Memorandum Opinion and Order
• This action arises from the tragic shooting of Gregory Harrison by Bowling Green Police Officer Keith Casada. The Court has great respect and admiration for the Bowling Green Police Department and law enforcement generally. It is a difficult and dangerous job we ask them to do and most times, they do it exceedingly well. In this case, there is nothing sinister or evil about Officer Casada. He simply used more force than was reasonable at the time he decided to use force. Case law justifies the use of deadly force when a suspect poses an imminent threat of serious physical harm to officers or others. Most cases justifying the use of deadly force involve rapidly occurring events requiring split second, on the spot, or instantaneous decision-making based on the threatening advances of a suspect. The situation faced that night by the Bowling Green Police Department officers, while tense and potentially dangerous, had not yet reached the point where the use of deadly force was reasonable. Officer Casada simply acted too soon.
This matter is before the Court on Plaintiffs Motion for Partial Summary Judgment on the liability of Defendants Keith Casada and Donitka Kay [DN 60] and on Defendants’ Motion for Summary Judgment [DN 61] and Motion for leave to file the sur-reply tendered by Defendants in opposition to Plaintiffs Reply in Support of Plaintiffs Motion for Partial Summary Judgment against Defendants Donit-ka Kay and Keith Casada [DN 72]. The Court heard oral argument on the motions on November 23, 2015. Fully briefed and argued, this matter is ripe for decision. For the following reasons, Plaintiffs Motion for Partial Summary Judgment [DN
I. Background
This case arises from the fatal shooting of Gregory Harrison by Keith Casada, then an officer of the Bowling Green Police Department, at approximately 2:00 AM on August 12, 2012.
At approximately 1:26 AM, an unidentified caller placed the first of two phone calls from his cell phone to the Bowling Green Police Department (“BGPD”). (Piper Dep. [DN 45-1] 29:2-:19, Mar. 3, 2015.) The first call, which was made to one of BGPD’s administrative lines, not 9-1-1, was received by telecommunication officer Danielle Piper. The caller, later identified as Harrison, stated “Yes, I’m on my way to Louisville Bridge, I wanna beat the hell out of my brother, and if they want me, KILL me,” before disconnecting. (Audio of first phone cаll, Piper Dep. Ex. 1 [DN 46-1] recorded on 12-Aug-2012 at 01.25.58 AM.) Piper entered CAD (computer aided-dispatch) notes into the BGPD system of the “nature and description of what happened during that phone call.” (Piper Dep. [DN 45-1] 13:6 — :8; see Piper Dep. Exs. 2-3 [DN 45-1] CAD Report, Aug. 12, 2012.)
Based on Piper’s CAD notes, police dispatcher Christy Montgomery dispatched Officer Keith Casada on the call as the primary officer, and Officers Jordan Wilson and Michael Amos, as back-up officers, to try to locate the caller to see what was going on. (Piper Dep. Exs. 1-3 [DN 45-1]; see Piper Dep. [DN 45-1] 14:17-:24, 21:l-:5, 23:15-24:1.) Montgomery advised of possible “unknown trouble” at Louisville Road bridge at East Riverview Drive and that they had a landline call in, male subject, “advised that he was at the Louisville Road bridge and that he wanted to assault his brother and then disconnected.” (Audio of Police Radio, Piper Dep. Ex. 1 [DN 46-1] recorded on 12-Aug-2012 at 01.27.25 AM.) The officers responded to the Louisville Road area but were unsuccessful in locating the caller. (Wilson Dep. [DN 43-1] 11:12-12:14, 13:1 — :5.) Piper called the number back to try to verify the caller’s location, but the phone’s voicemail picked up. (Audio of return call, Piper Dep. Ex. 1 [DN 46-1] recorded on 12-Aug-2012 at 01.31.06 AM.) From the recorded voicemail greeting, she learned that the cell phone owner’s first name was Greg. (Id.)
At 1:37 AM, Harrison, who was not yet identified, placed a second call to BGPD, using 9-1-1, instead of one of BGPD’s administrative lines. (See Audio of second call, Hanes Dep. Ex. 1 [DN 48] recorded on 12-Aug-2012 at 01.37.19.) In the second call, Harrison spoke with telecommunication officer Holly Hanes:
[Harrison]: “Uh, yes, my emergency [slurred] I’m at the T-Mart, I’m’a kill my family, I’ve asked for help and I’ve asked for help, [Hanes: “where are you?”] and they have ignored me. No, no, they have ignored me. You know what? You’ll have ignored me.”
[Hanes]: “We sent someone to where you said you were, where are you right now?”
[Harrison]: ‘You know what? I’m gon’ kill my brother, I don’t give a fuck, my mother-in-law’s had a stroke. You know what, I’m down in the parking lot with a gun, by my”
[Hanes]: “What parking lot?”
[buzzing sound] [dial tone]
(Id.) The T-mart convenience store referenced by Harrison was at the corner of Adams Street and East 12th Avenue, ap
At approximately 1:39 AM, police dispatch advised Officer Casada of “unknown trouble on 130 West 11th Avenue, one-three-zero West 11th Avenue. This is a subject that we tracked earlier. He called back, reference tо assaulting and his brother break. He advised he would be standing by at this location in the parking lot with a gun.” (Audio of Police Radio, Phillips Dep. Ex. 28 [DN 58] recorded on 12-Aug-2012 at 01.38.54 AM, 0:57-1:15.) At 1:42 AM, Sergeant Todd Porter radioed to dispatch asking for the caller’s phone number and whether they knew the caller’s name. The telecommunication officer responding gave Sergeant Porter the number and advised “Negative. He becomes uncooperative, advising that we’re not helping him and that he is going to kill his brother.” (Audio of Police Radio, Phillips Dep. Ex. 28 [DN 58] recorded on 12-Aug-2012 at 01.42.25 AM, 0:39-:48.) Dispatch found Harrison’s approximate location by GPS triangulation on Harrison’s cell phone. Sergeant Porter called Harrison’s cell phone and also received his voicemail and learned his first name was “Greg,” which Porter advised over the radio. (Dash-cam video, Phillips Dep. Ex. 30 [DN 58] 0:32-:37, 1:44:42-:47 AM.)
Because the shooting and the preceding events were recorded by a camera affixed to Sergeant Donitka Kay’s police car (the “dash-cam video”), the underlying facts of the case are largely undisputed. The dash-cam footage begins with Sergeant Kay stopping and redirecting traffic on East 11th Avenue.
Around 1:47 AM, Sergeant Kay turned left onto Clay Street (heading southwest) from East 11th Avenue and spotted a white male, wearing a white T-shirt and blue jeans walking (northeast) in the direction of 11th Avenue on the railroad tracks that are parallel to the 1100 block of Clay Street (between 11th and 12th Avenues). (Dash-cam video [DN 58] 2:47, 1:46:57 AM.) Kay stopped her car in the right lane of Clay Street, approximately 30 to 50 yards (or 90 to 150 feet), according to Kay and Casada’s later estimates, down the railroad tracks from Harrison.
Officers Wilson and Casada, who had been on foot nearby searching for Harrison, heard Kay yelling at Harrison to “show me your hands.” Wilson and Casada ran to Kay’s location, and stationed themselves on the passenger side of her cruiser, such that the vehicle was between them and Harrison.
During the incident, the police blocked off the road and surrounding area and had the trains stopped. (See Phillips Dep. Exs. 32-33 [DN 55-1] CAD Report; Dash-cam video [DN 58].) Between the railroad track and Sergeant Kay and Officer Casada’s position was approximately 18 feet of grassy area, a curved concrete wall, (see Scene Photographs, Phillips Dep. Ex. 1 [DN Sill Bates Nos. D005725-26), and the left lane of Clay Street, (see BGPD Shooting Drawing, Phillips Dep. Ex. 24 [DN 54-1] Bates No. D00489).
Harrison was intoxicated. (Kay Dep. [DN 41-1] 29:5-:14 (it was “pretty obvious upon contact” that Harrison was intoxicated); Casada Dep. [DN 44-1] 10:4-:19, 34:13-:15.) Officers observed Harrison urinating himself while standing on the train tracks during the incident. (Dash-cam video [DN 58] 6:10-:38, l:50:20-:28 AM; see Kay Dep. [DN 41-1] 29:11-: 14; Casada Dep. [DN 44-1] 10:4-:9.) They also saw Harrison cry intermittently, (see Kay Dep. Ex. 5 [DN 41-1] Use of Force Report of Sgt. Kay), stumble, (Kay Dep. [DN 41-1] 29:11, 58:4-:9), retrace his steps, and shout to the officers that he wanted to speak to his sister, (see Dash-cam video [DN 58]). The officers are heard on the dash-cam video telling Harrison that they will call his sister once he shows them his hands. (Dash-cam video [DN 58] 8:23, 1:52:33 AM; see Kay Dep. [DN 41-1] 58:14-59:17.) Officer Casada testified that Harrison had his left arm behind his back and was waving his right arm in the air and screaming, that he appeared sweaty, had slurred speech, and his pants looked wet, possibly from urinating on himself, and that given his behavior it was a “good possibility”
During the approximately twelve-minute exchange, Officer Casada and Sergeant Kay continually and repeatedly yelled to Harrison to “stop,” “stop and put your hands up,” “stop, don’t move,” “stop or I will shoot you,” and “sit down.” While Harrison is visible in the dash-cam video from Sеrgeant Kay’s vehicle, he is generally standing in one place. For the first five minutes of the encounter (1:47 — :52 AM), he is stationary, though he occasionally turned to face the other direction and turned back, he does not walk anywhere. For the next four minutes (l:52-:56 AM), Harrison occasionally takes a step or two down the railroad tracks in the direction of 11th Avenue and twice retraces his steps back in the direction of 12th Avenue, always stopping in response to the officers’ yelled commands. At one point, Harrison is seen reaching with his right hand into his right front pocket and then into his left front pocket with what appears to be some difficulty in getting his hand in his pocket. The officers yell “Greg, show us your hands” and Harrison straightens up. (1:55:44 — :49 AM.) At approximately 1:56 AM, Harrison takes another step down the railroad tracks toward 11th Avenue and is no longer visible from the dash-cam.
According to Wilson’s Statement, because Harrison did “not respond to any attempts to show his hands, get on the ground, or respond to any questions or attempts to deescalate the situation,” Wilson “decided to change positions to get a different angle and possibly determine whether [Harrison] was armed.” (See Kay Dep. Ex. 7 [DN 41-1] Use of Force Report, Officer Jordan Wilson (Aug. 21, 2012).) Wilson took up a position between 1131 and 1137 Clay Street, which put him directly across from Harrison and in a position to observe Harrison from concealment. (Id.; see also Kentucky State Police NIBRS Initial Report and Supplementary Reports, Phillips Dep. Ex. 9 [DN 52-1] Interview by Sgt. Phillips with Ofc. Wilson (Aug. 30, 2012).)) From this position, Wilson was still unable to determine if anything was being held in Harrison’s left hand, which was concealed in his pants behind his back. (Id.)
Officer Ernie Steff was also on the scene, located behind Harrison, and thus somewhat in the line of fire from Officer Casada and Sergeant Kay. Steff took cover behind a large concrete foundation and some small trees. According to Steffs Use of Force Report, Harrison heard Steffs approach and started yelling about someone being behind him, but he could not see Steff because of Steffs cover. Steff stated that he “was able to see Harrison briefly but the officers positioned on Clay Street was [sic] washed out by spotlights and blue lights.”
Throughout the exchange, Harrison stayed within the railroad tracks, moving parallel to Casada and Kay. (See Kay Dep.
At 1:57 AM, Sergeant Kay advised over the police radio “that if he takes one more step this way, uh, we’re shootin’.” (Dash-cam video [DN 58] 12:48, at 1:56:57 AM; Audio of Police Radio, Phillips Dep. Ex. 28 [DN 58] recorded on 12-Aug-2012 at 01.56.57 AM.) Sergeant Porter advised Sergeant Kay and Officer Casada to tell Harrison they were going to shoot him, which they did. (Id.)
A minute-and-half later, Sergeant Kay reports over the police radio that Harrison has apologized to his mom for whatever it is he is about to do. (Dash-cam video [DN 58] 14:32, at 1:58:42 AM; Audio of Police Radio, Phillips Dep. Ex. 28 [DN 58] recorded on 12-Aug-2012 at 01.58.32 AM.) Following the mom-forgive-me statement, Casada asks Kay to go around to the driver’s side of her cruiser and manually adjust the searchlight in an effort to keep Harrison illuminated as he gradually made his way down the railroad tracks. (Casada Dep. [DN 44-1] 30:8-32:24; Kay Dep. [DN 41-1] 148:21-149:2.) At 1:59 AM, Kay is heard on the dash-cam video saying “cover me” and immediately thereafter, the spotlight on the left side of the frame moves position. (See Dash-cam video [DN 58] 14:55, at 1:59:05.) Kay then returns to the passenger side of the cruiser.
Officers then converged on Harrison and called for ambulance. Harrison was taken to the hospital, where he succumbed to his injury and was pronounced dead later that morning. The Kentucky State Police investigated the shooting. The lead detective of the investigation was then-Detective Laura (Isenberg) Phillips.
Carey Woodcock, as administratrix of the estate of Gregory Harrison, filed this action in this court in August 2013, seeking damages. The Complaint includes claims for: excessive force in violation of the Fourth Amendment under 42 U.S.C. § 1983 (Count I); negligence and gross negligence (Count II); vicarious liability against Defendants City of Bowling Green, Hawkins, Wiles, and Watts for the state-law claims against Defendants Kay and Casada (Count III); common-law battery (Count IV); the tort of outrage (intentional infliction of emotional distress) (Count V); wrongful death under KRS 411.130 (Count VI); and violation of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (Count VII). (See 2d Am. Compl. [DN 84].) Both parties have filed motions for summary judgment.
II. Standard of Review
Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and identifying that portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
Although the Court must review the evidence in the light most favorable to the non-moving party, the non-moving party must do more than merely show that there is some “metaphysicаl doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
The summary judgment standard does not change when a court is presented with cross-motions for summary judgment. Profit Pet v. Arthur Dogswell, LLC,
III. Discussion
Plaintiff moves for summary judgment on “liability against Defendants Donitka Kay and Keith Casada,” arguing that their “decision to shoot Gregory Harrison was objectively unreasonable and therefore constituted excessive force, negligence[,] and battery as a matter of law, and negligence per se.” (Pl.’s Proposed Order [DN 60-3] 1.) Defendants move for summary judgment on all claims against them [DN 61],
A. Dismissal of Certain Claims
Plaintiff, in her response brief to Defendants’ Motion for Summary Judgment, stated she has no objection to the dismissal of her claims: (1) against Defendant Kevin Wiles; (2) against Defendant Melanie Watts; (3) of 'conspiracy involving anyone other than Defendants Kay and Casa-da; (4) under Title II of the Americans With Disabilities Act; and (5) of battery against anyone other than Defendant Ca-sada. (See Pl.’s Resp. to Defs.’ Mot. Summ. J. [DN 63] 1.) Accordingly, those claims are DISMISSED with prejudice.
B. Section 1983 (Count I)
Plaintiff brings claims under 42 U.S.C. § 1983 against the City of Bowling Green, Chief Doug Hawkins, Sergeant Donitka Kay, and Officer Keith Casada for violation of Harrison’s constitutional rights. Section 1983 of Title 42 of the United States Code imposes civil liability on those individuals who, acting under col- or of state law, deprive a citizen of, among other things, his federally guaranteed constitutional rights. Brosseau v. Haugen,
In resolving a claim of excessive force, each defendant’s liability must be assessed individually based on his or her own actions. Pollard v. City of Columbus, Ohio,
1. § 1983 Claim against Casada for Excessive Force
Plaintiff contends that Officer Casada violated Harrison’s Fourth Amendment right to be free from excessive force. Plaintiff moves for summary judgment on her § 1983 claim against Casada, arguing that Casada’s decision to shoot Harrison was objectively unreasonable. Defendants argue that they are entitled to summary judgment on Plaintiffs § 1983 individual capacity claim against Casada (1) because Casada did not use excessive force as Ca-sada’s actions were objectively reasonable under the Fourth Amendment and (2) because Casada is entitled to qualified immunity.
The doctrine of qualified immunity shields government officials performing discretionary functions from civil liability insofar as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan,
a. No Genuine Dispute of Material Fact Exists
In this case, as both parties acknowledged at oral argument, there is no dispute as to the material facts that occurred regarding the shooting of Harrison. That is, there is not “a dispute over which set of facts to believe,” as the Court is “not presented with ‘dueling accounts of what happened.’ ” Pollard,
b. Constitutional Violation
The federal right at issue here is Harrison’s right, secured by the Fоurth Amendment, not to be subjected to excessive force during an arrest, investigatory stop, or other “seizure” of his person. Graham v. Connor,
The test for whether an officer’s use of force violates the Fourth Amendment is “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.” Graham,
As in other Fourth Amendment contexts, “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.” Graham,
Plaintiff first asserts that Garner “required three factors to be present to justify the use of lethal force: (1) the person must be suspected of committing a felony; (2) s/he must be trying to escape; and (3) s/he must present at least an immediate threat of serious physical'harm to the officer or others.” (Pl.’s Mot. Summ. J. [DN 60] 4.) Plaintiff then contends that there is no genuine issue of fact that (1) “Harrison was guilty of, at most, a misdemeanor offense or offenses, which lacked the severity to justify the use of lethal force”; (2) “Harrison did not pose an immediate risk to the safety of Defendants or others”; and (3) “Harrison was neither actively resisting arrest or attempting to evade arrest by flight when he was shot.” (Id. at 5.) Plaintiff concludes that given these undisputed facts, no reasonable juror could believe Defendants’ claim that “Harrison presented such a risk that he had to be shot,” and
The Court disagrees with Plaintiffs premise regarding the mandatory nature of the Garner factors. The Supreme Court in Scott v. Harris,
The Court also disagrees with Defendants to the extent that they imply that the Graham factors are only to be considered in a “fleeing felon” situation. Courts routinely apply these factors when determining objective reasonableness of an excessive force claim in a wide variety of circumstances, not only those involving fleeing felons. E.g., Burchett,
Seventy of the Crime. The Court finds that the severity-of-the-crime inquiry weighs against Casada. Plaintiff contends that Harrison was guilty of, at most, a misdemeanor offense or offenses, which lacked the severity to justify the use of lethal force. In this case, the officers were dispatched to Harrison’s location not to arrest him, but to investigate Harrison’s threats of violence and respond to Harrison’s request for help. See Glenn v. Washington Cnty.,
Plaintiff states that even using the benefit of 20/20 hindsight, at the time Harrison was shot, he was at most guilty of: public intoxication (misdemeanor), KRS 525.100; disorderly conduct (misdemeanor), KRS 525.055 and 525.060; terroristic threatening (misdemeanor), KRS 508.080(1); resisting arrest (misdemeanor), KRS 520.090; and/or trespassing on railroad property (misdemeanor), KRS 277.350 and 511.070. The Court agrees with Defendants that it is not necessarily the felony/misdemeanor distinction that is relevant; so much as, it is the severity of the crime at issue. The only crime Harrison potentially committed that goes to the heart of Garner’s standard — “crime[s] involving the infliction or threatened infliction of serious physical harm,” Garner,
In Bouggess v. Mattingly, the court stated that
It cannot reasonably be contended that physically resisting arrest, without evidence of the employment or drawing of a deadly weapon, and without evidence of any intention on the suspect’s part to seriously harm the officer, could constitute probable cause that the suspect poses an imminent danger of serious physical harm to the officer or to others.
Actively Resisting Arrest or Attempting to Evade Arrest by Flight. Turning to the third factor, “whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight,” Graham,
Probable Cause to Believe Harrison posed an Imminent Threat of Serious Physical Harm to Officers or to Others. The question of whether there was probable cause to believe that Harrison posed an imminent threat of serious physical harm to officers or to others is the crux of this case. Both parties appear to agree on this point. “In excessive force cases, the threat factor is ‘a minimum requirement for the use of deadly force,’ meaning deadly force ‘may be used only if the officer has probable cause to believe that the suspect poses a threat of severe physical harm.’” Mullins,
Plaintiff contends that there is no objective evidence that Harrison posed a threat to the officers or anyone else. (Pl.’s Mot. Summ. J. [DN 60] 14 (“Based on what Defendants Kay and Casada knew at the scene of the shooting, ... there were no objective facts to support their belief that they or anyone else was at risk of serious physical harm or death when they decided to shoot Mr. Harrison. In addition to what Defendants themselves knew, the circumstantial evidence does not support any inference of such a risk: .... ”).) Plaintiff charаcterizes the situation as Harrison doing nothing when he was shot except taking one more step down a railroad track with his left hand behind his back. Harrison had been consistently non-compliant with those commands, stumbling, slurring, had urinated on himself, and appeared intoxicated.
Here, under the totality of the circumstances, there was not probable cause to believe that Harrison presented an imminent threat of serious physical harm to the officers or to others. The officers knew from the police radio that Harrison had called the police department twice that night; that his name was possibly Greg; that he had a gun, based upon Harrison’s
Defendants contend that Casada acted reasonably in the situation he confronted, which Defendants characterize as a “dynamic scene” created by Harrison’s repeated refusals to follow officers’ orders. Defendants rely on Pollard v. City of Columbus,
Here, there was no warrant issued for Harrison’s arrest, let alone for violent offenses such as forcible rape, assault with a deadly weapon, burglary, and kidnapping as there was in Pollard. There was no clear die-before-surrender mentality as exhibited by driving a car head-on into a semitrailer. See Pollard,
Defendants contend.that by continually refusing to show the officers’ both hands and keeping one hands in his pants, Harrison acted as though he had a gun. It was unknown to the officers at the scene whether Harrison had a weapon, as Harrison had told the 9-1-1 operator that he had a gun, but one hand (his left) remained out of view, behind his back and tucked into the waistband of his pants, and attempts to view him from different angles were unfruitful and Harrison did not respond to officers’ instructions to put his hands up. As Defendants note, the fact that Harrison was actually unarmed when he was shot is beside the point, see Mullins,
Defendants argue that “Harrison’s final declaration — asking his mother for forgiveness for what he was about to do — followed by his failure to show both hands while advancing upon Kay and Casada beyond the reach of the cruiser’s spotlight reasonably created the impression that Harrison posed a serious threat of bodily injury.” (Defs.’ Mem. Supp. Summ. J. [DN 61-1] 14.) Defendants emphasize what they characterize as Harrison’s “final declaration,” the alleged statement by Harrison to the effect of “momma, please forgive me.”
Furthermore, Harrison was not “advancing upon” Kay and Casada, as Defendants claim. Both Kay and Casada testified that Harrison never stepped over the rails, and thus was travelling parallel to the officers. Kay testified that Harrison never gave any indication that he was going to step over the rail nearest Kay and Casada and come towards them directly. (Kay Dep. [DN 41-1] 152:8-:13.) Casada testified that Harrison had gotten to a point that was close enough to him and Kay that he believed that Harrison presented a risk of death or serious bodily harm to him, if Harrison had a handgun. (See Casada Dep. [DN 44-1] 24:6-:16.) Ca-sada’s subjective perception of a threat, of course, are not pertinent to the objective reasonableness inquiry. Graham,
Whether Warning Given. The Court also considers whether officers gave a warning before employing the force, when feasible under the circumstances. See Garner,
Suspect’s Mental State. Plaintiff, relying on Champion v. Outlook Nashville, Inc.,
In making the reasonableness inquiry, a suspect’s mental state is one of the factors that must be taken into account, to the extent that it could be known by a reasonable officer on the scene. See Champion,
The problems posed by, and thus the tactics to be employed against, an unarmed, emotionally distraught individual who is creating a disturbance or resisting- arrest are ordinarily different from those involved in law enforcement efforts to subdue an armed and dangerous criminal who has recently committed a serious offense. In the former instance, increasing the use of force may, in some circumstances at least, exacerbate the situation; in the latter, a heightened use of less-than-lethal force will usually be helpful in bringing a dangerous situation to a swift end. In the case of mentally unbalanced persons, the use of officers and others trained in the art of counseling is ordinarily advisable, where feasible, and may provide the best means of ending a crisis. Even when an emotionally disturbed individual is “acting out” and inviting officers to use deadly force to subdue him, the governmental interest in using such force is diminished by the fact that the officers are confronted, not with a person who has committed a serious crime against others, but with a mentally ill individual.
Here, the officers were faced with a man that was apparently intoxicated, to the point that he had urinated himself, was crying and asking for his sister, was upset that he was not getting help, that appeared to officers to be suicidal, had yelled “shoot me” and stated that he wanted to die, and complained that “the voices won’t stop, the voices won’t stop.”
Less Intrusive Means of Force. Finally, the Court considers whether there were less intrusive means of force that might have been used before officers resorted to shooting Harrison with a gun. Plaintiff emphasizes that Defendants “never even considered the use of less-than-lethal alternatives” in arguing that Casada’s use of deadly force was objectively unreasonable. (Pl.’s Mot. Partial Summ. J. [DN 60] 19.) Defendants, relying on James v. Chavez,
To avoid a “Monday morning quarterback” approach, the Fourth Amendment does not require the use of the least, or even a less, forceful or intrusive alternative to effect custody, so long as the use of force is reasonable under Graham v. Connor. The Fourth Amendment requires only that the defendant officers chose a “reasonable” method to end the threat that the plaintiff posed to the officers in a force situation, regardless of the availability of less intrusive alternatives.
James,
The Court agrees that officers need not employ the least intrusive means available, as the ultimate inquiry is whether the force that was used was objectively reasonable under the Fourth Amendment. However, available lesser alternatives are relevant to the totality-of-the-circumstances in determining whether the force used was reasonable. See Glenn,
Plaintiff argues that the officers’ conduct violated applicable police standards, which prescribe ten less-than-lethal force alternatives, including pepper spray, Tasers, tear gas, pepper ball, and beanbag rounds. (See BGPD Policy and Procedure Manual, Kay Dep. Ex. 4 [DN 41-1] 3.1.6 Use of Force Policy.) Kay and Casada testified there was no discussion regarding any of these alternatives. (E.g,, Kay Dep. [DN 41-1] 45:15 — :23, 59:18-65:24; see also Casada Dep. [DN 44-1] 28:18-29:7.) Defendants do not argue that there were no less intrusive alternаtives available to subdue or appre
Having considered the pertinent factors, the Court finds that the danger presented by Harrison was not so grave as to justify the use of deadly force. See Smith v. Cupp,
c. Clearly Established Right
Defendants, in their Motion for Summary Judgment, assert that Casada is entitled to qualified immunity. Plaintiff bears the burden to “show that the defendant is not entitled” to qualified immunity, Untalan,
Thus, the next question is whether the right at issue was “clearly established” “in light of the specific context of the case” at the time of the events in question. Scott,
The Supreme Court has noted that “[t]his is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Anderson,
Plaintiff relies on King v. Taylor,
Defendants argue that Casada is entitled to qualified immunity because he had probable cause to believe that Harrison posed a serious threat and therefore the use of deadly force was constitutionally permissible. Defendants do not argue that the right violated was not clearly established at the time of the events in question. Instead, Defendants’ argument under the “qualified immunity” sub-heading is about whether a Fourth Amendment violation occurred in the first place.
2. § 1983 Claims against Kay
Plaintiff seems to assert § 1983 claims against Kay on theories of (i) failure to intervene and (ii) failure to supervise, based on the allegation that “Officers Kay and Casada inexplicably decided that if Mr. Harrison took ‘one more step’ he would be shot,” (2d Am. Compl. [DN 84]
The crux of Plaintiffs claims against Kay under § 1983 is the alleged mutual аgreement between Kay and Casada that Harrison would be shot when he reached a certain point. Kay testified in her deposition that while she did not instruct Casada to shoot Harrison; “we came to an agreement that if he didn’t — if he came past a certain point, we would [shoot him]. And it wasn’t really like you’re going to shoot or I’m going to shoot. It wasn’t like that.” (Kay Dep. [DN 41-1] 19:8-:13.) Kay further testified that the point that she came to an agreement with Casada about, that they would shoot Harrison if he moved beyond that point, was: “Out of our — out of the spotlight that was mounted on the patrol vehicle, it has a pretty wide range that it illuminates. And he moved out of it once and I had to manually move it with my hand again to reilluminate him. And it was almost affixed to where it wouldn’t turn any further.” (Id. at 19:14-:22.) Defendants refute that Kay and Casada made an agreement to shoot, calling the allegation “grossly misleading.” Defendants assert that Kay and Casada “made a tactical decision that if Harrison moved one step closer he became a reasonable threat to cause serious bodily harm or death to Ca-sada, Kay, other Officers and anyone in that area.” (Defs.’ Reply Supp. Summ. J. [DN 75] 1-2.)
a. Failure to Intervene
Police officers can be held liable for failure to protect a person from the use of excessive force by an officer. Turner,
Although Plaintiff moves for summary judgment on liability against Kay, she does not appear to dedicate any of her motion to arguing that she is entitled to judgment as a matter of law as to Kay. Having not demonstrated that she is entitled to judgment as a matter of law on this claim, Plaintiffs motion for summary judgment is DENIED as to this claim.
b. Failure to Supervise
Similar to her claim against Kay for failure to intervene, Plaintiff does not appear to argue expressly that she is entitled to judgment as a matter of law on this claim. Plaintiff does assert that Kay “was a Sergeant in the Bowling Green police, was at least initially the officer-in-charge at the scene, and was the superior officer to Defendant Casada, who had only been on the force two years.” (Pl.’s Mot. Partial Summ. J. [DN 60] 10 (citing Kay Dep. [DN 41-1] 6, 78, 130; Casada Dep. [DN 44-1] 11, 15-16).)
“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal,
Defendants contend that in this case, there is a lack of active conduct giving rise to any liability because the undisputed evidence is that Casada was not ordered to shoot and was not otherwise instructed to shoot by any of the named individual Defendants. Thus, Defendants contend, Plaintiff cannot prove supervisory liability. Plaintiff responds only that “[b]y virtue of Kay’s superior position to Casada and their mutual agreement to shoot Mr. Harrison, Kay is clearly liable for a failure to supervise her subordinate officer.” (Pl.’s Resp. to Defs.’ Mot. Summ. J. [DN 63] 7.)
Kay’s supervisory position does not automatically make her liable for the actions/inactions of her alleged subordinate Casada. The Court finds that while no one ordered or otherwise instructed Casada to shoot, the alleged agreement between Kay and Casada creates a genuine dispute of material fact regarding whether Kay “implicitly authorized, approved, or knowingly
3. § 1983 Conspiracy Claim Against Kay and Casada
Plaintiff claims that Defendants Kay and Casada conspired to violate Harrison’s constitutional rights. Plaintiff does not mention her conspiracy claim in her Motion for Partial Summary Judgment, thus the Court presumes that she does not move for summary judgment on that claim.
Defendants argue (1) that Plaintiff has failed to state a claim of conspiracy, (2) that even if Plaintiff has stated a claim of conspiracy, the claim is barred by the in-tra-corporate conspiracy doctrine because the named individuals were all employed by the City, and (3) that Defendants are entitled to summary judgment on that claim because “the record is wholly lacking of evidence to meet” the standard for civil conspiracy. (Defs.’ Mem. Supp. Summ. J. [DN 61-1] 18-19.)
The Sixth Circuit has recognized that conspiracy may serve as a theory of liability in claims advanced pursuant to § 1983. See Spadafore v. Gardner,
A civil conspiracy is an agreement between two or more persons to injure another by unlawful action. Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy. Each conspirator need not have known all of the details of the illegal plan or all of the participants involved. All that must be shown is [1] that there was a single plan, [2] that the alleged coconspirator shared in the general conspiratorial objective, and [3] that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant.
Hensley v. Gassman,
Defendants argue that Plaintiff failed to state a claim for conspiracy because Plaintiff makes only a “cursory reference to a conspiracy in one time in Paragraph 11” of the Complaint and this “bare mention of conspiracy” is insufficient. (Defs.’ Mem. Supp. Summ. J. [DN 61-1] 18 (citing Gordon v. Louisville/Jefferson Cnty. Metro Gov’t,
Defendants also argue that Plaintiffs conspiracy claim fails as a matter of law pursuant to the intracorporate conspiracy doctrine, which '“provides that members of the same legal entity cannot conspire with one another as long as their alleged acts were within the scope of their employment.” DiLuzio v. Vill. of Yorkville, Ohio,
Defendants argue that even if the Court were to consider the merits of Plaintiffs civil conspiracy claim, the Defendants are entitled to judgment as a matter of law. Defendants contend that the record is wholly lacking of evidence to support a civil conspiracy claim and that Kay and Casada did not make an agreement to injure Harrison by unlawful action. However, Plaintiff has presented evidence of the alleged agreement between Kay and Casada from which a jury to conclude that a conspiracy existed.
The Court finds that Plaintiff has stated a claim for civil conspiracy and has put forth evidence of such a conspiracy to avoid summary judgment. Accordingly, the Court DENIES Defendants’ motion for summary judgment on the conspiracy claim.
4. § 1983 Supervisory Liability Claim against Hawkins
Plaintiff asserts a § 1983 claim of personal supervisory liability for a failure to
Second, Defendants argue that there is a lack of active conduct giving rise to any liability.
Here, Plaintiff has not alleged nor presented any evidence to support a finding of Hawkins’ personal involvement in the shooting. “The attempt to hold [Hawkins] hable in [his] individual capacity[y] for [his] alleged failure to adequately train employees in [Casada]’s position ‘improperly conflates a § 1983 claim of individual supervisory liability with one of municipal liability.’” Harvey v. Campbell Cnty., Tenn.,
5. § 1983 Official Capacity Claims
As to the official capacity claims against Chief Hawkins, Sergeant Kay, and Officer Casada, the Sixth Circuit has held that a suit against an individual “in his
6. § 1983 Municipal Liability Claims against City of Bowling Green
Plaintiff contends that the violation of Harrison’s constitutional rights resulted from the failure of the Defendants City of Bowling Green, Hawkins, and Kay “to: (a) employ qualified persons for positions of authority; and/or (b) to properly or conscientiously train and supervise the conduct of such persons after their employment; and/or (c) to promulgate appropriate operating policies and procedures either formally or by custom to protect the Constitutional rights of Gregory Harrison.” (2d Am. Compl. [DN 84] ¶ 11.)
Defendants seek summary judgment on Plaintiffs municipal liability claim. Under § 1983, a municipality can be hеld liable only if the plaintiff demonstrates that the injury suffered was a direct result of the municipality’s official policy or custom. Monell v. Dep’t of Soc. Servs.,
A plaintiff can make a showing of an official policy or custom by demonstrating one of the following: “(1) the existence of an illegal official policy or legislative enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the existence of a policy of inadequate training or supervision; or (4) the existence of a custom of tolerance [of] or acquiescence [to] federal rights violations.” D’Ambrosio v. Marino,
In her complaint, Plaintiff alleges that the conduct at issue in this case resulted from, inter alia, a failure to hire qualified persons for positions of authority. (See 2d Am. Compl. [DN 84] ¶ 11.) Defendants contend that Plaintiff has not presented any evidence to show any deficiencies regarding the hiring of Casada. Plaintiff does not address a failure to hire claim in her Response. In a footnote in their Reply, Defendants state that “Plaintiff does not address a failure to hire claim. Therefore Defendants presume Plaintiff abandons any such claim and or acknowledges there is no support for such a claim herein.” (Defs.’ Reply Supp. Mot. Summ. J. [DN 75] 3 n.3.) The Court, seeing no argument or support for such a claim, dismisses any such claim.
b. Failure to Train and Supervise
Plaintiff alleges that the City is liable under ¶ 1983 for failing to adequately train Officer Casada and Sergeant Kay. (2d Am. Compl. [DN 84] ¶ 11.) The Supreme Court has held that the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference tо the rights of persons with whom the police come into contact. City of Canton, Ohio v. Harris,
That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer’s shortcomings may have resulted from factors other than a faulty training program. It may be, for example, that an otherwise sound program has occasionally been negligently administered. Neither will it suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct. Such a claim could be made about almost any encounter resulting in injury, yet not condemn the adequacy of the program to enable officers to respond properly to the usual and recurring situations with which they must deal. And plainly, adequately trained officers occasionally make mistakes; the fact that they do says little about the training program or the legal basis for holding the city liable.
City of Canton,
Defendants offer the BGPD Policy and Procedure Manual, which includes a use-of-force policy, and contend that the City had policies in place addressing the proper use of force and the training of its employees on that policy. Under the Policy and Procedure Manual, “[a]ll newly hired police personnel are provided instruction in the law regarding the use of force while attending recruit training at the Department of Criminal Justice Training,” and “[a]s part of the Department’s Training Program, all newly hired police personnel are issued copies of and provided with instruction in Department policy and procedures regarding the use of force prior to being allowed to carry a firearm, baton, [pepper spray] canister, or Taser.” (BGPD Policy and Procedure Manual, Kay Dep. Ex. 4 [DN 41-1] 3.1.7.9 Instruction in the Use of Force; see id. at 3.1.6 Use of Force Policy; id. at 3.1.7.3 Use of Firearms; id. at 3.1.9 Firearms Provisions and Qualifications.) Casada testified that he received training on the use of firearms, the use of force, and people with psychological conditions at the Department of Criminal Justice Training, (see Casada Dep. [DN 44-1] 49:4 — :21), and that he received yearly in-house training, which included scenario-based training, yearly training on the use of force and firearm qualification, and yearly training on a FireArms Training Simulator (shoot-don’t shoot, use a Taser-don’t use a Taser) machine from the BGPD, (see id. at 49:22-50:8).
Defendants also assert that Sergеant Kay, who was attempting communication with Harrison, was properly trained in negotiation and crisis intervention (“CIT” or “crisis intervention training”). Kay testified that she has been through seven in-house annual trainings • (officers “train with — rounds on how to approach different situations”), a 40-hour class of CIT, which “specializes in mentally ill subjects and how to recognize [them],” in 2007 or 2008, and a 40-hour hostage negotiation basic level class in 2009 or 2010. (Kay Dep. [DN 41-1] 100:3-104:20.) Kay further testified that she drew on her CIT and hostage negotiation training when first communi-
Plaintiff also contends that “it is the substance of the training, not the existence of it or even a written policy, that controls.” (Pl.’s Resp. to Defs.’ Mot. Summ. J. [DN 63] 7-8.) Indeed, the Supreme Court has recognized that “failure-to-train liability is concerned with the substance of the training, not the particular instructional format,” Connick,
While . Plaintiff may have shown a genuine issue of fact with respect to the inadequacy-of-training prong of City v. Canton, she offers no evidence that any inadequacy, if indeed one existed, was the result of the City’s deliberate indifference. See Harvey,
Here, however, unlike in the City of Canton hypothetical, it is undisputed that the City trained its police officers on the use of deadly force and that Casada and Kay received training in the use of deadly force and in dealing with mentally ill subjects. Plaintiff having put forth no evidence that the City was deliberately indifferent, the Court GRANTS summary judgment in favor of Defendants.
c. Ratification
Plaintiff also argues that the City of Bowling Green and Chief Hawkins, in his official capacity, ratified Kay and Casada’s decision to shoot Harrison when the City and Hawkins initiated an investigation into the shooting but took no action in response to Harrison’s death. (Pl. Resp. to Defs.’ Mot. Summ. J. [DN 63] 9.) Plaintiff relies on St. Louis v. Praprotnik,
The cases relied on by Plaintiff do not support a theory of municipal liability in this case. As Defendants note, those cases involve employment-related claims and are thus distinguishable. For example, in Ar-endale, the plaintiff was suspended from duty and that suspension was sustained by the police chief. The Arendale court found that the municipality could be held liable under § 1983 for the final disciplinary decision of the chief, who had final policy making authority with respect to the plaintiffs disciplinary charge.
However, the Sixth Circuit has found that a municipality may be liable based on a ratification theory by failing to meaningfully investigate its employees’ allegedly unconstitutional acts. See Leach v. Shelby County Sheriff,
Based on Márchese and Leach, Plaintiff can establish her municipal liability claim by showing (1) that a final municipal policymaker approved an investigation into the shooting of Harrison by Officer Casada and (2) the investigation was so inadequate as to constitute a ratification of Casada’s alleged use of excessive force. Wright,
C. State-Law Claims
Plaintiff also has also asserted a variety of state law claims. Plaintiff brings claims against all Defendants for negligence and gross negligence (Count II), IIED (Count V), and wrongful death (Count VI), a claim against Casada for battery (Count IV), and a claim to hold Hawkins and the City of Bowling Green vicariously liable for the torts of Kay and Casada (Count III). Defendants argue they are entitled to qualified official immunity regarding the state law claims brought against them in their individual capacities.
1. Qualified Official Immunity
Under Kentucky law, an officer or employee of a government agency sued in his or her individual capacity enjoys “qualified official immunity, which affords protection from damages liability for good faith judgment calls made in a legally uncertain environment.” Yanero v. Davis,
2. Officer Casada
a. Qualified Official Immunity
Defendants contend that Casada is entitled to qualified official immunity. Assuming that Defendants had shown prima facie that the shooting of Harrison was performed within the 'scope of Casada’s discretionary authority as a police officer, see Nichols v. Bourbon Cnty. Sheriffs Dep’t,
The Kentucky Supreme Court in Yanero stated that “in the context of qualified official immunity, ‘bad faith’ can be predicated on a violation of a constitutional, statutory, or other clearly established right which a person in the public employee’s position presumptively would have known was afforded to a person in the plaintiffs position, i.e., objective unreasonableness.”
b. Battery
Plaintiff asserts that Casada committed the tort of battery. (2d Am. Compl. [DN 84] Count IV.) Under Kentucky law, a battery is “any unlawful touching of the person of another, either by the aggressor himself, or by any substance set in motion by him.” Vitale v. Henchey,
Plaintiff states that “a police officer is also liable for battery where, as here, he uses more force than is necessary in effecting an otherwise justified arrest.” (Pl.’s Mot. Partial Summ. J. [DN 60] 8 (citing City of Lexington v. Gray,
Defendants’ argument for summary judgment on the battery claim tracks their § 1983 argument; Defendants contend that Harrison’s statement to dispatch that he had a gun and wanted to kill his brother, his statement “mom, forgive me for what I am about to do,” coupled with his actions presented what reasonably appeared to be an immediate threаt of serious death or bodily injury to Casada and others. (Defs.’ Mem. Supp. Summ. J. [DN 61] 31-32.) Defendants quote Fultz v. Whittaker,
The Court finds that neither party is entitled to summary judgment on the battery claim against Casada. Although the Court found that Casada’s use of force was unreasonable under the Fourth Amendment, “[t]he state standard of course need not be identical to the federal standard.” Coitrone v. Murray,
c. Negligence/Gross Negligence
Plaintiff asserts a claim that. Casada was negligent and/or grossly negligent in his use of force. (See 2d Am. Compl. [DN 84] Count II.) Defendants contend, citing Turner v. Hill,
As this Court explained in Ali, and again in Turner, when an officer uses excessive force, he can be liable for the intentional tort of battery, but he cannot be liable for negligence. Ali,
There is no such thing as a negligent battery. Where the officer may have mistakenly believed that he needed to use the amount of force that he did, that does not change the fact that initial action was intentional, or alter the objective analysis of whether the force he ultimately used was excessive. Thus, where an unwanted touching (a battery), which is inherent in any arrest, escalates beyond that which is reasonably necessary into excessive force, thе cause of action is solely for battery, with the officer’s privileged use of force ending when the excessive force began. To permit a separate claim for negligence creates the risk that a jury would assume that, even if no excessive force were used, the officer might somehow still be liable for some undefined negligence. Such a result is doctrinally unsupportable and unacceptable, because each time an officer uses force, he commits an intentional act of battery for which he is liable, unless he is clothed by a privilege permitting him to use a reasonable amount of force (e.g., that articulated in Gray, 499 S.W.2d at 74 (interpreting KRS 431.025(3)), or KRS 503.050, 503.070, 503.090).
Ali,
d. Intentional Infliction of Emotional Distress
Plaintiff asserts a claim for outrage under Kentucky law against Casada. In Kentucky, this tort is also known as intentional infliction of emotional distress (“IIED”). See Stringer v. Wal-Mart Stores, Inc.,
Under Kentucky law, IIED is a “gap-filler” tort, “providing redress for extreme emotional distress where traditional common law actions do not.” Banks v. Fritsch,
Here, Casada’s conduct was properly the subject of a battery (traditional tort) claim for which recovery of emotional distress is permitted, and Plaintiff has not presented any evidence from which a jury could infer that Casada’s actions were intended only to cause Harrison extreme emotional distress. Therefore, summary judgment in favor of Defendants on Plaintiffs IIED claim as to Casada is proper. See Rigazio,
3. Other Individual Defendants (Kay and Hawkins)
Defendants contend that the other named individual Defendants, to the extent that Plaintiff attempts to impose liability upon them based on their supervisory responsibility, are also entitled to qualified official immunity. Defendants cite Cole v. Shadoan,
Plaintiff counters, relying on Yanero, that while the promulgation of a policy is discretionary, an established policy must be enforced and followed, and there is no official qualified immunity for the failure to do either. Plaintiff appears to argue that Hawkins and Kay negligently failed to enforce federal law, state law, and the BGPD use-of-force policy “that clearly prohibited the shooting.” (Pl.’s Resp. [DN 63] 14.) Plaintiff argues that because Defendants Kay and Hawkins’ duties to Harrison were ministerial and not discretionary, Defendants are not entitled to the defense of qualified official immunity.
Defendants reply that the use of force, supervision and training, see Nichols,
Accordingly, Hawkins and Kay are entitled to qualified official immunity for Plaintiff’s claim for negligent enforcement of the use-of-force policy and thus the Court GRANTS summary judgment in favor of Defendants on that claim.
4.Intentional Infliction of Emotional Distress
Plaintiff asserts a claim for IIED under Kentucky law against all Defendants in this action.
5. Wrongful Death
Defendants argue that because Plaintiff failed to prove any tort claim against Defendants, summary judgment on Plaintiffs wrongful death claim is warranted. As there are still tort claims remaining, the Court DENIES Defendants’ motion as to the wrongful death claim.
6. Vicarious Liability
In Count III, Plaintiff alleges that Defendants City of Bowling Green and Chief Hawkins are vicariously liable for the state-law torts of Kay and Casada. Defendants argue that because a necessary prerequisite to establishing vicarious liability is for Plaintiff to prove her underlying tort claims against the tortfeasor-employees, Haugh v. City of Louisville,
IV. Conclusion
For the reasons set forth above, IT IS HEREBY ORDERED that Plaintiffs Motion for Partial Summary Judgment [DN 60] is GRANTED in part and DENIED in part and Defendants’ Motion for Summary Judgment [DN 61] is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that Defendants’ Motion for Leave to File a Sur-Reply [DN 72] is GRANTED. The Clerk of Court shall file the tendered Sur-Reply attached to Defendants’ Motion [DN 72],
Notes
. The accompanying audio to the dash-cam video starts approximately 20 seconds in. (See Dash-cam video, Phillips Dep. Ex. 30 [DN 58].)
. Officers Casada and Wilson had been dispatched to Harrison’s calls that were traced to the area of the 100 block of West 11th Avenue. Casada and Wilson arrived at the intersection of Clay and Bast 11th Avenue and parked their police cruisers on Clay, got out and searched for Harrison on foot.
.Sergeant Kay estimated that Harrison was approximately 30 yards from her when she first pulled her cruiser over. (Kay Dep. Ex. 5 [DN 41-1] Use of Force Report of Sgt. Kay at 2; Kay Dep. [DN 41-1] 144:5-:18.) Officer Casada estimated that Harrison was approximately 50 yards from Kay’s cruiser when he arrived on the scene. (Casada Dep. [DN 44-1] 59:14 — : 19.)
Sergeant Kay estimated that Harrison was approximately 15 yards away from her when Officer Casada shot Harrison. (Kay Dep. Ex. 5 [DN 41-1] Use of Force Report of Sgt. Kay at
. According to Wilson’s incident report, Wilson arrived first and covered Harrison "with his rifle while Sergeant Kay attempted to start a dialogue with” Harrison. (Kay Dep. Ex. 7 [DN 41-1] Use of Force Report, Officer Jordan Wilson (Aug. 21, 2012).) After less than a minute, Officer Casada also arrived at the vehicle and began covering Harrison. (Id.)
. Kay testified that she was seven or eight yards from the railroad tracks at their closest point. (Kay Dep. [DN 41-1] 150:13-:24.)
. Officer Casada testified that the searchlight pointed at Harrison might have made it difficult for Harrison to see Casada and Kay clearly. (Casada Dep. [DN 44-1] 33:11-: 15.)
. Casada testified in his deposition that he saw something black in Harrison’s hand that he believed to be “the butt of a gun,” (see Casada Dep. [DN 44-1] 34:1-:12). The first mention of this by Casada was in his Use of Force Report that he signed on August 16, 2012. (See Kay Dep. Ex. 6 [DN 41-1] Use of Force Report, Officer Keith Alan Casada, at 2 (Aug. 16, 2012).) However, this is inconsistent with the dash-cam video and police radio, where Casada never reported to seeing something of that kind, and Casada’s interview with Sergeant Phillips on August 14, 2012, where Casada never mentions it (see KSP NIBRS Report, Phillips Dep. Ex. 9 [DN 52-1] Interview by Sgt. Phillips with Ofc. Casada (Aug. 14, 2012)). It is also inconsistent with Sergeant Kay’s testimony and Use of Force Report, wherein she stated that ”[d]uring those two times that Greg had his back to Officer Casada and I, I could not see if [sic] Greg's hand. Greg had his hand stuck so far down his pants that could only see from his wrist up.” (Kay Dep. Ex. 5 [DN 41-1] Use of Force Report of Sgt. Kay at 2.) Further, Officer Steff was behind Harrison about 30 feet away and could not see anything in Harrison’s hand, as it “was completely down inside his blue jeans. So I could not see his hand nor if he had anything in it.” (Steff Dep. [DN 39-1] 26:3-:6, 28:3-:16.) Defendants do not mention Casada’s testimony on this in their motion.
. Since the incident, Detective Isenberg has been promoted to Sergeant Phillips and changed her last name to Phillips. (See Phillips Dep. [DN 50-1] 14:8-:10, 87:21-:23, Feb. 5, 2015.)
. In Tennessee v. Garner,
. It is unclear whether Harrison said “shoot me” in response to these warnings or whether Harrison said it prior to receiving these warnings. For most of the dash-cam video, while it is apparent that Harrison is verbally communicating with the officers, it is hard to make out anything he says. At 1:49:32 AM, a female voice can be heard saying “sounds like he is screaming shoot me.” In his Use of Force Report, Casada states that Harrison started yelling "shoot me” in response to the warnings the officers gave. (Kay Dep. Ex. 6 [DN 41-1] Use of Force Report of Ofc. Casada at 2.)
. Kay testified in her deposition that she felt Harrison was comprehending her earlier commands because he responded to them with things like "no” and "I can't.” Indeed, on the dash-cam video, when Harrison takes a step or two and the officers shout to "stop” or "stay right there,” Harrison would immediately stop and stay put for a time.
. There are other facts about Harrison's medical history that were not known to officers at the time of the incident. (See PL's Resp. to Defs.' Mot. Summ. J. [DN 63] 5 (citing Defs.’ Mem. Supp. Summ. J. [DN 61-1] 8-9) (objecting to Defendants inclusion of facts regarding Harrison’s medical history and criminal record that were unknown to the officers at the scene).) As these are facts of which the officers at the scene were unaware and could not have been aware of, the Court does not consider them.
. The district court cites Graham v. Connor,
. In their Memorandum in Support of their Motion for Summary Judgment, Defendants argument involves a discussion about the reasonableness of the officers' mistaken belief that Harrison was armed, on the stated assumption that "[t]he crux of Plaintiff’s claim is that the officers were mistaken in the belief that Harrison was armed.” (Defs.' Mem. Supp. Summ. J. [DN 61-1] 17.) Reasonable, but mistaken, beliefs such as this are perti
The qualified immunity inquiry, on the other hand, has a further dimension. The concern of the immunity inquiry is to acknowledge that reasonable mistakes can bе made as to the legal constraints on particular police conduct. It 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. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.
Saucier,
Defendants cite Pollard v. City of Columbus, Ohio,
. Plaintiff’s Response addresses together Defendants Hawkins and the City of Bowling Green’s liability for failure to train and supervise. However, “[a] § 1983 claim of personal liability for a failure to train and supervise differs from a § 1983 claim against a municipality for a failure to train and supervise.” Coley v. Lucas Cnty., Ohio,
. To the extent that Plaintiff is asserting that Chief Hawkins has § 1983 supervisory liability under a ratification theory, summary judgment is appropriate as well. See Walker v. Norris,
. There is no other mention of the battery claim in Plaintiff’s Motion for Partial Summary Judgment.
. Plaintiff does not move for summary judgment on this claim.
. As previously noted, Plaintiff's claim for outrage against Defendant Casada fails as a matter of law.