Opinion
Civil No. 02-943 ADM/AJB
January 27, 2004
Frederick J. Goetz, Goetz Eckland P.A., Minneapolis, MN, appeared for and on behalf of Plaintiffs
John C. Goetz, Schwebel, Goetz Sieben, Minneapolis, MN, appeared for and on behalf of Plaintiffs
Peter G. Mikhail, Esq., and Frank E. Villaume III, Esq., appeared for and on behalf of Defendants
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
On December 4, 2003, the parties presented oral arguments on the Motion for Summary Judgment [Docket No. 37] of Defendants Michael A. Lee ("Lee" or "Officer Lee") and the City of St. Paul ("the City") before the undersigned United States District Judge. Defendants assert immunity protects them from the violation of civil rights allegations brought by Plaintiffs Shenita Craighead and Sherell Craighead, as co-trustees for their heirs and next of kin of Charles Craighead, deceased, ("Plaintiffs"). For the reasons set forth below, Defendants' Motion is denied in part and granted in part.
II. BACKGROUND
Defendants have accepted Plaintiffs' version of the facts, as must the Court, for purposes of this summary judgment analysis.
Prior to this third reported incident, Carlos Scott ("Scott") had shot the victim of the drive-by attack at Minnehaha and Victoria with a .45 caliber pistol and fled in a green sport utility vehicle. Nelson Aff. ¶¶ 6-9. Scott then drove to a home on Iglehart Avenue and shot a second victim in the head, fleeing on foot in the direction of Marshall Avenue. Id. ¶¶ 8, 9. At the time of these shootings, Craighead was speaking with Price regarding a bid for a painting project. At one point, he returned to his car, parked on Oxford Street, to prepare a proposal. Price Dep. at 33-34. At about this time, Scott was near the intersection of Marshall and Oxford, where he brandished his weapon and asked a bystander for his car keys so he could escape. Nelson Aff. ¶ 9. When the man declined, Scott saw Craighead at his car and approached him, demanding a ride. McDougle Dep. at 87-88. Craighead refused and Scott flashed the gun, repeating the demand, and the two men then physically engaged, wrestling for the pistol. Id. at 88-90. Joyce McDougle ("McDougle"), Craighead's fiance and the mother of his children, got out of the car and observed Craighead seize the gun away from Scott in their continuing struggle. Id. at 90-91. She then ran into the house to tell Price to call the police. Id. at 94.
Price had seen the events unfold and called 911 at 10:23:15. Jeffery Aff. ¶ 12. Lee heard the ensuing dispatch broadcast while at a nearby intersection. He believed the gunman could be the suspect in the two earlier shootings, in possession of a large caliber gun, capable of penetrating his protective vest. Lee Dep. at 74-75; Lee Statement at 22. He loaded his police shotgun with one round and proceeded to 217 Oxford. As he crossed Marshall Avenue, Lee first saw McDougle, who yelled "he's got a gun." Lee Dep. at 76. He then drove on and observed Craighead and Scott pulling at one another in an alley. Id. Lee has testified he stepped from his squad car armed with the shotgun and with his radio headset switched off, so that he was unable to hear the continued broadcast transmission of the additional information being given to dispatch by the 911 operator. Lee Dep. at 91-92, 126. At this time, non-party witnesses relate that Craighead, who was six inches taller than Scott, was holding the gun pointing up towards the sky, attempting to keep it out of Scott's reach. Price Dep. at 43-44, 49, 51; McDougle Dep. at 92. Price relayed to the emergency operator that the man holding the gun was not the suspect, that he had gotten it "away from the bad guy." Jeffery Aff. ¶ 12. This information was then broadcast on the police dispatch radio at 10:24:18, but because he was outside of his car without his headset turned on, Lee testified he did not hear this crucial information. Lee Dep. at 126.
Plaintiffs assert Lee's deposition testimony that he almost always switched his headset on when exiting the squad car establishes evidence of habit contradicting his sworn statement in this case that he did not hear the broadcast of the gun changing hands between the wrestling men.
Scott continued to grab for the gun, which Lee observed in Craighead's right hand. About three seconds after leaving his vehicle and advancing toward the two struggling black men, Lee released the safety and fired one round, fatally wounding Craighead. Price Dep. at 52; Lee Dep. at 100; Goetz Aff. Ex. Q (Final Autopsy Protocol). Lee believes he feared for his life and that the armed man was the perpetrator of the morning's shooting spree. Lee Dep. at 106. The witnesses say they never observed the gun pointed at Lee. Price Dep. at 49; Adams Dep. at 38; McDougle Dep. at 106. They further testified they did not hear Lee give any warning or command to drop the weapon before he fired a shotgun blast at Craighead. Price Dep. at 52, 65-66; Adams Dep. at 32; McDougle Dep. at 106.
Police officer Rob Stanway had also responded to the alert, and states that when he arrived on the scene he stopped three to four car lengths behind Lee's vehicle and saw two black males struggling over a gun. Stanway Dep. at 18, 21, 23-24. He was just beginning to exit his squad car when heard the shot from Lee's gun and observed Craighead fall to the ground. Id. at 20-21, 34-35. At 10:24:29 Lee made a call on his radio reporting "one down." Jeffery Aff. ¶ 12.
Scott subsequently admitted to a homicide investigator of the St. Paul Police Department that he was responsible for the two shootings on the morning of on December 3, 2001, prior to the encounter with Craighead. Nelson Aff. ¶¶ 6-9.
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment will be rendered when there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine dispute of material fact is present and summary judgment is inappropriate when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party and makes all permissible inferences in her favor. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). However, the nonmoving party may not "rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial."Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
B. Section 1983 Excessive Force Claim
Plaintiffs have conceded their 42 U.S.C. § 1983 claims against the City and, therefore, against Lee in his official capacity. See Pls.' Mem. in Support at 2 n. 2; Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). Thus, the claim against Lee individually is the only remaining count premised on federal law.
Public officials such as Lee are entitled to qualified immunity from civil liability if their actions were objectively reasonable in light of established law. Anderson v. Creighton, 483 U.S. 635, 639 (1985). The threshold question of the qualified immunity inquiry is whether "the facts alleged show the officer's conduct violated a constitutional right."Saucier v. Katz, 533 U.S. 194, 201 (2001). If so, the court proceeds to assess whether or not the particular right asserted was clearly established. Id. "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right."Anderson, 483 U.S. at 640.
1. Violation of a Constitutional Right
The Fourth Amendment standard of objective reasonableness governs claims of use of excessive force by law enforcement officers.Saucier, 533 U.S. at 201-02; Graham v. Connor, 490 U.S. 386, 388 (1989). To establish violation of the constitutional right to be free of unreasonable seizure, Plaintiffs must show Lee's use of deadly force against Craighead was objectively unreasonable.Graham, 490 U.S. at 394-95. The determination of whether an officer's use offeree was reasonable is an objective assessment based upon the circumstances of the particular case, including the three factors of "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight."Id. at 396. A police officer may constitutionally use deadly force where he has probable cause to believe the suspect poses a significant threat of death or serious harm to himself or others.Tennessee v. Garner, 471 U.S. 1, 11-12 (1985): Hernandez v. Jarman, 340 F.3d 617. 622 (8th Cir. 2003). The defendant's actions are judged from the perspective of a reasonable officer on the scene and without the benefit of hindsight. Id.
Plaintiffs assert a reasonable jury could find Lee's actions objectively unreasonable and therefore that qualified immunity is inapplicable. They argue firing at two struggling persons when all reports consistently identified the suspect as a single armed black male, where witness testimony is that the gun was not pointed in Lee's direction and where no warning was given, constitutes an unjustifiable overreaction. To hold otherwise, they contend, would provide police a right to indiscriminately fire at any person in the vicinity of a weapon, regardless of the threat posed. Defendants maintain that despite the tragic mistake, Lee acted reasonably under the tense and rapidly-evolving situation in which he found himself. They emphasize the severity and intensity of the morning's events and that hindsight judgment is not appropriate. Both sides proffer expert testimony in support of their respective positions.
While qualified immunity is a question of law for the Court, the excessive force issue of objective reasonableness is often appropriate for jury consideration and may therefore preclude summary judgment based on qualified immunity. Wilson v. City of Des Moines, 293 F.3d 447, 453-454 (8th Cir. 2002); see also Curley v. Klem, 298 F.3d 271, 278 n. 3 (3d Cir. 2002).
As noted below, Lee testified he gave repeated oral commands to drop the weapon. Lee Dep. at 96.
In considering the reasonableness of Officer Lee's conduct on the morning of December 3, 2001, the seriousness of the crimes committed by the perpetrator of the shootings weighs in favor of Defendants' position.See Graham, 490 U.S. at 396. Lee has testified that he believed the person he was pursuing was likely responsible for the two earlier shootings and was a dangerous individual. See Lee Dep. at 74. The reported crimes of that morning were extremely violent and reflected Scott's willingness to use his gun. However, "the intrusiveness of a seizure by means of deadly force is unmatched." Garner, 471 U.S. at 9. To employ such force an officer must have probable cause to believe the suspect presents an immediate threat of serious physical harm. Id. at 11; Hernandez, 340 F.3d at 622. At this procedural juncture in the case, the facts as construed in Plaintiffs' favor do "not conclusively establish the reasonableness of [Lee's] actions or beliefs." Wilson v. City of Des Moines, 293 F.3d 447, 454 (8th Cir. 2002). While appreciating that "police officers are often forced to make split second judgments" in volatile, uncertain circumstances, and that the record may well develop differently at trial, presently genuine issues of fact exist as to whether a reasonable officer in Lee's position would "have believed his actions to be lawful."Graham, 490 U.S. at 397; Wilson 293 F.3d at 449. Under Plaintiffs' version of the facts, which Defendants acknowledge the Court must accept for purposes of this Motion, Lee drives to the scene and sees two men tussling with one another, with the gun held by the taller man waving in the air, generally pointed upwards. Knowing that only one black male is suspected in the earlier crimes and that one of the two men before him is most likely a victim, he gets out of his squad car and without any warning or command aims and fires his shotgun within a period of about three seconds. Given this set of facts, a scenario is presented in which Lee's decision to fire a shotgun at two persons cannot be said to be reasonable as a matter of law.
Lee's deposition testimony outlines very different facts. He states a greater period of time elapsed before he fired his weapon, that he gave loud, repeated warnings to drop the gun, and that Craighead acknowledged him and set the gun down, but then picked it back up and pointed the gun at Lee in such a way as he feared for his life. Lee Dep. at 96, 99-100. At trial the parties will have an opportunity to further develop and probe this description of the events and other areas of discrepancy in the discovery evidence.
Defendants analogize these facts to two Fourth Circuit cases in which the court found the officers entitled to qualified immunity for the mistaken shootings of innocent persons where no prior warnings were given. Milstead v. Kibler, 243 F.3d 157 (4th Cir. 2001);McLenagan v. Karnes, 27 F.3d 1002 (4th Cir. 1994). In Milstead law enforcement officials were responding to a 911 call reporting an attack on a man and woman in their home by the woman's former boyfriend. 243 F.3d at 160. When the police officer in question shot the individual who turned out to be the male victim, much had transpired since the officer's arrival at the scene and he had seen and heard first-hand the suspect's propensity for violence. Id. The intruder had pointed a gun at him and his partner and the officer had reason to believe he had witnessed the suspect shoot his partner down in front of him. Id. at 160. Additionally, he had heard the suspect yell he was going to "'kill you all,'" and believed the man running towards him could only be the intruder because he knew the male victim had been shot in the neck and therefore thought he could not have been running. Id. at 165. The court found under these particular circumstances that when the man came crashing through the door and turned in the direction of the officer he appeared to pose an imminent deadly threat justifying the split-second use of deadly force. Id. at 163, 165.
McLenagan similarly involved a shooting directed at a single, though mistaken, suspect in circumstances that appeared to present an immediate threat of serious bodily harm. In that case, a deputy was repeatedly yelling, "'The man has got a gun!'" as she came running down the hallway of a make-shift courthouse to get away from an arrestee she believed had got hold of a weapon. 27 F.3d at 1005. Continuing her shouts, the deputy ran past a nearby police officer, who turned and saw a man running closely behind the deputy and almost upon the officer.Id. He could not see whether this man had a gun in his hands, but believing him to be the armed suspect, he shot him. Id. The man, who turned out to be another arrestee also trying to flee the building for fear of the perceived danger, sustained serious injuries.Id. The court held the credible warning of imminent danger given by the deputy and the lack of available reaction time due to the perceived suspect's close and advancing proximity to the officer rendered the shooting officer's actions objectively reasonable. Id. at 1007-08.
Neither of these cases involved a situation in which an officer, with knowledge of one violent suspect, but not in a hot pursuit situation, was confronted with two individuals, a perpetrator and a victim, who fired almost immediately at the man with the gun despite indications that a warning was feasible and that the circumstances may not have posed an immediate threat to the officer. Thus, these factual scenarios are readily distinguishable from the troubling fact pattern in the case at bar.
Moreover, in considering the third Graham factor for assessing reasonableness, Craighead was not attempting to flee or escape capture at the time of the incident. Instead he was actively grappling with Scott, and Lee concedes this was apparent, that they gave no indication of acting in concert. Lee Dep. at 91. Plaintiffs' submissions present sufficient evidence to permit a reasonable jury to conclude that Lee's actions were not objectively reasonable under the circumstances.See generally Goetz Aff. Ex. N ¶ 7 (Blaricom Preliminary Expert Report), Ex. O at 5-10 (Reiter Preliminary Expert Report).
This rendition of the facts is strictly based on Plaintiffs' evidence and is contested by Lee's contrary testimony and Defendants' expert opinions. Law enforcement is a job fraught with danger and the necessity of quick action. Courts should not sit to "second guess the split-second judgments of a police officer to use deadly force in a context of rapidly evolving circumstances, when inaction could threaten the safety of the officer or others." Milstead, 243 F.3d at 165. However, where the record contains disputed facts raising a question as to whether or not the officer could reasonably have perceived an immediate threat, summary judgment is inappropriate. Wilson, 293 F.3d at 454; cfHernandez, 340 F.3d at 624 (undisputed evidence established appearance of significant, serious threat of harm). Further, it is significant that Defendants' assertion that Lee was protecting the unarmed man is contradicted by Lee firing a shot gun at two intertwined persons where either could have easily been hit, and in fact both were.
Accordingly, "the general prohibition against deciding qualified immunity questions in the face of disputed historical facts" applies to this case. Curley v. Klem, 298 F.3d 271, 278 (3d Cir. 2002) (citing Wilson 293 F.3d at 454, and cases of other circuits). Defendants' Motion for Summary Judgment on the federal claims is denied.
C. State Law Claims
Plaintiffs additionally allege direct and vicarious negligence by Lee and the City, respectively. Compl. ¶ 27. They voluntarily dismiss their claims of negligent retention and supervision against the City.See Pls.' Mem. in Support at 30 n. 162; Compl. ¶ 28. Defendants argue for summary judgment on the sole remaining wrongful death claim on the basis of official immunity.
The doctrine of official immunity shields public officials from liability for the performance of discretionary functions unless the official commits a willful or malicious wrong. Johnson v. Morris, 493 N.W.2d 31, 41-42 (Minn. 1990). Additionally, it protects the government entity employer from vicarious liability for actions that are entitled to immunity. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 318 (Minn. 1998). As a general rule, this defense applies to the duties of law enforcement officers. Johnson 493 N.W.2d at 42.
Malice is the intentional violation of a known right, such that an officer acts with malice when the officer willfully commits an act he or she has reason to believe is unlawful. State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571-72 (Minn. 1994). This inquiry is usually a question of fact for the jury. Johnson, 493 N.W.2d at 42. For the reasons expressed above regarding qualified immunity from the federal claims, Defendants' Motion for Summary Judgment on the state claims is also denied.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment [Docket No. 37] is DENIED as to the claims against Defendant Michael A. Lee, individually, and the wrongful death claim of vicarious liability against Defendant the City of St. Paul, and is GRANTED as to the 42 U.S.C. § 1983 and negligent retention and supervision claims against Defendant the City of St. Paul.