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Zubrod v. Hoch

United States Court of Appeals, Eighth Circuit

October 22, 2018

Larry Zubrod, Individually and as Administrator for the Estate of Michael Zubrod; Cheryl Zubrod, Individually and as Administrator of the Estate of Michael Zubrod Plaintiffs - Appellants
v.
Shayne Hoch, In his capacity as a Law Enforcement Officer for the Worth County Sheriffs Office; Issac Short, In his capacity as a Law Enforcement Officer for the Worth County Sheriffs Office; John Smith, In his capacity as a Law Enforcement Officer for the Worth County Sheriffs Office; Jay W. Langenbau, Sheriff, in his individual capacity; Worth County, Iowa Defendants - Appellees Larry Zubrod, Individually and as Administrator for the Estate of Michael Zubrod; Cheryl Zubrod, Individually and as Administrator of the Estate of Michael Zubrod Plaintiffs - Appellees
v.
Shayne Hoch, In his capacity as a Law Enforcement Officer for the Worth County Sheriffs Office; Issac Short, In his capacity as a Law Enforcement Officer for the Worth County Sheriffs Office; John Smith, In his capacity as a Law Enforcement Officer for the Worth County Sheriffs Office; Jay W. Langenbau, Sheriff, in his individual capacity; Worth County, Iowa Defendants - Appellants

          Submitted: February 14, 2018

          Appeals from United States District Court for the Northern District of Iowa - Waterloo

          Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges. [*]

          SMITH, CHIEF JUDGE.

         On the night of September 22, 2013, at around 11:25 p.m., Worth County Deputy Isaac Short responded to a domestic disturbance call in Northwood, Iowa. When he arrived, he found Michael Zubrod ("Michael") brutally attacking his girlfriend, Rhonda Schukei. A protracted struggle involving first Deputy Short and Michael, and eventually Deputies Shayne Hoch and John Smith, ended in Michael's death. Larry and Cheryl Zubrod (the "Zubrods"), Michael's parents, brought claims under state and federal law against Deputies Short, Hoch, and Smith; Worth County Sheriff Jay W. Langenbau; and Worth County, Iowa (collectively, "defendants"), alleging that the deputies' actions violated Michael's constitutional rights. The district court[1] entered summary judgment in favor of the defendants on the federal claims and declined to exercise supplemental jurisdiction over the state-law claims. The Zubrods appeal the district court's grant of summary judgment in favor of the defendants. The defendants cross-appeal the district court's decision not to exercise jurisdiction over the state-law claims. We affirm.

         I. Background

         We view the facts in the light most favorable to the Zubrods. See Capps v. Olson, 780 F.3d 879 (8th Cir. 2015).

         During his September 22, 2013 patrol, Deputy Short informed dispatch that residents in the Northwood, Iowa area told him that they heard screams from a house that belonged to Rhonda Schukei. He arrived, entered the two-story house, and drew his gun. Once inside, he heard a woman's screams coming from a bedroom on the second story. He approached the bedroom door, found that it was locked, and kicked it open.

         Deputy Short found Michael standing over Schukei. Deputy Short saw Michael strike her in the face with a hammer. Michael was bloody and yelling, "[D]ie bitch, you're gonna die!" Zubrod v. Hoch, 232 F.Supp.3d 1076, 1081 (N.D. Iowa 2017). Deputy Short radioed a request for all available law enforcement to come to the scene.

         Deputy Short drew his firearm and ordered Michael to step away from the victim. Michael initially complied, stepping away from Schukei and dropping the hammer. However, when Deputy Short holstered his handgun and took out his taser, Michael said something about finding a gun and began to reach down under the bed. He came back up empty-handed, then reached over to the headboard and grabbed a pair of scissors. He then stabbed Schukei in the neck while she was on the floor, leaving the scissors protruding from her neck. Deputy Short fired his taser at Michael, but it did not cause neuromuscular incapacitation.[2] Deputy Short pulled the cartridge from the taser in an attempt to use it in drive-stun mode.[3] Michael then grabbed a pair of needle-nose pliers from a dresser and approached Deputy Short. The two began to fight. Deputy Short dropped his taser during the struggle.

         The fight moved from the bedroom in which Schukei was located, to the hallway, and into another bedroom. Deputy Short was eventually able to force Michael on his back, hold his wrists, place a knee on Michael's chest, and secure a handcuff to Michael's left wrist. Michael continued to resist, however, and Deputy Short was unable to secure the handcuffs to Michael's other wrist. This was a potentially dangerous situation, as handcuffs secured on only one wrist can be used as a weapon. Deputy Short radioed dispatch during the struggle that there was a lot of blood and that one person was down. Deputy Short successfully, but with much difficulty, held Michael's wrists for about eight minutes, until Deputy Hoch arrived.

         When Deputy Hoch arrived, he went to the bedroom in which Deputy Short and Michael were struggling. Deputy Hoch ordered Michael to turn over onto his stomach and put his hands behind his back so he could be handcuffed. Deputy Short released Michael so he could comply. But instead of turning over, Michael broke free and got to his feet. Deputy Hoch deployed his taser, but it was again ineffective. The fight continued, with the two deputies trying to physically bring Michael under control. During this phase of the fight, Deputy Hoch was pushed into a window.

         Deputy Smith arrived a few minutes after Deputy Hoch. At this point, Deputy Short and Deputy Hoch had Michael on his back on a pile of clothes. He was still actively resisting, "kicking out and flailing one arm with a handcuff attached to it." Id. at 1083. Deputy Hoch directed Deputy Smith to use his taser on Michael. After Deputy Smith pulled out his taser and prepared to shoot it, Deputy Short and Deputy Hoch released their grip on Michael, who again broke away, getting to his feet and moving to a window. Deputy Smith attempted to deploy his taser, but it malfunctioned, and he dropped it.

         The deputies again attempted to physically restrain Michael. Deputy Hoch loaded another taser cartridge and shot Michael in the thigh with his taser. Though the barbs connected with Michael's skin, neuromuscular incapacitation did not result. The struggle continued, with all three deputies trying to wrangle Zubrod.

         Deputy Hoch attempted to drive-stun Zubrod. However, as the barbs remained attached to Michael, this attempt failed. Instead, Deputy Hoch "effectively used [the taser] in a hybrid mode that could, in theory, cause neuromuscular incapacitation." Id. at 1084. After multiple taser pulls, Michael was handcuffed. Taser records showed that during a period of 3 minutes and 15 seconds, Deputy Hoch pulled his trigger 10 times for a total of 53 seconds. Though it is not known how many times the taser made contact with Michael, it is undisputed that Michael was never neuromuscularly incapacitated.

         After finally handcuffing Michael, the deputies noticed he was not breathing. Paramedics who were already on the scene commenced CPR, and a request for another ambulance was made at 12:09 a.m. Michael was pronounced dead at 1:17 a.m. The medical examiner stated the cause of death was "cardiac arrhythmia following altercation with police in the setting of acute methamphetamine intoxication" and concluded that the taser's role in Michael's death was "unknown." Id. at 1085. The examiner found two sets of taser burns and three taser barbs (two in the thigh and one on the arm) on Michael's body. The examiner also noted marks on the left side of Michael's chest and opined that it was possible but unlikely that they were caused by a taser. He also found a barb in Michael's belt; however, it did not seem to have punctured his jeans, underwear, or skin.

         Methamphetamine, methamphetamine metabolite, and naloxone were found in Michael's blood. According to the evidence, Michael was a user of methamphetamine, and he had increased his use of the drug in the days leading up to his attack on Schukei.

         The Zubrods, Michael's parents and the administrators of his estate, filed a seven-count lawsuit against Deputies Short, Hoch, and Smith, in their individual capacities, Worth County Sheriff Jay Langenbrau, in his individual capacity, and Worth County. Counts I and II are 42 U.S.C. § 1983 claims against Deputy Hoch and allege that the taser pulls violated Michael's Fourth Amendment right not to be subjected to excessive force. Count I is based on the first group of tasings during the struggle. Count II alleges that Michael was tased while he was "restrained with handcuffs and otherwise posed no reasonable risk of harm or safety to any officer or other individuals." Id. at 1079 (quoting Doc. 2 at 8). Count III is also brought under § 1983 and alleges that Deputies Short and Smith violated Michael's Fourth Amendment rights by failing to intervene when Deputy Hoch used excessive force against him. Counts IV is a state-law claim of assault and battery against Deputy Hoch. Count V is a state-law claim of negligence against the deputies. Count VI alleges vicarious liability against Worth County and Sheriff Langenbrau. Count VII alleges loss of consortium against all the defendants.

         The defendants moved for summary judgment, arguing that the deputies were entitled to qualified immunity because, under the circumstances, taser use was reasonable. And, even if tasing Michael violated his constitutional rights, such rights were not clearly established at the time of the encounter. The district court granted the motion.

         The court reviewed the submitted evidence, including the deputies' depositions and that of Schukei, the affidavit of first responder Dennis Paulson, [4] the taser logs, and videos from Deputies Smith's and Hoch's tasers. The video from Deputy Smith's taser was only a few seconds long and revealed that the taser malfunctioned. The video from Deputy Hoch's taser captured the last moments of the struggle. The Zubrods also offered two unsworn statements provided by emergency medical personnel who arrived on the scene.

         The court stated that the encounter presented "a fluid and continuous resistance by Zubrod to any efforts to place him under arrest." Id. at 1091. The court could not identify a "bright line during this intense struggle, while a woman lay severely wounded in another room, where any reasonable officer should have concluded that the nature of Zubrod's resistance had changed in such a material respect that the use of a taser to obtain compliance was suddenly constitutionally prohibited." Id. at 1091-92.

         The court also determined that the Zubrods' assertion that Deputy Hoch tased Michael after he was handcuffed was not supported by the record. According to the court, even when viewed in the light most favorable to the Zubrods, a juror viewing the Hoch taser video as proof that Michael was handcuffed would be resorting to "pure speculation." Id. at 1092. Additionally, it determined that the first responder statements offered by the Zubrods in support of this theory require unreasonable inferences and speculation and were inadmissible. Further, the court concluded that even if there had been a constitutional violation, it was not of a clearly established right.

         The court held that its rulings on Counts I and II foreclosed failure-to-intervene claims against Deputies Short and Smith, since "logic dictates that Deputies Short and Smith cannot be held liable for failing to intervene where no constitutional violation occurred." Id. at 1098 (citing Hollingsworth v. City of St. Ann, 800 F.3d 985, 991 (8th Cir. 2015)). Accordingly, it granted summary judgment on that claim as well. The court dismissed the Zubrods' vicarious liability claims against Sheriff Langenbau and Worth County due to the lack of a constitutional violation and the lack of any allegation of wrongdoing against those defendants. The court also dismissed the loss-of-consortium claims to the extent they were based on the federal ...


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