Date: 06-19-2017

Case Style: Rodney Brossart, et al. v. Kelly Janke, et al.

Case Number: 16-1412

Judge: Loken

Court: United States Court of Appeals for the Eighth Circuit on Appeal from the District of North Dakota (Cass County)

Plaintiff's Attorney: Tim Lamb

Defendant's Attorney: Howard Swanson

Description: During confrontations that extended over two days at the Brossart family
farmstead in Nelson County, North Dakota, Deputy Sheriff Eric Braathen tased both
Rodney Brossart and his son, Thomas Brossart. The Brossarts, including Rodney’s
wife, Susan, brought this action against Braathen, his supervisor, Sheriff Kelly Janke,
and Nelson County, asserting federal claims under 42 U.S.C. § 1983 that Braathen
used excessive force in violation of the Fourth Amendment, Janke is liable for the
violations in his supervisory capacity, and Nelson County is liable for adopting an
unconstitutional Taser Policy and for failing to train Braathen. The Brossarts also
asserted pendent state law claims. The district court1 dismissed the state law claims
as time-barred in a December 2014 Order. After the Brossarts filed an Amended
Complaint, the district court granted defendants summary judgment and dismissed the
Amended Complaint with prejudice in a January 2016 Order. The Brossarts appeal
both orders. Reviewing the grant of summary judgment de novo and viewing the facts
in the light most favorable to the Brossarts, the non-moving parties, we affirm.
I. Background.
A. Tasing of Rodney Brossart. On June 22, 2011, the Brossarts discovered
six loose cattle on their property. They did not own these cattle but secured them in
an old missile silo that evening without giving the notice to the county sheriff or to the
chief brand inspector required by a North Dakota estray statute. See N.D.C.C. § 36-
13-01 (2012). The following morning, Rodney’s neighbor, Chris Anderson, tracked
the cattle to the Brossarts property and spoke to Rodney, who declined to release the
cattle and said Anderson should contact his insurance company regarding damage the
cattle caused. Anderson left and phoned a complaint to the Nelson County Sheriff’s
Department, which was referred to Deputy Braathen. Braathen contacted the State’s
attorney, who advised that a criminal violation of the estray laws might be in issue.
Braathen next contacted Fred Frederickson, a licensed peace officer and brand
inspector for the North Dakota Stockman’s Association. Braathen and Frederickson
met with Anderson, who said he found his cattle at the Brossart missile silo, and
Rodney said Anderson would have to pay to get them back. Anderson provided
Frederickson brand papers for the cattle. Braathen and Frederickson set out for the
Brossart farm in a patrol car to investigate.
1The Honorable Ralph R. Erickson, United States District Judge for the District
of District of North Dakota.
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Near the farm, the officers encountered Rodney and his son Jacob blocking the
rural road while using a pump to drain water from a ditch. The summary judgment
record includes a transcript of the recorded conversation. Braathen first introduced
Frederickson to Rodney, who refused to shake hands and questioned Frederickson’s
authority. Frederickson asked for permission to inspect the cattle, explaining he had
brand papers and the officers had received a complaint. Rodney said, “Well, when I
get done here.” Braathen said, “We’re going to do it now, Rodney.” Rodney replied,
“if you can step foot on that property, mister, you’re not going to be walking away.”
Frederickson interjected, “Hey, you don’t want to make threats, okay? Don’t make
threats like that.”2
Braathen then said they were going to see the cattle. Rodney replied, “I’ll be
done here after a bit,” turned away from Braathen, and walked towards his equipment
to remove his pump from the roadway, ignoring Braathen’s warning, “We’re not
giving you a choice here.” When Rodney insisted he would finish his work, Braathen
said, “You’re going to go to jail if we don’t cooperate now.” Rodney replied,
“Where’s the writ? Give me the writ.” Braathen said, “All right, you’re under
arrest.”3 The confrontation escalated. The Amended Complaint described the
following sequence:
2A state court jury subsequently convicted Rodney of terrorizing in violation
of N.D.C.C. § 12.1-17-04, a class C felony, after a trial at which Frederickson testified
he took this comment as a serious threat. The Supreme Court of North Dakota held
that a jury could find the comment to be a true threat, rather than protected speech, but
remanded for a new trial because the jury was not properly instructed on that issue.
State v. Brossart, 858 N.W.2d 275, 280-85 (N.D. 2015).
3In affirming Rodney’s conviction for preventing arrest, a class A misdemeanor,
and failing to comply with estray law, a class B misdemeanor, the Supreme Court of
North Dakota upheld the trial court’s ruling that Braathen had probable cause to arrest
Rodney after he threatened the officers, for terrorizing and for violation of an estray
law, N.D.C.C. § 36-13-08. Brossart, 858 N.W.2d at 290.
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At that point, Deputy Sheriff Braathen pulled out his pair of handcuffs
and grabbed Rodney Brossart’s right hand to secure him in handcuffs.
Rodney resisted by backing away, according to Deputy Sheriff
Braathen’s testimony. Then Braathen pulled out his Taser gun, activated
it, and pointed it at Brossart, while instructing him to get to the ground.
He said, ‘I commanded him at least three times.’
. . . Rodney Brossart yelled to his son, Jacob, to ‘get it’ and pointed at the
pickup.
Jacob Brossart was detained by Inspector Frederickson and place[d] in
his car.
Then Deputy Sheriff Braathen decided to activate his Taser.
The patrol car recording supports these allegations. After Braathen informs Rodney
that he is under arrest, Rodney inquires “for what,” and is heard saying “[g]et, get.”
Braathen testified that Rodney said those words to his son, Jacob, who headed for the
pickup truck but was intercepted by Frederickson before he reached it. The truck
contained two firearms and ammunition. Braathen is heard saying: “Rodney! Down
on the ground! Down on the ground! Down on the ground! Down on the ground.”
Braathen then deployed his taser for the first time, firing two probes in dartmode
into Rodney’s pectoral region. Rodney stumbled backward to the edge of the
road. On the patrol car recording, Braathen is heard saying “[d]on’t move! Stay on
the ground . . . . Down on the ground, Rodney!” The Amended Complaint alleged,
“Brossart goes down on one knee and then gets back up again.” Braathen re-activated
the taser when Rodney continued to ignore commands to stay down. Rodney fell
down and rolled into the ditch. On the recording, Braathen tells Frederickson to “cuff
him” and calls for back-up. Rodney says, “I want some proof of that guy’s authority.”
In response to Braathen’s repeated commands to “stay down,” Rodney first accuses
Deputy Braathen of stepping on his phone and then repeatedly says, “Where’s my
glasses?” Braathen repeatedly warns, “You move again Rodney, and you’re going to
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get tased . . . Stay down! . . . Rodney, if you move at all I’ll tase you again!” The
patrol car recording reveals that Rodney would not stay on his knees or otherwise
cooperate:
OFFICER FREDERICKSON: Put your hands behind your back.
RODNEY BROSSART: (inaudible) my phone!
DEPUTY BRAATHEN: Rodney! Down! Get down on your knees!
RODNEY BROSSART: There it is!
DEPUTY BRAATHEN: Down on your knees!
RODNEY BROSSART: Where’s my glasses?
DEPUTY BRAATHEN: Rodney!
RODNEY BROSSART: Where’s my glasses?
DEPUTY BRAATHEN: Rodney, I’m going to tase you again!
RODNEY BROSSART: Where’s my glasses?
(Taser sounds and moaning).
The Amended Complaint alleges that Braathen “noticed that Rodney Brossart
was attempting to stand up in a ‘very hostile, aggressive manner’” and tased Rodney
a third time in the ditch for “not responding to his command to get back down.”
Braathen also touched the taser to the back of Rodney’s neck. “Moments later,
Rodney Brossart attempted to get up and Deputy Sheriff Braathen command[ed] him
to get back down in the mud, while waiting for Inspector Frederickson to come down
into the ditch to assist in handcuffing Brossart.” Braathen tased him a fourth time for
trying to resist, deploying more darts in his pectoral region. When Rodney resisted
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the attempted handcuffing, Braathen tased him a fifth time, achieving “complete
neuromuscular incapacitation.”
Braathen and Frederickson handcuffed Rodney, walked him to the patrol car,
and placed him in the back seat. Transported by ambulance to a local hospital,
Rodney was examined for two hours and five darts were removed before he was
transported to the correctional center. He suffered no permanent scarring or
disfigurement.
B. June 23 Armed Standoff. That evening, Braathen and Sheriff Janke
returned to the Brossart farmstead with a search warrant to retrieve the six cattle.
When they walked into the yard, three of Rodney’s sons, Alex, Thomas, and Jacob,
exited the house carrying rifles and told the officers they were trespassing on private
property. The officers drew their guns and backed away, then retreated “about a mile
north” where they called a crisis negotiation team. The Grand Forks SWAT team with
support from adjoining counties arrived to establish a perimeter around the Brossart
home, then left for the evening. Two agents did a drive-by and confirmed the cattle
remained in the missile silo.
C. June 24 Tasing of Thomas Brossart. The next morning, law enforcement
including the SWAT team proceeded to the missile silo to execute the search warrant.
As they were removing the cattle, Thomas Brossart came to the silo on his threewheeler,
while brothers Jacob and Alex rode over on a tractor. Thomas told law
enforcement that they were trespassing on private property and to leave. The SWAT
team arrested the brothers on terrorizing charges, based on the prior evening’s events.
Deputies Braathen and Olson, waiting two miles south, were called in to transport the
brothers to the correctional center. When Braathen arrived, the three brothers were
handcuffed and lying on the ground, held at gun point by a SWAT team member.
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Thomas refused to walk to the patrol car, so the deputies dragged him and
placed him in the back seat. So all three brothers could be placed in the back seat,
Braathen told Thomas to move over. Thomas moved a couple inches. Thomas alleges
that Braathen then tased him on his left leg in drive stun mode. The parties dispute
whether Braathen warned Thomas that he would be tased if he did not move.
Braathen claims Thomas would only say: “This is my property and I don’t agree to
the sale” (an obvious reference to the cattle). Braathen considered Thomas’s refusal
to be further resistance and testified that he used the taser because physically moving
Thomas risked being kicked by Thomas or causing him greater injury. The tasing
resulted in a slight burn mark on Thomas that lasted less than a day and did not require
medical treatment.
After the tasing, Deputy Olson pulled Thomas to the middle seat, and Jacob and
Alex were placed in the back seat with Thomas. Throughout the drive to the
correctional center, the brothers chanted: “This is my property and I don’t agree to the
sale.” Thomas explained they found this phrase on the internet, and it conveyed their
belief they were illegally arrested.
D. The Nelson County Taser Policy. At the time of these events, the Nelson
County Sheriff’s Department had written policies in place for the use of force, entitled
“Use of Control Continuum,” and for the use of tasers, entitled “Less Lethal Weapons
- Taser X26” (hereafter referred to as the “Taser Policy”). Janke adopted the Taser
Policy in 2009. The Use of Control Continuum instructed officers to use control
methods “only to the extent reasonable and necessary” and to consider the “totality
of the circumstances.” The Taser Policy required officer training: “Only officers
receiving training and certification from an authorized TASER X26 instructor will be
allowed to carry and deploy the weapon system when deemed appropriate. These
officers will be required to attend and successfully complete an initial certification
course of instruction and will also be required to successfully re-certify annually.”
Braathen was trained in taser use in January 2009 and again in January 2011, five
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months prior to the incidents at issue. Neither Nelson County nor Sheriff Janke had
received any prior complaints regarding excessive force or taser use by any member
of the Nelson County Sheriff’s Department.
The Taser Policy recommended taser use when it “reduces the risk of injury or
death to those involved.” The Policy instructed that “[o]fficers are authorized to
deploy the TASER X26 to gain control when faced with actual or threatened physical
resistance. Officers are discouraged from deploying the TASER X26 on subjects
where no physical violence or threat of physical violence exists (i.e. non-violent
fleeing subjects).” The “Deployment Procedures” section provided that “[o]fficers
should, if feasible and safe, provide a verbal warning to the suspect of the pending
deployment of the TASER X26 in order to provide a final opportunity for
compliance.” The “Restrictions” section instructed that a taser “should not be
deployed . . . [i]n cases of passive resistance,” unless lesser force was unsuccessfully
attempted, is not possible given the circumstances, or risks “a possibility of injury of
suspect or officer,” and “shall never be used punitively or for coercion or threat in the
absence of actual or threatened physical resistance . . . [or] against a person already
in custody unless physical resistance has to be overcome.”
E. Procedural History. After the district court dismissed state law claims of
the tort of outrage, battery, negligent supervision, and mental anguish as time-barred,
plaintiffs filed an Amended Complaint alleging that Susan experienced severe
emotional distress as a result of the federal constitutional violations committed against
Thomas and Rodney. The district court granted defendants’ motions for summary
judgment and dismissed the Amended Complaint with prejudice. On appeal, the
Brossarts argue the district court erred in granting summary judgment on their Fourth
Amendment excessive force claims, dismissing all claims of supervisory and
municipal liability, and dismissing their state law claims as time-barred.
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II. Discussion.
A. Rodney’s Excessive Force Claim. Plaintiffs argue the district court erred
in granting Deputy Braathen and Sheriff Janke qualified immunity because Braathen’s
actions “aggressively approaching Rodney, escalating the conflict, and repeatedly
tasering Rodney” violated his clearly established Fourth Amendment rights.4
Qualified immunity shields officers from civil damage liability for discretionary acts
when “[their] conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” White v. Pauly, 137 S. Ct.
548, 551 (2017) (quotations omitted). To avoid pre-trial dismissal, a plaintiff must
show both that (1) the facts demonstrate that the plaintiff suffered a violation of a
constitutional or statutory right and (2) the right was clearly established at the time of
the defendant’s alleged misconduct. See, e.g., Ehlers v. City of Rapid City, 846 F.3d
1002, 1008 (8th Cir. 2017).
In this case, the district court concluded that Braathen was entitled to qualified
immunity because plaintiffs made neither showing. First, the court concluded, there
was no Fourth Amendment violation because “Rodney engaged in conduct during the
course of his encounter with law enforcement officers that renders Braathen’s conduct
reasonable.” Second, the court concluded, “Rodney’s assertion that multiple tasings
constitute a violation of a clearly established constitutional right is also unsupported
in law.” We agree with both conclusions.5
4Plaintiffs also argue that qualified immunity was not timely raised because
defendants missed the district court’s deadline for filing threshold motions. As
plaintiffs first raised this argument on appeal, it is waived. See Joseph v. Allen, 712
F.3d 1222, 1226 (8th Cir. 2013).
5The district court also ruled that Rodney’s claim was barred by the Supreme
Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994), because the state court
jury in convicting Rodney of preventing arrest necessarily found that Braathen did not
use excessive force. The parties briefed and argued this issue on appeal, but because
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The Fourth Amendment’s objective reasonableness standard governs a claim
that an officer used excessive force “in the course of making an arrest, investigatory
stop, or other ‘seizure.’” Graham v. Connor, 490 U.S. 386, 388 (1989). We apply this
standard to Fourth Amendment claims of excessive force brought by detainees in
custody. See Davis v. White, 794 F.3d 1008, 1011-12 (8th Cir. 2015). The analysis
“requires a careful balancing of the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the countervailing governmental
interests at stake,” as well as “careful attention to the facts and circumstances of each
particular case.” Graham, 490 U.S. at 396 (quotations omitted); see County of Los
Angeles v. Mendez, — S. Ct. —, 2017 WL 2322832, at *6 (2017) . We consider the
“‘reasonableness’ of a particular use of force . . . from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.” Id. Whether the
force used was constitutionally excessive is an issue of law. Davis, 794 F.3d at 1013.
In applying this standard, the district court reasoned:
Rodney told Frederickson that the officers would not leave his property
if they stepped foot on it. Throughout the course of his arrest, Rodney
persisted in resisting Braathen’s commands. In addition, Brossart made
an apparent threat involving firearms when he commanded his son to
“get it.” From a reasonable officer’s perspective, Rodney’s behavior was
volatile, dangerous and clearly posed a threat to Braathen and
Frederickson’s personal safety. Given the circumstances in which he
found himself, Braathen’s actions fall squarely within the guidelines of
Nelson County’s use of force continuum, which the court has found
constitutional on its face. Braathen’s actions were not unreasonable
under the circumstances.
We agree with the district court’s reasoning. The undisputed summary judgment
record establishes, and the state court jury verdict and Supreme Court of North
we affirm the district court’s alternative ground, we need not consider it.
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Dakota’s opinion strongly confirm, that Rodney made two threats of violence to the
law enforcement officers, repeatedly did not comply with Braathen’s orders to
cooperate in a potentially criminal investigation, and then resisted being handcuffed
when told he was under arrest. Braathen’s use of a taser under the circumstances was
a reasonable use of significant non-lethal force. See Ehlers, 846 F.3d at 1012.
Rodney argues that “even if the first Tasering were legitimate, the subsequent
Taserings of a suspect on the ground are unconstitutional.” He asserts that our
decision affirming the denial of qualified immunity in Shekleton v. Eichenberger, 677
F.3d 361 (8th Cir. 2012), clearly established that Braathan’s conduct was
unconstitutional. We disagree. In Shekleton, the officer tased “an unarmed suspected
misdemeanant, who did not resist arrest, did not threaten the officer, did not attempt
to run from him, and did not behave aggressively towards him.” Id. at 366. Here, the
Amended Complaint alleged that Rodney continually ignored commands to stay
down, attempted to stand up, and resisted arrest. On the patrol car recording, Braathen
repeatedly tells Rodney that he must not move or he will be tased again and instructs
Rodney to stay on his knees. “Law enforcement officers may use physical force to
subdue an arrestee when he fails to comply with orders to lie still during handcuffing.”
Carpenter v. Gage, 686 F.3d 644, 649 (8th Cir. 2012), cert. denied, 135 S. Ct. 955
(2013) (rejecting a claim that tasing was the use of excessive force). Shekleton does
not apply to the facts of this case.
We further agree with the district court’s alternative conclusion that Braathen
is entitled to qualified immunity because, even if his repeated use of the taser was
unreasonable, it did not violate clearly established law. For a right to be clearly
established, “existing precedent must have placed the statutory or constitutional
question beyond debate.” Pauly, 137 S. Ct. at 551 (quotations omitted). Our prior
cases have clearly established that “use of [a] taser on a nonfleeing, nonviolent
suspected misdemeanant [is] unreasonable.” Shekleton, 677 F.3d at 367, citing Brown
v. City of Golden Valley, 574 F.3d 491, 499-500 (8th Cir. 2009).
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Here, Rodney refused to cooperate with officers attempting to investigate a
possible criminal violation, made threats of violence sufficient to support conviction
of a terrorizing felony, then physically resisted a lawful arrest, ignoring repeated
commands to lie down or be tased. Use of force requires a particularized Graham v.
Connor Fourth Amendment analysis, and the Supreme Court has instructed that, in the
qualified immunity context, “Graham do[es] not by [itself] create clearly established
law outside ‘an obvious case.’” Pauly, 137 S. Ct. at 552. Braathen’s repeated use of
the taser against a potentially violent, defiant arrestee was not an obvious case. For
example, in De Boise v. Taser Int’l, Inc., 760 F.3d 892 (8th Cir. 2014), cert. denied,
135 S. Ct. 2348 (2015), we affirmed the grant of qualified immunity to officers whose
multiple tasings resulted in the death of a violent, delusional schizophrenic person
who threatened officers attempting to handcuff him and continued to struggle after
eight tasings. We explained that “no reasonable officer, observing De Boise’s
behavior, would have understood the actions taken to be so disproportionate and
unnecessary as to amount to a [constitutional] violation.” Id. at 897-98.
B. Thomas’s Excessive Force Claim. Plaintiffs argue that Braathen’s tasing
of Thomas while he was handcuffed and detained in the back seat of a squad car
constituted clearly established use of excessive force. In rejecting this contention, the
district court explained:
The undisputed facts show that Thomas actively opposed law
enforcement officers’ efforts to secure his neighbor’s cattle. He
participated in an armed standoff with law enforcement and the Grand
Forks SWAT Team. Two officers were necessary to get him in the
police car after he was placed under arrest. While under arrest, he
continued to verbally resist the officers’ actions by stating, “This is my
property and I don’t agree to the sale.” Once in the car Thomas
intentionally failed to comply with a lawful command by refusing to
move over. His response to the command was classically passive
aggressive -- he moved mere inches. Given the tense, stand-off-like
situation the arresting officers found themselves in coupled with
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Thomas’s apparent failure to comply with Braathen’s commands,
Braathen’s actions were reasonable under the circumstances. The
situation at hand was tense, involved a real potential for life threatening
circumstances to erupt and required action that was prompt and designed
to get a response.
Again, we agree with the district court’s analysis. Plaintiffs argue the district court
inappropriately considered facts preceding Thomas’s arrest in granting Braathen
qualified immunity. This contention is frivolous. Graham v. Connor requires taking
all relevant circumstances into account, 490 U.S. at 396.
Plaintiffs rely heavily on our decisions in Shekleton and Brown that “use of [a]
taser on a nonfleeing, nonviolent suspected misdemeanant was unreasonable.”
Shekleton, 677 F.3d at 367. But the principle does not apply in this case. Thomas
was not nonviolent -- he had participated in an armed standoff resulting in deployment
of a SWAT team and then his arrest for felony terrorizing. Called to the scene to
transport the brothers to a detention center, Braathen observed that a SWAT team
member had handcuffed the brothers and was holding them on the ground at gun
point. Thomas resisted lawful arrest by refusing to walk to the patrol car and then by
refusing to comply with Braathen’s command that he move over so the squad car
could transport all three brothers. In response to this dangerous defiance, Braathen
deployed his taser in drive stun mode, a use of force that “only causes discomfort and
does not incapacitate the subject.” De Boise, 760 F.3d at 895 n.5.6 “[T]he infliction
6In Brooks v. City of Seattle, 599 F.3d 1018, 1027-28 (9th Cir. 2010), the court
observed that “use of the Taser in drive-stun mode is painful, certainly, but also
temporary and localized, without incapacitating muscle contractions or significant
lasting injury” -- an amount of force “more on par with pain compliance techniques,
which this court has found involve a ‘less significant’ intrusion . . . than most claims
of force, even when they cause pain and injury,” rev’d on other grounds sub nom.
Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011).
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of only de minimis injuries supports the conclusion that the officer did not use
excessive force.” Davis, 794 F.3d at 1012 (quotation omitted).
For these reasons, we conclude the district court did not err in dismissing
plaintiffs’ claims that Deputy Braathen used constitutionally excessive force in tasing
Rodney and Thomas Brossart.7
C. Supervisory Liability. Sheriff Janke was not present when either Rodney
or Thomas was tased and therefore did not directly participate in the alleged use of
excessive force. Plaintiffs allege Janke is nonetheless individually liable because he
“failed to properly train, supervise, and control Deputy Braathen.” Our decision that
Braathen did not use excessive force against either Rodney or Thomas forecloses this
claim. See Moore v. City of Desloge, 647 F.3d 841, 849 (8th Cir. 2011) (“to maintain
an action for training or supervisory liability, a plaintiff must show the failure to train
or supervise caused the injury”). Moreover, the failure to train claim is without merit.
“When a supervising official who had no direct participation in an alleged
constitutional violation is sued for failure to train or supervise the offending actor, the
supervisor is entitled to qualified immunity unless plaintiff proves that the supervisor
(1) received notice of a pattern of unconstitutional acts committed by a subordinate,
and (2) was deliberately indifferent to or authorized those acts.” S.M. v. Krigbaum,
808 F.3d 335, 340 (8th Cir. 2015). It is undisputed that these tasings were the first
that Braathen committed and that neither Nelson County nor Janke had received any
prior complaints regarding taser use.
7The Brossarts object to the district court’s dismissal of Susan Brossart’s claim
in the Amended Complaint for “severe emotional distress and mental anxiety suffered
as an indirect, but related, result of the constitutional violations made against her
husband and son.” This derivative claim is obviously foreclosed by our decision that
there was no constitutional violation. In addition, we agree with the district court that
the Amended Complaint failed to assert a § 1983 claim for violation of Susan’s
constitutional rights. See Coon v. Ledbetter, 780 F.2d 1158, 1160-61 (5th Cir. 1986).
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D. Municipal Liability. Plaintiffs argue the district court erred in dismissing
their claims against Nelson County, asserting two theories of municipal liability on
appeal: (1) that the Nelson County Taser Policy is unconstitutional, and (2) that the
County (and Sheriff Janke) failed to appropriately train its officers in Taser use. Both
theories are without merit.
A municipal policy or practice is unconstitutional “on its face” where the policy
or practice “itself violates federal law, or directs an employee to do so.” Szbala v.
City of Brooklyn Park, 486 F.3d 385, 389 (8th Cir. 2007) (en banc), quoting Bd. of
the County Comm’rs v. Brown, 520 U.S. 397, 404-05 (1997). Neither the Nelson
County Taser Policy or Use of Force Continuum directs an employee to violate the
Fourth Amendment. We concluded that a similar taser policy was facially
constitutional in Hollingsworth v. City of St. Ann, 800 F.3d 985, 992 (8th Cir. 2015).
Plaintiffs, who first briefed this argument in their Reply Brief, argue that the Taser
Policy is facially unconstitutional because it permits the use of a taser on non-violent
individuals, and “failure to discourage the use of tasers against non-violent subjects
can lead to constitutional violations.” The argument is both untimely and without
merit. “[A] written policy that is facially constitutional, but fails to give detailed
guidance that might have averted a constitutional violation by an employee, does not
itself give rise to municipal liability.” Szbala, 486 F.3d at 392.
A municipality may also be liable where its policies are lawful on their face but
municipal action, such as failure to train or supervise, “was taken with deliberate
indifference as to its known or obvious consequences” and “led an employee to violate
a plaintiff’s rights.” Hollingsworth, 800 F.3d at 992, quoting Szbala, 486 F.3d at 389-
90. As we have explained, plaintiffs’ failure to train claim against Nelson County is
foreclosed by our conclusion that Braathen’s tasing of Rodney and Thomas did not
constitute excessive force. Moreover, the absence of prior complaints to Nelson
County of improper taser use means there was no pattern of constitutional violations
demonstrating that “the need for more or different training [was] so obvious, and the
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inadequacy so likely to result in the violation of constitutional rights, that the
policymakers of the city can reasonably be said to have been deliberately indifferent
to the need.” Canton v. Harris, 489 U.S. 378, 390 (1989).
E. Dismissal of the State Law Claims. The district court dismissed the
Brossarts’ state law claims as time-barred. North Dakota law provides that a claim
against a political subdivision or Sheriff “must be commenced within three years”
after it accrues. N.D.C.C. § 32-12.1-10; 28-01-17. Under North Dakota law, an
action is commenced “as to each defendant when the summons is served on that
defendant.” N.D.C.C. § 28-01-38, N.D. R. Civ. Pro. 3. By contrast, Rule 3 of the
Federal Rules of Civil Procedure provides that a “civil action is commenced by filing
a complaint with the court.” In Walker v. Armco Steel Corp., 446 U.S. 740, 751
(1980), the Supreme Court held that federal “Rule 3 governs the date from which
various timing requirements of the Federal Rules begin to run, but does not affect state
statutes of limitations.”
Plaintiffs filed their Original Complaint on June 23, 2014, three years after the
tasing of Rodney Brossart. They served Sheriff Janke by certified mail on June 28,
2014, and all other defendants by process server on July 25, 2014. The district court
applied the North Dakota rule and held that the Brossarts’ state law claims were timebarred.
The court rejected the Brossarts’ contention that the federal rule should apply
because their Complaint included federal claims, correctly noting that we
“subsequently extended the Walker holding to actions involving a ‘federal claim along
with state claims.’” On appeal, plaintiffs argue the district court cited no Eighth
Circuit case, only “Id. at 1286.” But that was obviously an oversight, as the court
correctly quoted and applied our decision in Appletree Square I, Ltd. v. W.R. Grace
& Co., 29 F.3d 1283, 1286 (8th Cir. 1994) (where “[t]he state law claims would be
barred in state court . . . they should not be allowed to proceed in federal court.”). The
Brossarts’ suggestion that they are entitled to equitable tolling of the statute of
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limitations is contrary to North Dakota law. See Oakland v. Bowman, 840 N.W.2d
88, 91-92 (N.D. 2013).
The judgment of the district court is affirmed.
KELLY, Circuit Judge, concurring in part and dissenting in part.
I respectfully dissent from Part II.B of the court’s opinion. In determining
whether an official is entitled to qualified immunity, we must view the facts “in the
light most favorable to the party seeking damages”—here, the Brossarts. McKenney
v. Harrison, 635 F.3d 354, 358 (8th Cir. 2011). So construed, the facts are that
Thomas Brossart was home on the evening of June 23, 2011, when law enforcement
entered the Brossarts’ property. Thomas and his two brothers went outside with
firearms, and Thomas told the officers to leave because they were trespassing.
Thomas did not know the officers were there to serve a search warrant. The encounter
ended in a standoff, and the officers left the property. No shots were fired.
The next day, law enforcement returned to the Brossarts’ property. Thomas (on
a three-wheeler) and his brothers (on a tractor) approached law enforcement, who
were near the Brossarts’ silo. Neither Thomas nor his brothers were carrying firearms.
All three brothers were then arrested, handcuffed, and ordered to lay on the ground at
gunpoint. Officer Braathen and another officer carried Thomas to a police car because
he would not walk on his own, and placed him in the back seat. Thomas remained
handcuffed. Once Thomas was seated in the car, Braathen told Thomas to “move
over.” Thomas moved over a couple of inches; he did not know that the officers
needed room to place both of his brothers in the back seat with him. Without warning,
Braathen tased Thomas on his left leg for approximately five seconds, resulting in a
slight burn. Another deputy then pulled Thomas to the middle of the back seat.
Thomas said: “This is my property and I don’t agree to the sale.”
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Viewed in the light most favorable to Thomas, Braathen used excessive force.
While the events of the prior evening are relevant to whether the force used against
Thomas was excessive, see Graham, 490 U.S. at 396 (reasonableness of use of force
under Fourth Amendment “requires careful attention to the facts and circumstances
of each particular case”), equally as important are the circumstances immediately
surrounding the arrest, including “whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight,” id.; cf. County of Los Angeles v. Mendez, — S.
Ct. —, 2017 WL 2322832, at *6–8 (2017) (officers’ prior Fourth Amendment
violation cannot render a subsequent reasonable use of force unreasonable). Thomas
may have earlier posed a threat to officers, but at the time he was tased, he was
handcuffed and secured in the back seat of a police car. See Chambers v. Pennycook,
641 F.3d 898, 907 (8th Cir. 2011) (kicking restrained and non-resisting subject found
objectively unreasonable). Multiple officers were at the scene, including at least two
in the immediate vicinity of the car. See Brown, 574 F.3d at 498 (finding force less
justified where multiple officers were present). There is no evidence that Thomas
made any aggressive movements or verbal threats toward Braathen when he was
getting into or while he was seated in the police car. See Shekleton, 677 F.3d at 366
(excessive force when officer tased “an unarmed suspected misdemeanant, who did
not resist arrest, did not threaten the officer, did not attempt to run from him, and did
not behave aggressively towards him”); Bryan v. MacPherson, 630 F.3d 805, 826–27
(9th Cir. 2010) (suspect yelling and standing fifteen to twenty-five feet away did not
pose immediate threat); Brown, 574 F.3d at 497 (officer’s testimony that plaintiff may
have used glass tumbler as weapon insufficient to establish immediate danger when
suspect did not reach for glass or threaten officers).
Furthermore, according to Thomas, Braathen told him to “move over,” and
Thomas—still handcuffed—did so by shifting a couple of inches, not understanding
that he was expected to move even further. Such actions, viewed in the light most
favorable to Thomas, do not constitute resistance. See Peterson v. Kopp, 754 F.3d
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594, 597, 600 (8th Cir. 2014) (arguing with officer and talking back held to not be
resisting); Brown, 574 F.3d at 498 (refusing to hang up phone not resisting arrest).
And, according to Thomas, Braathen gave no warning before deploying his taser. See
Smith v. Kansas City Police Dep’t, 586 F.3d 576, 581 (8th Cir. 2009) (excessive force
when plaintiff was forcibly removed from his home before having the opportunity to
comply with commands); Brown, 574 F.3d at 497 (summary judgment not appropriate
where evidence presented jury question as to whether officer warned plaintiff that she
would be tased). Similarly, Braathen did not tell Thomas why he needed to move, and
another officer was able to successfully pull Thomas into the middle seat. See Tatum
v. Robinson, — F.3d —, 2017 WL 2324709, at *2 (8th Cir. 2017) (though use of
some degree of force may have been reasonable, use of taser was not). Though
Braathen contends that Thomas refused to comply with his order and that Braathen
warned Thomas that he would be tased, those assertions are directly contradicted by
Thomas’ deposition testimony. “This court may not resolve genuine issues of material
fact in [Braathen’s] favor at the summary judgment stage.” Id. at *6.
Because the facts here establish a genuine issue of material fact as to whether
officers used excessive force during Thomas’ arrest and demonstrate that Thomas’
right to be free from this excessive force was clearly established at the time of the
events, I would reverse the grant of summary judgment on Thomas Brossart’s
excessive force claim and remand for further proceedings. I concur in the court’s
opinion in all other respects.
______________________________
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Outcome: Affirmed

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