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U.S. Court of Appeals denies cop's qualified immunity.

Byline: Kevin Featherly

A Big Lake, Minnesota, police officer is not entitled to qualified immunity after tackling a "nonviolent, nonthreatening misdemeanant" with such force that her humerus bone shattered, an 8th U.S. Circuit Court of Appeals panel has ruled.

Circuit Judge Roger L. Wollman, writing the unanimous opinion, denied summary judgment to Officer Gabriel A. Storz, affirming Senior District Court Judge David S. Doty. In his June 8, 2017, federal district court ruling, Doty rejected Storz's argument that the use of force on Brittany A. Karels, formerly of Big Lake, was justified because she resisted arrest.

Doty concluded that "there is a genuine issue as to whether and to what degree Karels was resisting arrest, and, if Karels did resist, whether Storz's use of force was reasonable." The U.S. Court of Appeals panel, which also included Judges Morris S. Arnold and David R. Stras, agreed.

"Considering the circumstances surrounding the seizure and arrest of Karels, we are not convinced that Storz's use of force was objectively reasonable as a matter of law," Wollman wrote.

Police take-down

Karels, who now lives in Wisconsin, is described as a short, heavyset, "out of shape" smoker and drinker who was in her mid-thirties at the time of the March 27, 2015, incident. She was drinking and had smoked some marijuana that night, and was arguing with her landlord outside their shared home when police were called.

Officers were informed that Karels was "drunk and argumentative." That, Wollman's opinion dryly notes, "is not is not necessarily a crime."

Karels made no attempt to flee when officers arrived, though she continued to be loud and abrasive. While they were on scene, Karels called a dispatcher, demanding to speak with a police supervisor. She was told none was on duty late on a Friday night, according to Wollman's ruling.

Her landlords did not feel threatened and only wanted her to be quiet and go to her room, according to the appellate ruling.

After Karels phoned in with demands a second time, the police dispatcher communicated with Storz and the other officer on the scene, Samuel J. Norlin, asking if the officers were arresting her. Karels was in the garage smoking a cigarette at the time, the ruling states.

Storz approached Karels and informed her that she was under arrest. He asked her to put her hands behind her back.

The accounts diverge from there. Karels said she wanted to extinguish her lit cigarette in a coffee can, but was blocked when Storz violently grabbed her left wrist. Norlin simultaneously grabbed her right wrist, guiding it toward the coffee can.

According to Karels' account, Storz suddenly twisted her left arm behind her and body-slammed her onto the garage's concrete steps, causing Norlin to lose his grip. She said she felt her left arm "twisted up almost where the bra strap line would be."

Both fell against the stairs. Karels landed on her left side as a searing pain tore through her left arm. It was later learned her upper arm bone had been "comminuted," or broken into several fragments.

Her glasses flew off her face and the back of her head hit the garage door with such force, Karels' attorney Robert Bennett said in an interview Wednesday, that her 6-year-old child, sleeping downstairs, was awakened.

Karels testified that mere seconds passed between the time Storz entered the garage and the time she was slammed to the ground, according to Wollman's opinion.

The officer disputed that account. He said that after Karels was placed under arrest for disorderly conduct, she refused to comply until finishing her cigarette. When the officers grabbed her wrists, she lunged forward, making Norlin lose his grip. Storz tripped on the steps and tumbled with her, according to his account as cited in Wollman's ruling.

Though she complained of numbness, Karels initially refused medical attention. She was eventually transported to a St. Cloud hospital for emergency surgery for a spiral shaft fracture of the humerus. The radial nerve was displaced and wrapped around a fracture fragment, causing permanent damage, her lawyer said.

In his 2017 ruling, Doty granted both officers summary judgment, dismissing Karels' claim that she was denied proper treatment. Because she refused to be seen, Doty ruled, authorities did not realize the severity of her injuries. That issue was not before the Court of Appeals. Karels also withdrew her use-of-force claim against Norlin.

Karels was charged with several misdemeanors, including disorderly conduct, obstruction without force, and possession of both marijuana and paraphernalia. She pleaded guilty to disorderly conduct; the other charges were dismissed.

Norlin's use-of-force review form indicated that force was used to "effect an arrest," Wollman's opinion states. However, the opinion notes, the officers never felt a need to protect themselves and never felt the woman was a flight risk.

The panel also judged Storz's use of force potentially excessive by observing the severity of Karel's injuries, the ruling states.

The appellate panel disagreed with Storz that use of force is allowed when an officer "interprets an arrestee's actions as resistance, even if the arrestee did not intend to resist." On the contrary, the panel ruled, a jury might find a reasonable officer wouldn't have interpreted her actions as noncompliance.

"In light of the circumstances surrounding the take-down, the district court properly concluded that genuine disputes of material fact precluded summary judgment," Wollman wrote.

En banc review considered

Bennett said he thinks the ruling sends a significant message.

"The police aren't going to have the unfettered ability to do a take-down, without regard to the amount of force or the type of injury, in a case involving nonviolent, nonthreatening misdemeanants," Bennett said. "It's not like this was a bank robber."

He agreed his client's actions weren't exactly virtuous. But litigants rarely charge that their Fourth Amendment constitutional rights were violated after experiencing one of their finest days, he said.

"You could make a point that she wasn't up for mother of the year that night," Bennett said. "But if you arrested everybody who wasn't a good parent on any given night, we'd have to build a lot more prisons."

Joseph Flynn, a partner at Lake Elmo-based Jardine, Logan & O'Brien, P.L.L.P., represented the officers in the case. He declined to comment beyond noting that the legal team is considering filing for en banc review before the full 8th Circuit U.S. Court of Appeals.

"We haven't made a decision yet," Flynn said. "There is nothing further to say except that at this point we are considering a petition en banc."

If it is not appealed, the case could head back to Doty's courtroom for a jury trial, said Bennett. But he thinks that is unlikely to happen.

"They've got these two fit cops really hurting this frumpy gal," Bennett said. "The other side doesn't think this would play very well in front of a jury."

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Publication:Minnesota Lawyer
Date:Oct 22, 2018
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