Opinion
Case No. 2:97 CV 0651
August 2, 2000.
MEMORANDUM AND ORDER
This matter is before the court on Defendant M.D. Saloon's Motion for Partial Summary Judgment and Defendants Michael Julian and Salt Lake County's Motion for Summary Judgment. A hearing was held in this matter on Friday, July 21, 2000. The Plaintiff was represented by Mr. Kent Linebaugh. The Defendant M.D. Saloon, Inc. was represented by Mr. Phillip W. Dyer. Defendants Michael Julian and Salt Lake County were represented by Mr. J. Mark Ward. Oral argument was heard and the matter was taken under advisement. The court has considered all pleadings, memoranda, and other materials submitted by the parties. The court has further considered the law and facts relevant to the parties' motions. Now being fully advised, the court enters the following memorandum and order.
I. Background
Plaintiff's claims arise out of injuries sustained during an armed robbery at the M.D. Saloon (the "Saloon"). At approximately 2:00 a.m. on September 24, 1995, two men (the "Clowns"), dressed in clown suits and masks, rang the door bell of the delivery door at the Saloon. A bartender at the Saloon, believing that the Clowns had come to pick up an employee of the Saloon, granted the Clowns access. After the Clowns entered the Saloon, it became apparent that the Clowns had not come to pick up an employee and Saloon security tried to escort the Clowns back outside. As security was attempting to escort the Clowns out of the Saloon, the Clowns drew weapons and stated their intent to rob the establishment. The Clowns gathered the employees and patrons together and instructed a woman to tie everyone up. The Clowns instructed the hostages not to attempt to resist or prevent the robbery.
During the course of the robbery, the Clowns learned that Salt Lake County Sheriff's Officers were outside the Saloon. One of the Clowns disappeared from the view of the hostages while the remaining Clown proceeded towards a door that led to the outside. As the remaining Clown opened the door, Plaintiff tackled the Clown, forcing himself and the Clown outside, where Defendant Julian and the other suspect Clown were exchanging gun fire. During the struggle with the Clown, Plaintiff was struck by a bullet in the buttocks. Plaintiff has brought claims against the Saloon under a theory of negligence and against Julian and Salt Lake County under § 1983, alleging a violation of Plaintiff's Fourth and Fourteenth Amendment rights, and under state tort liability.
II. Discussion M.D. Saloon's Motion for Summary Judgment
M.D. Saloon has moved for partial summary judgment regarding Count V of Plaintiff's complaint against the Saloon. This is the final count remaining against the Saloon. Plaintiff argues that the Saloon owed Plaintiff a duty of care and the Saloon breached that duty by admitting the Clowns access to the establishment. The Saloon argues that it did not have a duty to protect Plaintiff from the type of harm which resulted in Plaintiff's injuries, and therefore cannot be held liable under a negligence standard.
In Dwiggins v. Morgan Jewelers, 811 P.2d 182 (Utah 1991), the Utah Supreme Court held that a plaintiff who was injured while shopping when the defendant Morgan Jewelers' (the "Jewelers") store was robbed, was not owed a duty of care by the defendant. The Court held that the Jewelers had only been robbed once during the previous five years and therefore could not have foreseen either the harm or injury. Accordingly, the court held that the defendant owed no duty of care for harms unforeseen. In the instant case, the Saloon had never been robbed prior to the night in question and therefore the harm that resulted in injury to the Plaintiff was clearly not foreseeable.
Plaintiff argues, however, that the Dwiggins holding represents more than that the defendant owed the plaintiff no duty of care because there had not been previous robberies. Plaintiff argues that the Dwiggins holding instructs this court to consider other elements in determining whether or not a duty of care exists such as the crime rate in the community, the extent of criminal activity at the type of business in question, the presence of suspicious people in the area, and frequent security problems at the place of business. Plaintiff, however, offers no evidence with respects to those elements, in arguing that the Saloon owed Plaintiff a duty of care. For example, Plaintiff claims "there is documented evidence" that sexually oriented businesses cause increased crime in the area, and are robbed at a higher rate than other businesses. Plaintiff, however, does not provide this documentation. Furthermore, Plaintiff offers no evidence that there was anything relating to the Saloon's business in particular that would have caused the Saloon to be overly suspicious or cautious.
Plaintiff also alleges that county ordinances regulating the Saloon's operating hours create a duty between the Saloon and the Plaintiff. In previous orders relating to this case, however, this court has held that "[e]ven assuming that violations of county ordinances occurred, plaintiff has failed to demonstrate that the requirements of these ordinances establish a tort duty to a person, allowed to remain on the premises in violation of the ordinances, who is shot by the police while both the police and the person injured are attempting to subdue an armed robber." Furthermore, Plaintiff appears to be outside the boundaries of the focus of the ordinance. The ordinance regulates the presence of customers. Plaintiff, on the other hand, was not a customer at the time of the robbery, but was present to pick up an employee.
Plaintiff's Motion to Strike is granted in part and denied in part. First, Plaintiff has moved to strike the last sentence of paragraph 12 of M.D. Saloon's brief in support of its Motion for Summary Judgment. In paragraph 12 defendant states that at no time during the depositions of the clowns did Plaintiff ask whether or not M.D. Saloon could have done anything to stop the robbery. Although the absence of this sentence will have no bearing on the court's decision, this sentence is stricken from the record. Second, Plaintiff moves this court to strike paragraph 19 of M. D. Saloon's brief. This motion is denied. Paragraph 19 simple sets forth previous rulings from this court.
Defendants Michael Julian and Salt Lake County's Motion for Summary Judgment
Plaintiff has argued that by shooting Plaintiff, Defendants Michael Julian (Julian) and Salt Lake County (the "County") are liable under § 1983 for violations of Plaintiff's Fourth and Fourteenth Amendment rights, and under state tort liability laws. Defendants, on the other hand, argue that Julian is afforded qualified immunity and therefore is not liable for the shooting because Julian's actions did not violate clearly established law and consequently did not violate Plaintiff's constitutional rights.
When determining whether or not a defendant has a claim of qualified immunity from liability, the court must determine "whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, determine whether that right was clearly established at the time of the alleged violation." Wilson v. Layne, 143 L.Ed.2d 818, 827 (1999).
The Fourth Amendment guarantees, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In addition, the Supreme Court has held that in instances where an "excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment." Graham v. Connor, 490 U.S. 386, 394 (1989).
Stopping a free citizen is not always a violation of the Fourth Amendment however. "A Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only where there is a governmental termination of freedom of movement through means intentionally applied." Brower, v. County of Inyo, 109 S.Ct. 1378, 1381 (1989).
Defendants argue that Julian's accidental shooting of Plaintiff did not constitute a "seizure" within the meaning of the Fourth Amendment. Defendants argue that an accidental shooting, while perhaps negligent, can never "rise to the level of `a governmental termination of freedom of movement through means intentionally applied.'" See Landol-Rivera v. Cruz Cosme, 906 F.2d 791 (1st Cir. 1990) (hostage accidently shot and injured by police attempting to stop armed robber); Shaefer v. Goch, 153 F.3d 793 (7th Cir. 1998) (wife of gunman, taken hostage by her husband, accidently killed as police shot at gunman); Rucherk v. Harford County, 946 F.2d 279, 279-80 (4th Cir. 1991) (police shot innocent bystander in an attempt to stop a crazed driver. Plaintiff proceeded on theory that although police did not intend to shoot bystander, police intentionally shot gun.)
Plaintiff argues, however, that both the Supreme Court in Brower and lower courts since, have "drawn a distinction between two seemingly similar situation. The first involves a situation where a police officer intends to shoot at a suspect, but misses, hitting an innocent bystander instead." Id. Under these circumstances, Plaintiff argues that no seizure under the Fourth Amendment has occurred.
The second instance involves a situation where a police office shoots at and hits an individual "mistakenly believed to be the suspect." In this instance where the person shot is the intended (although mistaken) target, Plaintiff argues that a seizure within the meaning of the Fourth Amendment has occurred. Id. See also Brower, 489 U.S. at 596 (a seizure occurs even when an unintended person or thing is the object of the detention or taking); Vathenkan v. Prince George's County, 154 F.3d 173, 178-79 (4th Cir. 1998) (seizure occurred within the meaning of the Fourth Amendment when an officer sent his attack dog after the plaintiff, thinking the plaintiff was an intruder); Jensen v. City of Oxnard, 145 F.3d 1078, 1083 (9th Cir.) (seizure within the meaning of the Fourth Amendment occurred when an officer shot at a man whom he though was an armed criminal but who was in fact a fellow officer).
Plaintiff argues that had Julian shot at the armed robber and mistakenly hit Plaintiff, Plaintiff would not have been seized within the meaning of the Fourth Amendment. Plaintiff claims, however, that Plaintiff, not the armed robber, was the intended target. Plaintiff maintains that regardless of whether or not Julian believed Plaintiff to be the suspect, Julian intended to shoot Plaintiff and therefore Plaintiff was seized within the meaning of the Fourth Amendment. See Landol-Rivera, 906 F.2d at 796 (when officers mistakenly shoot at an innocent victim thinking that he is the suspect they are pursuing, the seizure is intended even though the target is not).
Because the court determines, based on the record, that Plaintiff was not Julian's intended target, this court finds that Plaintiff was not seized within the meaning of the Fourth Amendment. In addition, because Plaintiff was not seized within the meaning of the Fourth Amendment, Plaintiff cannot allege a violation of his Fourteenth Amendment rights. This court does not, therefore, proceed with any Fourteenth Amendment analysis.
A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure should be granted when the "pleadings, depositions, and affidavits on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Federal Rule of Civil Procedure 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed.2d 202, 106 S. Ct. 2505 (1986). Before a court can rule on a party's motion for summary judgment, the moving party must satisfy its burden of production. Davis v. Utah State Tax Commission, 2000 U.S. Dist. Lexis 6851 (May 8, 2000). This burden can be met either by putting evidence into the record which affirmatively disproves an element of the non-moving party's case, or by directing the court's attention to the fact that the non-moving party lacks evidence on an element of its claim, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 91 L. Ed.2d 265, 106 S. Ct. 2548 (1986).
Once the moving party has met its burden of production, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed.2d 538, 106 S. Ct. 1348 (1986). The non-moving party must provide specific facts showing a genuine issue for trial. In addition, mere allegations and references to the pleadings are not sufficient. Id.
Plaintiff's theory that Julian intentionally and deliberately shot at and hit Plaintiff, as opposed to shooting at the Clown and accidentally hitting Plaintiff, is not found in the original complaint, and appears for the first time in Plaintiff's Reply to Defendants' Motion for Summary Judgment. Even if Plaintiff were to amend his complaint to allege specifically that Julian shot, although mistakenly, at Plaintiff as opposed to the Clown, the record is completely devoid of any facts or other evidence that might support such an allegation. The only evidence on record concerning who Julian intended to shoot comes from Julian's own testimony during the County's investigation of the incident, and in depositions in preparation for this case. On both examination and cross-examination, Julian testified that he knew the suspicious activity involved one or more individuals wearing clown costumes. Julian testified that while engaged in a gun fight with an individual wearing a clown costume, another clown stumbled out the Saloon doors, followed by other individuals who Julian believed to be "civilians." See Exhibit 6 to Plaintiff's Opposition Memorandum. In addition, Julian gave testimony that after returning fire, he witnessed the Clown stumble and believed he might have hit the suspect.
Testimony from Julian offered by Plaintiff in his Opposition to Defendants' Motion for Summary Judgment seems also to support Defendants' claim that Julian intentionally shot at the Clown, rather than at Plaintiff. In Plaintiff's Opposition to Defendants Motion for Summary Judgment, Plaintiff cites testimony from Julian in which Julian states that he had a clear view of the suspect, that the suspect had separated from others in the group before Julian fired, and that the suspect was facing Julian when he decided to shoot. In light of the fact that the Plaintiff was shot in the buttocks, it seems evident that the individual facing Julian was the clown and not Plaintiff.
Furthermore, Plaintiff's own expert witness testified, both while being deposed for testimony in this case and while providing testimony in a related suit involving Plaintiff and an insurance company, that in his expert opinion, the shooting of Plaintiff was an accident, and that there is no evidence that Julian intended to hurt Plaintiff. In fact, Plaintiff's whole case in that related trial rested on the fact that Plaintiff's injuries were the result of an accident and not the result of an intentional act. See Defendants' Reply to Plaintiffs Opposition Memorandum Exhibit "B".
Julian's testimony is uncontradicted and undisputed. The Supreme Court held in Chesapeake O.Ry. Co v. Martin, 283 U.S. 209 (1931) that "[w]here . . . the evidence of a party to the action is not contradicted by direct evidence, nor by any legitimate inferences from the evidence, and it is not opposed to the probabilities, nor, in its nature, surprising or suspicious, there is no reason for denying its conclusiveness." In addition, the Tenth Circuit has held that, "[w]hen controlling, positive, and uncontradicted evidence is introduced, and when it is unimpeached by cross-examination or otherwise, is not inherently improper, and no circumstance reflected on the record casts doubt on its verity, then under the principles laid down in Chesapeake Ohio Ry. V. Martin [citations and footnote omitted], it may not be disregarded, even though adduced from interested witnesses, and no question of credibility or issue of fact is presented for determination by the jury." 204 F.2d 200 at 202(10th Cir. 1953). See also Madeirense Do Brasil S/A v. Stulman-Emrick Lumber Co., 142 F.2d 399, 405 (2d Cir. 1945) (Summary judgment based on undisputed testimony likened to directed verdict based on a written record of uncontradicted proof); U.S. v. Louisiana, 9 F.3d 1159, 1168 (5th Cir. 1993) (If there is no controversy about material facts, evidence gained at hearing may support a summary judgment motion when the testimony is undisputed). The evidence on record clearly shows that Julian intended to shoot the armed robber and not Plaintiff.
Both Plaintiff and Defendants are in agreement that at the time of the shooting, the law clearly established by the Supreme Court and this circuit was that an individual who was not the intended target of police action could not bring a claim for injuries resulting from that action under either the Fourth or Fourteenth Amendment. In light of this undisputed evidence, therefore, Plaintiff cannot win on his Fourth Amendment claims under § 1983. Furthermore, Plaintiff is also effectively denied recover under the Fourteenth amendment because Plaintiff must be the intended target in order for the officer's conduct to "shock the conscience" of the court.
In addition to the alleged violations of Plaintiff Fourth and Fourteenth Amendment rights, Plaintiff also alleges injures under state tort liability arising from an alleged failure on the part of the County to properly train Julian.
In order to establish a failure to train claim, plaintiff is required to prove (1) that the officer's actions exceeded the constitutional limitations on the use of force; (2) the use of force arose under circumstances that constitute a usual and recurring situation with which police offers must deal; (3) the inadequate training demonstrates a deliberate indifference on the part of the city towards persons with whom the police officers come into contact; and (4) there is a direct causal link between the constitutional deprivation and inadequate training.
Plaintiff's injury did not constitute a seizure under the Fourth Amendment, nor therefore was Julian's conduct shocking to the conscience under the Fourteenth Amendment. As such, Julian's actions did not exceed the constitutional limitations on the use of force and Plaintiff's argument fails. In addition, although Plaintiff argues that the need for an officer to decide whether or not to fire his weapon is a situation that is both usual and recurring in Salt Lake County, the record indicates that there have only been four incidences in the past 5 years involving such a situation. Such an occurrence is too infrequent to gives rise to the level of "usual" and "recurring."
Finally, Plaintiff argues that Julian and Salt Lake City are not protected under the Utah Governmental Immunity Act. U.C.A. § 63-30-3(1) provides governmental entities immunity from suit for any injuries which result from the exercise of a governmental function. While Plaintiff is correct that negligent acts generally are not protected by the Act, "injuries arising out of, in connection with, or result[ing] from an . . . assault [or] battery" are still protected.
The Utah Supreme Court has consistently held that an analysis of governmental immunity in cases such as the instant case should focus on whether or not the injury arose out of an assault or battery rather than focusing on the theory of liability proposed by the plaintiff. See Ledfors. V. Emery County School District, 849 P.2d 1162 (Utah 1993) (if the injury arose out of conduct or a situation described in one of the subparts of § 63-30-10 then immunity is preserved); S.H. v. State, 865 P.2d 1363 (Utah 1993); Higgins v. Salt Lake County, 855 P.2d 231 (Utah 1993); Peterson v. Board of Education of Davis County School District, 855 P.2d 241 (Utah 1993). In addition, the Supreme Court has held that the phrase "arising out of" should be interpreted broadly so that immunity is "strictly applied to preserve sovereign immunity." Taylor v. Ogden City School District, 927 P.2d 159 (Utah 1996).
At the hearing, counsel for Plaintiff conceded that the chain of events leading up to the injuries to Plaintiff started with an assault and/or battery by the Clowns against Plaintiff and the other individuals in the Saloon. At the very least, the shots fired at Julian which precipitated his return fire constituted an assault and a battery. Under Utah law, therefore, the injuries to Plaintiff arose out of an assault and/or battery and both Julian and the County are afforded governmental immunity.
III. Conclusion
There is no evidence on the record that would suggest Julian mistakenly shot Plaintiff believing Plaintiff to be the suspected robber. Julian's testimony, which is uncontroverted, clearly demonstrates Julian knew the Clowns were the suspects in question. Accordingly, Plaintiff cannot recover on his § 1983 claims or under state tort liability theories. Furthermore, because the injuries to Plaintiff arose from at least one assault or battery, both Julian and the County are protected by Utah's Governmental Immunity Act. Therefore it is hereby
ORDERED that Defendant M.D. Saloon's Motion for Partial Summary Judgment is GRANTED. It is further ORDERED that Defendants Michael Julian and Salt Lake County's Motion for Summary Judgment is GRANTED. The case against Defendants M.D. Saloon, Michael Julian, and Salt Lake County are DISMISSED with prejudice in their entirety. Each party is to bear its own costs.