the car, Arnold walked back toward Rennie's patrol unit. Arnold recalls being told to put his hands on the trunk of his own vehicle. He testified that as he was placing his hands down, “they just started jerking my arms and pulling my arms” back. Id. at 93. Arnold denies that he resisted, pushed off the car, or arched his back. Id. at 39, 93. He stated that Rennie “kind of started smashing me, grabbing me, and he just shot me with the Taser and put it close to my neck. He put it close to my neck and shot me.” Id. at 28. Arnold admits that the tase did not cause him to fall down, but he did see a “white light.” Id. at 95.

         The probes had been discharged at extremely close range and lodged in Arnold's neck. One of the probes was removed at the scene. But the second probe had penetrated so deeply as to require a trip to the hospital. Id. at 28, 96-98; See also, Doc. 33-13 at 6 (records of Washington Regional Medical Center). Medical personnel had to make two .25-centimeter incisions to remove the second probe. Id. at 9. The wound was irrigated with betadine and left open. When the bleeding was controlled, a dressing was applied. Id. Arnold was also given a tetanus shot and a prescription for antibiotics. Id. at 6, 8. His neurologic review at discharge was negative.[1] Id.

         While Arnold was receiving medical treatment, the police discovered a large amount of marijuana in the trunk of his car. So Arnold was transported from the hospital to the Washington County Detention Facility, where he was held for possession of a controlled substance with intent to deliver, using force to resist arrest, and following too closely. (Doc. 28-5 at 3; Doc. 33-2 at 6-7). Arnold was held overnight, but he bonded out of jail at approximately 3:00 p.m. on November 28th.

         On December 27, 2013, County prosecutors filed a felony information against Arnold, charging him with possession of a controlled substance with the purpose to deliver. (Doc. 33-2 at 17). On February 2, 2015, Arnold entered a negotiated plea of guilty to the charge. (Doc. 28-6 at 2; Doc. 33-8 at 80). He was given credit for time served and was sentenced to probation.[2]

         B. The Defendants' Version of the Events

          1. The County Defendants

          Deputy Rennie's affidavit, reproduced in part below, summarizes his recollection of the traffic stop with Arnold:

On November 27, 2013, I was conducting routine patrol when I observed Plaintiff following too closely behind another vehicle. I engaged my emergency lights and pulled the Plaintiff over for following another vehicle too closely.
During the traffic stop, I smelled the odor of marijuana coming from the Plaintiff's vehicle. I called for back up officers to assist with the arrest.
The Plaintiff was asked to get out of his vehicle multiple times by myself and back up officers from Fayetteville Police Department and refused each time.
I warned the Plaintiff more than once that he would be tased if he did not comply both before he exited the car and after.
Plaintiff is 6'2” tall which is taller than I am.
* * *
[B]ecause the Plaintiff was continuing to move his arms and body, resisting arrest and refusing to allow officers to handcuff him, Plaintiff was warned he would be tased and, in accordance with my training, I attempted to use the taser in drive stun mode because I was close to the Plaintiff.
When I engaged the Taser, the device malfunctioned and, instead of operating in drive-stun mode, the prongs deployed, and the device delivered only a partial cycle of electric pulses.[3]

Doc. 33-10, pp. 1-2.

         Rennie goes on to testify that he completed all “requisite training to carry a Taser prior to the traffic stop with Plaintiff in 2013. Id. at 2. The training “requires the use of drive stun mode at very close ranges because there is no[t] sufficient space for the probes to spread out if the subject is too close.”[4] Id.

         Major Rick Hoyt, with the Washington County Sheriff's Office, confirmed that Deputy Rennie successfully completed the county's Taser training course, and further, than on June 7, 2011, he was issued the Taser (Model X-26) that was deployed upon Mr. Arnold. (Doc. 33-11). Hoyt states that officers “are trained to use the Taser device from a distance by aiming the device at the suspect and discharging the cartridge which deploys two metal probes into the surface (typically either clothing or skin) with which contact is made.” Id. at 1-2. However, “[o]fficers are trained to use the device in ‘drive stun' mode as a pain compliance technique which delivers a lower level of force than the probes.[5] The drive-stun mode may be used when the subject is combative and the officer is not far enough away from the subject to allow a sufficient spread of the probes.” Id. at 2. From Hoyt's perspective, after viewing the video of the traffic stop, he believes Rennie's “use of a Taser in drive stun mode in the manner that he attempted in this case was consistent with the training and the policy[6] of the Washington County Sheriff's Office.” Id. (emphasis added).[7]

         Sheriff Helder testified that he employs “a chain of command to supervise the employees in the various divisions of the sheriff's department.” (Doc. 33-9 at 1). Hoyt heads the enforcement chain of command. Id. “When problems arise or are alleged, ” Helder relies on his chain of command to “handle those problems to the extent they are able.” Id. He does not become “personally involved unless the problem is systemic or not capable of resolution by [his] staff.” Id. Helder further maintains that he was not “personally involved in any of the incidents referenced in the Plaintiff's Complaint.” Id.

         2. The FPD Defendants

         McDaniel denies that he used excessive force against Arnold. (Doc. 28-3 at 4). He also denies that he witnessed Rennie or Jones using excessive force against Arnold. Id. at 4-5. According to McDaniel, “[a]fter Arnold exited his vehicle, I secured Arnold's right arm, but Arnold began to lock out his arms so they could not be handcuffed, ” and then Rennie used the Taser. Id. at 4. After Arnold was placed under arrest, McDaniel assisted in searching Arnold's vehicle and located “[a] black plastic trash bag with many pounds of marijuana . . . in the trunk . . . .” Id. at 5. Jones' affidavit is much the same as McDaniel's, but he adds that “I feared that [Rennie] might create a situation on a busy highway where one of us could be pushed, thrown or fall into one of the lanes of traffic.” See Doc. 28-4 at 4. Jones also believes that neither he nor the other two officers used excessive force. Id. at 4.

         C. The Dashcam Video (Doc. 33-6)

         The entire stop was captured on a video camera attached to the dashboard of Rennie's patrol unit.[8] The video begins with Rennie's patrol unit driving in the left lane of the interstate's two northbound lanes of traffic, slightly behind Arnold's vehicle, a gray Impala. Rennie nearly passes the vehicle but then drops back behind it. Rennie initiated the traffic stop at 10:12:06 a.m. on Wednesday, November 27, 2013. Both vehicles come to a stop on the right shoulder of the highway. The following events occur between 10:13 a.m. and 10:56 a.m., as documented by Rennie's dashcam and body microphone. The events most critical to the excessive force claim occur over a mere 25 seconds between 10:27:37 and 10:28:02.

10:13:02. Rennie approaches Arnold's vehicle on the passenger side, leans against the open passenger-side window, and begins to engage Arnold in conversation. Rennie explains that he stopped him because Arnold was following the vehicle in front of him too closely. Rennie asks Arnold for his name, date of birth, where he is coming from, and where he is going. Arnold responds to all questions. Rennie asks for Arnold's vehicle registration and insurance information, and then walks back to his patrol unit to report Arnold's identifying information.
10:19:15. McDaniel arrives on the scene, exits his patrol unit, and speaks briefly to Rennie while the two are standing on the shoulder of the road. Rennie returns to the passenger-side window, tells Arnold that he detects the odor of marijuana, and asks him to step out of his car. But Arnold does not step out of the car-despite at least three separate commands by Rennie to do so.
10:20:56. Rennie opens Arnold's passenger-side door and leans in while explaining to Arnold the reasons why he must exit his vehicle. Then McDaniel opens the driver's-side door and gestures for Arnold to get out of the vehicle. For the next several minutes, both officers repeatedly direct Arnold to get out of the car. They explain to Arnold that they smell marijuana and that he must comply with their directions. Arnold argues with the officers, saying that he has done nothing wrong, and he suggests that the traffic stop was racially motivated. Despite numerous persuasive efforts by the officers, Arnold simply refuses to exit his car-but he does not demonstrate any violence nor direct any threats towards the officers.
10:25:24. Jones arrives on the scene-specifically parking his cruiser in the right lane to create a small safety buffer. Jones then approaches Arnold's vehicle on foot, joining McDaniel at the driver's-side door. At this point it has been a full five minutes since Rennie first instructed Arnold to get out of the vehicle, and Arnold has still not complied. McDaniel leans into the car and grasps Arnold's left arm. Rennie tells Arnold that he will be tased if necessary, and at that point, Jones unholsters his Taser too.
10:26:04. Rennie leans further into the vehicle with his Taser pointed, which prompts Arnold to exclaim, “Are you going to stun me because I don't want to get out of my own car?” Rennie says, “Yes, get out. You are not complying with what we're asking you. This is your last warning.” But Arnold still does not comply, so McDaniel begins pulling, wrangling, and applying pressure to Arnold's left arm and hand.
10:27:37 Arnold finally concedes and McDaniel releases his hold. Arnold steps out of the vehicle of his own accord-with no officer pulling, prodding, or even touching him. Arnold then steps to the rear of his vehicle as McDaniel guides him from behind. All the while, Jones and Rennie maintain their Tasers pointed at Arnold.

         (Image Omitted)

10:27:47. Arnold voluntarily places his hands on the trunk of his car, but McDaniel quickly directs him to move further from the roadway.

         (Image Omitted)

10:27:51. McDaniel says to Rennie, “Do you want to check him, or what do you want to do?” “He's going in cuffs right now, ” replies Rennie. But as Arnold steps partially out of view, something prompts McDaniel to say, “No . . . No. . . . No, ” and then “Don't do that. Don't do that.”

         (Image Omitted)

• 10:27:54. The three officers quickly hustle Arnold toward the front of Rennie's cruiser. As they do so, McDaniel is shown in full control of Arnold's right arm and Rennie is shown in control of Arnold's left arm, while both officers are successfully pushing Arnold from behind. Meanwhile Jones is walking in front of Arnold with his hand on Arnold's left shoulder. In ...

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