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Case 2:09-cv-00076-RFC-RWA Document 140 Filed 02111/13 Page 1 of 33

BRENDONJ.ROHAN,ESQ.POORE, ROTH & ROBINSON, P.C.1341 Harrison AvenueP.O. Box 2000Butte, Montana 59702Telephone: (406) 497-1200Facsimile: (406) [email protected]

Attorneys for Defendants Marek Ziegler and Greg Megargel

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MONTANA

BUTTE DIVISION

ROGER T. SEGAL, Trustee,

CITY OF BOZEMAN, CITY OFBOZEMAN POLICE DEPARTMENTSERGEANT GREG MEGARGEL, in hisindividual and official capacity; CITY OFBOZEMAN POLICE DEPARTMENTOFFICER MAREK ZIEGLER, in hisindividual and official capacity,FORMER CITY OF BOZEMANPOLICE DEPARTMENT CHIEF MARKTYMRAK, in his individual and officialcapacity, CITY OF BOZEMAN POLICEDEPARTMENT INTERIM CHIEF,MARTIN KENT, and JOHN DOES 110,

Plaintiffs,

Defendants.

v.

)))) CAUSE NO. CV-09-76-RFC) RWA))) BRIEF IN SUPPORT OF) MOTION FOR SUMMARY) JUDGMENT RE: ZIEGLER) AND MEGARGEL)))))))))))

--------------)

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Case 2:09-cv-00076-RFC-RWA Document 140 Filed 02/11/13 Page 2 of 33-]-

TABLE OF CONTENTS

TABLE OF CONTENTS 1

TABLE OF AUTHORITIES........................................................ 11, 111

INTRODUCTION 1

BACKGROUND 1

ARGUMENT 12

Summary Judgment Standards........................................... 12

Plaintiff Has No Viable Claim For Relief Based OnAlleged "Excessive Force" 13

Under Any Circumstance, Ziegler and Megargel AreEntitled To Qualified Immunity Against PlaintiffsFourth Amendment Excessive Force Claim 19

The Sanction Order Does Not Preclude SummaryJudgment............................................................................ 22

All Remaining Claims Against Ziegler and Megargelin Their Individual Capacities Should Be DismissedBased on Statutory Immunity 24

CONCLUSION 26

CERTIFICATE OF COMPLIANCE 27

CERTIFICATE OF SERVICE BY MAILING............................ 28


Case 2:09-cv-00076-RFC-RWA Document 140 Filed 02/11/13 Page 3 of 33-11-

TABLE OF CASES

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,249 ..

Arpin v. Santa Clara Valley Trans. Agency, 261 F.3d 912,922 (9th Cir. 2001) .

Bryan v. MacPherson, 630 F.3d 805, 832 (9th Cir. 2010) .

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) .

Deorle v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001) .

First National Bank ofArizona v. Cities Service Co.,391 U.S. 253 (1968) .

Franklin v. Foxworth, 31 F.3d 873, 876 (9 th Cir. 1999) .

Germann v. Stephens, 2006 MT 130 ..

Graham v. Connor, 490 U.S. 386,395-96 (1989) .

Groves v. Croft, 2011 WL 5509028 (D. Mont. 2011) ..

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) .

Heiat v. Eastern Montana College, 275 Mont. 322,331,912 P.2d 787,793 (1996) .

Jackson v. Johnson, 797 F.Supp.2d 2057 (D. Mont. 2011) .........

Katz v. US, 194 F.3d 962, 967 (9th Cir. 1999) .

Kenyon v. Stillwater County, 254 Mont. 142,835 P.2d 742 (1992) ..


13

19

14,15,20,21,22

12

20

13

15

26

13, 14,15,16,23,24

16,22

19

26

16,21

14

25

Case 2:09-cv-00076-RFC-RWA Document 140 Filed 02111/13 Page 4 of 33-lll-

Kiely Const. LLC v. City ofRed Lodge, 202 MT 241 .. 26

Law v. City ofPost Falls, 772 F.Supp.2d 1283 (D. Id. 2011)...... 19

Luchtel v. Hagemann, 623 F.3d 975, 980 (9th Cir. 2010) 16

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 587 (1986)................................................... 13

Mattos v. Agarano, 661 F.3d 433,440 (9th Cir. 2011)................. 20,22

Muehler v. Mena, 544 U.S. 93 (2005).......................................... 17

Pearson v. Callahan, 555 U.S. 223 (2009) 20

Peschel v. City ofMissoula, 664 F.Supp.2d 1137(D. Mont. 2009).................................................................. 23

Phillips v. Hust, 477 F.3d 1070, 1079 (9th Cir. 2007)... ....... ........ 19

Ricci v. DeStefano, 557 U.S. 537,586 (2009) 18

Saucier v. Katz, 533 U.S. 194,204-06 (2001) 14,20

Scott v. Harris, 550 U.S. 372 (2007)............................................ 17, 18

Smith v. City ofHemet, 394 F.3d 629, 702 (9th Cir. 2005)........... 16

Wilkinson v. Torres, 610 F.3d 546 (9th Cir. 2010) 18


Case 2:09-cv-00076-RFC-RWA Document 140 Filed 02/11/13 Page 5 of 33-lV-

TABLE OF STATUTES

Rule 56(a), Fed. R. Civ. P 12

Rule 56(c)(1)(A), Fed. R. Civ. P. 12

Fed. R. Civ. P. 56, Notes of Advisory Comm.on 2010 Amendments 13

Mont. Code Ann. § 2-9-305 25

Mont. Code Ann. § 2-9-306(6) (a)-(d) 25

42 U.S.C. 1983 25


Case 2:09-cv-00076-RFC-RWA Document 140 Filed 02/11/13 Page 6 of 33

INTRODUCTION

Summary judgment should be granted in favor of Defendants Marek Ziegler

and Greg Megargel. As a matter of law, they did not use excessive force against

Jesse Verdi (Verdi) on the evening of August 12, 2007. The use of a taser against

Verdi was objectively reasonable based on the totality of the factual circumstances

presented to them. Alternatively, they are entitled to qualified immunity because,

at the time of the disputed use of force, the law relating to the use of a taser in dart

mode was not clearly established. The court's Sanction Order cannot defeat

summary judgment because it is contrary to and inconsistent with the "objective

reasonableness" standard that must be followed in deciding if the use of a taser,

based on the facts and circumstances confronting the officers, constituted excessive

force. All other claims against Ziegler and Megargel should be dismissed based on

statutory immunity.

BACKGROUND

At approximately 9:52 p.m. on the evening of August 12, 2007, Rae Ann

Becker, a female friend of Verdi, telephoned the Bozeman 911 center because she

was "really scared * * * [t]hat something had happened to [Verdi]." Earlier in the

day, Verdi sent Becker a text message stating: "I'm done." Becker texted to Verdi

that unless he responded to her texts or telephone calls, she would notify the police

to check on him. She was concerned about Verdi because he "had life things"

1. BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT RE: ZIEGLER ANDMEGARGEL

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going on and she had a "gut feeling" he needed to be checked because of prior

experiences she had had with persons possibly expressing suicidal thoughts.

Becker was aware that Verdi had recently been in the hospital and she brought him

back because he was hallucinating and he was allegedly over medicated. SUF at 8-

11.

Five days earlier, on August 7, 2007, Verdi presented himself to the

emergency department at Bozeman Deaconess Hospital seeking alcohol

detoxification. He was an alcoholic with a long history of alcohol and drug

problems. As of March 7, 2007, Verdi was reporting to his healthcare providers

that he was suffering from anxiety, stress, was not properly sleeping or eating, and

these symptoms were worsening. He also experienced panic-type symptoms.

When Verdi arrived at the emergency department, he reported that he had

recently been drinking up to a fifth of whiskey a day, plus several beers. While in

the hospital, he was treated by Dr. Omohundro, who prescribed Ativan while Verdi

was in the hospital and for him on an outpatient basis. However, Dr. Omohundro

carefully explained to Verdi not to consume alcohol while taking Ativan. Based

on Verdi's report of how much he was drinking, Dr. Omohundro confirmed that

his level of alcohol can "definitely cause a person to become very violent,

combative, cause memory loss and blackouts, and other mental disorders including




depression or suicidal ideation." Verdi was released from the hospital on

August 10,2007. SUP 1-6.

Shortly after Becker called 911, Officer Marek Ziegler and Sergeant Greg

Megargel were dispatched to the apartment complex where Verdi lived. Ziegler

joined the Bozeman Police Department in December of 2006. He had previous

law enforcement experience and training as a U.S. Customs Service Officer. He

served in the Air National Guard. After joining the Bozeman PD, he received

additional training at the Montana Law Enforcement Academy and at the PD itself.

He was trained in the "use of force" and was trained and certified in the use of a

taser.

Sergeant Megargel had been with the Bozeman PD for approximately

thirteen (13) years. He, too, had significant law enforcement training through the

Montana Law Enforcement Academy and the department. He was trained and

certified in the use of a taser. He was Ziegler's shift supervisor at the time they

responded to the call at Verdi's apartment complex. SUF 13-19,42-45.

When Ziegler and Megargel arrived at the apartment complex, they spent 40

to 45 minutes attempting to locate Verdi. They knocked on his apartment door

several times without an answer. They did identify his car by checking the license

plate. They talked with at least one person who stated he saw Verdi earlier in the

day. They attempted to obtain a key for Verdi's apartment from the apartment




complex manager. They also tried to call him on his cell phone, all to no avail.

SUF 20-21; 45, 47.

Megargel was attempting to locate Verdi because he was unsure if Verdi

was injured, if he injured himself, or if he was even in his apartment, "so we had to

cover every avenue." SUF 46. After approximately 45 minutes of looking for

Verdi, they again knocked on the door. They heard some rustling and mumbling in

the apartment. Megargel stepped to the right and back from the door, looking

toward the door, with his service weapon drawn and held in a "low ready" position

at his side. Ziegler moved to the left of the door and drew his taser. This

positioning allowed for officer safety with both lethal and less-than-Iethal uses of

force in the ready positions. SUF 22, 47-49.

When Verdi finally opened the door, he was naked, mumbled something

unintelligible, and began to move, out looking directly at Megargel. He was told

they were there to check on him. He was asked several times to "have a seat - take

a seat." Verdi moved out of his apartment, and Ziegler moved back a couple of

feet. Without warning, and in a split second, Verdi charged toward Megargel, who

was approximately 5 to 6 feet from him. Ziegler deployed his taser because he

"felt [Sergeant Megargel] was in danger." He did not have time to warn Verdi he

intended to deploy his taser. Ziegler was approximately 6 feet away from Verdi


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when he deployed his taser. One taser dart struck Verdi in his back and one dart

hit him in the back ofhis right arm. SUF 23-30.

When Verdi opened his door, Megargel quickly observed that he did not

have anything in his hands. He holstered his pistol because he recognized lethal

force would not be necessary. Megargel attempted to communicate with Verdi,

telling him to sit down. A couple of seconds later, unprovoked, Verdi charged

directly toward him fast enough that he was immediately on top of him. Megargel

reacted and struck Verdi in the chest with his left hand, shoving him back. Verdi

went backwards, fell against the wall, and then fell to the ground. Megargel was

unaware that Ziegler deployed his taser until after Verdi was on the ground. SUF

31-32, 50-54.

According to Megargel, he reacted to Verdi charging him because he felt his

safety was at stake: "I felt 1 had to react or 1 could be injured, so I reacted in the

manner which I did. * * * 1 had a naked guy charging me and 1 didn't know his

intent, and 1 had no time to think about it. 1 had to react." SUP 55. Ziegler

believed Megargel was at risk of being injured and his deployment of the taser was

to protect a fellow officer. SUP 27.

After Verdi went to the ground, he was initially unresponsive. He later

became responsive but did not answer any questions from Ziegler. Per police

department policy, and in order to make the scene safe for the officers, the




responding emergency medical personnel, and Verdi, he was rolled over and

handcuffed in the back. The handcuffs were adjusted at least once to ensure they

were fitting properly, i.e., not too tight or too loose. At the time of Verdi's

confrontation with the officers, he had a blood alcohol concentration of at least

.291. SUF 32-35, 57.

While Ziegler and Megargel were waiting for the arrival of emergency

personnel, Ziegler advised Megargel: "Hey, man, he came after you." Megargel

responded: "I shoved him, but you got him. That's the way it is." Later, but while

still at the scene, Ziegler advised Megargel: "I was afraid for you - dude." SUF

27,39-40.

Later, at the hospital, Ziegler advised one of the nurses that Verdi "start[ed]

going after the sergeant so I tased him in the back." SUF 69. He reaffirmed when

talking to Rae Ann Becker at the hospital that Verdi "did become aggressive

towards the sergeant, and I ended up tasing him and took him into custody. * * *

[W]e just wanted to talk to him, make sure he's okay. And he comes out and he

comes out the door and went in an aggressive manner straight for - for the

sergeant." SUF 12.

Both Megargel and Ziegler believed they could have charged Verdi with

criminal offenses for attacking Megargel. However, based on the totality of the

circumstances, they both decided it was in Verdi's best interests not to do so.




Rather, the best outcome for the entire situation was to place Verdi in protective

custody. They believed their goal and job in responding to a welfare check is to

assist the person who is apparently having problems: "Our goal is not to go and

charge them with a crime, our goal is to help them with what problems they're

having. I believe that's what our intent was when we arrived there .... There's no

need for this person to be charged with an assault crime, and we could have

charged him with a crime." SUF 36-37, 58-59.

Verdi was transported by ambulance to the emergency department of

Bozeman Deaconess Hospital. Empty bottles of Ativan and Atonal accompanied

him. He as initially described by an emergency department nurse as crying and

combative, requiring the application of restraints. He was combative the entire

time he was in the emergency department up to the point he was transferred to a

room on the floor. There was no evidence of injury to Verdi's wrists from

handcuffs when restraints were placed on him.

The emergency department doctor who evaluated and treated Verdi

described him as "non-cooperative, agitated, combative, threatening staff." He

was diagnosed as suffering from drug overdose, alcohol intoxication, suicide

attempt, and having a scalp contusion. He was placed in four-point restraints

(wrists and ankles), for the safety of the staff, as well as Verdi himself. He

remained in four-point restraints until the following morning at 9:00 a.m. The




Gallatin County Psychological Emergency Response Team was called to the

hospital to deal with Verdi. SUP 68-82.

Prior to August 12, 2007, Verdi was an admitted alcoholic who knew he

should not drink alcohol. He had checked himself into different hospitals because

of drug and alcohol problems, his most recent admission only five days before the

August 12 incident. In a follow-up office visit with Dr. Omohundro, it was noted

that Verdi was readmitted to the hospital on August 12, 2007, because after he was

released on August 10, he took more Ativan than was prescribed and started

drinking again and "was making suicidal gestures." SUP 83-86, 88.

Verdi admits that on August 12, 2007, he sent a disturbing text message to

Becker stating: "I'm done." He claims he cannot recall why he sent the message,

why he did not respond to Becker's attempts to contact him, whether he wanted

Becker to contact the police, or whether he was trying to kill himself on that

particular day. He does agree he drank a significant amount of alcohol, resulting in

a blood alcohol level of .291. He cannot recall if he was in a fight before August

12, 2007, or how he ended up with scratches on his chest that were noted in the

emergency department records. SUF 60-66.

Verdi claims no memory of when he started drinking on August 12, where

he was drinking, with whom he was drinking, why he started drinking, when he

stopped drinking, or how he got back to his apartment. SUF 60-67. However,




Verdi's testimony of no recollections of the events of August 12, 2007, and his

confrontation with Ziegler and Megargel is contradicted by numerous sources,

including Verdi's brother.

Verdi's brother, David Monaghan, testified:

According to [Verdi], he was passed out, drunk on a couch,door knock, like a banging on the door, and they wouldn't stop.So he got up and went over and opened the door and basicallysaid that, no, they came in. He wasn't sure who the hell thiswas. * * * They just kind of came in on him, and a scuffleensued. And he was basically tased, he fell, hit his head, and hewas - - I think he was out at that point. Basically said he hadthe crap beat out of him, you know, and that was that.

Monaghan confirmed that Verdi told him the cops "beat the crap out of him," a

"scuffle" occurred inside his apartment, he had been sleeping on the couch kind of

passed out. heard the knocking, remembered getting up and opening the door, the

police were there and a "scuffle" ensued, resulting in the cops beating the crap out

of him and tasing him. SUF 91-92.

Verdi admits telling at least one co-worker named Tim that he was injured in

a bar fight. On September 27, 2007, Verdi told a physician's assistant in Midvale,

Utah, that on August 13, 2007, he got in a yelling match with some college kids in

Montana and "they had their way with me." According to Verdi's closest Montana

friend and a co-worker, he was with Verdi before the incident, Verdi was drinking

and taking "medications." Verdi knew he should not be drinking and taking

medication. Verdi told his friend that after he left, he went to a house party with9. BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT RE: ZIEGLER AND

MEGARGEL



some neighbors, drank until he became "pretty intoxicated," walked upstairs to his

apartment, played some guitar, and basically passed out naked in his house. SUF

90, 93, 95. Verdi's friend and co-worker also confirmed that Verdi told other co-

workers he was injured in a scuffle in a bar. SUF 94.

A December 11, 2007, email to one of Verdi's female friends, agam,

contradicts his testimony of lack of recollection and provides insight into his true

intent. He advised that before the August 12, 2007, incident, he was planning on

moving from Montana because he was lonely, living in a college town, and

partying like he was 21 again. He was running himself into a drinking rut. He

explained:

[D]on't say anything, but that's how my injuries happened, a coupleof cops beat the shit out of me in my house for no reason but being tanand drunk.

Verdi went on to tell his friend he did not want to jinx himself, but he expected to

receive lots of"duckets," i.e., money: "Hopefully there's a large settlement." SUF

96-98.

On January 4, 2009, an eerily similar incident involving Verdi and local law

enforcement happened. Verdi started drinking, blacked out, and after law

enforcement officers were called to his home, he pointed a pistol, later determined

to be a BB gun, at the responding officers. He also cut and stabbed himself. He




was physically restrained, taken it custody, and involuntarily committed for

psychiatric watch. SUF 99.

The incident began because Verdi was drunk, acting strange, calling and

texting his family telling them he was going to kill himself. Verdi's brother, and

his brother's father-in-law, notified local police because they were concerned about

Verdi's welfare. They met officers at Verdi's residence. His brother explained to

the officers that Verdi had previously been involved in another incident where he

was threatening suicide and fought with officers who tased him. His brother told

the officers that Verdi had previously attempted "suicide by cop," meaning that he

could do something to make it so law enforcement would have to kill him. SUF

99-113.

All present, including the law enforcement officers, agreed that when the

door to Verdi's home was opened, he was at the top of the stairs with what

appeared to be a weapon. Just as in the August 12, 2007, incident, one of the

responding officers reported that as verbal commands were yelled to Verdi "he was

looking at some point, but he - it was like he couldn't hear him. He wasn't - or

just chose not to obey his commands." (Emphasis added.) When officers

attempted to take Verdi into custody, he tensed up, resisted their efforts to handcuff

him, and only complied after one of the officers drew his taser, placed it against his

back, and threatened to use it. SUF 102-108, 110-111.


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Although not clearly defined, the Second Amended Complaint alleges

Ziegler and Megargel violated Verdi's Fourth Amendment rights by supposedly

using excessive force. Second Amended Complaint, Dkt. 82 at 13-14. It also

asserts a "due process" violation based on the same allegation of excessive force.

Id. The only "force" alleged is the use of a taser by Ziegler and the application of

handcuffs, admittedly by Megargel. With this background established, Ziegler and

Megargel now show why the are entitled to summary judgment.

ARGUMENT

Summary Judgment Standards

Pursuant to Rule 56(a), Fed. R. Civ. P., [t]he court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law. Ziegler and

Megargel have cited to particular parts of materials in the record, including

deposition testimony, to support their Motion, all in compliance with Rule

56(c)(1)(A). They have met their initial burden ofinfonning the court of the ~ases

for their Motion and identifying those portions of the pleadings and depositions

that they rely on to demonstrate the absence of any genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It is appropriate to rely on

case law decided before the 2010 amendments to Rule 56 as "[t]he standard for




granting summary judgment remains unchanged." Fed. R. Civ. P. 56, Notes of

Advisory Comm. on 2010 Amendments.

A plaintiff opposing a properly supported motion for summary judgment

may not rest on his allegations alone to defeat summary judgment without "any

significant probative evidence tending to support the Complaint." Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249, citing First National Bank ofArizona v.

Cities Service Co., 391 U.S. 253 (1968). "If the evidence is merely colorable, or is

not significantly probative, summary judgment may be granted." Anderson, 477

U.S. at 249-250. Only disputes over facts that might affect the outcome of the

lawsuit under the governing law are "material," and will properly preclude entry of

summary judgment. Id. at 248. When the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party, there is no "genuine issue for

trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). Based on these standards, summary judgment should be granted in favor

of Ziegler and Megargel.

Plaintiff Has No Viable Claim For Relief Based On Alleged "Excessive Force"

Plaintiffs federal Constitutional claim based on alleged excessive force is

analyzed under a Fourth Amendment "objective reasonableness" standard, taking

into account the totality of the factual circumstances presented to Ziegler and

Megargel at the time force was used. Graham v. Connor, 490 U.S. 386, 395-96




(1989). "[All! claims that law enforcement officers have used excessive force ...

should be analyzed under the Fourth Amendment and its 'reasonableness'

standard, rather than under a 'substantive due process approach.'" Id. at 395; Katz

v. u.s., 194 F.3d 962, 967 (9th Cir. 1999). Consequently, Plaintiff's "due process"

claim should be summarily dismissed.

The standard of objective reasonableness under the totality of the

circumstances confronting law enforcement officers is the touchstone of the

analysis. Id. at 397-98. "Objective reasonableness" is not capable of "precise

definition or mechanical application." A careful analysis must be made of the

specific facts and circumstances presented to the officers at the time the disputed

force is utilized. Graham, 490 U.S. at 396-97. See also, Saucier v. Katz, 533 U.S.

194, 204-06 (2001).

In evaluating objective reasonableness, based on the totality of the specific

facts, a court may consider: 1) the severity of the crime at issue; 2) whether the

suspect posed an immediate threat to the safety of the officers or others; and 3)

whether he is actively resisting or attempting to evade arrest by flight. Graham at

396-97. "These factors, however, are not exclusive. Rather, we examine the

totality of circumstances and consider 'whatever specific factors may be

appropriate in a particular case,' whether or not listed in Graham." Bryan v.



Case 2:09-cv-00076-RFC-RWA Document 140 Filed 02111/13 Page 20 of 33

MacPheson, 630 F.3d 805, 826 (9 th Cir. 2010), citing Franklin v. Foxworth, 31

F.3d 873, 876 (9th Cir. 1999).

Objective reasonableness IS always judged from the perspective of a

reasonable officer on the scene taking into account "split-second judgments

officers are required to make in 'tense, uncertain, and rapidly-evolving' situations."

The Court in Graham also stressed: "[t]he 'reasonableness' of a particular use of

force must be judged from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight." [d. at 396.

The Court cautioned not to consider the "underlying intent or motivation" of

the officers when force was used. Rather, "the 'reasonableness' in an excessive

force case is an objective one: the question is whether the officers' actions are

'objectively reasonable' in light of the facts and circumstances confronting them

without regard to their underlying intent or motivation." [d. at 396-398.

An officer's evil intentions will not make a Fourth Amendmentviolation out of an objectively reasonable use of force; nor will anofficer's good intentions make an objectively unreasonable use offorce constitutional * * * The Fourth Amendment inquiry is one of"objective reasonableness" under the circumstances, and subjectiveconcepts like 'malice' and 'sadism' have no proper place in thatmqUIry.

Id. at 398-99.

The Ninth Circuit Court of Appeals and the Montana federal district courts

have adopted the Graham standards in evaluating the objective reasonableness of a


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law enforcement officer's use of force. See, e.g., Luchtel v. Hagemann, 623 F.3d

975,980 (9 th Cir. 2010); Jackson v. Johnson, 797 F.Supp.2d 2057 (D. Mont. 2011);

Groves v. Croft, 2011 WL 5509028 (D. Mont. 2011).

The Ninth Circuit, in conformity with the Supreme Court, follows the rule

that of the three Graham factors, whether a person poses an "immediate threat to

the safety of the officers or others" is the "most important." Luchtel, 623 FJd at

980; Groves at 16. The record establishes that the safety of Megargel was

threatened when Verdi unexplainably charged him. He posed an "immediate threat

to the safety of [Megargel]." Thus, under the totality of the circumstances known

to Ziegler, it was objectively reasonable to deploy his taser at Verdi. Luchtel, 623

F.3d 975, 980, citing Smith v. City ofHemet, 394 F.3d 629, 702 (9th Cir. 2005).

Based on the facts of this incident, the other commonly cited Graham factors

do not come into play. At the time the officers initiated their welfare check and

were seeking to provide assistance to Verdi, they were not contemplating that he

was engaged in criminal activity. Nor were they concerned about him attempting

to resist or evade arrest. But, because of Verdi's unprovoked and totally

unexpected conduct, Ziegler was faced with making a "split second judgment" in

what suddenly became "a 'tense, uncertain, and rapidly-evolving situation. '" See

Graham, 490 U.S. at 396-97.




The focus of the objective reasonableness inquiry rests on the actual conduct

presented to the officers. At the time the taser was deployed or handcuffs applied,

whether they believed Verdi committed a crime or not, is irrelevant. The question

is whether an objectively reasonable officer confronted with the totality of factual

circumstances known to Ziegler and Megargel was justified in using force.

Considering the unprovoked attack on Megargel, the use of force by Ziegler was

justified. And, the brief application of handcuffs was appropriate to protect

everyone's safety. See, e.g., Muehler v. Mena, 544 U.S. 93 (2005) (use of

handcuffs for safety of law enforcement officers did not constitute Fourth

Amendment violation. ld. at 98,100, 102.)

The admissions by Verdi to his family and friends, even though he told his

friends - "don't say anything" - make clear there was some type of confrontation

and "scuffle" between the officers and Verdi. Verdi's own brother confirms in

graphic detail that Verdi's feigned of lack of memory, for purposes of this lawsuit,

is simply unbelievable. The audio from Ziegler's personal recorder indisputably

captured the sounds of at least a "scuffle," as repeatedly reported by Verdi to his

friends and family.

The Supreme Court in Scott v. Harris, 550 U.S. 372 (2007), made clear that

"[w]hen opposing parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could believe it, a court




should not adopt that version of the facts for purposes of ruling on a motion for

summary judgment." [d. at 380. In Scott, there was a videotape from a pursuing

police car that contradicted the fleeing subject's version of the alleged disputed

events. The Supreme Court rejected the notion that the trial court must accept the

opposing party's facts for purposes of ruling on defendant's summary judgment

motions. Rather, it relied upon what it could see and hear itself in the videotape.

The same is true here regarding Ziegler's audio. Coupled with Verdi's own

admissions, it is undisputed that Verdi's conduct prompted the use of Ziegler's

taser. See also, Ricci v. DeStefano, 557 U.S. 537, 586 (2009) ("facts must be

viewed in the light most favorable to the non-moving party only if there is a

'genuine' dispute as to those facts," id. at 586, citing Scott) (emphasis added);

Wilkinson v. Torres, 610 F.3d 546 (9th Cir. 2010) ("when the facts, as alleged by

the non-moving party, are unsupported by the record such that no reasonable jury

could believe them, we need not rely on those facts for purposes of ruling on [a]

summary judgment motion." [d. at 550.)

The court must consider separately the claims of excessive force. The use of

the taser by Ziegler cannot be imputed to Megargel. Megargel's application of

handcuffs cannot be imputed to Ziegler. The unprovoked attack on Megargel

justified Ziegler's use of his taser, all as fully explained above.




The conclusory allegation of the Second Amended Complaint that the

officers "repeatedly tightened the handcuffs over a period of 5 minutes ...," Dkt.

82 at 6, , 17, is totally unsupported by the factual record. The only evidence in the

record confirms the handcuffs were adjusted to ensure they were not too tight or

loose. SUF 33-34. The handcuffs were only in place for a few minutes until they

were removed per the request of emergency medical personnel. Ex. 2 (0168 -

0169). Verdi produced no medical evidence that he was injured by the handcuffs.

However, there is undisputed medical evidence that no injury was caused by the

brief handcuffing. SUF 72. See, Law v. City ofPost Falls, 772 F.Supp.2d 1283

(D. Id. 2011) (conclusory allegations unsupported by factual support of excessive

force in handcuffing insufficient to defeat summary judgment, lack of medical

support that handcuffs caused injury. [d. at 1300); Arpin v. Santa Clara Valley

Trans. Agency, 261 F.3d 912,922 (9th Cir. 2001).

Under Any Circumstance, Ziegler and Megargel Are Entitled To QualifiedImmunity Against Plaintiff's Fourth Amendment Excessive Force Claim.

Qualified immunity protects government officials from civil liability to the

extent their conduct does not violate clearly established Constitutional rights of

which a reasonable law enforcement officer would have known. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982); Phillips v. Hust, 477 F.3d 1070, 1079 (9th

Cir.2007).




A two-tiered analysis must be employed by the court when examining the

issue of qualified immunity. First, do the facts show that the officers' conduct

violated a Constitutional right? If not, the inquiry ends and plaintiff cannot prevail.

If yes, the court must determine whether the right was clearly established. This

inquiry is objective but fact specific. Saucier v. Katz, 533 U.S. 194, 200-202

(2001); Mattos v. Agarano, 661 F.3d 433,440 (9th Cir. 2011). The court may first

look to step two of the analysis to resolve the qualified immunity question.

Pearson v. Callahan, 555 U.S. 223 (2009). In this case, it is clear that the conduct

of the officers did not violate any Constitutional right of Plaintiff. Consequently,

liability cannot be imposed against them.

Qualified immunity applies to Plaintiff s allegations of excessive force. "If

an officer's use of force was 'premised on a reasonable belief that such force was

lawful,' the officer will be granted immunity from suit, notwithstanding the fact

that excessive force was deployed." Bryan, 630 F.3d at 832, citing Deorie v.

Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001). The qualified immunity analysis

asks: "whether it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202

(2001). In other words, was it reasonable for the officers to conclude that the level

of force utilized, i.e., Ziegler's use of a taser to stop Verdi's charge at Megargel,

was reasonable? See Bryan, 630 F.3d at 832. Here, it was objectively reasonable




for these officers to utilize the level of force they did. Consequently, under all

circumstances, they would be entitled to qualified immunity.

Judge Molloy addressed the issue of qualified immunity in the context of a

law enforcement officer deploying his taser in a dart mode in Jackson v. Johnson,

797 F.Supp.2d 1057 (D. Mont. 2011). He cited to Bryan, supra, for the

proposition that in that case "the officer was entitled to qualified immunity because

prior to the Bryan opinion there had been no Ninth Circuit case declaring a taser to

constitute an intermediate use of force. Id. at 1071. He established the "effect" of

the Bryan decision when a law enforcement officer seeks qualified immunity based

on taser use in a dart mode:

The effect of Bryan's qualified immunity analysis is that before theBryan opinion, a police officer was entitled to qualified immunityagainst any excessive force claim based on the use of a taser, providedthat at least some degree of force was reasonable under thecircumstances. Whether Deputy Johnson is entitled to qualifiedimmunity therefore turns on whether it was reasonably necessary touse any level of force under the circumstances.

Id.

Judge Molloy then examined the factual circumstances underlying the

deputy's use of his taser and concluded "this is a case in which no force was

reasonably necessary." He determined that because the deputy illegally arrested

Jackson in the first instance, "[n]o level of force can be reasonably justified in such

circumstances." Id. at 1072. However, he recognized that in Bryan, in which the




only criminal infraction was related to seatbelt use, "the officers had probable

cause to believe a crime had been committed and therefore were justified In

effecting an arrest," including doing so with the use of a taser. Id.

Ziegler's use of a taser to stop Verdi's attack on Megargel occurred three

years before Bryan was decided. Because there is no question that Ziegler had the

right to utilize "some degree of force," just as Judge Molloy recognized in Jackson,

he and Megargel are entitled to qualified immunity. See also, Groves at 22; Mattos

v. Agarano, 661 F.3d 433 (9th Cir. 2011) (qualified immunity granted to officer

who tased "the potential non-threatening victim of the domestic dispute whom the

officers ostensibly came to protect," and officers who tased woman seven months

pregnant because she refused to accept a traffic citation for speeding. 661 F.3d

448, 452.) In both cases referenced in Mattos, the alleged wrongful conduct

occurred prior to the court's decision in Bryan v. MacPherson.

The Sanction Order Does Not Preclude Summary Judgment

The Sanction Order recently issued by the court cannot be used to deny

summary judgment to Ziegler and Megargel on Plaintiffs excessive force claim

brought pursuant to the Fourth Amendment. The Sanction Order interjects

subjective factors into what must be a purely objective analysis of reasonableness

based on the totality of the circumstances at the time the officers utilized force.

The Sanctions Order is based solely on events or conduct allegedly occurring after




the disputed force was utilized. Under the objective reasonable standard, the

alleged conduct forming the factual bases of the Sanctions Order cannot be relied

upon in deciding the excessive force issue against Ziegler and Megargel. Reliance

upon the Sanctions Order to defeat summary judgment in favor of the officers on

the excessive claim, based on the alleged events or conduct post use of force,

would be totally inconsistent with and contrary to 24 years of established federal

precedent first articulated in Graham v. Connor.

The Sanctions Order makes numerous factual and legal findings and

conclusions disputed by Ziegler and Megargel. There is no dispute, however, that

the factual findings all relate to alleged conduct that occurred long after Verdi was

tased, handcuffed, and after numerous independent emergency services personnel,

including ambulance and fire, were on scene and with Verdi and the officers. The

Order cites to and relies upon Peschel v. City ofMissoula, 664 F.Supp.2d 1137 (D.

Mont. 2009), as legal authority for imposing the sanction. But, Peschel is

critically, factually distinguishable from the present case.

In Peschel, the missing in-car video depicted events and conduct before, up

to, and contemporaneous with the disputed use of force by the involved police

officers. In other words, the missing video arguably contained relevant evidence

because it depicted "the facts and circumstances confronting [the officers] ..."




upon which the objective reasonableness standard would be based. Graham, 490

U.S. at 398.

Conversely, the Sanctions Order in this case is based entirely upon "facts

and circumstances" having nothing whatsoever to do with what "confront[ed]"

Ziegler and Megargel when Verdi was tased. It is noteworthy, though, that the

"facts and circumstances confronting [the officers]" at the time force was used was

captured on Ziegler's audio and was preserved for purposes of the "objective

reasonableness" analysis, as fully explained and documented above. Reliance

upon the Sanctions Order to defeat summary judgment would impute the alleged

"officers' evil intentions" to be substituted for the objective reasonableness

standard. Again, as directed by the Supreme Court: "[a]n officer's evil intentions

will not make a Fourth Amendment violation out of an objectively reasonable use

of force. * * * The Fourth Amendment inquiry is one of 'objective

reasonableness' under the circumstances, and subjective concepts like 'malice' ...

have no proper place in that inquiry." Graham at 398-99.

All Remaining Claims Against Ziegler and Megargel in Their IndividualCapacities Should Be Dismissed Based on Statutory Immunity

The alleged wrongful conduct of Ziegler and Megargel occurred while each

officer was acting in the course and scope of his employment for the City of

Bozeman and its police department. Answer to Second Amended Complaint

(Megargel/Ziegler) at ~ II, Dkt. 83 at 2.24. BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT RE: ZIEGLER AND

MEGARGEL

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Mont. Code Ann. § 2-9-305 provides in relevant part:

[i]t is the purpose of this section to provide for the immunization,defense, and indemnification of public officers and employees civillysued for their actions taken within the course and scope of theiremployment.

In any non-criminal action brought against any employee of a state,county, city, town, or other governmental entity for a negligent act,error, or omission, including alleged violations of civil rights pursuantto 42 U.S.C. 1983, or other actionable conduct of the employeecommitted while acting within the course and scope of the employee'soffice or employment, the governmental entity employee, except asprovided in subsection (6), shall defend the action on behalf of theemployee and indemnify the employee.

* * *.

In any non-criminal action in which a governmental entity employeeis a party defendant, the employee must be indemnified by theemployer for any money judgment or legal expense, includingattorney fees either incurred by the employee or awarded to theclaimant, or both, to which the employee may be subject as the resultof the suit unless the employee's conduct falls within the exclusionsprovided in subsection (6).

Id. at (1), (2), and (4). (emphasis added)

The exceptions identified in the statute set out in subsection (6) do not apply

because there has been no judicial determination that the conduct of the individual

officers constitute oppression, fraud, or malice, that their conduct was criminal,

that they settled or compromised the claim without consent, or that they failed or

refused to cooperate reasonably in the defense of this lawsuit. Id. at § 2-9-

306(6)(a)-(d). The officers are entitled to statutory immunity. See, Kenyon v.


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Stillwater County, 254 Mont. 142, 835 P.2d 742 (1992) [overruled on other

grounds in Heiat v. Eastern Montana College, 275 Mont. 322, 331, 912 P.2d 787,

793 (1996)]; Kiely Const. LLC v. City of Red Lodge, 202 MT 241; Germann v.

Stephens, 2006 MT 130.

CONCLUSION

For all the foregoing reasons, summary judgment should be granted to

Marek Ziegler and Greg Megargel.

DATED this 11 th day ofFebruary, 2013.

/s/ Brendon J. RohanBrendon J. RohanPoore, Roth & Robinson, P.C.Attorneys for Defendants Greg Megargel

and Marek Ziegler


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CERTIFICATE OF COMPLIANCE

Pursuant to Local Rules 7.1(d)(2) and 10.1 (a), I certify that this brief is

printed in font size of 14 points; is double spaced; and the word count calculated

by Microsoft Word is 6,153 words, excluding the caption, Certificate of Service

and Certificate of Compliance.

DATED this 11 til day of February, 2013.

/s/ Brendon J. RohanBrendon J. RohanPoore, Roth & Robinson, P.C.Attorneys for Defendants Greg Megargel

and Marek Ziegler


\\prrsql\ProLaw Documents\961-13987\364I13.doc


CERTIFICATE OF SERVICE

I certify that on February 11, 2013, a copy of the foregoing document was

served on the following persons by the following means:

1,2,3,4,5 CMIECF___.Hand Delivery___.Mail___Overnight Delivery Service

Fax---'E-mail---'

1. Clerk, U.S. District Court

2. Ryan K. Jackson, Esq.Jackson Law P.C.Attomey(s) for Plaintiff, Roger G. Segal

3. Thomas D. Shea, Jr., Esq.Shea Law Firm, P.L.L.C.Attomey(s) for Plaintiff, Plaintiffs Roger G. Segal

4. Michael J. Lilly, Esq.Berg, Lilly & Tollefsen, P.C.Attomey(s) for Defendants, City of Bozeman and City of Bozeman PoliceDepartment

5. Michele 1. Braukmann, Esq.Ross W. McLinden, Esq.Moulton Bellingham PCAttorney(s) for Defendants, Mark Tymrak and Martin Kent

lsi Brendon J. RohanBrendon J. RohanPoore, Roth & Robinson, P.C.Attomeys for Defendants Greg Megargel

and Marek Ziegler

