barmore v. City Of Rockford et al

Filing 284

WRITTEN Opinion entered by the Honorable Philip G. Reinhard on 10/2/2013: For the reasons stated below, all defendants' motions for summary judgment are denied. The court did not consider the opinions of Andrew Scott, Independent Assessmen t and Monitoring or Michael Graham in deciding the motion for summary judgment. Defendants' motion 246 to exclude these opinions is denied as moot. Plaintiff's motion to strike certain defense affidavits 232 is denied. Plaintiff's motion to supplement her LR56.1 additional facts 241 is denied. Plaintiff's motion to supplement the record 251 with a copy of a state appellate court order is denied. Defendant Poole's motion 279 to join Defendant North's motion to supplement the record 277 is granted. The motion 277 to supplement defendants' joint rule 56.1 statement of material facts to reflect the findings of the United States Department of Justice, Civil Rights Division is denied as those findings are irrelevant to the determination of the summary judgment motion. (See Statement) Electronic notice(jat, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Maryann Barmore, as Special Administrator
for the Estate of Mark A. Barmore,
Plaintiff,
vs.
City of Rockford, et al.,
Defendants.

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Case No. 09 C 50236

Judge Philip G. Reinhard

ORDER
For the reasons stated below, all defendants’ motions for summary judgment are denied.
The court did not consider the opinions of Andrew Scott, Independent Assessment and
Monitoring or Michael Graham in deciding the motion for summary judgment. Defendants’
motion [246] to exclude these opinions is denied as moot. Plaintiff’s motion to strike certain
defense affidavits [232] is denied. Plaintiff’s motion to supplement her LR56.1 additional facts
[241] is denied. Plaintiff’s motion to supplement the record [251] with a copy of a state
appellate court order is denied. Defendant Poole’s motion [279] to join Defendant North’s
motion to supplement the record [277] is granted. The motion [277] to supplement defendants’
joint rule 56.1 statement of material facts to reflect the findings of the United States Department
of Justice, Civil Rights Division is denied as those findings are irrelevant to the determination of
the summary judgment motion.

STATEMENT - OPINION
Plaintiff, Maryann Barmore, special administrator of the Estate of Mark A. Barmore
(“Barmore”), deceased, brought this action in state court against defendants, City of Rockford
(“City”), and two of the City’s police officers, Stanton North and Oda Poole. North and Poole
shot decedent in the course of attempting to apprehend him and he died as a result of this
shooting. Plaintiff alleges federal claims for excessive force and state claims for wrongful death
against all defendants. Apprehension by the use of deadly force is a seizure subject to the
reasonableness requirement of the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1, 7
(1985). Defendants removed to this court based on plaintiff’s Fourth Amendment excessive

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force claim. Jurisdiction is proper. 42 U.S.C. § 1983; 28 U.S.C. § 1367(a). The individual
defendants each move for summary judgment.1
On August 24, 2009, the police were looking for Barmore in connection with an
altercation with a woman that involved a knife. An existing arrest warrant for Barmore had a
caution on it that he was to be considered armed and dangerous. At approximately 12:15 p.m.,
North and Poole were assigned to look for him. Shortly thereafter, they spotted him in front of
the Kingdom Authority International Ministries Church (“Church”) as they were driving past.
They turned their squadrol van around and returned to where they had seen him. Barmore had
been talking to some people on the street in front of the church when the officers went past.
Before the officers returned, Barmore ran into the Church. While the Church doors were
normally locked, Barmore was able to enter by catching a door before it closed behind Sheila
Brown (“Sheila”) and Marissa Brown (“Marissa”). The Church also housed a daycare center
where Sheila and Marissa worked. Sheila immediately asked Barmore what he was doing and
told him he could not be in there. Poole approached the Church, Sheila let him in, and he
followed Barmore down a hallway. A child in the hallway told Poole Barmore had gone
downstairs. Sheila then said the children were down there. North arrived in the building and he
and Poole descended the stairs to the basement. Sheila and Marissa also went downstairs.
In the basement, one of the children indicated to the officers that Barmore had gone into
the boiler room. The boiler room door was inside the daycare room in the basement. Poole and
North entered the daycare room and Marissa stepped inside the room behind them. The officers
kicked the boiler room door and it opened a bit. They repeatedly ordered Barmore to come out of
the boiler room. Marissa saw Barmore exit the boiler room with his hands up and his head
down. She never saw Barmore grab an officer’s gun. She did not see any weapon or object in
his hands. Marissa testified in her deposition that Barmore came out about a step beyond the
boiler room door with his hands up when the first shot was fired. Barmore fell against a sink
then pushed himself back up. His hands were still up. Another shot was fired and then another
shot was fired but at this point Barmore was no longer standing.
Alex Hunter testified in his deposition that he was standing beside Marissa looking at the
officers as they were pointing their guns at the boiler room door. He was able to observe both
officers and their guns up until the firing of the first shot.2 He did not see Barmore grab an
officer’s gun or observe a struggle.

1

The City does not file any briefs or raise any arguments in its own defense but adopts
the briefs and arguments of North and Poole. Therefore, the City’s fate on summary judgment is
tied exclusively to the fates of North and Poole.
2

Hunter testified that he could see the officers and their guns all the way up to the firing
of the first shot and that he never saw anyone grab Poole’s gun or see Poole struggle with
anyone. However, he also later answered “No” to the question: “If someone grabbed the gun
prior to the first gunshot being fired, you were in a position to see that, correct?”
2

Defendants’ version of the facts of the shooting are much different from the version told
by Marissa Brown and Alex Hunter. North testified Barmore exited the boiler room and lunged
at Poole grabbing the barrel of Poole’s firearm first with his left hand, then with both hands.
Poole’s gun was pushed back toward Poole’s face. Poole was able to redirect the gun back
toward Barmore’s head/neck area at which time North heard the weapon discharge. Poole and
Barmore were both still standing at this time.
Poole testified Barmore grabbed the barrel of Poole’s handgun and pushed the firearm in
Poole’s direction. Poole pushed the weapon back into a position where he believed the round
would strike Barmore and pulled the trigger. The round struck Barmore in the neck. They
continued to struggle for the weapon and North then fired several times. Poole testified that as
the rounds began to take effect on Barmore, Poole was able to pull his gun away from Barmore,
who then fell to the floor.
“[T]here can be no question that apprehension by the use of deadly force is a seizure
subject to the reasonableness requirement of the Fourth Amendment.” Garner, 471 U.S. at 7.
“Where the officer has probable cause to believe that the suspect poses a threat of serious
physical harm, either to the officer or to others it is not constitutionally unreasonable” for the
officer to use deadly force to apprehend the suspect. Id. at 11. However, “shooting a disarmed
and passive suspect is a clear example of excessive force in violation of the fourth amendment.”
Dye v. Wargo, 253 F.3d 296, 298 (7th Cir. 2001).
On summary judgment, the court construes all facts and draws all inferences in the light
most favorable to the non-moving party. Schepers v. Commissioner, Indiana Dept. of
Corrections, 691 F.3d 909, 913 (7th Cir. 2012). The court does not weigh evidence or determine
the credibility of witnesses’ testimony. O’Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th
Cir. 2011). “The court shall grant summary judgment if the movant shows that 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).
The above recited facts show there is a dispute as to a material fact. The evidence is
conflicting. Did Barmore grab Poole’s weapon (thus posing a threat of serious physical harm to
the officers) and get shot during the struggle for it? Or, did he, in compliance with the officers’
commands, walk out of the boiler room, with his hands up (an unarmed passive suspect), and get
shot by the officers while he was standing there in a hands-up position? Defendants
acknowledge this dispute but contend it is not a genuine dispute because plaintiff’s evidence is
blatantly contradicted by undisputed physical and forensic evidence and plaintiff’s witnesses’
testimony is contradicted by their own prior statements and by each other’s testimony.
Whether the deposition testimony of a witness conflicts with the statement given by that
witness to police after the incident and whether a witness’s account of an event differs from
another witness’s account goes to the credibility of the witness. These are matters to be probed
on cross examination and by impeachment evidence at trial. The court cannot weigh this
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evidence or assess the credibility of these witnesses at the summary judgment stage. O’Leary,
657 F.3d at 630.
Defendants also argue that the physical and forensic evidence blatantly contradict the
deposition testimony offered by plaintiff to support the excessive force claim. Defendants
contend Scott v. Harris, 550 U.S. 372 (2007) entitles them to summary judgment. The Supreme
Court stated in Scott that “[w]hen opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott,
550 U.S. at 380. In Scott, the parties told two different stories concerning “whether [the
plaintiff] was driving in such a fashion as to endanger human life.” Id. The plaintiff maintained
his driving posed no such danger while defendant maintained the plaintiff’s driving did pose such
a danger. The record contained a videotape of the driving in question which showed the
plaintiff’s “vehicle racing down narrow, two-lane roads in the dead of night at speeds that are
shockingly fast.” Id. at 379. The videotape showed the plaintiff’s car “swerve around more than
a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to
their respective shoulders to avoid being hit.” Id. In light of this, “[the plaintiff’s] version of
events is so utterly discredited by the record that no reasonable jury could have believed him.
The Court of Appeals should not have relied on such a visible fiction; it should have viewed the
facts in the light depicted by the videotape.” Id. at 380-81.
No videotape of Barmore’s shooting exists to show the accounts of plaintiff’s
eyewitnesses are a “visible fiction.” Instead, defendants contend the physical and forensic
evidence here are to the same effect as the Scott videotape in rendering the eyewitness accounts
beyond belief. According to defendants, that evidence shows Barmore was shot once in the neck
at close range (12 to 24 inches) with the shot entering from the front to the back and angling
upward. Barmore’s DNA was recovered from the slide and ejection port of Poole’s firearm, one
spent casing was discovered in the chamber of Poole’s weapon (meaning it did not eject after
firing), and there was a DNA profile recovered under Barmore’s left fingernail clipping from
which Poole could not be excluded as a match but North and Barmore could be excluded. All
three gunshot wounds to Barmore’s back were entrance wounds, the autopsy revealed no
evidence of close range fire surrounding the three wounds in the back. Two of the back wounds
tracked back to front and upward and the third tracked back to front and left to right. These
wounds were consistent with Barmore having been shot from behind while bending over at the
waist.
Does this evidence so utterly discredit plaintiff’s eyewitnesses testimony that no
reasonable jury could believe the eyewitnesses? Put another way, are the eyewitnesses incredible
as a matter of law? If not, their testimony is sufficient to create a genuine dispute of a material
fact. See United States v. Funds in the Amount of One Hundred Thousand One Hundred and
Twenty Dollars, No. 11-3706, 2013 WL 5273301, *5 (7th Cir. Sept. 19, 2013).

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To be incredible as a matter of law, the witnesses’ testimony must be unbelievable on its
face. “[I]t must have been either physically impossible for the witness to observe that which he
or she claims occurred, or impossible under the laws of nature for the occurrence to have taken
place at all.” Id. at n. 8 (quoting United States v. Dunigan, 884 F.2d 1010, 1013 (7th Cir. 1989).)
In Scott, the videotape belied the plaintiff’s version of the events. The videotape clearly showed
what happened and that what the plaintiff said happened did not. That sort of clarity is lacking
from defendants’ evidence here.
Marissa Brown testified she saw Barmore walk out of the boiler room with his hands up
and get shot. She testified she saw no struggle for Poole’s weapon. Alex Hunter also testified he
could see the officers’ guns up until the time the first shot was fired and that no one grabbed an
officers’ gun. It was not physically impossible for Marissa and Hunter to see what they claim to
have seen nor was it impossible under the laws of nature for the occurrence to have taken place.
Defendants argue the physical and forensic evidence shows none of the shots to Barmore’s back
could have been sustained while he was standing facing the officers or while lying on the floor.
Marissa testified that the second shot was fired after Barmore pushed himself back up from the
sink he had fallen on after the first shot (this would have him still facing the officers) and that
another shot was fired but at this point he was no longer standing. Defendants can certainly use
this evidence to challenge the credibility of Marissa’s testimony at trial. But whether Barmore
was standing facing the officers, lying on the floor, or bent over at the waist (as defendants’
evidence suggests) does not control whether he was subjected to excessive force. Marissa was in
a high stress situation observing the use of deadly force by the officers. She may well have
gotten the details wrong. The stress, particularly once the shooting commenced, could certainly
have affected her perception. She may well not be remembering the position of Barmore and the
officers during the incident accurately. She may not be remembering any of it accurately. Her
testimony is certainly fair game at trial. But, for purposes of summary judgment, she testified she
saw Barmore shot with his hands up (from which it can be inferred he was attempting to
surrender) and shot again and again while offering no resistance and it is not impossible that this
occurred.
Defendants contend that the presence of Barmore’s DNA on the slide and ejection port of
Poole’s weapon proves Barmore had his hand on Poole’s gun, thus disproving the testimony
there was no struggle. This is pretty strong evidence in defendants’ favor. However, to defeat
summary judgment, plaintiff does not have to prove her evidence is more believable than
defendants’ evidence. She only has to offer evidence which, if believed, would support a verdict
in her favor, Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). Whether defendants’
evidence that Barmore’s DNA was on Poole’s weapon, and the inferences that can be drawn
from it, outweighs the eyewitness testimony, is for the trier of fact to determine. On summary
judgment, “a court may not weigh the evidence, or decide which inferences to draw from the
facts. The temptation is often difficult to resist in cases where the facts and inferences appear to
lead more strongly to one conclusion than another. On summary judgment, however, the court
has one task and one task only; to decide, based on the evidence of record, whether there is a
material dispute of fact that requires a trial.” Kodish v. Oakbrook Terrace Fire Protection Dist.,
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604 F.3d 490, 507 (7th Cir. 2010) (internal quotation marks and citations omitted). While
defendants’ evidence is substantial, to rule in defendants’ favor would require the drawing of
inferences in defendants’ favor, which cannot be done at the summary judgment stage. Unlike
the videotape in Scott, defendants’ evidence, without the drawing of inferences, does not so
utterly discredit the eyewitness testimony that a reasonable jury could not believe that testimony.3
For the foregoing reasons, all defendants’ motions for summary judgment are denied.
The court did not consider the opinions of Andrew Scott, Independent Assessment and
Monitoring or Michael Graham in deciding the motion for summary judgment. Defendants’
motion [246] to exclude these opinions is denied as moot. Plaintiff’s motion to strike certain
defense affidavits [232] is denied. Plaintiff’s motion to supplement her LR56.1 additional facts
[241] is denied. Plaintiff’s motion to supplement the record [251] with a copy of a state
appellate court order is denied. Defendant Poole’s motion [279] to join Defendant North’s
motion to supplement the record [277] is granted. The motion [277] to supplement defendants’
joint rule 56.1 statement of material facts to reflect the findings of the United States Department
of Justice, Civil Rights Division is denied as those findings are irrelevant to the determination of
the summary judgment motion.

Date: 10/02/2013

ENTER:

United States District Court Judge

Electronic Notices.
(LC)

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Because “shooting a disarmed and passive suspect is a clear example of excessive force
in violation of the fourth amendment,” Dye v. Wargo, 253 F.3d 296, 298 (7th Cir. 2001), which
would have been known to the officers at the time of Barmore’s shooting in 2009, qualified
immunity is not a basis for summary judgment in defendants’ favor, as a genuine dispute exists
as to whether Barmore was shot with his hands raised in a posture of surrender or during the
course of a struggle for Poole’s weapon.
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