Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Webb v. City of Waterloo

United States District Court, N.D. Iowa, Eastern Division

December 11, 2019

JOVAN WEBB, Plaintiff,
v.
CITY OF WATERLOO, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          C.J. WILLIAMS UNITED STATES DISTRICT JUDGE

         TABLE OF CONTENTS

         I. INTRODUCTION .......................................................................... 1

         II. FACTUAL FINDINGS .................................................................... 1

         A. Police Response to Report of Fight .............................................. 1

         B. Officer Nissen's Initial Confrontation with Plaintiff .......................... 3

         C. Officers' Confrontation with Plaintiff at the Parking Lot Exit .............. 3

         D. Discharge of Firearms .............................................................. 4

         E. Officer Frein's Discharge of his Firearm ....................................... 6

         F. Surveillance and Police Car Video ............................................... 6

         G. Plaintiff's Flight from the Scene and Subsequent Arrest ..................... 7

         H. Plaintiff's Prosecution and Convictions ......................................... 7

         I. City of Waterloo Policy and Procedures ........................................ 8

         III. PLAINTIFF'S CLAIMS ................................................................... 9

         IV. SUMMARY JUDGMENT STANDARD .............................................. 10

         V. DISCUSSION ............................................................................... 13

         A. Count I: Section 1983 Claim for Excessive Use of Force ................... 13

         1. Officer Nissen .............................................................. 17

         2. Officer Frein ................................................................ 21

         B. Count II: Section 1983 Claim for Equal Protection Violation .............. 22

         1. Officer Nissen .............................................................. 24

         2. Officer Frein ................................................................ 25

         C. Application of the Heck Doctrine ................................................ 26

         D. Application of Res Judicata and Collateral Estoppel Doctrines ............ 31

         E. Count III: Section 1983 Claim for Failure to Intervene ..................... 35

         F. Count IV: State Law Battery Claim ............................................. 36

         1. Officer Nissen .............................................................. 36

         2. Officer Frein ................................................................ 37

         G. Claims Against the City ........................................................... 37

         1. Section 1983 Claim ........................................................ 37

         a. Failure to Supervise Basis for Liability ........................ 39

         b. Failure to Train Basis for Liability ............................. 42

         2. City Liability on the Battery Claim ..................................... 45

         VI. CONCLUSION ............................................................................. 46

         I. INTRODUCTION

         This matter is before the Court on defendants' Motions for Summary Judgment. Defendants City of Waterloo (the “City”) and Officer Mark Nissen (“Officer Nissen”) filed a Motion for Summary Judgment (Doc. 69), as did defendant Officer Thomas Frein (“Officer Frein”) (Doc. 70). After obtaining an extension of time, plaintiff filed a timely brief in resistance to both Motions for Summary Judgment. (Doc. 84). Plaintiff also filed a response to defendants' statements of material facts (Docs. 80-1 & 80-2), and his own statement of material facts (Doc. 80). After obtaining an extension of time, defendants filed a timely joint reply to plaintiff's statement of additional material facts (Doc. 91), defendants City of Waterloo and Nissen filed a brief in reply to plaintiff's resistance (Doc. 92) and defendant Frein also filed a brief in reply to plaintiff's resistance (Doc. 94). For the reasons that follow, the Court grants in part, and denies in part, defendants' Motions for Summary Judgment.

         II. FACTUAL FINDINGS[1]

         A. Police Response to Report of Fight

         On April 5, 2015, at approximately 1:27 a.m., Waterloo police officers were dispatched to the New World Lounge on a report of a fight involving approximately 40 people. Officers had been called to the New World Lounge many times in the past for fights, weapons, and narcotics. On this occasion, multiple units responded to the call, including Officers Nissen and Frein, who were members of the Waterloo Police Department's Violent Crimes Apprehension Team. Officers Nissen and Frein were together in an unmarked police car. Officer Nissen was in plain clothes, wearing a fleece pullover jacket. Officer Nissen claims his badge was clipped to the top of his jacket in full view; plaintiff denies that Officer Nissen's badge was visible. Officer Nissen was also wearing a holster and handgun, handcuffs, a radio, and a flashlight. Officer Frein was in full police uniform.

         While the officers were enroute, the dispatcher reported another call of a possible shot being fired in the air by someone in a white SUV as the vehicle was leaving the area. When Officers Nissen and Frein arrived at the parking lot of the New World Lounge, Officer Nissen activated his lights and siren to disperse the crowd. Officer Nissen parked the patrol car in the southeast corner of the parking lot. A large group of people were congregated in the parking lot and in the parking lot of a nearby convenience store located to the south of the New World Lounge. Other officers were present, walking through the area trying to get the people to disperse.

         Officers Nissen and Frein got out of their car and observed a dispute among some individuals in the convenience store parking lot. Both officers walked toward the convenience store parking lot, but the dispute ended, and those parties dispersed.

         There were still many people in the New World Lounge parking lot, but most were slowly dispersing; a few were yelling. Officer Nissen crossed the street from the convenience store and began walking west. As Officer Nissen was walking he observed a white car backed into a parking space in the New World Lounge parking lot. Plaintiff Jovan Webb was the sole occupant of the car and was seated in the driver's seat. Plaintiff had not been involved in the altercation at the bar and had just left the lounge, walked to his car, and got into the driver's seat. The car windows were rolled up. Officer Nissen states that he observed plaintiff put what Officer Nissen believed to be a liquor bottle up to plaintiff's mouth, then screw the cap back on and place the bottle behind the driver's seat. Plaintiff states that he did not have a bottle at or near his mouth while seated in his car. Officer Nissen did not see plaintiff stumble, slur his speech, or commit a traffic violation. A liquor bottle was later found in plaintiff's car. Officer Nissen could see that plaintiff was a black man.

         B. Officer Nissen's Initial Confrontation with Plaintiff

         Officer Nissen approached plaintiff's car on the driver's side and shined his flashlight into the backseat. Officer Nissen observed what he believed to be a liquor bottle leaning up against the rear passenger door. Officer Nissen knocked or pounded on the driver's side window and may have identified himself as a police officer. Plaintiff saw Officer Nissen, but states that he did not hear Officer Nissen identify himself as a police officer and did not see Officer Nissen's badge. No audio recordings captured Officer Nissen identifying himself as a police officer.

         Plaintiff began to drive away. Plaintiff drove east across the parking lot toward the Broadway Street exit from the lot. Plaintiff did not drive at a high rate of speed across the parking lot, nor did he drive slowly. Officer Nissen ran after plaintiff's car, yelling “Hey police!” Officer Nissen also called out on his radio: “Hey get this car, this white car's taking off on me right here.” Another officer, Randy Girsch, called out plaintiff's license plate number. Plaintiff admits, based on the recorded audio, that Officer Nissen yelled “Hey Police!” but denies that he heard Officer Nissen at the time.

         C. Officers' Confrontation with Plaintiff at the Parking Lot Exit

         Officer Steven Bose heard Officer Nissen's radio call to stop plaintiff's vehicle. Officer Bose was crossing the New World Lounge parking lot at the time. Officer Bose initially believed Nissen was calling from the convenience store parking lot, but then saw plaintiff's car coming at him and saw Officer Nissen running behind plaintiff's car. Officer Bose estimated plaintiff was driving approximately 15 to 20 miles-per-hour.

         Officer Bose was in full police uniform. Officer Bose testified in a deposition that he faced plaintiff's car, raised a hand, and yelled for plaintiff to stop. Plaintiff recognized Officer Bose was a police officer. Plaintiff denies seeing Bose raise his hand or hearing Officer Bose telling plaintiff to stop. Plaintiff nevertheless stopped his car in front of Officer Bose, who was positioned between plaintiff's driver's side headlight and the center of the car hood. The car was stopped for a second or two.

         Officer Nissen then caught up with plaintiff's car on the passenger side and started pounding on the passenger side window so hard that his hand hurt. Officer Nissen also tried to open the door. Officer Nissen states that he yelled for plaintiff to stop; plaintiff states that he did not hear any such command.

         Defendants assert that Plaintiff let his foot off the brake and moved the car forward, bumping into the legs of Officer Bose three to four times as Officer Bose continued to back up. Defendants assert that plaintiff's car was moving slowly and did not cause injury to Officer Bose's legs when it bumped him. Officer Bose testified that he yelled “hey” a couple of times and yelled for plaintiff to stop his car. Officer Bose placed his left hand on the hood of the car and had his pepper spray in his right hand. Officer Bose also moved more toward the driver's side of the car. Plaintiff denies bumping into Officer Bose and denies hearing Officer Bose say “hey” or tell plaintiff to stop.

         Both Officers Bose and Nissen state that they saw plaintiff reach down toward his right thigh or the center console of his car; plaintiff denies that he did so. Officer Nissen moved toward the front passenger side of plaintiff's car and drew his firearm. Officer Bose testified that he tried to pull his own weapon, but had the pepper spray can in his right hand and fear prevented him from dropping the can to grab his weapon. Defendants state that plaintiff put one or both hands back on the steering wheel; plaintiff denies ever having taken his hands off the steering wheel.

         D. Discharge of Firearms

         Officer Nissen states that at this point plaintiff accelerated, plaintiff's car moved forward, Officer Bose went out of sight, and Officer Nissen began to shoot at defendant fearing that Officer Bose was being run over. Officer Nissen fired four shots into the windshield of plaintiff's car. Plaintiff was hit in his arm, chest, and abdomen by Officer Nissen's bullets. Plaintiff states that he was at a complete stop when Officer Nissen began to fire his weapon at plaintiff and it was only then that plaintiff accelerated to avoid being shot. Plaintiff asserts that Officer Nissen could see Officer Bose on his feet when Officer Nissen opened fire. The portion of the record plaintiff cites only states that, after watching the video of the incident, Officer Nissen is now aware that Officer Bose was on his feet at the time Officer Nissen opened fire.

         Officer Frein testified that he saw plaintiff accelerate and, he believed, knock Officer Bose down, and then Officer Frein heard Officer Nissen discharge his firearm. Officer Bose states that he dove out of the way to avoid being run over. Officer Bose heard the first gunshot after he began to dive out of the way of plaintiff's car. Officer Bose did not scream or yell that he was being hit or injured and, in fact, was able to dive out of the way of plaintiff's car. Officer Bose had a small abrasion on his knee and a stiff shoulder. The parties dispute whether the injuries were the result of Officer Bose getting out of the way of plaintiff's car or falling down after the shooting occurred.

         Other witnesses have provided conflicting testimony about the timing of the events. Lonnisha Dixon, Brittany Brooks, and Deshay Grover, all bystanders, [2] testified that Officer Nissen's shots occurred before plaintiff sped off. John Wayne Phillips, owner of the New World Lounge, stated that plaintiff hit Officer Bose with plaintiff's car and sped away and “police officers fired on the vehicle.” (Doc. 69-3, at 17-18). Officer John Heuer saw Officer Bose in front of plaintiff's stopped car. Officer Heuer then ran behind plaintiff's car toward Officer Heuer's own police vehicle when he heard the shots. Officer Heuer did not see Officer Nissen shooting at plaintiff's car, but then saw plaintiff's car leave the parking lot.

         A forensic examination of the bullet holes in the windshield by plaintiff's expert shows them to be close together and at an angle that, in his opinion, is inconsistent with the car being in motion at the time Officer Nissen fired through the windshield. (Doc. 80-16, at 10-11).

         E. Officer Frein's Discharge of his Firearm

         Officer Frein was crossing Riehl Street and headed to the New World Lounge parking lot when he overheard Officer Nissen's call on the radio to stop plaintiff's car. Officer Frein went to the Riehl Street entrance to the parking lot. Officer Frein was behind and to the south of plaintiff's car as Officer Bose got in front of plaintiff's car. Officer Frein observed plaintiff repeatedly breaking and then moving his car forward. Officer Frein then heard plaintiff's car “rev” and saw Officer Bose go down. Officer Frein saw Officer Bose go out of sight as Officer Nissen fired his weapon at plaintiff's car. Officer Frein ran up behind plaintiff's car as it turned into the street. Officer Bose was to the left and behind Officer Frein at this point. Plaintiff disputes the accuracy of Officer Frein's version of events in light of the video evidence.

         Officer Frein then fired three shots at plaintiff's car. Two missed his car and one penetrated the trunk of plaintiff's car and came to rest in its front dashboard. Plaintiff was unaware that Officer Frein shot at his car. Plaintiff did not stop and continued to drive away.

         F. Surveillance and Police Car Video

         The New World Lounge had a video surveillance camera pointed toward the parking lot exit where the shooting occurred. Copies were provided to the Court as part of the summary judgment record, along with still shots from the video. The video does not have any sound. The Court could not determine from viewing the video when Officer Nissen began to discharge his weapon in relation to when plaintiff began to move his vehicle or when Officer Bose moved out of the way. Plaintiff's expert likewise could not “determine exactly when Officer Nissen opened fire on” plaintiff's car, “nor where Officer Nissen and Sergeant Bose were standing.” (Doc. 80-16, at 9).

         Officer Girsch's police car was parked on the grass median between Broadway and the sidewalk, facing southbound on Broadway. His car was equipped with a dashboard camera. Although Officer Girsch's dashboard camera has sound, the camera was not pointed in the direction of the shooting. Four shots can be heard in rapid succession, and then plaintiff's car comes into view as it exits the parking lot onto Broadway. The video then shows Officer Bose standing and moving from the parking lot toward the street. The video shows Officer Frein firing three shots in rapid succession at plaintiff's car and it drives off down Broadway.

         G. Plaintiff's Flight from the Scene and Subsequent Arrest

         Plaintiff drove himself to Allen Hospital. Officers John Koontz and Marc Jasper encountered plaintiff in the hospital parking lot, arrested him, and brought him into the hospital. Plaintiff was treated in the emergency ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.