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Frederick v. Motsinger

United States Court of Appeals, Eighth Circuit

October 17, 2017

Darrell Frederick, Personal Representative of the Estate of Fallon Frederick, Deceased Plaintiff-Appellant
Vince Motsinger, et al. Defendants-Appellees

          Submitted: June 8, 2017

         Appeal from United States District Court for the Western District of Arkansas - Fayetteville

          Before LOKEN, MURPHY, and MELLOY, Circuit Judges.

          LOKEN, Circuit Judge.

         Police 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[1] Motsinger, providing cover for Torkelson, shot and killed her.

         The 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, [2] applying Graham v. Connor, 490 U.S. 386 (1989), to the Fourth Amendment and ACRA excessive force claims, [3] 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).


         Frederick 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.

         Officer 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.

         Officer 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."

         At this 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.

         Both 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.


         In the 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 ...

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