Man claims excessive force in police takedown lawsuit

By Barbara L. Jones
BridgeTower Media Newswires

MINNEAPOLIS - An "unfortunate case of mistaken identity" where a man in his 50s wearing a black shirt was arrested and subjected to an arm-bar takedown by police outside the notorious Born's Bar in St. Paul is scheduled for a civil trial on Sept. 25 in federal court.

The plaintiff, Robin Kirkland Neal, claims St. Paul police officer Daniel Ficcadenti used excessive force in arresting him. The unfortunate mistake was that it was reported that a man in his 40s wearing a red and white shirt had retrieved a firearm from a black sedan outside the bar at 899 Rice Street.

Judge Susan Richard Nelson denied Ficcadenti's summary judgment motion but did grant summary judgment to the city of St. Paul on Neal's Monell claims based on the city's failure to train the officer properly.

Ficcadenti is happy to have his day in court. "We are pleased that Judge Nelson agreed with our position that this case must be decided by a jury of Mr. Neal's peers," said his attorney, Oliver E. Nelson.

St. Paul City Attorney Samuel Clark could not be reached for comment.

Officer Daniel Ficcadenti is not the same police officer who was involved in an incident in St. Paul where a man was attacked by a K-9 and kicked by another police officer. The K-9 handler reportedly was Brian Ficcadenti.

In a summary judgment order, Nelson characterized the case as arising from an unfortunate case of mistaken identity that happened late at night outside the Rice Street bar.

"Born's Bar is located in a rough area of town and SPPD officers are frequently called to the area generally - and to the bar specifically - to address criminal activity," Nelson wrote in her order.

Arriving at the bar on June 6, 2012, one officer approached a black sedan with multiple black males in it. The officer ordered the driver - wearing a blue shirt - to get out of the car, which he did. Neal, wearing a black shirt, left the front passenger seat and police ordered him to walk toward them. Neal did not immediately comply and lowered his hands at some points, but did walk to the officer with his hands raised. Ficcadenti then used an arm-bar takedown technique to throw him to the ground.

Neal was diagnosed with post-concussion syndrome and exacerbation of symptoms related to disc disruption and spondylosis in the cervical and lumbar spine. His treating doctor has said that the symptoms are permanent.

Meanwhile police received an updated dispatch report that the man they were looking for had just entered Born's Bar. He was carrying a hammer, not a firearm.

The city maintains that Neal was unwilling or unable to comply with commands and that the officer had to make a split-second decision to gain physical control of him.

Excessive force

As the court noted, force is excessive under the Fourth Amendment if it is not objectively reasonable under the circumstances, as assessed by a reasonable officer on the scene. It is "manifestly correct" that officers expected to encounter a man with a gun, and it does not appear to be contested that police had a good faith belief that their suspect might be in the car where Neal was seated, Nelson said.

But those facts did not necessarily render the defendant's actions several minutes later objectively reasonable, Nelson said. "Here, officers knew that they were looking for a black man in his forties, wearing a red and white shirt and a baseball cap. But as each occupant of the black sedan stepped out of the car, it would have become immediately apparent that none of them closely matched that description," the judge wrote. The police did not find it necessary to use physical coercion against the other occupants of the car, she added.

The judge also said that since the plaintiff did not resist and generally kept his hands up, along with the fact that he did not fit the description of the suspect, it did not appear that he was immediately threatening.

The police countered that the plaintiff was acting erratically by wandering around, pacing and turning his back on the officers, which they suggest, the court said, could be seen as passive resistance. That could mean that a reasonable officer would find it necessary to restrain him.

Nelson found that "a very different reading of events can be constructed." Several officers were pointing pistols at him, sirens and lights were going off and at least one dog was barking. More than one officer was shouting directions at him. A jury could conclude that the plaintiff was acting earnestly, albeit a bit slowly) in complying.

Thus, a fact issue existed, making summary judgment improper, Nelson ruled.

The judge also declined to find the officer protected by qualified immunity. The court had already found facts allowing the claim to proceed, so the next question in the immunity analysis was whether the relevant constitutional right was clearly established on June 6, 2012, Nelson said. That required the court to determine that the contours of the right were sufficiently clear that a reasonable official would understand that what he was doing violated that right, Nelson wrote.

The city argued that there is no binding precedent that placed the question of excessive force beyond debate for the purposes of qualified immunity. "Where the law is unclear, it is unfair to subject police to liability for picking the losing side of a controversy," the city argued in its reply brief.

Nelson disagreed, concluding that a reasonable officer would have known that an arm-bar takedown was excessive.

Published: Thu, Aug 03, 2017