Herington v. Wichita, City of, et al.
MEMORANDUM AND ORDER granting 150 Motion for Summary Judgment; granting 152 Motion for Summary Judgment; granting 154 Motion to Amend/Correct ; finding as moot 180 Motion to Exclude; finding as moot 182 Motion to Exclude; finding as mo ot 184 Motion to Exclude. IT IS FURTHER ORDERED that plaintiff's claims against Randy Williamson and the City of Wichita arising under Kansas law (Counts 4-7) are hereby dismissed without prejudice. Signed by Chief Judge J. Thomas Marten on 1/9/2017. (sz)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DAWN HERINGTON, Individually and as
Mother and Next Friend of B.D.J.L., minor
Child and Heir-at-law of TROY LANNING II,
Deceased, and as Special Administrator of the
Estate of TROY LANNING II, deceased,
Case No. 6:14-cv-01094-JTM
CITY OF WICHITA; and
MEMORANDUM AND ORDER
Plaintiff filed this action after City of Wichita Police Officer Randy Williamson
shot and killed Troy Lanning II following a high-speed vehicle pursuit and a chase on
foot through a neighborhood. Plaintiff contends the use of deadly force was unjustified.
Williamson contends he reasonably believed that Lanning was armed and that he was
attempting to point a weapon at him at the time of the shooting. Subsequent
investigation showed that Lanning was carrying a bag with several items in it but was
not armed at the time of the encounter. The matter is now before the court on summary
judgment motions by Williamson and the City of Wichita.
For the reasons set forth herein, the court finds that the defendants are entitled to
summary judgment on plaintiff’s claims under 42 U.S.C. § 1983. And in view of the
dismissal of all of the federal claims brought by plaintiff, the court concludes it should
refrain from exercising jurisdiction over plaintiff’s claims based on state law, and that
the state claims should be dismissed without prejudice.
I. Uncontroverted Facts.
At the outset the court notes it has been difficult to determine the uncontroverted
facts in this case. The parties’ asserted facts and objections are highly contentious, and
many of the asserted facts are based on inadmissible hearsay or suffer from other
defects. Plaintiff has vigorously challenged a number of defendants’ asserted facts, only
to include a number of the same facts in her own statement. The court has done its best
to determine what facts are uncontroverted and material under the standards of Rule
At the time of the incident, Randy Williamson was 30-years old. He had been a
City of Wichita Police Officer for approximately 9 years. On March 31, 2012, at about
11:54 p.m. [23:54 hours], Williamson and two other police units responded to a possible
drive-by shooting call on 46th Street south of Charles Street, in Wichita, Kansas.
Williamson was about two miles away when he heard the dispatch.
The following is a transcription of the radio broadcast from the police dispatcher.
Dispatch (“D”): 21, 22, 28 possible drive-by 46th street south of Charles.
46th street south of Charles. No vehicle description. Vehicle speeding
away after hearing four to five shots.
D: Just got a description. It’s a white four-door sedan. They’re eastbound.
Heard four to five shots one block away. And just prior to the shots saw
two juveniles messing with a vehicle.
D: They were eastbound on 45th, 4-5.
D: So far this is the only call we have.
D: Reference to the shots, they were fired one block to the east of Charles.
So, Vine… or Glenn actually. Number one, Hispanic male, 16 to 17 years
old, wearing all black, 5-5, medium build. No description on the second
The radio broadcast differed slightly from the “CAD [Computer Aided Dispatch]
Printout” provided contemporaneously to Wichita officers on computer terminals
mounted in their patrol vehicles. Included in the CAD entries that night were
statements that the “CP [complaining party] ADV[ised] THAT SHE CAN SEE 2 KIDS
MESSING WITH VEH[icle],” “THAT SHE JUST HEARD 4-5 GUNSHOTS ON THE
NEXT BLOCK OVER,” that she “HEARD THEM TOWARDS THE EAST,” THAT IT
POSS[ibly] SOUNDS LIKE IT CAME FROM A VEH[icle] THAT DROVE BY
SPEEDING,” which was a “WHITE, 4 DR [door], SEDAN, UNK[nown] TAG.” It said
the suspects left going east on 45th street, and that “SUSPECT 1 IS H/M [Hispanic
male], 16-17 YO[years old],” and “ALL BLACK [clothing of suspect]2 …DIDN’T SEE
VERY WELL.” A transmission at midnight [00:00:17] stated “NO WEAPON ….. EMS
NOT NEEDED” and shortly thereafter: “VEH[icle] WAS LAST SEEN GOING NORTH
Williamson approached the area in his marked police vehicle, driving east on
46th Street, arriving several minutes after dispatch reported the possible drive-by
shooting. Williamson did not think he would see the suspect vehicle because it was
reportedly headed east and then north, and he was coming from the west. At a stop
sign at Clarence and 45th, he observed a white four-door SUV turn west onto 45th
Street from Glenn, one block east of Charles. As it passed him, Williamson illuminated
the car with his alley light and saw the silhouettes of several individuals. Williamson
thought the driver was a white male with tattoos, black sleeves, and black hair. He did
not appear to be a teenager.
Williamson recognized that the car was a white SUV, not a white sedan, but
decided to check it out to make sure it was not involved in the shooting. He did so in
part because he believed eyewitness reports on such details were often mistaken. He
made a u-turn to follow the SUV on 45th Street. The SUV accelerated to about 70 miles
per hour on 45th Street towards Meridian Street. The posted speed limit in that area
was 30 mph. Williamson concluded the vehicle was attempting to elude him, and he
activated his emergency lights and siren as he went through the stop sign at 45th and
Meridian. Shortly after this, Williamson was able to get close enough to read the license
tag, which he relayed to dispatch. He notified dispatch that the vehicle was fleeing and
that he was in pursuit northbound on Meridian approaching MacArthur Street.
Williamson pursued the vehicle at high speeds with his lights and siren
activated. He radioed pursuit information during the chase as follows: “Speeds 80,
traffic light, occupied five,” approximately 25 seconds into the pursuit; “130 MPH,
traffic still light” at 66 seconds into pursuit. At three minutes twelve seconds into the
pursuit, the dispatcher advised that the vehicle had a stolen license plate. Williamson
reported that traffic was moderate and civilian vehicles were pulling over, but the SUV
was “weaving in and out” of traffic. For approximately seven minutes, the pursuit
continued at high speeds through commercial and residential streets. Other WPD
officers responded during the pursuit.
The pursuit ended when the SUV was unable to make a turn at the intersection
of Everett Street and 35th Street South. The vehicle attempted to turn left (east), but
jumped the curb and came to a stop off the shoulder of 35th Street.
By the time Williamson turned the corner, he saw that the occupants had all
exited the vehicle. He saw two people “bailing” and running from the vehicle: a heavyset white female wearing a hooded sweatshirt and blue jeans; and a white male in a
blue t-shirt and light colored pants. The male was running northeast and was carrying a
black bag with a reflective stripe on it. The man was later identified as 24-year old Troy
Lanning II. The female was eventually identified as Meagan Tindle. 1
Williamson initially remained in his patrol car as he followed Lanning. Lanning
turned the corner, running north on the west side of Bennett Street. Williamson drove
his vehicle across the front yard of the corner house and stopped in front of 3543 S.
Bennett. Lanning turned west on the north side of that address and fled through the
side and then the back yard. Williamson got out and pursued Lanning on foot.
Lanning angled towards the southwest as he ran through the backyard of 3543 S.
Bennett. Williamson had his handgun in his right hand and his flashlight in his left
hand as he illuminated Lanning with the light. Williamson estimated he was about
Plaintiffs attempt to controvert the allegation that Lanning was carrying a bag by asserting that a
neighbor who looked out through his screen door testified that he saw a man followed by an officer
running through his back yard, but he did not see a bag. But plaintiffs cite no evidence that the neighbor
likely could have seen a bag. When asked if he had seen a bag, the neighbor responded, “No, I did not.
It’s pretty dark out there at the time.” Nor does plaintiff cite any other evidence from which a jury might
reasonably infer that Lanning did not have a bag. Williamson testified he saw the man carrying a bag; a
bag was found under Lanning by other officers moments after the shooting; and Tindale testified that she
remembered Lanning or the driver (Billy Brown) grabbing a bag when they took off from the SUV. In
sum, plaintiff cites no evidence from which a jury could reasonably infer that Lanning was not carrying a
bag at the time of the incident.
thirty feet behind Lanning. He yelled for Lanning to stop. Lanning looked over his
shoulder at Williamson but continued his flight, climbing over a privacy fence into the
backyard of 3544 S. Everett.
Williamson testified the bag Lanning was carrying appeared to have some
weight to it and it made a “thud” against the fence when Lanning climbed over it.
Williamson testified that Lanning’s failure to abandon the bag and the fact that a driveby shooting call preceded the chase caused him to worry that Lanning had a gun in the
Williamson went approximately 15-20 feet north of the spot where Lanning
climbed over the fence and peered over the fence. He saw Lanning running away from
the fence, so Williamson climbed over to pursue him. Lanning started toward the
northwest but then ran towards a gate at the southwest corner of the back yard at 3544
S. Everett. He still had the black bag in his right hand. (The approximate path taken by
Lanning is depicted on Dkt. 173 at 17).
Lanning slowed almost to a walk as he reached the southwest corner of the back
yard of 3544 S. Everett. Williamson approached and repeated his command to Lanning
to stop. The owner of the house at 3544 S. Everett, Dale Geist, was looking out into his
back yard through a screen door. He saw Lanning running through his yard with an
officer in pursuit. Geist heard the officer yelling “stop,” and he shut the back door as the
man who was fleeing came within ten or fifteen feet of the door. When he did so, he
“heard the officer yell instructions. You know, put it down or get down. I can’t recall
which one. And then the shots.” Dkt. 163-10 at 3.”2
The following is Williamson’s version of the shooting. Williamson testified that
Lanning stopped with his body facing away and looked back over his right shoulder at
Williamson. Williamson said that despite repeated commands to Lanning to drop the
bag and show his hands, he saw Lanning move the bag from his right hand to his left
hand and then stick his right hand inside the bag. Lanning rotated to his left (counterclockwise) with his hand apparently in the bag and began to bring the bag up toward
Williamson, with his arms and hands out in front of him. Williamson testified he could
see something pressed up against the corner of the bag. He said he believed Lanning
had a gun in the bag and would shoot him through the bag. Williamson estimated he
was about 10-15 feet away from Lanning. Before Lanning completed his turn and before
he could level the bag at Williamson, Williamson started firing toward the center mass
of Lanning’s back, firing five shots as fast as he could pull the trigger. Lanning fell face
down on top of the bag. According to Williamson, Lanning fell more or less
perpendicular to him. Williamson testified that Lanning immediately began to roll onto
his right shoulder, and again brought the bag towards him. Williamson fired three more
shots at the back of Lanning’s upper torso. Williamson estimated there was less than a
Plaintiff cites no admissible evidence to show a genuine issue of fact on this point. Geist later conceded
it was possible he was “misremembering,” Dkt. 163-10 at 5, but plaintiff cites no evidence from which a
jury might rationally conclude that Williamson did not give any such instruction. Plaintiff relies in part
on evidence of an unsworn statement Geist gave a few hours after the shooting. But aside from the fact
that the unsworn statement is not competent proof on summary judgment, the statement itself does not
actually contradict Williamson’s version, as the neighbor’s statement at that time was merely that after
the officer came over the fence, he “hear[d] some more – more yelling. I couldn’t make it out. And then I
heard gunshots.” Dkt. 162-7 at 15.
second between the first volley of shots and the second. He said he does not remember
moving during the shooting. According to Williamson, at that point Lanning rolled
back on to the bag, prompting Williamson to yell again, “Show me your hands.”
Williamson said Lanning brought his hands out from under himself and tried to push
himself up, but he fell back down, face down, on top of the bag. Williamson testified
that the only time Lanning faced him was before the shots, when Lanning looked over
his shoulder at Williamson.
Officer Clayton Schuler, an eleven-year police veteran who had previously
partnered with Williamson, heard and responded to Williamson’s radio broadcast that
a vehicle was attempting to elude him. Schuler was in the next car behind Williamson in
the vehicle chase. Schuler stopped his car just north of Williamson’s car near 35th and
Bennett about 30 seconds after Williamson radioed that people were bailing out of the
SUV. Schuler heard shots just after he got out of his car. He immediately [at 00:08:01]
reported that fact on his radio. The CAD record shows that 60 seconds passed from
Williamson’s broadcast that he had started foot pursuit until Schuler’s report of shots
being fired. Schuler entered the back yard of 3544 S. Everett by climbing over the fence.
Schuler saw Lanning lying face down. He appeared to be deceased.
Lieutenant Scott Heimerman, a 24-year police veteran, heard the radio dispatch
about a shooting and Williamson’s report of a vehicle pursuit. He responded and was in
the third vehicle in the chase. He stopped his car near 35th and Everett. As he was
getting out, he heard Schuler’s radio report of shots being fired. Heimerman had not
heard the shots. Heimerman ran toward someone yelling to the north and could see a
flashlight on the other side of a privacy fence. He thought it was Williamson and that he
was giving commands to the effect of “show me your hands.” Heimerman identified
himself to Williamson and entered the backyard through the gate. Schuler and
Heimerman each recalled in their later depositions that they were the first one to arrive
after the shooting. Either way, they arrived on the scene within a very short time of each
Heimerman saw Lanning laying on his stomach with his hands out to the side.
Williamson had his gun out and told Heimerman to “watch him” [Lanning] because he
“still has a gun underneath him.” Schuler testified that he also recalled Williamson
saying that Lanning had a gun. Heimerman concluded that Lanning posed no threat at
that point. Heimerman’s recollection is that he could see a portion of a bag sticking out
from under Lanning near his waist, and he slid the bag out and checked Lanning’s
waistband. Williamson testified that he thought that he [Williamson] was the one who
pulled the bag out from under Lanning. The bag was a drawstring type of backpack.
Heimerman testified the bag had some weight to it. He did not look inside of it.
Heimerman found no pulse on Lanning and saw no movement. He went around to the
front of the house to get the address and called for EMS.
The contents of the bag, as shown by a subsequent inventory, were: (1) a BENQ
external hard drive; (2) an HTC Verizon cell phone; (3) a plastic case with one SD card
and one SD adapter; (4) power cords/adapters; (5) a tube of A&D cream; and (6) a
purple Royal Crown bag containing: (a) a digital scale with stickers on it, and (b) clear
plastic baggies (empty). No gun was found at the scene and there is no evidence that
Lanning had a gun.
Lanning died on April 1, 2012. Dr. Jamie Oeberst, then the District Coroner for
Sedgwick County, performed an autopsy. She concluded Lanning died of multiple
gunshot wounds. He had been shot six times. The wounds and direction of the bullets
were as follows:
(1) Gunshot wound, front to back and slightly upwards, to Lanning’s right cheek,
with the path of the wound into the soft tissues of his cheek and then between the ear
and skull, exiting behind the ear. This wound is consistent, in Oeberts’s opinion, with
Lanning’s face being turned or situated toward the shooter.
(2) Gunshot wound into top of Lanning’s right shoulder down into his body and
ending in the right side of Lanning’s chest. This wound is also consistent with Lanning
facing the weapon either while falling or bending forward.
(3) Gunshot wound into the front of Lanning’s right thigh, which passed through
and exited the back of his right thigh, traveling slightly left to right (i.e., towards the
center of the body).
(4) Graze gunshot wound across Lanning’s back, right to left, that came to rest in
Lanning’s subcutaneous tissues.
(5) Gunshot wound into the left side of Lanning’s upper back, going back to
front, and left to right and downward, which perforated the ribs of the left side of the
back, the left lung, the sac surrounding the heart, the heart itself, and came to rest in the
left side of Lanning’s chest.
(6) Gunshot wound into the left side of Lanning’s upper back, going back to
front, and left to right and downward, which perforated the ribs, diaphragm and liver,
and came to rest in Lanning’s stomach.
Williamson testified as to his belief that Lanning was turning around at the time
the shots were fired and was never directly facing him. The shot that struck Lanning’s
cheek, however, indicates that Lanning in fact faced Williamson at some point during
During the investigation of the shooting, eight shell casings were located in the
backyard where the shooting occurred. A diagram of their location indicates that the
greatest distance between two casings was about 15 feet.
Plaintiff contends a photo of the backpack (Dkt. 152-11) at the scene shows that it
was closed and that this casts doubt on Williamson’s claim that Lanning stuck his hand
inside the bag. Defendants dispute this characterization, arguing the picture “shows the
bottom of the bag, with the top of the bag (its opening) face down on the ground.” Dkt.
173 at 37. The picture itself is equivocal and could lend support either way; its import
might depend on further examination of the bag. Crime Scene Analyst Staci Unruh’s
report stated that “the black backpack was opened so its contents could be checked.”
Given the standards governing summary judgment, the court concludes that a
reasonable jury could find that the backpack was closed when it was collected at the
Williamson was involved in a total of nine shootings as a WPD officer. Six of
those involved the killing of vicious dogs. In an incident in 2008, Williamson claimed
that a sniper shot the lapel microphone off of his shoulder while Williamson was
moonlighting at the Wichita Area Technical College. In April 2012, he was involved in
the Lanning shooting. In September of 2012, Williamson shot his weapon at a building,
claiming that someone had pointed a gun at him from the shadows.
In July of 2013, based on the September 2012 shooting incident, Williamson was
terminated from the WPD after an internal investigation found that he had engaged in
misconduct including giving false information, criminal discharge of a firearm, and
falsely reporting a crime.
In October 2014, Williamson was convicted of criminal
damage to property and falsely reporting a crime, both misdemeanors, arising from the
September 2012 incident.
Chante Newberry is an employee of the WPD. She and Williamson became
“really close friends” between December of 2011 and February of 2012, and had what
Newberry called an “emotional affair.” They sent a lot of messages to each other
including that they “loved each other,” “couldn’t wait to see each other,” and “couldn’t
wait to get a hug.” In mid-February 2012, Newberry’s husband found out and called
Williamson and told him to stay away from Newberry. In February 2012, Williamson
gave Newberry a letter that she wasn’t supposed to open “unless something happened
and he was killed in the line of duty.” In it he promised to never break her heart or
abandon her and said the last words on his dying lips were her name. Newberry told
Williamson in February 2012 that she wanted to work on her marriage. She spoke to
him one more time at work and apologized for the way things ended, and then cut off
communication. She did not speak to him again until the night of the Lanning shooting,
when Williamson called her, saying he “had told you if anything happened to me at
work I would let you know, and I [was] just involved in a shooting and killed a man.”
Williamson began emailing her regularly after that because “he just wanted her to know
he was okay.” Between May and December of 2012, Newberry and Williamson
rekindled their relationship and it progressed.
Right before the September 2012 shooting incident, Newberry and Williamson
were texting each other. He asked if she had noticed anything about him; she
responded that he had lost some weight and she was concerned about him. Shortly
thereafter, Williamson texted Newberry that he had been involved in a shooting and
she had “saved his life,” because he looked down at her text and then looked up and
saw a “guy with the rifle at the corner of the building.” If she had not sent the text, he
said, he might not have seen the guy and could have been shot. Williamson later pled
guilty to a charge of falsely reporting having seen a man with a rifle.
Williamson testified that the Lanning shooting triggered post-traumatic stress
disorder (PTSD), and said he was diagnosed with it in September 2012. He asserted in a
claim to the WPD that he has PTSD; the WPD disputed his claim.
WPD Detective Robert Chisolm was the lead investigator on the Troy Lanning
shooting. His job was to conduct a criminal investigation of the shooting. As was the
WPD practice, a case was opened and entered into the WPD system. Chisolm
interviewed Williamson and other witnesses as part of his investigation. Chisolm
concluded from his investigation that Williamson’s use of force was justified.
Plaintiff’s police expert, Edward “Tad” Leach, believes Chisolm did not perform
a thorough and complete investigation. Leach has not reviewed any other investigations
performed by Chisolm, nor has he reviewed any officer-involved shootings in the City
of Wichita other than the Lanning shooting.
The Kansas Bureau of Investigations (KBI) is involved in all officer-related
shootings and is considered the lead investigator in such cases. Due to the KBI’s limited
resources, however, most of the evidence collection in these cases is done by WPD
All officer-related shootings are presented to the District Attorney’s office for a
determination of whether criminal charges will be filed.
The WPD’s Professional Standards Unit is involved in every officer-related
WPD Regulation 4.0, “Weapons/Use of Force Requirements,” as in effect on July
10, 2012, provided in pertinent part:
This regulation presents guidelines for the use of firearms and other
authorized weapons. The use of firearms by law enforcement members is
authorized and limited by state statute. K.S.A. 21-3215 states:
21-3215. Law enforcement officer’s use of force in making arrest. (1) A
law enforcement officer, or any person whom such officer has summoned
or directed to assist in making a lawful arrest, need not retreat or desist
from efforts to make a lawful arrest because of resistance or threatened
resistance to the arrest. Such officer is justified in the use of any force
which such officer reasonably believes to be necessary to defend the
officer's self or another from bodily harm while making the arrest.
However, such officer is justified in using force likely to cause death or
great bodily harm only when such officer reasonably believes that such
force is necessary to prevent death or great bodily harm to such officer or
another person, or when such officer reasonably believes that such force is
necessary to prevent the arrest from being defeated by resistance or escape
and such officer has probable cause to believe that the person to be
arrested has committed or attempted to commit a felony involving great
bodily harm unless arrested without delay.
In a stressful situation, a police member’s first reaction should be to
determine whether the objective can be accomplished without the use of a
weapon. A member’s decision, relative to the use of force, must be legally
justifiable, and thoroughly articulated, considering both the nature of the
crime and circumstances surrounding the incident.
This Department recognizes and respects the value and special integrity of
each human life. In vesting police members with the lawful authority to
use force to protect the public welfare, a careful balancing of all human
interests is required. Therefore, it is the policy of this Department that
police members shall use only that force that is objectively reasonable,
based on the totality of the circumstances, to effectively bring an incident
under control, in making a lawful arrest, while protecting the life of the
member, or the life of another person.
DISCHARGING FIREARM/USE OF LETHAL FORCE
Discharging of firearm/use of lethal force is allowed pursuant to K.S.A.
21-3215 as cited above.
UNNECESSARY EXCESSIVE FORCE
In situations, other than as a last resort, members of the Department will
utilize only those weapons and defensive tactics that have been taught to
them by the Training Bureau. Only such force as is objectively reasonable,
based on the totality of the circumstances, to effectively bring an incident
under control, in making a lawful arrest, while protecting the life of the
member, or the life of another person.
A. Unnecessary use of force is strictly prohibited.
Excessive use of force is strictly prohibited. (Regulation 4.0, Revised
5/2/11 (emphasis added))
Plaintiff’s expert Collin Gallagher opines that it was not reasonable for
Williamson to believe that Lanning had a gun. He concedes that an officer may
appropriately use deadly force when he reasonably believes that a gun is being used
against him, but contends that Williamson did not have indications that Lanning had a
Gallagher concedes that the WPD’s use of force policy was for officers to use
only reasonable force. He opines that Williamsons’ use of force was not based on the
policy, law or training he received. He said that WPD officers were taught at the
academy that “the least amount of force necessary to affect an arrest should be the
maximum amount of force utilized.”
The Sedgwick County District Attorney determines whether or not to file
criminal charges in an officer-related shooting in the county. As of November 7, 2014,
the District Attorney’s office had not closed its investigation of the Lanning shooting.
Former WPD Chief Deputy John Speer admitted that the number of police
shootings in Wichita in 2012 was higher than normal for the city, and that he was
concerned about it. The U.S. Attorney for Kansas spoke with Speer and expressed
concern about the number of WPD shootings.
Speer admitted that officer shootings are preliminarily designated as “justifiable
homicides” if it appears that the facts and law are on the officer’s side, although the
designation can be changed.
WPD’s current policy is to perform an administrative investigation without
waiting for a civil lawsuit to be resolved. Until 2013 or 2014, administrative
investigations were not conducted until after civil litigation had ended.
II. Summary of Claims and Arguments.
Plaintiff Herington’s first four claims are brought under 42 U.S.C. § 1983. Her
first claim is that Williamson deprived Lanning of his constitutional right to be free
from the use of excessive force because he shot and killed Lanning “without just cause
or excuse, even though he was unarmed, never threatened Williamson, and was not
suspected of any crime.” Dkt. 145 at 13. Plaintiff next claims the City of Wichita caused
the constitutional violation by being deliberately indifferent to a need for further
training on the use of deadly force. Plaintiff also claims the City was deliberately
indifferent to the need for further supervision of Williamson. Additionally, plaintiff
contends the City caused the violation through a policy that “instructs officers to
assume the worst case scenario and act on it rather than acting on the totality of the
factual circumstances actually present.” Id. at 15. Plaintiff also asserts three claims based
on Kansas law, including: (1) negligent hiring, retention and supervision; (2) wrongful
death (negligence); and (3) the tort of outrage.
Williamson seeks summary judgment on the following grounds. First, he
contends the claims are barred by the applicable statutes of limitation. Second, he
contends he is entitled to qualified immunity on the § 1983 claims. Third, as to the state
law claims, he contends is entitled to immunity under the Kansas Tort Claims Act.
Fourth, he contends there is no evidence that he intended to cause Lanning emotional
distress and, as such, plaintiff has no valid claim for outrage. Lastly, he contends
plaintiff’s claim for punitive damages fails because plaintiff has no evidence of malice.
The City’s motion for summary judgment raises similar arguments, as well as
asserting a lack of evidence to support the constitutional or negligence claims relating to
improper training, supervision, or retention of Williamson, and the claim of an
unconstitutional City policy on the use of force.
III. Summary Judgment Standards.
Summary judgment is appropriate if the moving party demonstrates 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). A fact is “material” when it is essential to the claim,
and an issue of fact is “genuine” if the proffered evidence permits a reasonable jury to
decide the issue in either party's favor. Haynes v. Level 3 Communs., 456 F.3d 1215, 1219
(10th Cir. 2006). The movant bears the initial burden of proof and must show the lack of
evidence on an essential element of the claim. Thom v. Bristol–Myers Squibb Co., 353 F.3d
848, 851 (10th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)). The
nonmovant must then bring forth specific facts showing a genuine issue for trial.
Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). These facts must be clearly
identified through affidavits, deposition transcripts, or incorporated exhibits—
conclusory allegations alone cannot survive a motion for summary judgment. Mitchell v.
City of Moore, Okla., 218 F.3d 1190, 1197 (10th Cir. 2000) (citing Adler v. Wal–Mart Stores,
144 F.3d 664, 670 (10th Cir. 1998)). The court views all evidence and reasonable
inferences in the light most favorable to the non-moving party. LifeWise Master Funding
v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).
IV. Williamson’s Motion for Summary Judgment.
1. Statute of Limitations - § 1983 claims. Because federal law does not have a statute
of limitations for § 1983 claims, the court applies the forum state’s limitation period for
personal injury claims. See Reynolds v. Wright, 647 F.App’x 838, 840 (10th Cir. 2016). In
Kansas, that period is two years. Id. (citing Brown v. Unif. Sch. Dist. 501, 465 F.3d 1184,
1188 (10th Cir. 2006)). The court likewise borrows the state’s rules for tolling the statute
of limitations. See Wallace v. Kato, 549 U.S. 384, 394 (2007). Federal law, however,
determines when a federal action based on federal law is commenced for purposes of
the statute of limitations. See West v. Conrail, 481 U.S. 35, 39 (1987) (action not barred
because it was commenced in compliance with Rule 3). Rule 3 of the Federal Rules of
Civil Procedure provides that a civil action “is commenced by filing a complaint with
the court.” Rule 4(m) of the Federal Rules allows a 90-day period for service of the
complaint after it is filed.
Lanning’s shooting took place on April 1, 2012. Plaintiff’s initial complaint was
filed on March 28, 2014, within two years of the incident. Dkt. 1. It contained only the
§ 1983 claims because plaintiff was still exhausting “notice of claim” procedures on her
state law claims. The initial complaint was never served on the defendants. Instead, on
May 14, 2014, plaintiff filed an amended complaint (Dkt. 4) containing both the state
and federal claims, and served that complaint on defendants on May 16, 2014. Dkts. 5 &
The court concludes that plaintiff’s § 1983 claims are timely. Plaintiff filed a
complaint setting forth the § 1983 claims within the two year period. She thus
“commenced” the action within the period governing the § 1983 claims. Fed. R. Civ. P.
3; West v. Conrail, 481 U.S. 481 U.S. 35, 39 (1987) (when the underlying cause of action is
based on federal law, and the absence of an express federal statute makes it necessary to
borrow a limitations period from another statute, the action is not barred if it has been
timely “commenced” in compliance with Rule 3); Green v. McKeen, No. 12-3158-RDR,
2013 WL 1309002, at *2 (D. Kan. Mar. 29, 2013) (applying West rule to § 1983 claims). As
plaintiff accurately points out, defendants can claim no prejudice from not being served
with the initial complaint, because the amended complaint containing the same § 1983
claims was served on them within 90 days of the filing of the original complaint. Cf.
Morjaria v. Harvard Med. Associates, Inc., 2015 WL 3631629, at *2 (D. Ma. Mar. 20, 2015)
(although there are “circumstances in which [Rule 4(m)] may be gamed or
undermined,” that is not the case where the amended complaint was served within the
time allowed for service of the original complaint). Under the circumstances, the court
finds that the § 1983 claims are not barred by the statute of limitations.3
Williamson also argues that plaintiff’s amended complaint is “unlawful” because (according to him)
Rule 15(a) only allows amendment as a matter of right after service of a complaint. Defendant cites no
federal authority for this argument. As plaintiff points out, courts have construed the rule to mean that
the right to amend as a matter of course terminates 21 days after service, not that the right to amend is
prohibited prior to service. See Morjaria, at *2 (the more sensible reading is that an original complaint
may be amended as a matter of right “up to” 21 days after service). See also Nance v. Miser, 2012 WL
3631629, at *1 (D. Az. Aug. 23, 2012) (plaintiff filed his first amended complaint prior to service of the
complaint; “[a]ccordingly, Plaintiff was not required to seek leave of Court to amend.”); Green v.
Southfield, 2016 WL 692529, *4 (E.D. Mich. Feb. 22, 2016) (“The court rejects Plaintiff’s assertion that Fed.
R. Civ. P. 15(a)(1) requires the original complaint to be served to ‘trigger’ the right to file an amended
complaint as a matter of course.”).
2. Qualified Immunity.
Williamson contends he is entitled to the defense of qualified immunity on
plaintiff’s § 1983 claims. He contends it was reasonable to believe that Lanning was
armed and dangerous, pointing out that Lanning refused to drop the bag he was
carrying and allegedly “turned aggressively toward Williamson with the bag as if it
contained a gun.” Dkt. 154 at 32. Williamson argues that his use of deadly force was
reasonable because he had an objectively reasonable belief that Lanning was armed and
that he intended to fire at Williamson. Williamson argues that plaintiff cannot show that
he violated Lanning’s constitutional rights or that he violated clearly established law.
In response, plaintiff argues that Williamson’s actions show he was either
reckless or did not really believe that the bag carried by Lanning had a gun. Dkt. 163 at
37. Plaintiff argues Williamson could not have reasonably believed Lanning was
involved in a drive-by shooting, that he failed to give Lanning a warning that he would
use deadly force, that Lanning never had his hand in the bag and did not make any
hostile motion toward him, and that Lanning never manifested any intent to harm
Williamson. Plaintiff argues that Williamson’s description of the shooting is
contradicted by physical evidence and undermined by serious doubts about his
Plaintiff further contends that the unlawfulness of Williamson’s actions was
clearly established because of cases holding that an officer “cannot create the situation
where force is allegedly needed and then claim the protections of qualified immunity.”
Dkt. 163 at 45. Plaintiff further contends that Tenth Circuit precedent “does not allow
the use of lethal force where a person is not reasonably suspected of a serious crime,
was unarmed, and was not charging the officer or verbally threatening him.” Id.
When a defendant asserts qualified immunity at the summary judgment stage,
the burden shifts to the plaintiff to show that: 1) the defendant violated a constitutional
right; and 2) the constitutional right was clearly established. Keith v. Koerner,
___F.3d___, 2016 WL 7176605, *2 (10th Cir. Dec. 9, 2016). In making these
determinations, the court adopts plaintiff's version of the facts insofar as it is supported
by evidence in the record. Thomson v. Salt Lake Cty., 584 F.3d 1304, 1318 (10th Cir. 2009).
The Supreme Court recently discussed the parameters of qualified immunity:
The doctrine of qualified immunity shields officials from civil
liability so long as their conduct “‘does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d
565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73
L.Ed.2d 396 (1982)). A clearly established right is one that is “sufficiently
clear that every reasonable official would have understood that what he is
doing violates that right.” Reichle v. Howards, 566 U.S. ––––, ––––, 132 S.Ct.
2088, 2093, 182 L.Ed.2d 985 (2012) (internal quotation marks and alteration
omitted). “We do not require a case directly on point, but existing
precedent must have placed the statutory or constitutional question
beyond debate.” Ashcroft v. al–Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179
L.Ed.2d 1149 (2011). Put simply, qualified immunity protects “all but the
plainly incompetent or those who knowingly violate the law.” Malley v.
Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).
“We have repeatedly told courts ... not to define clearly established
law at a high level of generality.” al–Kidd, supra, at 742, 131 S.Ct. 2074. The
dispositive question is “whether the violative nature of particular conduct
is clearly established.” Ibid. (emphasis added). This inquiry “‘must be
undertaken in light of the specific context of the case, not as a broad
general proposition.’” Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596,
160 L.Ed.2d 583 (2004) (per curiam ) (quoting Saucier v. Katz, 533 U.S. 194,
201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). Such specificity is especially
important in the Fourth Amendment context, where the Court has
recognized that “[i]t is sometimes difficult for an officer to determine how
the relevant legal doctrine, here excessive force, will apply to the factual
situation the officer confronts.” 533 U.S., at 205, 121 S.Ct. 2151.
Mullenix v. Luna, 136 S. Ct. 305, 308, 193 L. Ed. 2d 255 (2015). See also Price-Cornelison v.
Brooks, 524 F.3d 1103, 1008 (10th Cir. 2008) (for a constitutional right to be clearly
established, “there must be a Supreme Court or Tenth Circuit decision on point, or the
clearly established weight of authority from other courts must have found the law the
be as [plaintiff] maintains.”).
Given the uncontroverted facts, Williamson could have reasonably believed that
the car in which Lanning was an occupant was involved in a drive-by shooting.
Dispatch reports provided grounds to believe a drive-by shooting had occurred in the
neighborhood Williamson was approaching, and that a white vehicle was the apparent
source of the shots. When a white SUV emerged from the same neighborhood shortly
thereafter, and began to immediately flee upon being confronted by Williamson’s police
vehicle, the officer had reason to suspect that persons in the SUV had been involved in a
drive-by shooting, despite the fact that none of the reports had yet been verified. The
fact that the SUV subsequently led him on a high speed chase at speeds over 100 miles
per hour only reinforced the reasonableness of such a belief, as it showed that one or
more occupants of the SUV was willing to go to great lengths - including endangering
the lives of everyone in the vehicle, other motorists on the roadway, and the officers
who were following - to escape apprehension by the police.
After the SUV stopped and Williamson began his pursuit of Lanning on foot, he
was aware that Lanning was carrying a bag as he fled and that the bag made a “thunk”
as it hit against a wood fence that Lanning climbed over. Lanning obviously knew he
was being pursued by a police officer at that point but nevertheless continued to flee
and subsequently disregarded or disobeyed Williamson’s orders to stop and “drop it”
or “get down.” At that point, Williamson had reasonable grounds to suspect that
Lanning was involved in a drive-by shooting, that he was attempting to flee from the
police, that the bag he was carrying possibly contained a firearm; and that Lanning was
willing to disregard a clear order to drop the bag or get on the ground despite being
confronted at close quarters by a police officer. A reasonable officer confronted with
such circumstances could clearly have a reasonable concern that the individual was
armed with a gun and may be willing to forcefully resist the officer’s attempts to
Plaintiff has pointed to some physical evidence calling into question various
aspects of Williamson’s version of the shooting, including Williamson’s impression that
Lanning never faced him directly, his belief that he (Williamson) did not move during
the shooting, and the assertion that Lanning had his hand inside the bag when he spun
around. But plaintiff cites nothing, aside from speculation, to suggest that Williamson
did not perceive that Lanning was spinning around and raising the bag toward him at
the time of the shooting, or that Williamson could not have reasonably interpreted
Lanning’s actions as an attempt to use a firearm against him. Williamson had
reasonable grounds to suspect that Lanning was attempting to use a gun, although he
had no confirmation that Lanning in fact had a gun. At that moment, Williamson had to
decide whether to employ deadly force or wait and see if Lanning was in fact
attempting to fire a gun. Williamson had no more than a second to make that lifealtering decision.
For purposes of summary judgment, plaintiff has cited evidence from which a
jury could reasonably find that Williamson violated Lanning’s Fourth Amendment
rights by using excessive force. But to defeat qualified immunity, plaintiff must also
show that Williamson’s conduct was contrary to clearly established law, as judged
against the particular facts of the case. Mullenix, supra. And plaintiff fails to cite any case
law putting Williamson on clear notice that using deadly force in those circumstances
was a violation of Lanning’s rights. Plaintiff cites several cases, including Allen v.
Muskogee, Okl., 119 F.3d 837 (10th Cir. 1997), for the proposition that an officer may not
recklessly create the need to use deadly force. Dkt. 163 at 45. But Allen involved an
attempt by an officer to grab a gun from the hand of a suicidal individual. A second
case cited by plaintiff, Sevier v. City of Lawrence, Kan., 60 F.3d 695 (10th Cir. 1995),
similarly found a potential Fourth Amendment violation where officers shot a suicidal
individual who was allegedly holding a knife at his side, without an immediate threat
to the officers. Id. at 698. Plaintiff’s third case, Hastings v. Barnes, 252 F.App’x 197, 2007
WL 3046321 (10th Cir. 2007), also involved pursuit of a suicidal individual who “was
not a criminal suspect,” and who “was contemplating suicide by asphyxiation, was
non-violent and was not known to be armed.” Id. at 199. None of these establish that it
was a clear violation of the Fourth Amendment for Williamson to pursue or confront a
fleeing criminal suspect whom he reasonably suspected to be armed, or to use deadly
force when the suspect disregarded an order and instead appeared to raise a bag
possibly containing a firearm at the officer.
Plaintiff’s other argument that Williamson violated clearly established law
asserts that the officer should have known that Tenth Circuit precedent “does not allow
the use of lethal force where a person is not reasonably suspected of a serious crime, is
unarmed, and was not charging the officer or verbally threatening him.” Dkt. 163 at 45.
He cites two cases in support: Zuchel v. City & County of Denver, 997 F.2d 730 (10th Cir.
1993) and Walker v. City of Orem, 451 F.3d 1139 (10th Cir. 2006). Neither of these cases
establishes that Williamson’s conduct violated clearly established law. Zuchel involved
the shooting of a man who created a restaurant disturbance and was then encountered
by police on the street arguing with some teenagers. Although one of the teenagers
indicated to police that the man had a knife, witnesses testified that at the time the
officer shot the man, the man’s hands were up in the air, he did not charge the officer,
and “they were so far apart … there was no one in danger at that time.” Id. at 736. The
Walker case involved facts closer to the instant one, in that an officer claimed he thought
a knife in an individual’s hand was actually a gun, but in that case the “angle of [the
individual’s] hands and the amount of light on the scene should have permitted [the
officer] to ascertain that [the individual] was not holding a gun in a shooting stance,”
and moreover the man “was not actively resisting arrest, and there was no need to use
deadly force to prevent him from fleeing and possibly harming others.” 451 F.3d at
1160. The Walker court decision was based on the principle that it was “specifically
established that where an officer had reason to believe that a suspect was only holding a
knife, not a gun, and the suspect was not charging the officer and made no slicing or
stabbing motions toward him, that it was unreasonable to use deadly force against the
suspect.” Id. (citing Zuchel, 997 F.3d at 735-36).
In contrast with these cases, the officer here was in hot pursuit of a suspect
shortly after a reported shooting; the suspect fled on foot following a dangerous high
speed chase; the suspect carried a bag containing something heavy; the suspect
disobeyed the officer’s command to drop what he was carrying or get on the ground;
and the suspect started turning toward the officer and raised the bag in his hands to a
position from which he could have been attempting to fire a gun at the officer.
Plaintiff’s burden in responding to a qualified immunity defense is to identify clearly
established law that the officer violated. “A clearly established right is one that is
‘sufficiently clear that every reasonable official would have understood that what he is
doing violates that right.’ ” Mullenix, 136 S.Ct. at 308 (quoting Reichle v. Howards, –––
U.S. ––––, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012)). Plaintiff has failed to meet that
burden, and Williamson is accordingly entitled to summary judgment on plaintiff’s
§ 1983 claims against him.
V. City’s Motion for Summary Judgment.
1. § 1983 Claims. The City argues it is entitled to summary judgment on
plaintiff’s § 1983 claims for various reasons, including the following. As to Count 2,
which alleges a constitutional violation resulting from the City’s alleged failure to
properly train officers on the use of force, the City argues among other things that
plaintiff has no evidence of deficiencies in the City’s training, no evidence that the City
was deliberately indifferent to a need for further training, and no evidence that a lack of
training was the moving force behind the shooting of Lanning. Dkt. 151 at 34-35. It
makes similar arguments with respect to Count 3, which alleges a constitutional
violation arising from a failure to supervise Lanning despite “knowledge of his mental
health issues and previous shooting incidents,” which “directly led to the shooting of
Troy Lanning,” and allowing “an atmosphere where officer shootings are not properly
investigated,” as a result of which Lanning was killed. Dkt. 145 at 14-15. Finally, the
City contends it is entitled to summary judgment on Count 4, which alleges the City
had an unconstitutional policy of instructing officers “to assume the worst case scenario
and act on it rather than acting on the totality of the factual circumstances actually
present.” Dkt. 145 at 15.
Plaintiff’s response brief does not address the City’s arguments with respect to
her failure to train claim (Count 2) or the claim of an unconstitutional use of force policy
(Count 4), with exception of passing (and unexplained) references. See Dkt. 167 at 52-53
(“The enormous number of shootings by the Wichita Police Department is extremely
abnormal for a city the size of Wichita and shows the failure to train and the
unconstitutional policy.”). Plaintiff has failed to even explain these claims, let alone cite
valid and probative evidence to support them. Summary judgment is accordingly
granted to the City as to Counts 2 and 4.
With respect to the claim that the City’s failure to supervise Williamson or other
officers led to the constitutional violation (Count 3), a review of the elements of such a
claim shows that the City is likewise entitled to summary judgment. A municipality
may not be held liable under § 1983 for a constitutional violation merely because it
employed the tortfeasor. City of Canton v. Harris, 489 U.S. 378, 385 (1989) (“Respondeat
superior or vicarious liability will not attach under § 1983”). Rather, a plaintiff must
show the existence of a municipal policy or custom, and a direct causal link between the
policy or custom and the injury. See Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th
Cir. 2010). Such a policy may take the form of a failure to supervise employees “so long
as that failure results from ‘deliberate indifference’ to the injuries that may be caused.”
Bryson, 627 F.3d at 788. See also City of Canton, 489 U.S. at 389 (“Only where a
municipality’s failure to train its employees in a relevant respect evidences a deliberate
indifference’ to the rights of its inhabitants can such a shortcoming be property thought
of as a city ‘policy or custom’ that is actionable under § 1983”). Such deliberate
indifference may be shown by proving the existence of a pattern of tortious conduct
that put the City on notice of the need for further supervision, or by a showing that the
violation was a highly predictable or plainly obvious consequence of the City’s failure
to supervise. See Schneider v. City of Grand Junction Police Dept., 717 F.3d 760, 771 (10th
Cir. 2013) (citations omitted).
Plaintiff fails to cite any evidence that could show the City’s failure to supervise
Williamson or others evinced deliberate indifference to the rights of the City’s
inhabitants. Nor does she cite evidence that such a failure was a cause of the Lanning
shooting. In support of the claim, plaintiff relies primarily on FBI crime statistics that
purportedly show Wichita had a high rate of police shootings in 2011, as compared to
certain other cities. Dkt. 167 at 52-53. It is not entirely clear what plaintiff is arguing the
statistics show with respect to City of Wichita’s training or supervision. What is clear is
that plaintiff has cited no evidence of a high rate of improper or unjustified use of
deadly force by WPD officers prior to the Lanning shooting, such as would have put the
City on notice that its training or supervision concerning the use of deadly force was
VI. State Law Claims.
The parties raise extensive arguments pertaining to plaintiff’s state law claims,
including claims of immunity under the Kansas Tort Claims Act. The court has pendent
jurisdiction to hear these claims because they were joined with plaintiff’s federal claims.
28 U.S.C. § 1367(a). With the dismissal of all of plaintiff’s federal claims, however, the
court has discretion to decline to exercise jurisdiction over the state law claims. See 28
U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental
jurisdiction over a claim … if the district court has dismissed all claims over which it
has original jurisdiction”).
Having considered the nature of the state law claims and the circumstances of
the litigation, the court concludes that plaintiff’s state law claims should be dismissed
without prejudice. See Brooks v. Gaenzle, 614 F.3d 1213, 1229 (10th Cir. 2010) (where
federal claims are dismissed before trial, leaving only issues of state law, the federal
court should ordinarily decline to exercise supplemental jurisdiction). As this court has
previously noted, Enneking v. Univ. Nat. Bank, No. 13-4070-JTM, 2013 WL 6804258, at *8
(D. Kan. Dec. 23, 2013), “[i]f federal claims are dismissed before trial, leaving only issues
of state law, ‘the federal court should decline the exercise of jurisdiction by dismissing
the case without prejudice.’“
IT IS THEREFORE ORDERED this 9th day of January, 2017, that plaintiff’s
claims against Randy Williamson and the City of Wichita under 42 U.S.C. § 1983
(Counts 1-4)) are hereby dismissed on the merits, with plaintiff to take nothing on those
IT IS FURTHER ORDERED that plaintiff’s claims against Randy Williamson
and the City of Wichita arising under Kansas law (Counts 4-7) are hereby dismissed
____s/ J. Thomas Marten_____
J. THOMAS MARTEN, JUDGE
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