Darrell Frederick, Personal Representative of the Estate of Fallon Frederick, Deceased Plaintiff-Appellant
Vince Motsinger, et al. Defendants-Appellees
Submitted: June 8, 2017
from United States District Court for the Western District of
Arkansas - Fayetteville
LOKEN, MURPHY, and MELLOY, Circuit Judges.
officers called to a convenience store in Rogers, Arkansas,
confronted Fallon Frederick, holding a four-inch folding
knife and erratically pacing back and forth in a corner near
two restrooms. Frederick refused to comply with Sergeant
Scott Clifton's repeated commands to drop the knife.
Officer Nick Torkelson discharged his taser but Frederick
blocked one probe with her purse and charged the officers.
Officer Vence Motsinger, providing cover for Torkelson,
shot and killed her.
representative of Frederick's Estate, Darrell Frederick,
filed this action against the City of Rogers and Officers
Motsinger, Clifton, and Torkelson asserting excessive force
Fourth Amendment claims under 42 U.S.C. § 1983; false
arrest and assault and battery claims under state law; and
claims under the Arkansas Wrongful Death Statute (AWDS) and
Arkansas Civil Rights Act (ACRA). Defendants moved for
summary judgment on the merits, also asserting the defense of
qualified immunity from Fourth Amendment damage claims
against the individual officers. In response, the Estate
withdrew its official capacity claims against the officers
and the City. The district court,  applying Graham v.
Connor, 490 U.S. 386 (1989), to the Fourth Amendment and
ACRA excessive force claims,  granted summary judgment
dismissing all remaining claims. The Estate appeals dismissal
of the excessive force claims. Reviewing the grant of summary
judgment de novo and viewing the facts in the light
most favorable to the Estate as the non-moving party, we
affirm. Brossart v. Janke, 859 F.3d 616, 620 (8th
Cir. 2017) (standard of review).
entered the convenience store just after 10:30 a.m. on August
1, 2011. A store surveillance video captured the tragic
events of the next ten minutes, and Officer Torkelson's
microphone audio-recorded events after he arrived. Holding a
four-inch folding knife, Frederick told store clerk Elida
Sandoval to call 911. From behind a counter, the frightened
Sandoval handed Frederick the phone. Frederick dialed 911.
Audio of the call records her asking the operator to send
police because she was "being followed." The
operator asked for more detail; Frederick hung up and dialed
again. A second operator asked what was happening. Frederick
responded, "I really would like to say, but I would like
a police officer to show up, please." The operator told
Frederick police were en route to the store. Dispatchers
notified police that the caller at the store was "irate,
" "not listening, " and unable to answer
questions about who was following her.
Motsinger was dispatched to the scene. Sergeant Clifton was
near the store, heard the dispatch, and went to the store to
comfort the caller until Motsinger arrived. Clifton entered
the store's northwest corner and saw Frederick, who had
walked to the northeast corner, next to doors to two
restrooms. Frederick demanded, "I want to see your badge
number." Clifton stated it. Frederick excitedly
announced she had a knife, which Clifton could see. Clifton
backed away from Frederick, drew his firearm, and radioed for
assistance, stating "I've got one at gunpoint;
she's got a knife inside the store." Frederick said
she did not believe Clifton was a police officer, again asked
his badge number, and demanded to know where his backup was,
making quick, impatient movements. A customer rushed out of
the store. Clifton, concerned someone might exit the
restrooms, told Frederick to drop the knife, saying,
"I'm here to help you. Nobody has to get hurt."
Frederick did not comply.
Nick Torkelson arrived one minute after Clifton requested
backup. When Torkelson entered, Frederick asked his badge
number. Clifton responded. Frederick asked why Clifton knew
Torkelson's badge number. Clifton explained he was a
supervisor on the force. Torkelson told Clifton he had a
beanbag shotgun in his patrol car; Clifton directed Torkelson
to use his taser instead. Torkelson proceeded down the aisle
toward Frederick, who was holding the knife "in a
stabbing position" or "pick style." Like
Clifton, Torkelson was unable to assess who else was in the
store. Frederick told Torkelson, "I do not believe that
you're a police officer, " and "I'm a
paranoid schizophrenic." Torkelson said, "I'm
gonna have to tase you if you don't drop the knife, okay?
I need you to drop the knife."
point, Motsinger entered the store and saw that Clifton's
gun was drawn and Torkelson was deploying his taser at
Frederick. Motsinger proceeded down the aisle to provide
Torkelson lethal cover. Torkelson and Clifton again asked
Frederick to drop the knife but she did not. Torkelson waited
until Frederick's blade was facing down, so she would not
fall on it, and discharged his taser. One probe struck
Frederick in the chest but the other lodged in her purse, so
the probes did not complete an electrical circuit and
Frederick was not incapacitated. She paused for a moment,
then yelled, raised her knife, and charged toward Torkelson
in an apparent effort to stab him. The store video confirms
that Frederick charged with her knife in a stabbing position.
Torkelson testified he "was in fear that she was going
to stab me." Motsinger testified that he feared for
Torkelson's life when Frederick started charging toward
him. As Torkelson retreated, Motsinger threw him out of the
line of fire and fired three shots at Frederick, who
succumbed to the wounds.
Clifton and Torkelson testified that throughout this
encounter they believed Frederick was impaired by
methamphetamine or some other stimulant, as she was moving
erratically and expressing illogical thoughts. Both officers
were dressed in police attire, with name tags, firearms,
patches, and duty belts, but Frederick repeatedly questioned
whether they were police officers. After the incident, store
clerk Sandoval told police that Frederick appeared to be
"on drugs, " as she was shaking and sweating in an
abnormal manner. Toxicology tests confirmed that Frederick
was under the influence of methamphetamine at the time.
district court, the parties debated when Frederick was seized
for Fourth Amendment purposes. Defendants argued seizure
occurred when Frederick was shot. The Estate focused on the
events preceding the shooting, including Torkelson's
attempted tasing. The district court concluded that Clifton
seized Frederick when he held her at gunpoint and she
submitted to that authority until after the attempted tasing,
when she charged at Torkelson with her knife. The district
court concluded that the officers were objectively reasonable
in tasing Frederick and then shooting her when she ...