Olga Simpson, individually and as Mother and Next Friend of A.S., a minor and Y.S., a minor, and S.S., a minor, Plaintiff,
State of Kansas and Da’Von B. Brame, Defendants.
MEMORANDUM & ORDER
JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
On October 17, 2011, defendant Da’Von B. Brame, a trooper with the Kansas Highway Patrol, stopped the vehicle that plaintiff Olga Simpson was driving based on his observation that plaintiff’s minor child, a front-seat passenger, was not wearing a seat belt. Defendant Brame issued a citation to plaintiff for failure to wear her own seat belt and failing to secure her children in seat belts. After plaintiff tore up the citation, defendant Brame notified plaintiff that he was placing her under arrest for the seat belt violations. During the arrest, which plaintiff resisted, plaintiff sustained injuries.
Plaintiff filed this action against defendant Brame alleging violations of 42 U.S.C. § 1983 for unlawful arrest in violation of the Fourth Amendment and excessive force in violation of the Fourth, Eighth and Fourteenth Amendments. Plaintiff also asserts against defendant Brame state law claims of false imprisonment, battery and intentional infliction of emotional distress. Plaintiff has sued the State of Kansas under the Kansas Tort Claims Act on the theory that the State is liable for the wrongful acts of defendant Brame acting within the scope of his employment with the State and on the theory that the State negligently failed to train defendant Brame.
This matter is presently before the court on the parties’ motions for summary judgment. Plaintiff moves for summary judgment (doc. 44) seeking a determination that Kansas law does not authorize a police officer to arrest a driver for adult or child seat belt violations because those violations are minor traffic infractions. Defendants move for summary judgment (doc. 46) on all of plaintiff’s claims. As explained in more detail below, plaintiff’s motion is denied and defendants’ motion is granted in part and denied in part. To the extent defendants’ motion is denied, however, the court dismisses those claims rather than granting summary judgment on those claims.
Consistent with the relevant standard, the following facts are either uncontroverted or related in the light most favorable to plaintiff, the nonmoving party. However, where video and audio evidence of the traffic stop blatantly contradicts plaintiff’s version of events, the court views the evidence in the light depicted by the videotape. Scott v. Harris, 550 U.S. 372, 380-82 (2007); Thomas v. Durastanti, 607 F.3d 655, 658 (10th Cir. 2010) (for purposes of summary judgment concerning traffic stop, court may rely on facts established by video capturing the event together with plaintiff’s version of the remaining facts).
On October 17, 2011, plaintiff Olga Simpson was operating a motor vehicle in Johnson County, Kansas and transporting three of her minor children. Defendant Da’Von B. Brame, a trooper with the Kansas Highway Patrol, was traveling home in his patrol car at approximately 5:30pm when he passed plaintiff’s vehicle and observed that the minor child in the front passenger seat of plaintiff’s vehicle was not wearing a seat belt. According to defendant Brame, he observed the absence of a seat belt strap across the torso of the passenger and observed the seat belt buckle hanging by the passenger’s head. Defendant Brame made a traffic stop of plaintiff’s vehicle. As noted, there is a video recording (from the dashboard of defendant Brame’s patrol car) of a significant portion of the stop and an audio recording of the entire stop from a microphone worn by defendant Brame. The traffic stop occurred on an entrance ramp to Shawnee Mission Parkway (a heavily traveled roadway, particularly during rush hour) and the video depicts that a steady flow of vehicles was passing quickly (in an effort to enter Shawnee Mission Parkway at the appropriate speed) right behind defendant Brame as he stood outside plaintiff’s window. Plaintiff’s vehicle was pulled over to the shoulder of the ramp.
Defendant Brame testified that he observed a minor child in the back seat of the vehicle attempting to secure her seat belt as he approached the car and that he then observed through the vehicle window that the child in the back seat of the vehicle was not wearing a seat belt. The video depicts defendant Brame looking through the window at close range and observing the back seat of the vehicle. Defendant Brame further observed that plaintiff was not wearing a seat belt and plaintiff does not dispute that she was not wearing a seat belt. When he approached plaintiff, he asked her whether it was a “little too late to have them put on their seat belts now, don’t you think?” Plaintiff responded that they were “just coming from school.” Defendant Brame, in a calm but arguably condescending tone, explained to plaintiff that the school was far away and that the children needed to be secured in seat belts before plaintiff put the vehicle in gear. He then asked plaintiff for her license and registration and, while she was looking for those documents, he told plaintiff a story about a local mother whose young child was killed the prior weekend in an automobile accident because the child was not secured in a seat belt. After plaintiff apparently shrugged in response to the story, defendant stated, “Oh, you don’t care, okay.” He then told her that he cared about her children and her safety. Plaintiff began to become agitated and defendant Brame assured plaintiff that he was “not mad” at her (the video reflects that he was not raising his voice, but was clearly frustrated with plaintiff’s attitude) and was merely providing the story as an example to plaintiff so that the same thing would not happen to her children. At that point, defendant Brame asked plaintiff to produce her license while she continued to look for proof of insurance because he did “not want to get hit” standing by her vehicle in light of the traffic on the entrance ramp. The video reflects that the traffic stop, up until this point, lasted less than two minutes.
Defendant Brame returned to his patrol car for several minutes while he ran her driver’s license and prepared a citation. He then exited his vehicle and again approached plaintiff’s vehicle. He asked her for her insurance card and she explained that while her insurance was current, the card in her vehicle had expired and she did not have the updated card in her vehicle. Defendant Brame calmly advised her that he would not give her a citation for not having proof of insurance but advised her to place the new card in her vehicle as soon as possible. Defendant Brame then began to explain to plaintiff the Uniform Notice to Appear, stated that the citation was for “seat belt restraints, ” read the court date to her and explained that she could pay the fine by mail if she did not want to appear in court. Upon seeing the amount of the fine, plaintiff asked “Are you kidding me that it’s this much?” She became upset, stating that she was a “single mom” working three jobs and that only one of her children was not “buckled up.”Defendant Brame repeatedly told plaintiff that he did not want to argue about the fine amount with her and he again attempted to explain the seriousness of plaintiff’s decision not to secure her children in seat belts. Defendant Brame advised plaintiff that “the judge can help you out” if she appeared in court but that he did not want to continue to argue and risk getting hit. He then handed her the citation, told her to “have a safe day, ” and began walking back to his patrol car.
After taking two or three steps away from plaintiff’s vehicle, defendant Brame heard plaintiff tear up the citation and plaintiff admits that she tore up the citation at that point. Defendant Brame then placed his hand on the door handle of plaintiff’s vehicle door and stated, again in a calm voice, “Okay, go ahead and get out of the car.” After pulling on the door handle, he repeated his instruction to exit the vehicle. Plaintiff ignored him. He then reached into the vehicle, unlocked the door and opened it. He repeated two more times his instruction to exit the vehicle, explaining that the seat belt violations were misdemeanors and that he was taking her to jail. He then placed his hand on her wrist and asked her three more times to exit the vehicle. Plaintiff remained in the vehicle and, in response to defendant Brame’s instructions, repeatedly told defendant Brame to “leave me now.” Defendant Brame then gave plaintiff one final opportunity to exit the vehicle and warned her that he would remove her from the vehicle himself. The video depicts that plaintiff had more than 30 seconds from the time that defendant Brame first instructed her to exit the vehicle to do so on her own. Defendant Brame then pulled plaintiff out of the vehicle by the wrist while she resisted removal from the vehicle. She admitted in her deposition that she was “trying not to go.” Defendant Brame then placed one hand on the back of plaintiff’s neck, kept his other hand firmly on her wrist and moved her to the rear of the vehicle, where he then firmly guided her to the ground. He released plaintiff immediately when he realized that the vehicle was rolling forward down the entrance ramp and he moved back to the driver’s side of the vehicle to secure the vehicle. At the same time, plaintiff stood up and returned to the driver’s side of the vehicle. Once the vehicle was secure, defendant Brame held plaintiff by both arms from behind, told her to “get back” to the rear of the vehicle and moved plaintiff to the shoulder of the ramp.
The next portion of the stop took place outside the view of the video camera although it is captured on audio. Defendant Brame called for backup because plaintiff was “fighting” and told plaintiff to “stop resisting.” Plaintiff testified that defendant Brame pushed her to the ground, placed his knee in her back, put his weight on her and placed her in handcuffs. She further states that defendant Brame picked her up by her handcuffs and lifted her off the ground by her arms after cuffing her. During this time, plaintiff is audibly upset. Approximately 40 seconds passed from the time defendant Brame moved plaintiff to the shoulder until the time he told her to “get up” after cuffing her. Defendant Brame admits that he “wrestled” with plaintiff for approximately 30 seconds. Defendant Brame then moved plaintiff to the hood of his patrol car, where the video camera again picks up the incident, and plaintiff continued to struggle while defendant Brame kept his hand firmly on her bicep. She repeatedly demanded that defendant Brame remove his hands from her and repeatedly told defendant Brame that she was going to sue him and that “you’re going to get it.” At that point, an off-duty police officer from the City of Merriam stopped to offer assistance and, shortly thereafter, additional backup arrived on the scene. The video then depicts defendant Brame and another officer moving plaintiff behind defendant Brame’s patrol car and walking her back to another patrol car. Plaintiff can be seen kicking defendant Brame on the way to the patrol car and can be heard repeatedly telling him to “get away” from her. Defendant Brame and the other officer placed plaintiff in the patrol car and she had no other contact with him. She was taken to jail, booked and released the following day. No charges were filed against her.
“Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Water Pik, Inc. v. Med-Systems, Inc.___, F.3d____, 2013 WL 4046470, at *4 (10th Cir. Aug. 12, 2013) (quotation omitted); see Fed. R. Civ. P. 56(a). A factual issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Water Pik, Inc.____, F.3d at___; 2013 WL 4046470, at *4 (quotation omitted). The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue. Id.
III. Constitutional Claims
Plaintiff has asserted § 1983 claims against defendant Brame for unlawful arrest and excessive force. Defendant Brame asserts that he is entitled to qualified immunity on plaintiff’s § 1983 claims. Qualified immunity “protects ‘all but the plainly incompetent or those who knowingly violate the law.” Thomas v. Durastanti, 607 F.3d 655, 661 n.4 (10th Cir. 2010). When a defendant asserts qualified immunity at summary judgment, the “burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established.” Courtney v. Oklahoma ex rel. Dep’t of Public Safety, 722 F.3d 1216, 1222 (10th Cir. 2013) (quoting Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013)). The court maintains the discretion to decide “which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. (quoting Pe ...