Carpenter v. Bean Station, Tennessee, City of et al
Filing
70
MEMORANDUM. See Memorandum for details. Signed by Magistrate Judge Dennis H Inman on 10/21/2011. (FMM )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
KAREN ELAINE CARPENTER
v.
CITY OF BEAN STATION, TENNESSEE,
ET AL.
)
)
)
)
)
)
NO. 2:09-CV-140
MEMORANDUM
I. OVERVIEW
On January 23, 2009, a warrant was outstanding for plaintiff’s arrest on charges of
manufacturing methamphetamine.
Chief Andy Dossett of the Bean Station Police
Department spotted plaintiff’s vehicle, and he attempted to have her stop. Plaintiff chose to
flee. She was pursued by Andy Dossett and then by Ben Dossett, another Bean Station
Police Officer. After a high-speed late night vehicle chase along dark, narrow roads of
Grainger and Hawkins Counties, plaintiff ran her vehicle into the ditch line alongside the
road, rendering it immobile, at least temporarily. After exiting their cars, and screaming at
plaintiff to stop her efforts to get out of the ditch, the two Bean Station police officers fired
a fusillade of shots. Some of the shots struck plaintiff in the face and head, necessitating the
removal of both her eyes.
Pursuant to 42 U.S.C. § 1983, plaintiff has sued the two officers in their individual
capacities, contending that their shooting of her constituted excessive force and therefore was
a violation of her right to be free of unreasonable seizure under the Fourth Amendment to
the Constitution. Also, again based on the officers’ alleged use of excessive force, she claims
that she was denied her substantive due process rights under the Fourteenth Amendment.
Lastly, with respect to her suit against the two police officers, she asserts state law
claims based on outrageous conduct and assault and battery.
With respect to the defendant municipality, plaintiff alleges that Bean Station
manifested deliberate indifference to her constitutional rights by failing to adequately train
its police officers.
The defendant municipality has filed a motion for summary judgment, (Doc. 20),
arguing that plaintiff’s suit against it should be dismissed (1) because it is barred by the
doctrine enunciated in Heck v. Humphrey, 512 U.S. 477 (1994); (2) because (a) there was
no constitutional violation in the first place, and (b) plaintiff has no proof that Bean Station
failed to adequately train its officers; and (3) plaintiff has no claim under the Fourteenth
Amendment inasmuch as her suit is premised solely on the officers’ use of excessive force.
The two officers, Andy Dossett and Ben Dossett, also have filed a motion for
summary judgment, (Doc. 22). They argue that they are entitled to summary judgment
because (1) plaintiff’s claim is barred under the Heck v. Humphrey doctrine; (2) the force
utilized by the officers was reasonable as a matter of law; (3) plaintiff has no cognizable
claim under the Fourteenth Amendment; and (4) the two officers are entitled to qualified
immunity. The officers also ask that plaintiff’s state law claims be dismissed if all the
underlying federal claims are dismissed; and because the undisputed facts show that neither
2
of these defendants acted intentionally, recklessly, or in a manner that cannot be tolerated by
civilized society.
For her part, the plaintiff has filed a motion to “deny or defer” the defendants’
respective motions for summary judgment, (Docs. 43 and 46).
The plaintiff’s motions, Documents 43 and 46, have been referred to the magistrate
judge for disposition. See, Order, Doc. 50. Also, the defendants’ motions for summary
judgment, Documents 20 and 22, have been referred to the magistrate judge for his
recommended disposition; see, Order, Doc. 53. The various motions were argued on October
13, 2011.
II. SUMMARY JUDGMENT PRINCIPLES
Summary judgment is proper where “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue of material fact and
that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In ruling
on a motion for summary judgment, the Court must view the facts contained in the record
and all inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court
cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any
matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of
material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a
3
showing, the non-moving party must present some significant, probative evidence indicating
the necessity of a trial for resolving a material factual dispute. Id. at 322. A mere scintilla
of evidence is not enough. Anderson, 477 U.S. at 252; McClain v. Ontario, Ltd., 244 F.3d
797, 800 (6th Cir. 2000). This Court’s role is limited to determining whether the case
contains sufficient evidence from which a jury could reasonably find for the non-moving
party. Anderson, 477 U.S. at 248-49; Nat’l Satellite Sports, 253 F.3d at 907. If the nonmoving party fails to make a sufficient showing on an essential element of its case with
respect to which it has the burden of proof, the moving party is entitled to summary
judgment. Celotex, 477 U.S. at 323. If this Court concludes that a fair-minded jury could
not return a verdict in favor of the non-moving party based on the evidence presented, it may
enter a summary judgment. Anderson, 477 U.S. at 251-52; Lansing Dairy, Inc. v. Espy, 39
F.3d 1339, 1347 (6th Cir. 1994).
The party opposing a Rule 56 motion may not simply rest on the mere allegations or
denials contained in the party’s pleadings. Anderson, 477 U.S. at 256. Instead, an opposing
party must affirmatively present competent evidence sufficient to establish a genuine issue
of material fact necessitating the trial of that issue. Id. Merely alleging that a factual dispute
exists cannot defeat a properly supported motion for summary judgment. Id. A genuine
issue for trial is not established by evidence that is “merely colorable,” or by factual disputes
that are irrelevant or unnecessary. Id. at 248-52.
Before ruling upon a motion for summary judgment, the non-moving party must be
afforded a reasonable opportunity for discovery. Celotex Corp. v. Catrett, 477 U.S. 317, 322
4
(1986); Plott v. Gen. Motors Corp., 71 F.3d 1190 at 1195 (6th Cir. 1995) (“Before ruling on
summary judgment motions, a district judge must afford the parties adequate time for
discovery, in light of the circumstances of the case.”)
The affirmative defense of qualified immunity in a § 1983 case presents a relatively
unique problem as far as summary judgment and any antecedent discovery is concerned:
“The purpose of a qualified immunity defense is not only protection from civil damages but
protection from the rigors of litigation itself, including the potential disruptiveness of
discovery.” Summers v. Leis, 368 F.3d 881, 886 (6th Cir. 2004). When a motion based on
qualified immunity is filed, the district court is not allowed the luxury of denying or
postponing a ruling on it merely because discovery is not complete. Id. On the other hand,
if the motion for qualified immunity is based on facts which the non-movant can demonstrate
is in dispute, summary judgment based on qualified immunity is precluded and discovery
must proceed. In other words, when ruling on a motion based on qualified immunity, all
disputed facts must be resolved in favor of the non-moving plaintiff. Scott v. Harris, 550
U.S. 372, 377 (2007) (“In resolving questions of qualified immunity, courts are required to
resolve a ‘threshold question: Taken in the light most favorable to the party asserting the
injury, do the facts alleged show the officer’s conduct violated a constitutional right? This
must be the initial inquiry.’”
III. PLAINTIFF’S MOTION TO DENY OR DEFER RULING ON BEAN
STATION’S MOTION FOR SUMMARY JUDGMENT AND BEAN STATION’S
MOTION FOR SUMMARY JUDGMENT
In order to establish liability against Bean Station, the plaintiff must prove (1) that her
5
constitutional rights were violated and (2) that the violation of those constitutional rights
flowed from the implementation or execution of a policy, custom, or practice of the City of
Bean Station. Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). If
Bean Station is to be held liable under § 1983, it must have been guilty of some act or
omission that amounts to deliberate indifference to the rights of the plaintiff. Id. The City
cannot be liable on the basis of respondeat superior; the City can be liable only for its
actions, manifested by some municipal “custom or policy.” Id. A “failure to train,” or
inadequate training, will support a claim of liability under § 1983, but “only where the failure
to train amounts to deliberate indifference to the rights of persons with whom the policy
come into contact.” City of Canton v. Harris, 489 U.S. 378 (1989).
Bean Station relies upon the affidavit of its Chief of Police, the defendant Andy
Dossett, in which he states:
At the time of the incident in question, January 23, 2009, Ben Dossett
and I were certified law enforcement officers in the state of
Tennessee. As the Chief of Police, I have personal knowledge that
both he and I had all of our required training to be certified by the
state of Tennessee. This includes all training regarding use of force
and use of firearms. Further, at all times relevant we completed all inservice training required by the state of Tennessee.1
As matters now stand, this affidavit is uncontradicted, but therein is the rub: plaintiff
complains that she has not been given an opportunity to depose either of the defendants
Dossett, or any official representative of the City of Bean Station, e.g., the Mayor, and she
should be given this opportunity.
1
Doc. 23, ¶ 24.
6
There are two distinct, but nevertheless related, considerations. First, Andy Dossett
has made a factual assertion in his affidavit, viz., that he and his co-defendant were “certified
law enforcement officers” in the state of Tennessee, and had received all required training
to be so certified. That factual assertion remains untested, and the discovery deadline has not
yet expired. Plaintiff should be allowed an opportunity to cross examine Andy Dossett in a
discovery deposition to test the validity of those factual assertions. Similarly, the plaintiff
should be afforded a reasonable opportunity to take the deposition of an appropriate official
of the City of Bean Station – presumably the Mayor – to test the accuracy of Andy Dossett’s
assertion in his affidavit.
The second consideration is somewhat more complicated. If Andy and Ben Dossett
indeed were certified by the state of Tennessee, then as a matter of law the training received
by Andy Dossett and Ben Dossett was adequate. In 1981, Tennessee legislature created the
Peace Officers Standard Training (“POST”) Commission, Tenn. Code Ann. § 38-8-101, et.
seq. That Commission was and is charged with the responsibility of developing, planning,
and implementing law enforcement training programs for all local law enforcement officers
in the state of Tennessee.2 Further, the Commission is required to establish unified standards
for the employment and training of police officers, and to establish minimum standards and
curriculum requirements offered by any political subdivision or agency for the purpose of
2
38-8-104.
7
training police recruits or officers.3 The minimum standards for police officers established
by the Commission are binding on all governmental entities.4 The Commission issues a
certificate of compliance to any person “who meets the qualifications for employment and
satisfactorily completes an approved recruit training program.”5
If the two defendant police officers were certified by the POST Commission, then the
issue of the adequacy vel non of their training is resolved. If the training was inadequate,
then it necessarily follows that the standards established by the POST Commission was
inadequate or, alternatively, that the facility at which these officers received their training,
approved by the POST Commission, provided inadequate education and training, which
again necessarily implicates the inadequacy of the POST Commission’s requirements for
training police officers in this state.
If it be assumed for the sake of discussion that the POST Commission’s minimum
requirements were deficient in some particular, or that a Commission-approved training
facility rendered inadequate instruction notwithstanding that it was a facility approved by the
Commission, either circumstance could not make the City of Bean Station liable. The POST
Commission is the agency charged by the Tennessee legislature with establishing approved
facilities for the training of all police officers in this state. If the POST Commission itself
is derelict in its responsibilities in that regard, or if one of its approved facilities fails to fulfill
3
Id.
4
38-8-105.
5
38-8-107(a).
8
its teaching responsibilities, how is the City to know? Where would any political subdivision
of this state go to have its police officers trained? The answer is nowhere. What would the
Mayor of Bean Station know beyond what the POST Commission knows? The answer is,
nothing.
Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992) does not dictate a contrary
result. In Russo, the city itself created the training program, 953 F.2d at 1046. Here, if the
training was deficient, the “creator” of the training regimen is the POST Commission, not
the city. In a real sense, the legal issue is whether reliance by a city on a state-mandated
training and certification system for police officers constitutes a policy or custom that
amounts to “deliberate indifference.” It cannot.
Thus, if discovery does not call into dispute that these two defendant officers received
training at a Tennessee POST Commission-approved facility and that they indeed were
certified by the POST Commission as law enforcement officers in Tennessee pursuant to the
statute, then the City should be dismissed from this case.
IV. OFFICERS’ MOTIONS FOR SUMMARY JUDGMENT; PLAINTIFF’S
MOTION TO DENY OR DEFER RULING ON DEFENDANTS’ MOTION
HECK V. HUMPHREY DOCTRINE
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that a plaintiff
could not maintain a § 1983 claim for an unlawful and arbitrary investigation that led to his
arrest if the proof necessary to uphold his suit would amount to a de facto invalidation of the
9
plaintiff’s underlying criminal conviction. 512 U.S. at 486-87. In this case, the plaintiff was
convicted of evading arrest which obviously was based upon her high-speed flight from the
two Bean Station officers.6 Of course, there is nothing facially inconsistent between the
plaintiff’s evasion of the officers’ attempted arrest of her and a claim that those officers used
excessive force during the arrest. The defendants attempt to close this logical loophole by
relying upon Roberts v. Anderson, 207 WL 79057 (6th Cir. 2007) for the proposition that “an
officer’s excessive use of force is a defense to a charge of resisting or evading arrest; . . . [and
therefore] a guilty plea and resultant conviction of [evading arrest] necessarily includes a
finding that the officer did not use excessive force.”7 The defendants Dossett argue that
plaintiff did not avail herself of the opportunity to claim that the officers used excessive force
against her as a defense to the charge of evading arrest.
The defendants’ reasoning is innovative, but faulty. First, to state the obvious, an
unlawful flight to avoid arrest, no matter how egregious, does not justify the officers’
subsequent use of excessive force. And as far as Roberts, supra, is concerned, the fallacy of
defendants’ argument is apparent if one analyzes what would have happened had the plaintiff
attempted to rely upon the officers’ use of excessive force in defending the charge against
her for evading arrest. The short answer is, it would have been completely ineffective.
Plaintiff had been “evading arrest” for many minutes, long before the officers allegedly used
any excessive force upon her. Plaintiff’s evasion of arrest, and the officers’ alleged
6
Doc. 22-2.
7
Roberts, at * 6.
10
excessive force, were two distinct and independent events. The officers’ use of excessive
force, if such occurred, in no way vitiated or excused the plaintiff’s preceding evasion of
arrest, and any attempted reliance upon the officers’ excessive force in defense to the charge
of evading arrest would have been an utter futility. By the same token, plaintiff’s attempted
evasion of arrest, once ended, was no justification for the use of deadly force.
The doctrine of Heck v. Humphrey has no application to this case since a finding that
the officers used excessive force in effecting her arrest in no way amounts to a de facto
invalidation of her underlying conviction for evading arrest.
WAS THE OFFICERS’ USE OF DEADLY FORCE REASONABLE AS A MATTER
OF LAW?
The Supreme Court has held that
[t]he ‘reasonableness’ of a particular use of force must be judged
from the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight. [Citation omitted.] With respect
to a claim of excessive force, the same standard of reasonableness at
the moment applies: “Not every push or shove, even if it may later
seem unnecessary in the peace of a judge’s chambers . . . violates the
Fourth Amendment. The calculus of reasonableness must embody
allowance for the fact that police officers are often forced to make
split-second judgments - in circumstances that are tense, uncertain,
and rapidly evolving - about the amount of force that is necessary in
a particular situation.
As in other Fourth Amendment context, however, the “reasonableness” inquiry in an excessive force case is an objective one: The
question is whether the officers’ actions are “objectively reasonable”
in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation. [Citations omitted.]
An officer’s evil intentions will not make a Fourth Amendment
violation out of an objectively reasonable use of force; nor will an
officer’s good intentions make an objectively unreasonable use of
force constitutional. [Citations omitted.]
11
Graham v. Connor, 490 U.S. 386, 396 (1989).
In determining whether an officer’s use of force was reasonable, the court must take
into account three factors: (1) the severity of the crime at issue; (2) whether the suspect posed
an immediate threat to the safety of the police officers or others; and (3) whether the suspect
actively resisted arrest or attempted to evade arrest by flight. Livermore v. Lubelan, 476
F.3d 397, 402 (6th Cir. 2007), citing Graham v. Connor, 490 U.S. 386, 396-99.
Plaintiff’s antecedent actions in fleeing the officers at a high rate of speed endangered
innocent bystanders, as well as these officers. It is nothing short of miraculous that the
plaintiff did not crash head-on into any other vehicles on the dark, narrow roads. In an effort
to stop her flight, these officers arguably would have been justified in using deadly force to
stop her vehicle; see, e.g., Scott v. Harris, 550 U.S. 372, 385-86 (2007). But here, the highspeed chase had come to an end when plaintiff lost control of her truck and ran off the road
to the left.
When plaintiff’s truck left the roadway, a new situation arose, although that new
circumstance could not be completely divorced from what had transpired earlier, i.e.,
plaintiff’s high-speed and incredibly dangerous flight. The affidavits of the two officers and
plaintiff have been read, as well as the relevant excerpts from the plaintiff’s discovery
deposition. However, if a picture is worth a thousand words, then a video recording is worth
a million. The entire automobile chase and its violent ending was recorded, audibly and
visually, on Andy Dossett’s in-car camera. To the extent that the recording contradicts any
of the parties’ affidavits, or to the extent reasonable inferences can be drawn from the
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recording that contradicts a factual assertion in any affidavit, the recording must control.8
In her affidavit,9 plaintiff suggests that after she ran her truck off the road and into the ditch,
she ceased all efforts to escape. She unequivocally asserts that she recognized Andy Dossett,
and she told him immediately “not to shoot.” She says that she saw Andy shoot at her, and
she did not recall seeing Ben Dossett at all. Similarly, in her deposition,10 she maintains that
she was no longer trying to escape after she ran into the ditch, and that she had no
recollection of “revving” her engine.
In his affidavit,11 Andy Dossett says he pulled up alongside plaintiff’s truck; that he
got out of his car and drew his weapon; that he ordered plaintiff to get out of her vehicle, and
8
A court is not required to accept a witness’s testimony if that testimony is inconsistent
with, or contradicted by undisputed physical facts. This is the so-called “physical facts rule.”
See, Scott v. Harris, 550 U.S. 372 (2007):
When opposing parties tell two difference 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.
That was the case here with regard to the factual issue whether
respondent was driving in such fashion as to endanger human life,
respondent’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 visible fiction; it should
have viewed the facts in the light depicted by the video tape.
See also, Harris v. Gen. Motors Corp., 201 F.3d 800, 803 (6th Cir. 2000).
9
Doc. 43-2.
10
Doc. 22-8.
11
Doc. 23.
13
she never complied; that plaintiff’s only reaction was to continue revving the engine and
rocking her truck back and forth in a continuing attempt to escape. He goes on to recite that
he moved toward the front passenger side of her car and yelled at plaintiff to stop, but she
continued to rev the engine. He became fearful of getting pinned between plaintiff’s truck
and his vehicle if she suddenly came out of the ditch. He then observed Ben Dossett move
in between Andy Dossett’s patrol car and Carpenter’s truck, giving rise to concern for Ben
Dossett’s safety. At this point, so Andy Dossett says in his affidavit, he decided to shoot the
front passenger tire in an effort to disable plaintiff’s truck. Notwithstanding his shots at the
right front tire, plaintiff continued her effort to extricate her vehicle from the ditch,
prompting Andy Dossett to shoot into the engine compartment in an effort to disable the
truck. That too, proved unsuccessful. At this point, the truck lurched, prompting Andy
Dossett to retreat and to fire a shot in the direction of the truck in a effort to “defend myself
and officer Ben Dossett.” He then states that, “to my knowledge, none of the bullets I fired
that night made any contact with the body of Ms. Carpenter.”
In his affidavit,12 Ben Dossett says he ran up to the passenger side of plaintiff’s truck,
thereby placing himself between Andy Dossett’s police car and the truck, in an attempt to
break the passenger window of plaintiff’s truck. He also describes how plaintiff obviously
was attempting to get out of the ditch and continue her flight. Ben Dossett claims that when
he saw the truck lurch forward, he believed that Andy Dossett was in danger of being struck,
12
Doc. 24.
14
prompting him to fire two or three shots in an effort “to protect both Andy and myself from
being possibly struck by the truck.” He also states that he believed members of the public
would have been in imminent danger if plaintiff managed to get back on the road and resume
her flight. He flatly states in his affidavit that he fired his gun at Ms. Carpenter.
The recording13 has been viewed, and re-viewed, many times. That recording of
course shows the lengthy, late night and high speed chase of the plaintiff. But it is at
22:59:30 on the recording that the immediately relevant events are shown: plaintiff’s vehicle
is off the roadway to the left, in the ditch line, and parallel to the road. Andy Dossett stops
beside her; not in front of her, not behind her, but directly beside her. For precisely ten
seconds, nothing can be seen on the recording other than the roadway in front of the two
vehicles, lit by the headlights. Presumably, during that ten seconds Andy Dossett is making
his unsuccessful effort to open plaintiff’s passenger door. Plaintiff clearly is continuing to
accelerate her engine, but to no avail. Her assertion in her affidavit that she was no longer
trying to escape is incorrect at best, and an outright lie at worst.
After ten seconds, Andy Dossett appears on camera with his gun drawn and aimed at
the passenger compartment of the truck. Andy Dossett is yelling something, but the noise
generated by his siren and plaintiff’s screaming engine completely drowns out his voice.
Within a matter of just a few seconds, he fires three shots at the front tire of plaintiff’s
vehicle. As he does so, Andy Dossett glances to his left, toward the rear of the vehicle,
13
A DVD, filed as Exhibit 2 to the officers’ motions for summary judgment.
15
presumably at Ben Dossett. As Andy Dossett fired his three shots at the tire, another shot
can be heard, which obviously was fired by Ben Dossett. After firing his three shots, Andy
Dossett raises his left hand and again glances to his left, clearly signaling to Ben Dossett to
either stay back or back away. Due to the cacophony of the screeching engine and the sirens,
it is difficult to tell for certain, but there are sounds on the recording consistent with Ben
Dossett firing additional shots. Notwithstanding all the shots fired, plaintiff’s engine
continued to race. Andy Dossett then fired a series of rounds into the engine compartment,
or so it appears. At 23:00:08, Andy Dossett is seen to suddenly walk backwards, then walk
forward, and then backwards again. At 23:00:20, he all but runs backward, more or less
firing his weapon wildly, at which time the recording captures a “lurch” of plaintiff’s vehicle.
It did not come out of the ditch line. Then, at 23:00:23, Andy Dossett again comes within
camera range, with his weapon pointed at plaintiff’s vehicle, although he fired no more shots.
What obviously is Ben Dossett’s arm appears at the same time, and Ben Dossett fires another
shot. At 23:00:28, both officers disappear from the recording; Andy Dossett reappears at
23:00:41 as he runs up to the truck, obviously to look into it. He then runs somewhere
behind his own car. At that point, it is all over.
A still photograph taken much later shows all the vehicles, including Ben Dossett’s,
as they were positioned during the shooting.14 Andy Dossett’s car is more or less directly
beside plaintiff’s truck, which is in the ditch line and slightly angled toward the roadway. The
14
Ex. 3, to Doc. 20.
16
right front tire on the truck obviously is flat. Ben Dossett’s vehicle is behind and to the right
of Andy Dossett’s vehicle.
As we all know, the use of deadly force to prevent the escape of a felony suspect who
does not pose an immediate threat to the officer or anyone else is unconstitutional. Tennessee
v. Garner, 471 U.S. 1, 11 (1985). Nevertheless, if an officer has probable cause to believe
that the suspect poses a threat of serious physical harm to the officer or innocent bystanders,
it is not unreasonable to prevent that suspect’s escape by using deadly force. Id. As noted
earlier in this memorandum, Scott v. Harris at least suggests that these officers could have
constitutionally utilized potentially deadly force to bring the high speed chase to an end before
plaintiff killed an innocent person. But plaintiff’s high speed flight had come to an end,
thanks to a fence and a ditch line. However, contrary to her affidavit, she was doing all that
she could to continue her flight. These officers claim in their affidavits that they feared for
their own safety, and the safety of others if plaintiff was successful in getting her truck back
onto the roadway. Since she did not heed their instructions to cease her efforts in that regard,
Andy Dossett shot at her tires, and then into her engine compartment, none of which had the
desired result. Ben Dossett, by his own admission, fired at the plaintiff, and the only
reasonable conclusion that can be drawn from that statement is that he intended to kill her.
These officers had probable cause to believe plaintiff was doing all that she could to
escape and, if she did escape, another high speed chase would ensue, and the public, as well
as the two pursuing officers, would be placed in deadly peril. But that does not end the
inquiry, at least as far as summary judgment is concerned. Under all the circumstances, was
17
their use of deadly force objectively reasonable?
This court cannot fathom why Andy Dossett did not pull his police cruiser in front of
the plaintiff’s truck, thereby ending any chance that she could escape by going forward.
Similarly, why Ben Dossett did not pull his cruiser directly behind the plaintiff to foreclose
any possibility of her backing up in an effort to escape also screams for an answer. Even to
one as untutored in police work as this magistrate judge, that seemed to be the obvious course
of action. The officers cannot rationally argue that they did not do so for their safety since
each of them, at one time or another, got directly beside the passenger door of the plaintiff’s
vehicle in an attempt to gain entry. Had the officers used their vehicles to block the plaintiff,
they could have exited their cars, found a comfortable place to sit, and serenely waited for the
plaintiff to run out of gasoline. As the recording plainly shows, Andy Dossett was extremely
excited. Presumably, so was Ben Dossett. And, they undeniably were in a tense and quicklyevolving situation. But even taking these circumstances into account, their actions in shooting
the plaintiff were not objectively reasonable under the totality of the circumstances, at least
from the standpoint of a reasonably competent police officer confronting the same situation.
QUALIFIED IMMUNITY
Qualified immunity in cases involving claims of deadly force is
difficult to determine on summary judgment because liability turns
upon the Fourth Amendment's reasonableness test. Under Tennessee
v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), the police
may not use deadly force against a citizen unless “the officer has
probable cause to believe that the suspect poses a *903 significant
threat of death or serious physical injury to the officer or others.” Id.
at 3, 105 S.Ct. at 1697. The proper application of Fourth Amendment
reasonableness “requires careful attention to the facts and
circumstances of each particular case, including the severity of the
18
crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.” Graham v. Connor, 490
U.S. 386, 396, 109 S.Ct. 1865, 1871–72, 104 L.Ed.2d 443 (1989).
This is an objective test, to be “judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of
hindsight,” id., and making “allowance for the fact that police officers
are often forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the amount of
force that is necessary in a particular situation,” id. at 397, 109 S.Ct.
at 1872. Thus, in a civil suit arising from the use of deadly force, the
police “[d]efendants will not be immune if, on an objective basis, it is
obvious that no reasonably competent officer would have [shot the
victim]; but if officers of reasonable competence could disagree on
this issue, immunity should be recognized.” Malley v. Briggs, 475
U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). The
central legal question is whether a reasonably well-trained officer in
the defendant's position would have known that shooting the victim
was unreasonable in the circumstances. Id. at 345, 106 S.Ct. at 1098.
This Court has established that summary judgment is inappropriate where there are
contentious factual disputes over the reasonableness of the use of deadly force. When
“the legal question ... is completely dependent upon which view of the facts is
accepted by the jury,” the District Court cannot grant a defendant police officer
immunity from a deadly force claim. Brandenburg v. Cureton, 882 F.2d 211, 215–16
(6th Cir.1989). This is because the reasonableness of the use of force is the linchpin
of the case. If the jury determines the officer shot the suspect without a reasonable
belief that he posed a significant threat of death or serious physical injury to the
officer or others, then the officer's actions were legally unreasonable under the Fourth
Amendment. Id. at 216. On the other hand, if the jury believes the officer's version of
the facts and finds the officer's conduct was reasonable, then he will be entitled to
qualified immunity. Id. Where, as here, the legal question of qualified immunity turns
upon which version of the facts one accepts, the jury, not the judge, must determine
liability. See Buckner v. Kilgore, 36 F.3d 536, 540 (6th Cir.1994); Adams v. Metiva,
31 F.3d 375, 387 (6th Cir.1994); Walton v. City of Southfield, 995 F.2d 1331, 1342
(6th Cir.1993); Washington v. Newsom, 977 F.2d 991, 995–96 (6th Cir.1992); Yates
v. City of Cleveland, 941 F.2d 444, 447 (6th Cir.1991). This is especially true
considering that the District Court must view the facts in the light most favorable to
the plaintiff on a motion for summary judgment. See Dickerson v. McClellan, 101
F.3d 1151, 1162 (6th Cir.1996); Adams, 31 F.3d at 384.
Sova v. City of Mt. Pleasant, 142 F.3d 898, 902-3 (6th Cir. 1998).
19
In partial response to these defendants’ motions for summary judgment, the plaintiff
submitted the affidavit of Phillip L. Davidson, who perhaps may be the most qualified expert
in excessive force cases ever seen by this magistrate judge in his sixteen years with the federal
court. Davidson earned a Ph.D in higher education administration from Vanderbilt University
and a law degree from the Nashville School of Law. He is a former police officer of the
Metro Nashville-Davidson County Police Department, during which employment he was a
patrol officer and zone commander. He also was assigned to the Police Academy where he
taught, among other things, use of force by the police. In 1984, he was appointed by thengovernor Lamar Alexander to become the Director of the Tennessee Law Enforcement
Training Academy in Donelson, and head of the Peace Officers Standards and Training
[POST] Commission. Throughout the years, he has taught courses at various institutions
regarding SWAT tactics and police use of force.
Dr. Davidson is of the opinion that the two police officers “used excessive,
unreasonable and unnecessary deadly force against Karen Carpenter.”15
On a totally objective basis, it is obvious that no reasonably competent officer would
have fired shots at the plaintiff as did these defendants, even under the tense circumstances
they confronted. Further, this court is of the opinion that officers of “reasonable competence,”
Sova, supra, could not disagree with this conclusion. In this regard, it is noted that the only
affidavits in the record filed on behalf of the two officers are their own. With respect to their
15
Doc. 46-2, ¶ 4.
20
claims that they shot the plaintiff to prevent the resumption of her flight, it should be for the
jury, not the judge, to determine if their belief was reasonable under the circumstances that
plaintiff posed such a significant risk to them or others that deadly force was justified. Sova,
supra. Unlike many excessive force cases, the jury in this case will have the advantage of
seeing an entire recording of the automobile chase and its violent aftermath, from which they
can determine whether or not the officers’ actions were reasonable or unreasonable under all
the circumstances and the Fourth Amendment, Sova, supra.
These officers are not entitled to qualified immunity.
V. SUBSTANTIVE DUE PROCESS CLAIM
All of plaintiff’s claims are premised on the officers’ use of excessive force. As a
result, her claims must be analyzed under the Fourth Amendment, not the substantive due
process clause of the Fourteenth Amendment, Graham v. Connor, 490 U.S. 386, 395 (1989).
VI. STATE LAW CLAIMS
There are disputed facts in the record, and inferences from facts, from which the jury
could conclude that these officers’ actions constituted assault and battery, and outrageous
conduct.
VII. MISCELLANEOUS
Andy Dossett claims in his affidavit that to his knowledge, none of the bullets he fired
that night struck the plaintiff. The plaintiff in her affidavit says that she saw only Andy
Dossett shoot at her, and does not recall seeing Ben Dossett. For his part, Ben Dossett claims
in his affidavit that he did aim at, and hit, the plaintiff.
21
Notwithstanding that Ben Dossett acknowledges that he shot the plaintiff, that is
insufficient to warrant the dismissal of Andy Dossett from this suit. For one thing, his
statement is far less than an unequivocal assertion that none of his shots struck the plaintiff.
For another, the jury could conclude that Andy Dossett and Ben Dossett were acting in
concert, and the actions of one were effectively the actions of the other, as far as the shootings
are concerned.
This the 21st day of October, 2011.
s/ Dennis H. Inman
United States Magistrate Judge
22
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