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Lancour v. Parshall

United States District Court, W.D. Wisconsin

May 18, 2017

SHANE T. LANCOUR, Plaintiff,

          OPINION & ORDER

          WILLIAM M. CONLEY District Judge.

         Pro se plaintiff Shane Lancour was allowed to proceed past screening on a claim that defendant Heath Parshall, a police officer with the La Crosse Police Department, used excessive force against him in violation of the Fourth Amendment. Pending before the court is defendant's motion for summary judgment, which will be denied because there are genuine disputes of material fact regarding whether defendant's use of force was reasonable, and defendant has not shown that he is entitled to qualified immunity if those disputed facts were resolved against him at trial. Accordingly, this case shall proceed to trial. Finally, the court will also grant plaintiff's motion for assistance in recruiting counsel to represent him for the remainder of the case.


         On June 8, 2013, defendant Parshall responded to a call regarding a domestic dispute involving plaintiff Lancour and his girlfriend, Brooke Olson. La Crosse police officer Jason Nesbit also responded to the call. Prior to that day, Parshall had not encountered Lancour, but Parshall was aware that Lancour had a history of arrests and contacts with law enforcement, including drug-related incidents. The dispatcher reporting the call gave a “universal precautions” warning with respect to Lancour, which Parshall understood as meaning he should exercise particular care for his own safety in dealing with Lancour.[2]

         When Parshall and Nesbit arrived at the scene, Nesbit met with Lancour and told him that he would be taking Lancour to the police station. Audio and video footage from Nesbit's squad car confirm that he told Lancour the purpose of his being taken to the police station was for questioning about an unrelated investigation of another individual. Nesbit handcuffed Lancour, escorted him out of the apartment and placed him in the right rear of Nesbit's vehicle -- a four-door SUV. According to Lancour, Nesbit secured the seat-belt over Lancour's chest and waist. The video footage also shows that this interaction between Nesbit and Lancour was remarkably calm and respectful.

         Meanwhile, Parshall interviewed Olson. Olson told Parshall that Lancour had assaulted her, that she was pregnant and that Lancour might be the father. After Parshall finished the interview, he went outside and opened the left rear door of Nesbit's vehicle --the door opposite where Lancour was sitting. In a slightly raised voice and angry tone, Parshall asked, “What is your problem, hitting a pregnant woman?” According to Parshall, he chose to approach Lancour in this “assertive, no-nonsense” manner, as opposed to Nesbit's earlier friendly, low-key approach, because he believed it would be more effective in light of Lancour's history with law enforcement. Lancour responded, “What are you talking about?” Parshall then repeated his question, and Lancour responded in an agitated tone, “You don't know what the fuck you're talking about.”

         Parshall then entered the vehicle, climbed across the seat and placed Lancour's head in a “pressure hold” by placing his right hand at the back of Lancour's neck, placing the other hand on Lancour's jaw, and turning Lancour's jaw. According to Parshall, he was worried that Lancour was going to spit on him and used the hold to ensure that Lancour's head was facing the other way. Parshall claims he was particularly worried because of Lancour's agitated state and because he knew Lancour was a drug user, which (again, according to Parshall) could mean that Lancour had a disease that could be transmitted through saliva, such as Hepatitis C. For his part, Lancour states that there was no reason for Parshall to believe Lancour was going to spit on him: he was sitting on the other side of the vehicle; he had not threatened to spit; and he was not engaging in any body language suggesting that he might spit.

         The parties dispute the extent of force used by Parshall during the pressure hold.[3]Parshall states that he employed a “standard” pressure hold on Lancour, while Lancour contends that Parshall used an extreme amount of force, causing Lancour's head to hit the metal plate on the vehicle door and causing pain. At minimum, Lancour yelled, “You're fucking hurting me, ” and “get off my neck.” Still, Parshall did not release Lancour immediately. Instead, he told Lancour not to spit on him. Lancour tried to yell a couple of times and then yelled, “Dude, I'm not fucking spitting on you, what the hell.”

         At about the same time, Nesbit interrupted, telling Parshall that he would talk to Lancour. Parshall then released Lancour. After a few more minutes, Nesbit took Lancour to the police station, where Parshall interviewed him about his girlfriend's allegations, as well as the unrelated fraud incident. Parshall ultimately released Lancour without charging him.

         Since the incident, Lancour alleges experiencing jaw pain, jaw cracking and headaches, for which he has sought treatment. He has also experienced increased anxiety and difficulty sleeping since the incident.


         Defendant argues that he is entitled to summary judgment on grounds of qualified immunity because plaintiff cannot show that: (1) defendant's use of force was objectively unreasonable; or (2) that defendant violated clearly established law. Carroll v. Carman, -- U.S. --, 135 S.Ct. 348, 350 (2014) (“A government official sued under § 1983 is entitled to qualified immunity unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.”). Both arguments fail.

         I. Legal Standard

         As an initial, but ultimately non-dispositive matter, defendant's qualified immunity argument is premised on the assumption that plaintiff's claim is governed by the Fourteenth Amendment, rather than the Fourth Amendment, which is likely not so. In particular, defendant argues that plaintiff's claim falls under the Fourteenth Amendment because plaintiff had already been “arrested” at the time defendant used force against him, but offers no definitive evidence that plaintiff had been arrested at the time defendant approached him in the squad car. For example, defendant has not submitted proof of any outstanding arrest warrants that would have supported an arrest of plaintiff; nor did defendant submit evidence that plaintiff was arrested based on the allegations of his girlfriend. Instead, the evidence shows that plaintiff was merely placed in the squad car to be transported to the station for questioning about an ...

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