Askew et al v. City Of Memphis, Tennessee; et al
Filing
299
ORDER PARTIALLY GRANTING AND PARTIALLY DENYING MOTION 179 FOR SUMMARY JUDGMENT OF DEFENDANTS NED AUFDENKAMP AND TIMOTHY DYESS. Signed by Judge S. Thomas Anderson on 6/21/2016. (Anderson, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
STERLING ASKEW and SYLVIA ASKEW,
Plaintiffs,
vs.
CITY OF MEMPHIS, et al.,
Defendants.
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No. 14-cv-02080-STA-tmp
ORDER PARTIALLY GRANTING AND PARTIALLY DENYING
MOTION FOR SUMMARY JUDGMENT
OF DEFENDANTS NED AUFDENKAMP AND TIMOTHY DYESS
______________________________________________________________________________
Plaintiffs Sterling and Sylvia Askew filed this action pursuant to 42 U.S.C. § 1983,
alleging that Defendants City of Memphis and Defendant Officers Ned Aufdenkamp and
Timothy Dyess violated the civil rights of their deceased son, Steven Askew, under the Fourth
and Fourteenth Amendment Rights to the United States Constitution.1 Defendant Officers have
filed a motion for summary judgment. (ECF No. 179.) Plaintiffs have filed a response to the
motion (ECF No. 261), and Defendant Officers have filed a reply to the response. (ECF No.
278.) For the reasons set forth below, the motion for summary judgment is GRANTED as to
Plaintiff’s Fourteenth Amendment claim and DENIED as to Plaintiffs’ Fourth Amendment
1
(Cmplt., ECF No. 1-2.) Mr. and Mrs. Askew have filed suit as next of kin of Steven Askew,
and Mr. Askew has filed suit in his capacity as the Administrator Ad Litem/Personal
Representative of the Estate of Steven Askew. (Id.)
1
claim.2
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.”3
When deciding a motion for summary judgment, the court must review all the evidence and draw
all reasonable inferences in favor of the non-movant.
4
In reviewing a motion for summary
judgment, the Court views the evidence in the light most favorable to the nonmoving party, and
it “may not make credibility determinations or weigh the evidence.”5
When the motion is supported by documentary proof such as depositions and affidavits,
the nonmoving party may not rest on his pleadings but, rather, must present some “specific facts
showing that there is a genuine issue for trial.” 6 These facts must be more than a scintilla of
evidence and must meet the standard of whether a reasonable juror could find by a
preponderance of the evidence that the nonmoving party is entitled to a verdict.7 The Court
should ask “whether the evidence presents a sufficient disagreement to require submission to a
2
The motion for summary judgment of Defendant City of Memphis remains pending. (ECF No.
178.)
3
Fed. R. Civ. P. 56(c).
4
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
5
Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014).
6
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Eastham v. Chesapeake Appalachia,
L.L.C., 754 F.3d 356, 360 (6th Cir. 2014).
7
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
2
jury or whether it is so one-sided that one party must prevail as a matter of law.”8 The Court
must enter summary judgment “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case and on which that party will
bear the burden of proof at trial.”9
Background and Statement of Facts
Magistrate Judge Tu M. Pham previously succinctly summarized the background of the
events giving rising to this action and the positions of the parties as follows:
On the evening of January 17, 2013, the Memphis Police Department
(“MPD”) received a call concerning loud music coming from an apartment
located at 3193 Tyrol Court in Memphis, Tennessee. MPD Officers Ned
Aufdenkamp and Matthew Dyess were dispatched to respond to the call. For
reasons unknown, the Officers left the Tyrol Court location after responding to
the noise complaint and went to an adjacent apartment complex, the Windsor
Place Apartments, located at 3197 Royal Knight Cove. From here, the parties’
versions of events diverge drastically.
The City and the Officers (collectively “Defendants”) allege that while
checking the same general area around the Tyrol Court apartments on the night in
question, the Officers saw Steven Askew passed out behind the wheel of a
running vehicle in the parking lot of the Windsor Place Apartments. When the
Officers approached the vehicle to assess the situation, Officer Aufdenkamp
noticed a handgun in Askew’s lap and notified Officer Dyess. The Officers then
woke Askew up by tapping loudly on his car window and shouting loud verbal
commands, at which time Askew made hand gestures towards the Officers and
pointed the gun at Officer Aufdenkamp. Both Officers opened fire on Askew,
which ultimately resulted in his death.
Plaintiffs allege that on the night in question, Askew was asleep in his car
in the parking lot of the Windsor Place Apartments, waiting for his girlfriend who
resides there to return from work. Upon spotting Askew in his vehicle, the
Officers angled their patrol car towards Askew’s car and turned on their overhead
lights to illuminate his vehicle; however, the Officers never activated any blue
lights, sirens, or other emergency equipment to get Askew’s attention. Plaintiffs
do not dispute that Askew had a gun in the car (which he was legally permitted to
8
9
Id. at 251 - 52.
Celotex, 477 U.S. at 322.
3
carry), but assert that he never pointed the gun at the Officers, and certainly did
not fire the weapon. Plaintiffs also point out that although one officer reported
that he saw Askew with a gun in his right hand, Askew actually had a cigar in his
right hand at the time of the incident. The Officers fired a total of twenty-two
shots that night, hitting Askew multiple times and killing him.10
Defendant Officers have presented the following statement of facts in support of their
motion,11 and Plaintiffs have presented additional facts that they deem material.12
On January 17, 2013, Memphis Police Officers Ned Aufdenkamp and Matthew Dyess
were assigned to a two man marked squad car while working the Delta Shift (5:00 p.m. until
1:00 a.m.) for the Mt. Moriah Station. Memphis Police Department received a 9-1-1 call at
21:48:55 (approximately 9:49 p.m.) regarding a loud music call at 3193 Tyrol Court in the Aspen
Lake Apartments. In response, Defendant Officers were dispatched to the area of Tyrol Court. 13
MPD Dispatch then notified Defendants of an additional complaint about loud music at another
apartment complex. Defendant Officers responded that they would “check both complexes.” As
a result of this call, Defendants went to Windsor Place Apartments.14
Both apartment complexes were in Defendants’ assigned ward, next to each other,
divided only by a fence; however, in order to go from the Aspen Woods Apartments to the
10
(Mag. J. Ord. at pp. 2-4, ECF No. 285.)
11
(Defs’ SOF, ECF No. 179-1.)
12
(Pl’s Resp. to Defs’ SOF & Add. Fcts., ECF No. 261-1.) Unless otherwise indicated, each
fact stated is not disputed by either party for the purpose of deciding this motion only.
13
It is unclear from the record whether Defendants actually went to the Tyrol Court location
before going to the Windsor Place Apartment Complex. Whether Defendants did or did not go
and whether there was any discrepancy in Defendants’ statements about whether they did or did
not go does not affect the Court’s decision.
14
The parties have referred to this apartment complex as both “Windsor Place” and “Windsor
Court.”
4
Windsor Place Apartments, Defendants had to exit Aspen Woods onto Mendenhall Road, travel
to the traffic light at the intersection of Mendenhall and Knight Arnold, and enter the Windsor
Place Apartments on Knight Arnold.
As Defendants made their way around the apartment complex, they observed a vehicle
backed into a parking space with a man in the driver’s seat.15 According to Defendants, because
this was a high crime area and because they had concerns for the safety of the man in the car,
they approached the vehicle.16 Defendants pointed the overhead lights of their police car toward
the vehicle and approached the vehicle with their flashlights. Defendants did not have their
patrol car’s blue lights or their siren on, did not check the car’s license plates and call the plate
numbers into Dispatch, and did not use their PA system; none of this was in violation of the City
of Memphis’ policy, but for safety they should have run the plate numbers.
According to Defendants, they were prepared for danger as they approached the vehicle
as this was an unknown risk stop, but they did not call for back-up.
Defendant Officer
Aufdenkamp went around to the passenger side of the vehicle, while Defendant Officer Dyess
went to the driver’s side. A partially full bottle of liquor was in the car.17 Defendant Officer
15
At this point, the parties’ versions of events begin to differ drastically. Defendants maintain
that the car was running and that the man, later identified as Stephen Askew, was “slumped back,
passed out in the driver’s seat which caused them concern.” (Defs’ SOF, ¶ 7, ECF No. 179-1.)
Plaintiffs contend that Askew was sitting in his car, asleep, with the windows rolled up and the
engine off, just prior to the shooting. (Pl’s Resp. to Defs’ SOF & Add. Fcts., ¶ 7, ECF No. 2611.)
16
Although Plaintiffs argue that there was no need for Defendants to approach the vehicle, (Pl’s
Resp. to Defs’ SOF & Add. Fcts., ¶ 8, ECF No. 261-1.), they have presented no evidence that
Defendants’ stated reason was not their actual motivation in approaching the car, although
Plaintiffs continue to dispute that the car was running as Defendants approached it.
17
The parties dispute whether Defendants could see the bottle when they approached the vehicle
and whether the bottle was open. (Id. at ¶ 13.)
5
Dyess knocked on the driver’s side window.18 Defendant Officer Aufdenkamp knocked on the
passenger side window. Both Defendants were shining their flashlights into the car. As a result,
Askew began to stir and move a little. Askew looked at Defendant Officers and made some type
of sign or gesture with his left hand.
Defendant Officer Aufdenkamp later testified that, when Askew moved his hands, he
thought he saw the handle of a handgun in the man’s lap between his legs, and he alerted
Defendant Officer Dyess to this fact.19 After the shooting, a gun belonging to Askew was found
on the floor of the car by his legs with a portion of it being under the seat and a portion
protruding from under the seat.
Both Defendant Officers took a step back and drew their weapons.20 Defendant Officers
can be heard on an audio recording with Dispatch two times during the relevant time period of
this incident. During the first interaction, Defendant Officer Aufdenkamp reported seeing a
weapon and asked for back-up, and then fifteen to twenty-four seconds later Defendant Officer
Aufdenkamp reported that shots had been fired. Dispatch recorded the “shots fired, shots fired”
call at approximately 10:00 p.m. At 10:01 p.m. Defendants requested an ambulance because a
suspect was down.
Defendant Officers fired twenty-two shots and hit Askew nine times resulting in Askew’s
death. Askew was shot six times in the back and one time in the back of his neck. One or more
18
Plaintiffs dispute whether Defendants called to Askew in addition to knocking on the window.
(Id. at ¶¶ 16, 17.)
19
Plaintiffs do not dispute that this was Defendant Officer’s testimony. (Id. at ¶ 21.)
20
Plaintiffs dispute whether Defendants gave “loud commands” to Askew to not touch the gun
and to put his hands up. (Id. at ¶ 26.)
6
of these seven shots was the fatal shot. Neither Defendant went to check on Askew after the
shooting.
Other officers and an ambulance and paramedic arrived on the scene. Askew was found
dead with a cigar or cigarette between his index finger and middle finger of his right hand. He
was right handed and trained to shoot with his right hand; he had a handgun carry permit.
Askew was transported to the forensic center by attendants with the Shelby County Medical
Examiner’s Office.
Eventually personnel from Memphis Police Department Inspectional Services Bureau
(“ISB”), the Homicide Bureau, Felony Response, Crime Scene, and Uniformed Patrol
Supervisors arrived at the scene. Additionally, Zayid Saleem, the police legal advisor for the
Memphis Police Department, arrived, as did a police union representative. An investigation into
the shooting then ensued.21
Both Defendants participated in walk-throughs of the incident with ISB although no notes
were made from these interactions. The parties dispute what is contained in the initial statements
of Defendants and whether the initial statements were consistent with Defendant Officers’ later
statements. Both Defendants were relieved of duty that night pending the outcome of the
investigation. In keeping with MPD Policy and Procedures, each Defendant Officer gave his
formal statement (“Garrity Statement”) to ISB on January 21, 2013.22
The Homicide Bureau of the Memphis Police Department conducted a criminal
21
ISB is MPD’s internal oversight bureau that investigates officer involved shootings. Plaintiffs
dispute that ISB conducted a “fair and thorough” investigation. (Id. at ¶ 61.)
22
MPD has a policy in which homicide detectives must wait forty-eight hours before obtaining
information from officers involved in a shooting. (Order, p. 3., ECF No. 295.)
7
investigation into the incident concurrently with the IBS investigation.23
At the conclusion of the investigations by ISB and the Homicide Bureau, the files were
submitted to the Shelby County Attorney General’s Office. The Attorney General declined to
charge or prosecute either Defendant.
MPD policy does not require an officer to wait and allow someone to fire a weapon at
him before the officer is allowed to fire his own weapon, although, in this case, it is disputed as
to whether a weapon was ever pointed at the officers. If a person points a weapon at an officer,
that officer is allowed to defend himself and fire his weapon under MPD policy.
Dr. Miguel Laboy, the Medical Examiner with Shelby County, conducted the autopsy of
Steven Askew and prepared a report.
A toxicology report was performed on specimens gathered from Askew at the time of his
autopsy on January 18, 2013. Askew was determined to have had a blood alcohol concentration
of .119 which is in excess of the legal limit. A small amount of marijuana was also present in
Askew’s system.
Nothing in the ISB or Homicide file shows that ISB contacted the medical examiners’
office about its findings or to discuss this case and, in fact, ISB made its findings before the final
autopsy was complete, and no outside consultant was hired to verify the stories of Defendant
Officers for ISB. Further, there was no investigation or inquiry by ISB into the trajectory of
bullets and entrance and exit wounds on Askew’s body.
Michael Knox, who does forensic reconstruction of shooting incidents and was retained
by Plaintiffs as an expert, gathered data, including testimony and physical evidence - which
23
Plaintiffs dispute that this investigation was “complete” or “thorough.” (Pl’s Resp. to Defs’
SOF & Add. Fcts., ¶ 62, ECF No. 261-1.)
8
included observing bullet holes, trajectories, and other things - to reconstruct the scene of
Askew’s death and to analyze the procedures used by Memphis Police Department officers
before, during, and after a shooting.
On April 27, 2016, this Court affirmed the decision of the Magistrate Judge which
granted in part and denied in part the motions of Defendant Officers and Defendant City to strike
Knox’s expert report.24 Specifically, as it related to the claim against Defendant Officers, the
Court determined that Knox could testify that “physical evidence indicated that Askew could not
have pointed his pistol at either officer.”25 The Court allowed Knox’s opinion that Defendant
Officers’ tactical decisions likely “caused or contributed to this shooting”26 However, Knox’s
opinion that “[t]he use of deadly force by Officers Aufdenkamp and Dyess was excessive and
was not objectively reasonable under the circumstances” was stricken.27
The Court also allowed Knox’s opinion that “[w]hen approaching a person who is
sleeping in a vehicle, it is reasonable and prudent to assume that, if startled or awakened quickly,
the individual’s immediate perception of his surroundings might not be clear. The individual may
not immediately recognize that he has been awakened by police officers but may instead assume
that he has been approach[ed] by someone wishing to do him harm.”28 Although Knox may not
opine about Askew’s actual state of mine, he may testify about the likely reaction of a person in
24
(Order, ECF No. 296.)
25
(Id. at pp. 5, 13 - 14.)
26
(Id.)
27
28
(Id. at p. 12.)
(Id. at pp. 5 - 6.)
9
Askew’s position, i.e., someone sleeping in a vehicle who is “startled or awakened quickly.”29
In looking at the “segmenting” rule, the Court found that Knox may not rely on the
events that occurred before Defendant Officers’ use of force when opining about Plaintiffs’
excessive force claim.30
The Court has incorporated its decision regarding the Knox’s expert opinion in
determining whether there are material issues of disputed fact that would defeat Defendant
Officers’ motion for summary judgment.
Analysis
In support of their motion for summary judgment, Defendant Officers make the following
arguments: (1) they are entitled to qualified immunity;31 (2) Plaintiffs have failed to state a
claim under the Fourteenth Amendment;32 (3) and their behavior under the Fourth Amendment
was reasonable.33 Defendant Officers deny violating Askew’s constitutional rights but argue
that, even if they did, they are entitled to the defense of qualified immunity. According to
Defendants, Askew threatened Defendant Officer Aufdenkamp with deadly force when he
pointed a gun at Aufdenkamp, and Defendants reasonably used deadly force in response to the
threat of deadly force.
29
(Id. at p. 15.)
30
(Id. at pp. 15 - 16.) The Court affirmed the Magistrate Judge’s decision that Knox could
consider Defendant Officers’ conduct leading up to Askew’s death in relation to Plaintiffs’
failure to train claim against the City because the segmenting rule does not apply to such claims.
(Id.)
31
(Defs’ Memo. at p. 15, ECF No. 179-2.)
32
(Id. at p. 16.)
33
(Id. at p. 17.)
10
Plaintiffs do not appear to contest Defendants’ argument that their claim is properly
brought under the Fourth Amendment, rather than the Fourteenth Amendment (“Plaintiffs in the
instant case allege that Defendant Officers violated their son’s Fourth Amendment right to be
free from unreasonable seizures by using deadly force.”)34 Therefore, to the extent that Plaintiffs
have brought a claim under the Fourteenth Amendment, Defendants are entitled to judgment as a
matter of law on this claim.35
Section 1983 imposes liability on any “person who, under color of any statute, ordinance,
regulation, custom or usage, of any State” subjects another to “the deprivation of any rights,
privileges, or immunities secured by the Constitution or laws.”36 In order to prevail on such a
claim, a § 1983 plaintiff must establish “(1) that there was the deprivation of a right secured by
the Constitution and (2) that the deprivation was caused by a person acting under color of state
law.”37 “Section 1983 is not the source of any substantive right, but merely provides a method
for vindicating federal rights elsewhere conferred.”38
Defendant Officers’ contention that Plaintiffs cannot prove that they violated Askew’s
Fourth Amendment rights is a threshold issue for the Court.39 If no genuine dispute of material
34
(Pls’ Resp., p. 4, ECF No. 261.)
35
See Wells v. City of Dearborn Heights, 538 F. App’x 631, 637 (6th Cir. 2013) (determining
that the “Fourth Amendment prohibits the use of excessive force by arresting or investigating
officers”).
36
42 U.S.C. § 1983.
37
Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003).
38
Humes v. Gilless, 154 F. Supp. 2d 1353, 1357 (W.D. Tenn. 2001).
39
Dunn v. Matatall, 549 F.3d 348, 353 (6th Cir. 2008) (quoting Scott v. Harris, 550 U.S. 372
(2007)) (“The first step must be viewed as the threshold inquiry: ‘Taken in the light most
11
facts exists as to whether Defendants violated Askew’s constitutional rights, then all other issues
in this case become moot. Therefore, the Court will first analyze the merits of Defendants’
motion for summary judgment on that issue, and, only if Plaintiffs have sufficiently supported
their claim that Askew’s Fourth Amendment rights were violated, will the Court consider the
issue of qualified immunity.
Plaintiffs claim that Defendants violated their deceased son’s Fourth Amendment right to
be free from an unreasonable seizure by using deadly force. The Fourth Amendment guarantees
that
[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants
shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
The Fourth Amendment is violated unless the “governmental interests” in effectuating a
particular kind of seizure outweigh the “nature and quality of the intrusion on the individual’s
Fourth Amendment interests.”40
There must be a “governmental interest” not only in
effectuating the seizure but also in “how the [seizure] is carried out.”41 Furthermore, “given the
extreme intrusion caused by use of deadly force, the countervailing governmental interest must
be weighty indeed; only in rare instances may an officer seize a suspect by use of deadly
force.”42
favorable to the party asserting the injury, do the facts alleged show the officer’s conduct
violated a constitutional right?’”).
40
Scott, 550 U.S. at 383; United States vs. Place, 462 U.S. 696, 703 (1983).
41
Tennessee vs. Garner, 471 U.S. 1, 8 (1985).
42
Davenport vs. Causey, 521 F.3d 544, 551 (6th Cir. 2008).
12
Balancing a particular governmental interest in the use of deadly force against the
intrusion occasioned by the use of that force is inherently a fact specific inquiry.43 There are
certain facts and circumstances which are important when evaluating whether an officer has
probable cause to believe that deadly force is necessary, and a claim under the Fourth
Amendment requires an objective standard of reasonableness with respect to the facts and
circumstances as encountered by the officer or officers at the time of the incident.44 “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.”45 This calculus
includes consideration of such factors as “the severity of the 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.”46 “These factors are not an exhaustive
list, as the ultimate inquiry is ‘whether the totality of the circumstances justifies a particular sort
of seizure.’”47 “The ‘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.”48
43
Baynes vs. Cleland, 799 F.3d 600 (6th Cir. 2015).
44
Graham vs. Connor, 490 U.S. 386, 395 (1989); Fox v. DeSoto, 489 F.3d 227, 236 (6th Cir.
2007) (citing Graham, 490 U.S. at 395–96).
45
Graham, 490 U.S. at 396–97.
46
Id. at 396 (citing Tennessee v. Garner).
47
Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 404 (6th Cir. 2007) (quoting St. John v.
Hickey, 411 F.3d 762, 771 (6th Cir. 2005)).
48
Graham, 490 U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20–22 (1968)).
13
When “the officer defendant is the only witness left alive to testify, the award of
summary judgment to the defense in a deadly force case must be decided with particular care.”49
In excessive and deadly force cases, the Sixth Circuit generally applies a “temporally
segmented analysis to the possible erroneous actions taken by police officers.”50 Referred to as
the “segmenting rule” or “segmenting approach,” the Sixth Circuit “embrace[s] a somewhat
narrow interpretation of the Supreme Court’s mandate that courts look to the totality of the
circumstances in determining if excessive force is used.”51 Thus, under the segmenting rule, a
court is to “‘carve up’ the events surrounding the challenged police action and evaluate the
reasonableness of the force by looking only at the moments immediately preceding the officer’s
use of force,” an approach that “applies even to encounters lasting very short periods of time.”52
In Dickerson v. McClellan,53 the Sixth Circuit acknowledged that “[s]ome of [its] cases
analyze[d] excessive force claims in segments.” In that case, the defendant-appellants were two
police officers that had responded to a call where a reportedly intoxicated man had fired nine
49
Burnett vs. Gee, 137 F. App’x 806, 809 (6th Cir. 2005) (citing Plakas vs. Drinski, 19 F.3d
1143, 1147 (7th Cir. 1994) (holding that “defendant knows that the only person likely to
contradict him or her is beyond reach . . . [s]o a court must undertake a fairly critical assessment
of the forensic evidence, the officer’s original reports or statements, and the opinions of experts
to decide whether the officer’s testimony could reasonably be rejected at a trial.”). Accord Scott
vs. Henrich, 39 F.3d 912, 914-915 (9th Cir. 1994) (pointing out that the Court may not simply
accept what may be a self-serving account by the police officer; instead, it must also look at the
circumstantial evidence that, if believed, would tend to discredit the police officer’s story, and
consider whether this evidence would convince a rational fact finder that the officer acted
unreasonably.).
50
Chappell v. City of Cleveland, 585 F.3d 901, 914 (6th Cir. 2009).
51
Claybrook v. Birchwell, 274 F.3d 1098, 1103 (6th Cir. 2001).
52
Greathouse v. Couch, 433 F. App’x 370, 372 (6th Cir. 2011).
53
101 F.3d 1151 (6th Cir. 1996).
14
shots.54 “Without knocking or announcing their presence, the officers entered the house with
their guns drawn through an unlocked storm door,” and then, moving through the house, the
officers heard the suspect yell out two threats before running toward the front door.55 While the
events that occurred next were disputed by the parties, the officers shot the suspect a total of nine
times, though the suspect did not fire at either of the officers.56
The Sixth Circuit analyzed the case by “carving up the incident into segments and
judg[ing] each on its own terms to see if the officer was reasonable at each stage.”57 The Court
of Appeals independently analyzed the reasonableness of the defendant officers’ decisions to
enter into the suspect’s home unannounced and then shoot the suspect as separate potential
violations of the Fourth Amendment and, thus, separate claims under § 1983.58
In Livermore ex rel. Rohm v. Lubelan, the Sixth Circuit likewise decided that viewing
“excessive force claims in segments” was the “proper approach.”59 In that case, a stand-off arose
after police confronted an individual who had failed to appear for a contempt hearing.60 The
contemnor lived in a campground and barricaded himself in his residence and set fire to auxiliary
54
Id. at 1154.
55
Id.
56
Id. at 1154–55.
57
Id. (quoting Plakas, 19 F.3d at 1150).
58
Id. at 1162.
59
Livermore, 476 F.3d at 406 (citing Gaddis v. Redford Twp., 364 F.3d 763, 772 (6th Cir. 2004);
Dickerson, 101 F.3d at 1161).
60
Id. at 400–02.
15
buildings on the campground.61 The local sheriff’s department surrounded the campground and
requested assistance from the Michigan State Police’s Emergency Services team “to resolve the
standoff.”62 A sniper with the Emergency Services team ultimately shot and killed the man when
he saw the decedent “in a crouched or kneeling position, holding his rifle at waist level and
turning his torso back and forth as if looking for someone.”63 The sniper believed that the
decedent was pointing his gun at another police officer.64
The Sixth Circuit analyzed the plaintiff’s claim that the commander of the Emergency
Services team had violated the decedent’s constitutional rights by recklessly creating the
circumstances that resulted in the decedent’s death. Applying the segmented analysis adopted in
Dickerson, the Sixth Circuit held that the plaintiff’s claim against the commanding officer failed
because the commander’s decisions preceding the seizure were immaterial.65 The Court of
Appeals explained that courts “scrutinize only the seizure itself, not the events leading to the
seizure, for reasonableness under the Fourth Amendment” because “[t]he Fourth Amendment
prohibits unreasonable seizures, not unreasonable or ill-advised conduct in general.”66
61
Id. at 401.
62
Id.
63
Id.
64
Id.
65
Id. at 407.
66
Cole v. Bone, 993 F.2d 1328, 1333 (8th Cir. 1993) (citing Carter v. Buscher, 973 F.2d 1328,
1332 (7th Cir. 1992)). In both Livermore and Dickerson, the Sixth Circuit cited the reasoning of
the Eighth Circuit with approval. Livermore, 476 F.3d at 407; Dickerson, 101 F.3d at 1162.
16
In the present case, relying on Livermore and its progeny in ruling on the motion for
summary judgment, the Court will look only at the reasonableness of Defendant Officers’
decision to shoot Askew because a Fourth Amendment segmented analysis renders the
reasonableness of other actions, such as the decision to go to Windsor Place Apartments,
immaterial at this juncture.
Defendant Officers contend that their decision to shoot Askew was reasonable because
Askew allegedly pointed his gun at Defendant Officer Aufdenkamp and did not put down the
gun and put his hands up when commanded by Defendants to do so. Defendants argue that they
were merely defending themselves and, thus, the shooting of Askew was reasonable under the
circumstances and did not violate Askew’s Fourth Amendment Rights.
According to
Defendants, their own testimony and the physical evidence support their account of the
shooting.67
In response, Plaintiffs have pointed to the following evidence in the record, which the
Court finds creates material disputed issues of fact from which the trier of fact could find that
Defendants violated Askew’s rights under the Fourth Amendment. Whether merely asleep (as
Plaintiffs contend) or intoxicated (as Defendants contend), Askew was not awake as Defendants
approached his vehicle. Although Defendants contend that the car was running, Plaintiffs have
presented countervailing evidence that it was not running.68
67
(Defs’ Memo., p. 9, ECF No. 179-2.)
68
(Pl’s Resp. to Defs’ SOF & Add. Fcts., ¶ 7, ECF No. 261-1 (citing Aff. Billy Ray Kelly, ECF
No. 261-2; Aff. Denicia Davis, ECF No. 261-3.)). Defendant Officers contend that the testimony
of the affiants should be excluded because (1) Plaintiffs did not previously disclose that the
affiants had knowledge of the events of the night in question; (2) even though the affiants state
that the car was running on the night in question, they do not provide a time frame for when they
noticed that the car was running; and (3) they do not state if they were inside or outside their
17
As Defendant Officers shone their flashlights into the car, they saw a closed, partially
consumed bottle of alcohol in the car. If the car was not running, there was nothing wrong or
illegal about having a previously-opened bottle of alcohol in the car.69
Defendant Officers walked toward the driver’s side of the vehicle and remained in a
position of caution, to the side but behind Askew. Defendant Officer Aufdenkamp went around
the vehicle to the passenger side, still remaining behind the front seat because it was a safer
position. At this point, Askew had done nothing to alert Defendant to any inappropriate conduct
or any dangerous conduct. 70
While looking in the car and while Askew was still asleep, Defendant Officer
Aufendkamp allegedly noticed a gun resting between Askew’s legs in the car seat. Askew still
had his eyes closed when Defendant Officers first saw the gun.71 According to Defendant
Officers, immediately upon witnessing the gun, they began yelling commands, and Askew
became uncooperative. Defendant Officer Dyess testified that, immediately after being alerted to
apartment when they noticed that the car was running. (Defs’ Reply, pp. 5 – 6, ECF No. 278.)
As for Defendants’ “late disclosure” argument, “issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived” because it does
not suffice “for a party to mention a possible argument in the most skeletal way, leaving the
court to put flesh on its bones.” Hayward v. Cleveland Clinic Found., 759 F.3d 601, 619 (6th
Cir. 2014) (quoting McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997)). However,
even if the Court were to strike the affidavits in question, there is still enough evidence in the
record showing disputed issues of fact that defeat summary judgment. Defendants’ other
arguments about the affidavits go to the weight of the testimony of the affiants and can be argued
at trial.
69
(Pls’ Resp., p. 9, ECF No. 261 (citing Tenn. Code. Ann. § 55-10-416(a)(1) (“No driver shall
consume any alcoholic beverage or beer or possess an open container of alcoholic beverage or
beer while operating a motor vehicle in this state.”)).
70
71
(Id. at pp. 9-10 (citing Aufdenkamp Dep., pp. 46-51, ECF No. 262-19.))
(Id. at p. 11 (citing Aufdenkamp Dep., p. 79.))
18
the gun, he began using “extremely loud verbal commands” at the “top of his voice,” as did his
partner.72 Defendant Officer Aufdenkamp testified that upon seeing the gun, “We started giving
him loud commands. I started giving him commands to put his hands up, police, police, put your
hands up, put your hands on the ceiling, don’t touch that gun, don’t touch your gun, put your
hands up.” Defendant testified that he was yelling authoritatively and loudly until Askew was
dead.73 Plaintiffs, however, have presented evidence, including the Dispatch Audio Recording,
that creates a factual dispute as to whether Defendants actually issued “loud commands.”74
However, even if Defendants’ testimony is believed, a jury could find that it was
unreasonable for Defendant Officers to shine flashlights into a car with a sleeping man, who
might or might not have been intoxicated, rapping on the car window and calling loudly to him –
despite believing that Askew had a gun in his lap. Based on Knox’s expert testimony, a jury
could find that Defendant Officers should have retreated to a position of safety, announced their
presence either over a Public Address System or their squad car sirens, and allowed Askew an
opportunity to wake up and cooperate with any commands they might have deemed necessary.75
Viewing the evidence in the light most favorable to Plaintiffs, the jury could also find
Defendants’ version of the events not to be credible. It is undisputed that Askew was asleep at
the time of Defendant Officer Aufdenkamp’s first radio dispatch. Defendant Officers saw the
gun in the car but had not begun yelling commands, nor had Askew become aware of anyone’s
72
(Id. at p. 10 (citing Dyess Dep., pp. 193 - 198, ECF No. 262-17.)).
73
(Id. (citing Aufdenkamp Dep., pp. 79 - 83.)).
74
(Id. (citing Aff. Billy Ray Kelly, ECF No. 261-2; Aff. Denicia Davis, ECF No. 261-3;
Dispatch Audio Recording, ECF No. 239; Minor Dep., pp. 40-41, ECF No. 262-22.)).
75
(Knox Expert Report, ECF No. 243; Knox Dep., ECF No. 262-18.)
19
presence around him. After that call, according to Defendant Officers, the following actions
allegedly took place: (1) Defendant Officers stepped back, grabbed their weapons, and began
yelling commands; (2) Askew turned his head to the back left to look at Defendant Officer
Dyess; (3) Askew then looked over to Defendant Officer Aufdenkamp at his back right and made
a hand signal that Defendant Officer Aufdenkamp thought might be a gang sign; (4) Askew
looked back at Defendant Officer Dyess and made a different hand signal; (5) Askew then
looked down and shook his head; (6) after that, Askew reached for his gun and pointed it across
his body to his right toward Defendant Officer Aufdenkamp; (7) Defendant Officers then fired
their guns twenty-two times; (8) Defendant Officer Aufdenkamp made a “tactical reload” of his
weapon; and (9) Defendant Officer Aufdenkamp called Dispatch and announced shots fired. A
jury could find that all these actions could not have taken place in the matter of second between
the first call to Dispatch and the second “shots fired” call.
Additionally, Defendant Officers contend that Askew reached for his gun, twisted his
body to the right, and pointed it back at Aufdenkamp who was on the side, but toward the rear, of
the vehicle. Defendant Officer Dyess first stated that Askew pointed the gun at Aufdenkamp
with his right hand.76 However, it is undisputed that Askew had a cigar in his right hand. At his
deposition, Defendant Officer Dyess testified that Askew had the gun in his left hand as he
reached across his body and behind him to point the gun at Aufdenkamp.77 Dyess later testified
76
(Statement of Dyess to ISB, 1/21/13, Ex. 8 to Dyess Dep, pp. 311-318, ECF No. 151-1.)
77
(Id. at pp. 197-198).
20
that he did not remember which hand Askew pointed the gun with.78 A jury could find that these
inconsistences impeach Defendant Officers’ account of the shooting.79
Additionally, as noted by Plaintiffs, a jury could find that, in order for Defendant
Officers’ version of the events to be correct, Askew would have had to pick up the gun with his
left, non-dominant hand and point it toward Defendant Officer Aufdenkamp who was standing
toward the back of vehicle, and not at the front passenger window, thus requiring Askew to move
the gun past the front passenger seat and into the back seat compartment in order to actually
point toward Aufdenkamp.
Plaintiff’s expert Michael Knox has opined that the physical evidence does not support
the statement of Defendant Officers as to how the shooting occurred.80 According to Knox, the
physical evidence does not support the statement that Askew pointed his firearm at Defendant
Officer Aufdenkamp due, in part, to the fact that the gun was found on the floorboard below
Askew’s legs and was not resting where it should have been if Askew had reached over and was
shot while his firearm pointed toward Aufdenkamp.81
Further, if Knox’s testimony is believed, the gunshot wounds to Askew’s arms are not
consistent with the assertion that he was pointing a gun at Defendant Officer Aufdenkamp
because the wound to the left arm is to the posterior side (back of the arm) and slightly above the
wrist. In order for the wounds to be consistent, according to Knox, Askew would have had to
78
(Id. at p. 199.)
79
Oregon v. Haas, 420 U.S. 714, 722 (1975) (stating that credibility may be impeached by the
use of a witness’s earlier conflicting statements).
80
81
(Knox Dep., pp. 75-76, 85-86, ECF No. 262-18.)
(Id. at pp. 76-77.)
21
have his arm upside down for it to be in the direction of the shots coming toward him.82 Neither
Officer described Askew holding the gun in that position.
Knox concluded that the wound to Askew’s left arm was inconsistent with Aufdenkamp’s
version that Askew reached around with his left arm to point the firearm at Aufdenkamp.83 Knox
stated that there is “no conceivable way” that Askew had a gun in his hand at the time that he
was shot.84
Knox explained why, when Askew was shot, he could not have then brought the gun
back to his lap and dropped it on the floorboard.
Well, first, the impact of the bullet isn’t going to move him. Bullets don’t
move bodies. It doesn’t turn people around. It doesn’t do things. The only
movement that could occur from any person shot – it would be from their own
movement of their body. . . .
But you also have in this particular case that there are two shots that he
sustained in the back that actually lacerate the spine. So you have one that
lacerates it in the thoracic – I believe it’s the T-4 area, and then you have one that
actually lacerates between the C-3 and C-4 here in the cervical vertebrae. The
laceration in the spine in shooting cases will result in very rapid incapacitation.
That’s one of the few ways that you could actually rapidly incapacitate a person,
is central nervous system damage. So, that limits the mobility. That limits the
ability of a person to turn back around and move their hands in a position to drop
a firearm.
….
Because the problem is that for him to get his hands back in that position,
he would have to bring them back over [the passenger seat back], under the
steering wheel, down into his lap, and then drop the gun between his legs –
between his legs at his lap.
And given the wounds that he has, the number of gunshot wounds that he
suffered, the fact that he suffered gunshot wounds to both arms, you would not be
able to accomplish that. He would not be able to get shot with a gun pointed over
this way, come back, bring it between his legs, and drop it. It just wouldn’t
82
(Id. at pp. 76-78.)
83
(Id. at pp. 78-79.)
84
(Id. at pp. 86-87.)
22
happen. I certainly have never seen anything like that in all of the shootings I’ve
ever looked at.85
In light of the inconsistencies in Defendant Officers’ statements and the opinion of
Plaintiff’s expert, Michael Knox, that the shooting could not have occurred in the manner
described by Defendants, the Court finds that a jury could find that the death of Askew resulted
from an unreasonable seizure, i.e., excessive force, in violation of Askew’s Fourth Amendments
rights.
Defendants contend that, even if Askew’s rights were violated, they are entitled to
qualified immunity. When confronting a claim of qualified immunity, a Court is faced with two
general questions. First, viewing the facts in the light most favorable to the plaintiff, the court
considers whether the officer violated a constitutional right. Second, the Court must ask whether
the contours of the right were sufficiently clear that a reasonable official would have understood
that what he was doing violated that right.86
The essence of the qualified immunity test is whether the officers had “fair notice” that
they were acting unconstitutionally.87 The qualified immunity doctrine “seeks to balance two
important interests: the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield the officials from harassment, distraction and liability when
they perform their duties reasonably.”88 Accordingly, when a court is faced with a motion for
summary judgment alleging qualified immunity, the motion should only be granted if a
85
(Id. at pp. 82-83.)
86
Saucier v. Katz, 533 U.S. 194, 201 (2001); Pearson vs. Callahan, 555 U.S. 223 (2009).
87
Hope vs. Pelzer, 536 U.S. 730, 739 (2002).
88
Pearson, 555 U.S. at 231.
23
reasonable juror could find that the evidence “viewed in the light most favorable to plaintiff” did
not violate a constitutional right that was clearly established.89 Furthermore, “all reasonable
inferences are drawn in favor of the plaintiff.”90
The right to be free from excessive force has long been “clearly established.”
When making a qualified immunity analysis, it is important to remember that the
defendant is, in essence, saying: ‘If the plaintiff’s version is credited, what I did,
judged today, arguendo would be wrongful, but at the time I acted, no reasonable
officer would have known he was acting wrongfully’ (citation omitted). As this
circuit has analyzed the qualified immunity issue in excessive force cases, the
question of whether the reasonable officer would have known his conduct
violated clearly established constitutional rights can be answered by the initial
inquiry of whether the officer’s use of force was objectively reasonable (citations
omitted). It is clear from this circuit’s analyses in various excessive force
decisions that, having concluded that the right to be free from excessive force is
clearly established, whether we grant qualified immunity in a particular case
depends upon whether the officer did, in fact, use excessive force (i.e., force that
was not objectively reasonable) (citations omitted). To put it another way, if there
is a genuine issue of fact as to whether an officer’s use of force was objectively
reasonable, then there naturally is a genuine issue of fact with respect to whether a
reasonable officer would have known such conduct was wrongful.91
Similar to the present case is that of King vs. Taylor,92 in which an arrestee was shot and
killed by a state police trooper. The trooper claimed qualified immunity which was denied by the
Sixth Circuit Court of Appeals.93 There was an arrest warrant for the arrestee, King, on felony
and misdemeanor charges. The trooper and others were sent to serve the warrant on King and
89
Cole, 448 F. App’x at 574.
90
Chapel vs. City of Cleveland, 585 F.3d 901, 909 (6th Cir. 2009).
91
Kostrzewa vs. City of Troy, 247 F.3d 633, 641-642 (6th Cir. 2001) (citations and internal
quotation marks omitted).
92
694 F.3d 650 (6th Cir. 2013).
93
Id. at 665.
24
knocked on his home door, but no one answered. The officers went to the back of the home and,
through a glass door, saw King lying on his couch with a blanket partially covering him. Two
officers knocked on the glass door and announced their identities as the trooper provided cover.
They showed a badge to King, and, according to the trooper, King sat up, turned to the officers,
and gave them “a look of contempt.”94 King turned away from the window, the trooper saw
King’s back, and King turned back toward the officers, and the trooper allegedly saw King’s
right hand come up with a gun and point it directly towards the officers. The trooper shot and
killed King.
The plaintiffs’ expert called into question the officer’s account of the incident,
particularly, the question of whether King pointed a gun at the officers prior to being shot. The
Sixth Circuit held as follows:
Viewing the record in the light most favorable to plaintiffs, we conclude that a
factual dispute exists whether Taylor reasonably believed that King posed a threat
of serious physical harm to Taylor or the other officers. In our view, a jury could
find, based on the forensic evidence, expert testimony, and common sense, that
King did not threaten the officers by pointing a gun at them just before he was
shot.
….
While the presence of a gun in King’s right hand is consistent with the officers’
testimony, that it was found resting on his right hip decidedly is not. . . .
Moreover, the officers (including Taylor) said they believed at first that King
might have shot at them. They could have plausibly believed this only if King had
his gun pointed directly at them, which would have required King to have his
right arm extended toward the officers, somewhat parallel to the floor. But a jury
could find such arm positioning entirely inconsistent with expert testimony and
common sense.95
94
Id. at 655.
95
Id. at 662 - 63. See also Brandenburg vs. Cureton, 882 F.2d 211, 215 (6th Cir. 1989) (finding
that, although a detective claimed that the decedent pointed his weapon “directly” at him and the
other officers, there were facts which might show otherwise, including expert testimony that the
position of the body indicated that the right hand was not grasping the trigger and the position of
the left arm could not prove that the decedent was aiming his weapon at the officers).
25
Because in the present case, “the legal question of immunity is completely dependent
upon which view of the facts is accepted by the jury,”96 the Court denies Defendants’ claim to
qualified immunity. As noted by the Court of Appeals in King, “[w]hat exactly happened just
before King was shot is a question for the jury, as both sides’ theories of what transpired are
sufficiently supported by evidence in the record.”97
As in King vs. Taylor, there is a dispute as to whether Askew was pointing a gun at
Defendant Officers immediately prior to being shot. As noted in King:
With respect to this . . . question and the qualified-immunity analysis, we have
little trouble concluding that if Taylor shot King while he was lying on his couch
and not pointing a gun at the officers, Taylor violated King’s clearly-established
right to be free from deadly force. It has been clearly established in this circuit for
some that “individuals have a right not to be shot unless they are perceived as
posing a threat to officers or others” (citations omitted). Genuine disputes of
material fact preclude upholding the district courts entry of summary judgment on
Taylor’s defense of qualified immunity.98
Accordingly, a reasonable officer would know that the right to be free from the use of excessive
force is a clearly established constitutional right. Thus, because the Court finds that there is a
factual dispute as to whether Defendant Officers used excessive force, Defendants are not
entitled to qualified immunity, and their motion for summary judgment is DENIED.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. Thomas Anderson
UNITED STATES DISTRICT JUDGE
96
Brandenburg, 882 F.2d at 216.
97
King, 694 F.3d at 663.
98
Id. at 664.
26
Date:
27
June 21, 2016.
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