Davis v. McCormick
Filing
24
MEMORANDUM DECISION AND ORDER denying 16 Defendant's Motion for Summary Judgment. Plaintiff shall consult with Defendants counsel no later than 14 days after entry of this Order, to determine whether a judicial settlement conference should be set. If the parties agree, then Defendants counsel shall file a request for referral to a settlement conference. Plaintiff shall file a request for counsel, if so desired, within 30 days after entry of this Order. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
MICHAEL LANCE DAVIS,
Case No. 1:14-cv-00002-REB
Plaintiff,
MEMORANDUM DECISION AND
ORDER
v.
CHRISTOPHER McCORMICK,
Defendant.
Currently pending before the Court is Defendant Christopher McCormick’s Motion for
Summary Judgment (Dkt. 16). For the reasons that follow, the Court denies Defendant’s motion.
FACTUAL BACKGROUND1
On January 17, 2012, a briefing was presented by the Greater Idaho Fugitive Task Force
(“Task Force”), a coalition of federal, state and local law enforcement agencies whose mission is
to locate and arrest fugitives, to members of the Canyon County Sheriff’s Office, Special
Weapons and Tactics Team (“SWAT”) team. Two members of the SWAT team were Defendant
Officer Christopher McCormick (“Defendant” or “McCormick”) and Officer Charles Gentry.
During the briefing, the Task Force discussed an individual named Michael Lance Davis
(“Plaintiff” or “Davis”) who had an outstanding arrest warrant against him for charges of
attempted strangulation, aggravated battery, and minor drug offenses. Davis was living in
Nampa at the time. Davis was said to be attempting to purchase a handgun, had a toy gun which
1
The Court draws the majority of these facts from Defendant’s Statement of Facts.
Where Plaintiff has disputed a fact, that is noted.
Memorandum Decision and Order - 1
was painted to look real, and had told sources he was considering suicide by cop. It was also
reported that Davis might be high on methamphetamine.2 McCormick Aff. ¶¶ 1, 8; Gentry Aff.
¶¶1, 8, 9.
Following the briefing, on the same January 17, 2012 date, a plan to apprehend Davis
was put into place. First, a call was to be made into the residence where Davis was thought to be
living to have the other occupants exit the house. Once they were out, the SWAT team would
approach the house. Both Officer McCormick and Officer Gentry believed the situation could
become dangerous based on the information provided. McCormick Aff. ¶¶ 9, 10 12; Gentry Aff.
¶¶ 10-12. The officers were on their way to the residence when they heard via police radio that
Davis had left the residence and was running toward Skyview High School, located nearby in
Nampa. The officers ran to intercept Davis before he could get to the high school, where a
school function was then taking place. McCormick Aff. ¶¶ 13-16; Gentry Aff. ¶¶ 13-15.
Law enforcement chased and surrounded Davis and ordered him to get to the ground. He
did not obey. It was dark outside, but the area was indirectly illuminated by the nearby high
school.3 McCormick Aff. ¶¶ 17-18; Gentry Aff. ¶¶ 16, 18, 20, 23, 25; Kane Aff. Ex. 1A, p. 9.
McCormick says that Davis began to yell “shoot me, shoot me, f—king kill me” at law
enforcement. There was something shiny in Davis’s hand that appeared to McCormick and
Gentry to be a handgun.4 McCormick believed it to be a small Raven handgun. McCormick
2
Plaintiff disputes the truth of these statements. But whether these statements were in
fact true is not relevant to the Court’s inquiry. The fact that Defendant was informed of these
facts at the briefing goes to the reasonableness of his actions.
3
It is unclear from the facts how close to the school the incident took place.
4
Plaintiff takes issue with the photographs presented by Defendant of what Plaintiff’s
laser gun looked like and the photograph of the type of gun that Defendant believed Plaintiff to
Memorandum Decision and Order - 2
Aff. ¶¶ 18, 22-24; Gentry Aff. ¶ 22.
Davis denies yelling or saying anything to law enforcement. He states he never had
anything in his hand or pretended to have anything in his hand. Davis also claims he has a plate
in his right hand that doesn’t allow him to close his thumb and makes it difficult to hold anything
in that hand. Pl.’s Facts ¶ 5, 6, 27; Pl.’s Aff. at p. 3.
Officer Gentry discharged a taser on Davis. He says that Davis appeared to be unaffected
and pulled the probes out. Gentry Aff. ¶¶ 27, 29; McCormick Aff. ¶ 20. Davis disputes that he
pulled the probes out; instead, Davis says that the probes remained in his jacket. Pl.’s Facts ¶ 11.
See also J. Gregory Police Report (Dkt. 18-3) (two taser probes and wires were still attached to
the jacket after the incident).
According to the officers, Davis yelled at Gentry: “don’t f—ing tase me.” Davis then
began yelling “I’m going to kill you” and pointing a gun at the officers. Davis next yelled: “I’m
going to shoot you guys, 5, 4, 3 . . .” Davis then raised his hand toward McCormick with what
appeared (to McCormick) to be a silver handgun. McCormick then fired two shots at Davis, one
hitting Davis’s center mass. McCormick Aff. ¶ 25, 27; Gentry Aff. ¶¶ 29, 30, 32. Davis,
however, says he never made any threatening statements or threatening movements. He also
states that he had both hands up when he was shot and was not facing McCormick. Pl.’s Facts
¶¶ 5, 6, 12, 17, 18.
At the time Davis was shot, McCormick believed that he and other law enforcement
officers, as well as the public, were in imminent danger of being shot. McCormick Aff. ¶ 29.
be carrying. The Court notes that Plaintiff disputes the accuracy of these photographs but does
not find the dispute material to its decision on summary judgment.
Memorandum Decision and Order - 3
Gentry also believed Davis to be a threat to himself, other officers, and if he got into the school,
to the public. Gentry Aff. ¶¶ 31, 33.
An ambulance was called and Davis was transported to a local hospital, where he was
treated for the gunshot wound. McCormick Aff. ¶ 27. McCormick says that although an object
was recovered at the scene, no weapon was recovered. Id. at ¶ 28.
On January 19, 2012, Officers Gregory and Kershaw from the Caldwell Police
Department went to St. Alphonsus Medical Center in Boise to interview Davis about the
shooting.5 Both officers made reports of the interview. Kane Aff., Ex. 2, Ex. 3. Officer
Kershaw read Davis the Miranda warning before beginning the interview. At the beginning of
the interview, Davis said he had put himself in a bad situation by running when he “should have
taken care of [his] courts.” Id. Davis said he had a “little laser gun” but did not remember
pulling it out. Davis recalled officer telling him to “stop, stop” and “get down, get down” and
next remembered being in the ambulance. Id. According to the officers, Davis said that he
assumed he “pulled the gun on them,” and that he didn’t want to go back to prison so his plan
was to pull the gun if he was stopped and “I just wanted to die and that’s all I know.” Id. Davis
said he did not recall talking to the officers when he was in the hospital because he was
medicated and sedated. Pl.’s Facts ¶ 14.
On July 31, 2012, Plaintiff pleaded guilty to two counts of aggravated assault against law
enforcement for the incident that occurred on January 17, 2012. See Kane Aff., Ex. 4.
5
Both officers noted that Davis had bandages on his abdomen and an incision from his
sternum to lower abdomen, presumably from the gunshot wound. Id.
Memorandum Decision and Order - 4
STANDARDS
1.
Summary Judgment Standard
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of summary
judgment “is to isolate and dispose of factually unsupported claims . . .” Celotex Corp. v.
Cartrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural shortcut,” but is instead
the “principal tool[] by which factually insufficient claims or defenses [can] be isolated and
prevented from going to trial with the attendant unwarranted consumption of public and private
resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-28 (1986). There must be a genuine dispute
as to any material fact- a fact “that may affect the outcome of the case.” Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party, and
the Court must not make credibility findings. Id. at 255. Direct testimony of the non-movant
must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir.
1999). On the other hand, the Court is not required to adopt unreasonable inferences from
circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a genuine
dispute as to a material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en
banc). To carry this burden, the moving party need not introduce any affirmative evidence (such
as affidavits or deposition excerpts) but may simply point out the absence of evidence to support
Memorandum Decision and Order - 5
the nonmoving party’s case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir.
2000).
This shifts the burden to the non-moving party to produce evidence sufficient to support a
jury verdict in her favor. Devereaux, 263 F.3d at 1076. The non-moving party must go beyond
the pleadings and show “by her [] affidavits, or by the depositions, answers to interrogatories, or
admissions on file” that a genuine dispute of material fact exists. Celotex, 477 U.S. at 324.
2.
Qualified Immunity
Even if a plaintiff is able to show a violation of a constitutional right under § 1983, a
defendant may still be entitled to summary judgment on the basis of qualified immunity. The
doctrine of qualified immunity protects state officials from personal liability for on-the-job
conduct so long as the conduct is objectively reasonable and does not violate an inmate’s clearlyestablished federal rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Contrarily, a state
official may be held personally liable in a § 1983 action if he knew or should have known that he
was violating a plaintiff's clearly-established federal rights. Id. True to its dual purposes of
protecting state actors who act in good faith and redressing clear wrongs caused by state actors,
the qualified immunity standard “gives ample room for mistaken judgments by protecting all but
the plainly incompetent or those who knowingly violate the law.” Hunter v. Bryant, 502 U.S.
224, 227 (1991) (quotation omitted). Qualified immunity is a defense both to constitutional
claims and to statutory claims, such as claims under RLUIPA. See Lovelace v. Lee, 472 F.3d
174, 198-99 (9th Cir. 2006).
Memorandum Decision and Order - 6
A qualified immunity analysis consists of two prongs: (1) whether, “[t]aken in the light
most favorable to the party asserting the injury, . . . the facts alleged show the [defendant’s]
conduct violated a constitutional right” ; and (2) whether that right was clearly established.
Saucier v. Katz, 533 U.S. 194, 201 (2001), modified by Pearson v. Callahan, 555 U.S. 223, 129
S. Ct. 808 (2009). Addressing the two prongs of the test in this order is often beneficial, but it is
not mandatory. Courts may “exercise their sound discretion in deciding which of the two prongs
of the qualified immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.” Pearson, 129 S. Ct. at 818.
To determine whether the right was clearly established, a court turns to Supreme Court
and Ninth Circuit law existing at the time of the alleged act. Osolinski v. Kane, 92 F.3d 934, 936
(9th Cir. 1996). In the absence of binding precedent, the district courts should look to available
decisions of other circuits and district courts to ascertain whether the law is clearly established.
Id.
The inquiry of whether a right was clearly established “must be undertaken in light of
the specific context of the case, not as a broad general proposition.” Saucier, 533 U.S. at 201.
For the law to be clearly established, “[t]he contours of the right must be sufficiently clear that a
reasonable official would understand” that his conduct violates that right. Anderson v. Creighton,
483 U.S. 635, 640 (1987). It is not necessary that the “very action in question has previously
Memorandum Decision and Order - 7
been held unlawful,” but “in the light of pre-existing law the unlawfulness must be apparent” to
the official. Id. “The relevant, dispositive inquiry is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202
(citing Wilson v. Layne, 526 U.S. 603, 615 (1999)).
Application of qualified immunity is appropriate where “the law did not put the
[defendant] on notice that his conduct would be clearly unlawful.” Id. However, if there is a
genuine dispute as to the “facts and circumstances within an officer’s knowledge,” or “what the
officer and claimant did or failed to do,” summary judgment is inappropriate. Act Up!/Portland
v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993). When a § 1983 defendant makes a properly
supported motion for summary judgment based on qualified immunity, the plaintiff has the
obligation to produce evidence of his own; the district court cannot simply assume the truth of
the challenged factual allegations in the complaint. Butler v. San Diego Dist. Attorney’s Office,
370 F.3d 956, 963 (9th Cir. 2004).
DISCUSSION
1.
Excessive Force
Plaintiff Davis alleges that during an altercation with police on January 17, 2012, he was
shot twice in the abdomen by Defendant McCormick, an officer with the Canyon County
Sheriff’s Office. Plaintiff claims that before he was shot, he had lowered his hands to his sides
Memorandum Decision and Order - 8
and was not a threat to Defendant or the other officers around him. Defendant McCormick
moves for summary judgment contending that his actions did not violate Plaintiff’s Fourth
Amendment protections because he used reasonable force considering the totality of the
circumstances. Defendant also contends he is entitled to qualified immunity.
“Fourth Amendment jurisprudence has long recognized that the right to make an arrest ...
necessarily carries with it the right to use some degree of physical coercion or threat thereof to
effect it.” Graham v. Connor, 490 U.S. 386, 396 (1989). Officers are not required to use the
least intrusive means available; they simply must act within the range of reasonable conduct.
Brooks v. City of Seattle, 599 F.3d 1018, 1025 (9th Cir. 2010). To comport with the Fourth
Amendment, officers’ actions must be “objectively reasonable in light of the facts and
circumstances confronting them.” Graham, 490 U.S. at 397. This inquiry requires a careful
balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment
interests against the countervailing governmental interests at stake.” Id. at 396. It necessitates
consideration of all the relevant circumstances, including: “(1) the severity of the crime at issue;
(2) whether the suspect poses an immediate threat to the safety of officers or others; and (3)
whether the suspect actively resists detention or attempts to escape.” Liston v. County of
Riverside, 120 F.3d 965, 976 (9th Cir. 1997) (citing Graham, 490 U.S. at 388). “[T]he jury must
determine not only whether the officers were justified in using force at all, but, if so, whether the
Memorandum Decision and Order - 9
degree of force actually used was reasonable.” Santos v. Gate, 287 F.3d 846, 854 (9th Cir.
2002).
The “most important” factor under Graham is whether the suspect posed an “immediate
threat to the safety of the officers or others.” Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir.
2005). “‘A simple statement by an officer that he fears for his safety of the safety [of] others is
not enough; there must be objective factors to justify such a concern.’” Bryan, 630 F.3d at 826.
“A desire to resolve quickly a potentially dangerous situation is not the type of governmental
interest that, standing alone, justifies the use of force that may cause serious injury.” Id.
Whether an officer used excessive force under the Fourth Amendment is a question for
the jury, which “almost always turn[s] on a jury’s credibility determinations.” Smith, 394 F.3d at
701. “Because such balancing nearly always requires a jury to sift through disputed factual
contentions, and to draw inferences therefrom, [the Ninth Circuit has] held on many occasions
that summary judgment or judgment as a matter of law in excessive force cases should be
granted sparingly.” Santos, 287 F.3d at 853.
A police officer may not use deadly force “unless it is necessary to prevent escape and
the officer has probable cause to believe that the suspect poses a significant threat of death or
serious physical injury to the officer or others.” Tennessee v. Garner, 471 U.S. 1, 3 (1985); see
also Graham, 490 U.S. at 396 (holding the most important factor in determining reasonableness
Memorandum Decision and Order - 10
is “whether the suspect poses an immediate threat to the safety of the officers or others”). Thus,
when a suspect threatens an officer with a gun or knife, the officer is typically justified in using
excessive force. Smith 394 F.3d at 704. Situations in which courts have held that the use of
deadly force was reasonable involve facts where there was no dispute that the suspect not only
possessed a deadly weapon, but also actively used that weapon against officer. In Wilkinson v.
Torres, 610F.3d 546, 549 (9th Cir. 2010), the suspect attempted to hit officers with a vehicle. In
Billington v. Smith, 292 F.3d 1177, 1181-82 (9th Cir. 2002), the suspect violently attacked the
officer and sought to turn the officer’s own weapon against him, even when the officer attempted
to retreat. In Reynolds v. Cnty. of San Diego, 84 F.3d 1162, 1168 (9th Cir. 1996), the suspect
suddenly swung at the officer with a knife when the officer was in the process of physically
subduing the suspect.
There are undisputed facts in Defendant’s favor. It is undisputed that Davis was
convicted of two counts of aggravated assault upon a law enforcement officer. Davis pleaded
guilty to violating Idaho Code §§ 18-915 (assault upon a law enforcement officer), 18-901(b)
(“intentional, unlawful threat by word or act to do violence to the person of another, coupled
with apparent ability to do so, and doing some act which creates a well-founded fear in such
other person that violence is imminent”) and 18-905(a) (assault with a “deadly weapon or
instrument with intent to kill”). It is undisputed that Defendant and other officers at the task
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force briefing were told that Davis was trying to obtain a gun and was contemplating suicide by
cop. Davis has admitted that he ran from the police, that he heard the officers yell “get down”
and that he did not comply. He also admits he had a “laser gun/pointer”6 on his person.
Indeed, if Defendant’s versions of the facts are true and Plaintiff was holding something
that appeared to be a gun to the officers (even if was not in fact a gun) and stated “I’m going to
kill you . . . 5, 4, 3,” then the use of deadly force would be objectively reasonable and Plaintiff’s
excessive force claim would fail. See George v. Morris, 736 F.3d 829, 839 (9th Cir. 2013)
(“When an individual points his gun ‘in the officers’ direction,’ the Constitution undoubtedly
entitles the officer to respond with deadly force.”) (citations omitted).
Despite these undisputed facts, there are genuine issue of material facts that preclude
summary judgment for McCormick on Davis’s excessive force claim. Davis denies saying
anything threatening to the officers. He denies that he had the laser gun in his hand. He also
states his hands were up when he was shot. While these statements might be at odds with his
conviction, and to an extent with what he said in his statement (which he says he cannot
remember) to police on January 19, 2012, the fact of his conviction does not foreclose his
excessive force claim and his version of the facts. See, e.g., Davis v. Clark, 2010 WL 679037,
*7 (D. Idaho Feb. 23, 2010) (finding that plaintiff’s guilty plea to aggravated assault was not
6
The parties differ in their description of this object.
Memorandum Decision and Order - 12
inconsistent with his claim of excessive force used by law enforcement defendants). In the
summary judgment context, the Court must look at the version of the events most favorable to
Plaintiff as the nonmoving party. Anderson, 477 U.S. at 255. Construing the facts in favor of
Davis, a trier of fact could find that McCormick responded with excessive force to any threat
raised by Davis’s actions. The evidence does not undisputably show that Davis posed an
immediate danger. Determining whether Davis in fact posed a risk to the officers or others
justifying the response made is a fact intensive inquiry that requires a weighing of the facts and
reasonable inferences therefrom. This is precisely the type of inquiry reserved for the trier of
fact.
2.
Qualified Immunity
“For purposes of qualified immunity, [the court must] resolve all factual disputes in favor
of the party asserting the injury.” Ellins v. City of Sierra Madre, 710 F.3d 1049, 1064 (9th Cir.
2013). Here, there are numerous factual disputes that prevent the Court from meaningfully
characterizing the right at issue in this case. For example, if the jury finds that Plaintiff did not
make any threatening statements and was not holding an object that resembled a gun, then the
use of a firearm upon Davis by Defendant McCormick must be considered in light of those
circumstances. The jury must also decide whether a reasonable officer would have believed
Plaintiff posed a threat to the officers or public, after considering the disputed facts that are
Memorandum Decision and Order - 13
relevant to that question. At this stage, the disputes must be resolved in Plaintiff’s favor.
Because Plaintiff has established a genuine issue of material fact on his excessive force claim,
those same genuine issues of material fact preclude the Court from granting summary judgment
on the basis of qualified immunity. Plaintiff is reminded, however, that establishing a genuine
issue of material fact is not a guarantee of success at trial. In this setting, this decision simply
means that his claim will not be dismissed at this stage – Plaintiff still will have the burden of
proving his claim at trial.
ALTERNATIVE DISPUTE RESOLUTION
This case is now positioned to be set for trial. Plaintiff shall consult with Defendant’s
counsel no later than 14 days after entry of this Order, to determine whether Plaintiff and
Defendant are willing to attend a judicial settlement conference with a United States Magistrate
Judge to attempt to settle the issues remaining for trial. If so, Defendant’s counsel shall file a
request for referral to a settlement conference. Otherwise, this case will be set for a jury trial.
APPOINTMENT OF COUNSEL
If Plaintiff wishes to have pro bono counsel appointed, either to represent him at
trial or at the settlement conference, or to have counsel in “stand-by” capacity, he shall file a
request with the Court within 30 days after entry of this Order. The pro bono coordinator and
Memorandum Decision and Order - 14
liaison will then attempt to find counsel willing to represent Plaintiff in a pro bono or other
capacity. There is no guarantee that counsel can be found to represent Plaintiff.
ORDER
IT IS HEREBY ORDERED:
1)
Defendants’ Motion for Summary Judgment (Dkt. 16) is DENIED.
2)
Plaintiff shall consult with Defendants’ counsel no later than 14 days after entry
of this Order, to determine whether a judicial settlement conference should be set.
If the parties agree, then Defendants’ counsel shall file a request for referral to a
settlement conference.
3)
Plaintiff shall file a request for counsel, if so desired, within 30 days after
entry of this Order.
4)
Consistent with what transpires as a result of the details described above, the
Court will consider entering an order setting trial, with an accompanying pretrial
order.
September 28, 2015
Memorandum Decision and Order - 15
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