Opinion
No. 2:99 cv 024
April 30, 2002
ORDER
Now before the court is Officer Donald's motion for summary judgment. Wilson's action, brought pursuant to 42 U.S.C. § 1983, presents a most ironic set of facts that the court reprints from the (unpublished) appellate order affirming his criminal conviction, and updates to account for subsequent developments.
The City of Gary represents Donald.
42 U.S.C. § 1983 provides that
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
A botched carjacking occurred in Gary, Indiana, on a December night in 1997 when a Pontiac Parisienne driven by Lakesha Wade was stopped by another vehicle containing three men. Two of the men got out, and one ordered Wade, at gunpoint, to exit her car. The men failed to commandeer the Pontiac (they could not get it started) and Wade was shot in the arm by one of the men during the encounter. Wade ran for help as her sister (Lasonia Williams), who lived nearby, watched some of the action. Frustrated because they could not get the Pontiac going, the two men jumped back in their car (a third man stayed in the car during the crime) and skedaddled.
A police dispatch went out, and [Officer Donald] spotted the carjackers' car and trailed it until it crashed into another vehicle. After the crash, the three men got out of the car and took off on foot. [Officer Donald], who recognized Wilson from a previous incident, pursued him on foot. During the chase, [Donald] saw Wilson toss a gun away. [Donald] picked up the gun and caught Wilson, and the rest is history.
Wilson was charged with carjacking; Wade and Williams identified Wilson as the shooter; ballistic tests showed that the gun Wilson ditched had fired a bullet found at the scene. After a one-day jury trial, Wilson was convicted of carjacking and using a firearm during a crime of violence.
United States v. Wilson, No. 99-1695, 2000 WL 197913, at *1 (7th Cir. Feb. 9, 2000). Wilson, in this civil action, claims that while he was attempting to flee after the botched carjacking and concomitant shooting of Ms. Wade, Officer Donald fired his service revolver "with malicious intent to commit the crime of murder." (Compl. at 8.) The right which Wilson strains to invoke, perhaps framed as the right to be free from state-sponsored homicide, is not secured by the United States Constitution or any federal law. In the spirit of giving a pro se litigant the benefit of the doubt, see Hudson v. McHugh, 148 F.3d 859, 864 (7th Cir. 1998) ("The essence of liberal construction is to give a pro se plaintiff a break when, although he stumbles on a technicality, his pleading is otherwise understandable."), the court must give Wilson's pleadings a liberal read. What he really means to assert is the right to remain free from excessive force secured by the Fourth Amendment, see Graham v. Connor, 490 U.S. 386, 388 (1989); Chapman v. Keltner, 241 F.3d 842, 847 (7th Cir. 2001); Pena v. Leombruni, 200 F.3d 1031, 1032 (7th Cir. 1999), and made applicable to the several states by operation of the Fourteenth Amendment, see Atwater v. City of Lago Vista, 532 U.S. 318, 338-39 (2001).
The excessive force claim against Officer Donald is the only allegation left in this action. On March 26, 2001, the undersigned issued a written order granting summary judgment on all claims against the Administrators of Gary Police Department, and all except for the excessive force cause of action against Officer Donald. Five months later, Officer Donald was killed in the line of duty. (See Mot. at 2.) The City of Gary now tries to secure summary judgment on Wilson's excessive force claim.
"The standard governing summary judgment is clear: `[I]f no rational jury could, on the evidence presented in the summary judgment proceeding, bring in a verdict for the party opposing summary judgment . . . then summary judgment must be granted.'" Oates v. Discovery Zone, 116 F.3d 1161, 1175 (7th Cir. 1997) (quoting Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 660 (7th Cir. 1991); Mills v. First Federal Sav. Loan Ass'n of Belvidere, 83 F.3d 833, 846 (7th Cir. 1996). In so doing, the court must consider the record in a light most favorable to Wilson. See Behrens v. Pelletier, 516 U.S. 299, 309 (1996).
The City of Gary proceeds on the theory that Officer Donald did not discharge his weapon. (See Def. Mem. at 3 (contending "the incident, as described by Plaintiff, did not occur").) The City offers testimony from a ballistics expert who concluded it is unlikely a bullet caused the hole in Wilson's jacket. (See Mot. at Ex. 4, p. 2.) Moreover, the City argues Officer Donald's post-incident administrative actions were inconsistent with the firing of his weapon, as evidenced by his request for the usual quantity of ammunition at his firearms training session. (See id. at Ex. 6.) At the training, the instructor provided him fourteen bullets, combined with his standard-issue thirty-four bullets, Officer Donald was able to fire the required forty-eight rounds. (See id.) According to the City of Gary, Officer Donald would have been unable to fire forty-eight times had he previously discharged his weapon.
Even assuming this evidence is wholly admissible and a jury believes it, Wilson survives summary judgment. Wilson himself avers that Officer Donald fired his weapon that struck his jacket. (See Declaration in Opp. to Def. Mot. for Summ. J. at ¶ 5 ("[H]e indeed, did fire his weapon at the plaintiff.").) "Bald and self-serving assertions in affidavits, unsubstantiated by any documentation or other testimony, are not sufficient to create a material issue of fact." Stein v. Ashcroft, 284 F.3d 721, 726 (7th Cir. 2002); see Patterson v. Chicago Ass'n for Retarded Citizens, 150 F.3d 719, 724 (7th Cir. 1998). Wilson, however, has corroboration. Special Agent Timothy C. Campbell of the Federal Bureau of Investigation gave the following testimony to the grand jury investigating the carjacking:
Q. And what occurred during that foot pursuit?
A. During the foot pursuit, Mr. Wilson made a turn and started to reach into the rear pocket of his pants, at which point Officer Donald dropped to his knees and fired his weapon several times. He did — through the interview we were able to ascertain he did strike Mr. Wilson once in the shoulder area. It did not hit any flesh. It went through his jacket.
(Declaration in Opp. to Def. Mot. for Summ. J. at Ex. A (Grand Jury Testimony of
Timothy C. Campbell) 11.21-12.05.) Special Agent Campbell, therefore, during the course of his carjacking investigation, interviewed Officer Donald. During that interview, Donald intimated he indeed fired his weapon and struck Wilson once in the shoulder area. Campbell relayed this statement to the grand jury. This grand jury testimony presents the court with double hearsay. See FED.R.EVID. 805 (defining double hearsay). One layer of hearsay is Officer Donald's out-of-court statement to Special Agent Campbell; the second layer is Campbell's out-of-court statement to the grand jury. The first layer (from Officer Donald to Campbell) is admissible as a party admission. See FED.R.EVID. 801(d)(2)(A). The City of Gary contests the admissibility of the second layer (Campbell to the grand jury).
In its reply, "Defendant contends that the grand jury testimony of Special Agent Campbell constitutes inadmissible hearsay." (Reply at 4.) The City of Gary is ostensibly urging the court to strike this testimony from the summary judgment record. As a result, the City maintains, Wilson has no evidence to corroborate his self-serving affidavit that Officer Donald discharged his weapon and the court should award the City summary judgment. This position is untenable. A summary judgment motion and a trial are different creatures. On summary judgment, the parties do not call witnesses to the stand in open court. Rather, the Federal Rules of Civil Procedure require the parties to create a record consisting of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any." FED.R.CIV.P. 56(c); accord Russell v. Acme-Evans Co., 51 F.3d 64, 67 (7th Cir. 1995) (requiring "materials of evidentiary quality"). The evidence at the summary judgment stage need not be presented in a form admissible at trial, for instance "affidavits are ordinarily not admissible evidence at a trial," but they are a pivotal part of nearly all summary judgment records. Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994.); accord Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986) ("We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment."). The underlying content of the evidence, however, must be admissible, for example a substitution of oral testimony for a summary of that testimony in an affidavit, would make the evidence admissible at trial. Id. Special Agent Campbell gave his testimony under oath to the grand jury. In accordance with summary judgment practice set forth in Celotex Corp. and embellished in Winskunas, the court must assume that Wilson will subpoena Campbell to testify at trial, and that he will provide testimony consistent with what appears in the transcript of the grand jury proceedings. The court may, therefore, properly consider the grand jury testimony in addressing this summary judgment motion, and it is sufficient to create a genuine issue of material fact.
Secondly, if the court were to adopt the City's view of evidence that is proper for consideration on summary judgment, the court would be forced to strike the City's own strongest evidence. The City of Gary offered in support of its own position, the opinion of a ballistics expert. Yet, that expert's opinion (and foundation therefor) was offered to the court in the form of a letter from the expert to the Deputy City Attorney, and attached to the City's motion as Exhibit 4. If the court buys into the City of Gary's theory on admissible evidence for summary judgment purposes, how can this document validly be considered on summary judgment, while at the same time precluding Wilson from using the aforementioned grand jury transcript? The answer is that the court does not buy into the City of Gary's theory of a summary judgment record. Rather, the court assumes the City's expert will testify to matters consistent with the contents of the letter attached as Exhibit 4 to the City's motion.
For the foregoing reasons, the court DENIES "Defendant's Motion for Summary Judgment." The parties shall appear for a telephonic Pretrial Conference presently scheduled for June 13, 2002, before Magistrate Judge Springmann.
SO ORDERED.