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Harris v. City of Topeka

United States District Court, D. Kansas

August 6, 2019



          Sam A. Crow, U.S. District Senior Judge.

         The case comes before the court on the defendant Christopher Janes's motion for summary judgment (ECF# 17) on this 42 U.S.C. § 1983 action brought by the plaintiff Timothy C. Harris. Harris alleges Janes as a City of Topeka police officer used excessive force in arresting him. ECF# 17. The defendant Janes argues he is entitled to qualified immunity because the force he used during the arrest did not violate the plaintiff's constitutional rights. ECF# 18, pp. 1-2. For all the reasons discussed below, the court denies the defendant Janes's motion.

         Summary Judgment Standard

         Summary judgment is appropriate if the moving party demonstrates that “no genuine dispute [about] any material fact” exists and that it “is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A disputed issue of fact is “genuine” when “the evidence is such that a reasonable jury could return a verdict for the non-moving party” on that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed issue concerns a material fact “if under the substantive law it is essential to the proper disposition of the claim or defense.” Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010) (internal quotation marks and citations omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247-48.

         The following account is taken from the record and from the parties' uncontroverted facts as viewed in the light most favorable to the non-moving plaintiff and with inferences drawn in his favor too. See Tolan v. Cotton, 572 U.S. 650, 655-56 (2014). Put another way, the “disputed facts must be resolved in favor of the party resisting summary judgment.” McCoy v. Meyers, 887 F.3d 1034, 1044 (10th Cir. 2018) (internal quotation marks and citation omitted). “In qualified immunity cases, this usually means adopting . . . the plaintiff's version of the facts.” Scott v. Harris, 550 U.S. 372, 378 (2007). This does not mean the court may “ignore clear, contrary video evidence in the record depicting the events as they occurred.” Carabajal v. City of Cheyenne, Wyoming, 847 F.3d 1203, 1207 (10th Cir.) (citing Scott, 550 U.S. at 380, and quoting, “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”), cert. denied, 138 S.Ct. 211 (2017). Thus, a court may rely on video evidence of record but must be “mindful” when the video evidence does “not capture all that occurred.” Id. at 1207. It should not be overlooked that the court continues to view the evidence in the light most favorable to the plaintiff. Thomas v. Durastanti, 607 F.3d 655, 659 (10th Cir. 2010).

         Both sides have overreached in objecting to the other side's affidavits as being conclusory and self-serving. The general rule is that information within affidavits must have a “certain indicia of reliability” and be more than allegations based on “'mere speculation, conjecture, or surmise.'” Ellis v. J.R.'s Country Stores, Inc., 779 F.3d 1184, 1201 (10th Cir. 2015) (quoting Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004)). Thus, affidavits are to be “'based on personal knowledge and [must set] forth facts that would be admissible in evidence” otherwise they will be subject to an objection for being “'conclusory and self-serving affidavits.'” Id. (quoting Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002)); see API Americas Inc. v. Miller, 380 F.Supp.3d 1171, 1150 (D. Kan. Apr. 5, 2019). The parties' objections for conclusory and self-serving will be decided on whether the facts are based on reliable and admissible statements of personal knowledge.

         Statement of Facts

         The following comes from applying the above procedural rules governing summary judgment and from viewing the record in the light most favorable to the plaintiff. On the afternoon of January 23, 2018, Topeka Police Officer Christopher Janes answered a call and spoke with Katie Adkins who reported that Timothy Harris wrongfully possessed her laptop computer and a Victoria secret bag. Ms. Adkins's father also spoke with Officer Janes telling him that Harris drove away in a blue Chevrolet Cobalt. Officer Janes next ran a warrant check on Harris finding a “probation violation warrant” from underlying 2017 misdemeanor convictions which included unlawful interference with a law enforcement officer. Officer Janes looked at a photograph of Harris so that he could identify Harris later.

         That evening at 7:13 p.m., Officer Janes saw a blue Chevrolet Cobalt with two occupants. The car was parked and facing the wrong way in 2600 block of SE 10th Street. Officer Janes drove up behind the Cobalt, shined a light on it, and activated his emergency lights. From the photo review, Officer Janes recognized the person in the driver's seat as Mr. Harris. Officer Janes called dispatch reporting a car stop and requesting a backup unit. Before Officer Janes reached the car on foot, Mr. Harris opened the car door and stepped outside of the vehicle. Officer Janes found Mr. Harris's behavior to be unusual for a car stop and ordered him back inside the car. Mr. Harris complied by sitting down in the car's seat, but he kept the door open with his left foot outside the car.

         When he reached the car, Officer Janes indicated the stop was related to the car being illegally parked and asked for identification. Harris removed his driver's license from his wallet and handed it over. Officer Janes looked at the license and asked Harris why his girlfriend keeps calling the police and saying he has her “stuff.” Harris said her Victoria Secrets bag with clothes was inside, but that this was all he had of her stuff. Officer Janes followed up that the girlfriend said Harris also had her computer and that his possession of it would be felony theft. Harris replied, “like I'm telling you that's what I have in my house” and they can come by and get it. Harris then observed, “so you know who I am, ” and the officer replied, “yes.” Harris then asked if that is why he was stopped. Janes replied “yes” and because of the illegal parking. At this point, Harris began arguing that he was not parked there because the car's engine was running, and his passenger, later identified as Airel Gatewood, also began arguing this point with the officer.

         The video captures Officer Janes radioing dispatch to request he “stay on channel one, ” because “they're a little signal 2, and I'll have a 29 for you.” Signal 2 means the subject is not cooperating. Harris asked Janes, “so what's going on, ” and Janes replied that, “he was being detained.” While Janes radioed dispatch with Harris's information for a warrant check, Harris dropped his lit cigarette on the ground and took off his jacket. The air temperature at that time was 30 degrees Fahrenheit. Janes explained in his report that he considered Harris's throwing away a lit cigarette and taking off his jacket to be “abnormal” conduct and possibly an effort to free oneself for moving “more effectively.” Harris said his conduct was taken in response to being told of his arrest, as he knew he could not take his jacket or cigarette with him.

         Janes asked Harris why he was “taking his stuff off.” Harris did not reply but grabbed his wallet. Janes told Harris to keep his hands from his pockets. Harris then extended his hand with the wallet toward Janes. Janes asked, “why are you handing me your stuff.” At this point, Harris stands up from the car seat while saying, “I'm being detained right.” The video shows Janes's gloved hand on Harris's chest to stop him from moving closer while Janes tells Harris to “have a seat.” Harris did not comply by sitting back down. Janes began using both hands on Harris who is heard to say, “whoa, what are you doing?” Officer Janes immediately requested “run 10-39” which means the units should run in emergency mode with lights and sirens. According to Janes, Harris had tensed his body requiring Janes to become more physical after Harris refused to sit back down. Harris does not expressly deny tensing his body, but he does aver that he “did not resist or attempt to flee.“ ECF# 26-2, ¶ 12. As of that date, Harris was 34-years old with a height of six feet and one inch and a weight of 180 pounds, while Janes's height was five feet and eight inches.

         The video captures Officer Janes stepping back from Harris and twice instructing him to put his hands behind his back. As Harris started to turn around, Janes finished turning him, and says, “I didn't ask you to get out of the car.” Harris replied that he was “getting out of the car because, ” and while he spoke Harris tried to turn around. Janes restrained Harris from turning around while instructing him “do not move for me” and “bring back your arms for me.” Harris replied twice, “calm down” but continued trying to turn toward Janes whenever he spoke. Janes kept instructing Harris to face away during the handcuffing while Harris keeps saying, “jeez, ” “calm down, ” and, “Jesus Christ, you really, really, really.” When the handcuffing was completed, then Harris spun around and looking at Janes said, “Thank you, are you happy now?” Janes then spins Harris around to face away toward the car. Notwithstanding the plaintiff's averment that, “[a]t all times, I was cooperative and willing to be taken into custody as quickly and smoothly as possible, ” the above statements are established by the video recording.

         The video shows Harris trying to turn around as he is up against the car. He then says, “what are you doing?” Janes replies, “I'm trying to take you to my car.” Harris then turns around the other way and says, “No you're not, I'm walking with you.” The passenger Gatewood gets out of the car and looking at them shouts, “James” to Harris. The video does not show what then happens but the audio portion indicates a struggle. The video resumes with an image of the sidewalk which is consistent with Janes's takedown of Harris. During this segment of the recording, Gatewood is shouting loudly, “no you need to chill, ” while Harris is shouting, “what are you doing.” Gatewood continues shouting, “Jim, stop, ” and is then seen on the video near Janes and Harris. She is shouting at the officer that he cannot do this. Janes instructs the passenger “to step back” and “I need you to step back please.” Gatewood responds three times demanding that the officer, “ask me nicely” and continues to step toward Janes while shouting. Janes tells the passenger to step back and lifts his arm warning her that she's about to be pepper sprayed. The passenger steps back while continuing to berate the officer with comments and questions asking if the officer's “body cam was on.” The officer kept warning her to stop.

         The recording of the following events is only audio with no video confirmation. Officer Janes is heard telling Harris to stop trying to get up. Harris replies, “okay, ” but Janes again instructs Harris to stay on his stomach. The passenger Gatewood then demands that the officer get off Harris, and Janes again orders the passenger to back away. Janes tells Harris to get his legs out and to stop trying to get up. Janes shouts, “do not try and get up, ” and Harris replies, “I'm not.” Janes shouts two more times to stop trying to get up. Gatewood again tells the officer to get off Harris' back. Janes repeatedly instructs Harris to stop trying to get up and even asks, “dude what is your deal.” Harris answered, “I'm not trying to get up, you're laying on me.” Officer Janes is then heard saying to Harris, “do not do that, ” and the passenger Gatewood is heard saying, “why are you punching him.” Janes shouts at Gatewood who repeats her question, “why are you punching him.” There are more struggling sounds with officer Janes shouting, “stop” and “stop trying to get up.” Harris replies, “get off of me” and “stop punching me.” Sirens are heard, and Gatewood says she can't wait for the other officers to get here. Harris says for the first time, “that he can't breathe.” Janes responds that he can. Gatewood starts screaming repeatedly, that Harris “can't breathe and get off of him.” Harris begins pleading with the officer that he can't breathe and to get off, “please, ” and Janes again tells Harris that he can breathe. More struggling sounds are heard, and Janes repeats the order to “stay there.” Harris begins saying that he's “just trying to breathe, sir. Please sir, I don't want no trouble.” There are still more struggling sounds, and again Janes says, “stop, ” and Harris says he “can't breathe.” Gatewood yells at Janes to get off the top of Harris, and Janes says he's not on top. At which point, there are more struggling sounds and Janes shouts, “stop, ” and “stop trying to get up.” Harris says, “I don't want to die” and “I can't breathe.” Officer Janes repeats the order to “stop trying to get up” and says, “it's the pepper spray.” The other officers arrive on the scene.

         The video does confirm that during the apparent struggle on the ground the plaintiff's body position moved 180 degrees. It also shows the side of Harris's face is cut and bleeding, and there is blood on the street. The video captures the plaintiff's failure to obey the officer's order to sit back down in the car and his physical resistance to the officer's effort to have him get back in the car. The video also confirms that Janes had to repeatedly order the plaintiff to turn around and to remain facing away for the handcuffing. The video likewise shows after the handcuffing Harris spun around and said to Janes's face, “Thank you, are you happy now.”

         From this point forward, the video is less than clear about what happened. The audio certainly indicates a struggle and more resistance, but without a video confirmation, the court must accept the plaintiff's version following the handcuffing because it is not “blatantly contradicted” by the video recording. Scott v. Harris, 550 U.S. 372, 380 (2007). The plaintiff avers:

14. After I was in handcuffs, I asked Officer Janes “what are you doing” because I could not figure out where he was trying to take me or why he was using excessive force when I was being cooperative and compliant. He said he was trying to take me to his car while he was shoving me against my car; his actions were inconsistent with what he was saying. When he said he was trying to take me to his car, I said “no, you're not. I'm walking with you.” 15. Officer Janes then shoved me, reached across my face, and grabbed my neck. Janes then drove me face down to the curb and street. With my hands cuffed behind my back, I had no way to break my fall. I landed face-first on the curb.

ECF# 26-2. Concerning the struggle that ensued after the takedown, the plaintiff avers:

16. At no time did I grab at Officer Janes' belt or make any attempt to grab at ...

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