Godawa et al v. Byrd, No. 2:2012cv00170 - Document 66 (E.D. Ky. 2014)
Court Description: MEMORANDUM OPINION AND ORDER; 1)Pla's 47 Motion for Summary Judgment is DENIED; 2)Def's 48 Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. The Motion is Granted as to Plas' federal claims and stat e law loss of consortium claim. The Motion is granted as to Plas' remaining state law claims, but these claims are dismissed without prejudice; 3)Def's 49 Motion to Strike the expert's report and testimony and preclude his trial testimoy is DENIED AS MOOT; 4)A separate judgment will enter concurrently. Signed by Judge William O. Bertelsman on 8/1/2014. (LST)cc: COR
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EBBtern District of Kentucky IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT COVINGTON F I LED AUG -1 2014 AT COVINGTON ROBERT R, CARR CLERK U.S. DISTRICT COURT CIVIL ACTION NO. 2:12-cv-170(WOB-JGW) EDWARD GODAWA, ET AL. VS. PLAINTIFFS MEMORNADUM OPINION AND ORDER OFFICER DAVID BYRD DEFENDANT This is a 42 U.S.C. §1983 and state law action arising from the death of a young man, Michael Godawa, when he attempted to flee the scene of an arrest by assaulting a police officer with his vehicle. The officer in this case was forced to make a split-second judgment to protect his life and the lives of the public. seconds The single shot that was fired by the officer within of the vehicular assault was fatal, and this action ensued. Plaintiffs allege a violation of the Fourth Amendment use of excessive force, due process clause, for a violation of the Fourteenth Amendment and state law claims of wrongful death and "intentional tort, battery and murder."l This matter is now before the Court on Plaintiffs' for summary judgment (Doc. 47), Defendant's motion cross-motion for The court construes the latter claim as a single claim of the intentional tort of battery. 1 summary judgment (Doc. 48), and Defendant's motion to strike the report and testimony of Plaintiffs' expert witness (Doc. 49). The Court held oral argument on these motions on June Christopher Roach was present 2014. Jeffrey Mando, Philip Taliaferro, for III, Daly were present for the Defendant. the Ryan Plaintiffs, Turner, reporter, Thereafter, 62, Joan Averdick, and and Levi Defendant Officer Byrd and Official Chief of Police Tim Thames were also in attendance. court 27, recorded the proceedings. Doc. the Court took the matter under advisement. Order. On July 1, parties to Supreme Court U.S. 2014) file the Court issued an order directing the supplemental decision, 134 S. (Doc. 2014, Ct. 2012, briefs Plumhoff L. v. Ed. 2d addressing Rickard, 82 No. USLW the recent 12-1117, 4394 (May 27, 63). Having heard from the parties, reviewed the parties' briefs and supplemental briefs, and being sufficiently advised, the Court hereby issues the following Memorandum Opinion and Order. -2 Michael Godawa (the "decedent") was a 21-year-old patron at the Finish Line Bar in Elsmere, Kentucky, on the evening of June 22, 2012 and early morning of Godawa Depo., p. Byrd, 33. June 23, 2012. Doc. 51-I, T. At approximately 1:00 a.m., officer David a police officer for the city of Elsmere, his regular patrol. was conducting Doc. 26 I, Byrd Depo., p. 24. At the time, he was patrolling on a bicycle and was wearing his bike patrol police uniform. A Id. Finish complained Line that a drinking underage. approached employee patron in the Doc. 26-1, parking Byrd Depo., officer the lot p. appeared 25. to and be The officer watched as the suspect decedent drove his car from the back of the parking lot to an open parking space closer to the front of Finish Line. 3 Id. at 26. The officer approached the vehicle and asked the decedent if he had been drinking, Doc. 26-1, 1:23:26-32. Byrd Depo./ and the decedent responded negatively. pp. 27-28; Doc. 21-1, Lapel Video at The officer asked for an explanation of the beer The parties agreed at the June 27, 2014 hearing to the evidentiary facts as stated herein. They are derived from the officer's lapel camera and the surveillance camera for the tavern's parking lot. See Eggleston v. Short, 560 Fed. App'x 561, 563 (6th Cir. 2014) (the defendant must agree to the plaintiff's version of the facts; otherwise an issue of fact is created, and qualified immunity must be denied). The conclusions to be drawn from the facts are, of course, disputed. 3 As the officer started speaking with the decedent, he turned on his lapel camera, and the rest of the incident is therefore recorded. The lapel video has a timeclock readout, which enables the Court to precisely track the elapsed time for the critical events that follow. 2 -3 bottle sitting in the cup holder of the car, to which the decedent responded that the beer belonged to his girlfriend, who was inside the bar. Doc. 26- 1, Byrd Depo., p. 28 i Doc. 21- 1, Lapel Video at 1:23:33-1:24:33. When the officer asked for the decedent's the decedent responded that he was the license on him. Doc. 26- 1, Lapel Video at 1:24:33-45. licensed, Byrd Depo., did not want but did not have p. 27 i Doc. 2 1 - 1, The officer then asked the decedent to submit to a field sobriety test. 1:24:51-1:25:03. identification, Doc. 21-1, Lapel Video at The decedent responded that he was nervous and to take the test. Id. at The 1:25:03-1:25:09. officer instructed the decedent to "hold on a second" while he went to the rear of the vehicle to retrieve a notepad and pen. Id. He then walked back to the decedent's at 1:25:10-1:25:11. side window and obtained the decedent's name and social security number. Id. After questioned at 1:25:26-1:25:48. returning whether 1 : 25 : 48 - 1 : 25 : 51 i to the Doc. the vehicle, decedent 26- 1, had the been Byrd Depo ., p. officer drinking. 28 . again Id. The at decedent then admitted to lying to the officer and said he actually had "one or two" drinks and that the beer in the cup holder was not his girlfriend's. Doc. 26- 1, Byrd Depo ., Lapel Video at 1:25:51-1:26:25. -4 p. 28 i Doc. 21 1, The decedent then told the officer he would submit field sobriety test. Depo ., walked p. 30 . to 1:26:32-1:27:21; Doc. 26-1, Byrd The officer told the decedent to "hold on" the dispatch. at Id. to a rear of the vehicle to request backup and from Doc. 21-1, Lapel Video at 1:27:21-43. While the officer was still at his bicycle behind the vehicle speaking with dispatch, the decedent started his car and began backing out of his parking spot. p. 30i Doc. 21 1, Lapel Video at Doc. 26-1, Byrd Depo., The 1:27:44-48. decedent struck the officer's bicycle and nearly struck the officer in the process of backing up. Doc. As the decedent was backing up, five times. 26 1, Byrd Depo., pp. 23, 30. the officer loudly yelled "hey" Doc. 21-1, Lapel Video at 1:27:51-54. As the decedent shifted the vehicle from reverse to drive, the officer ran to the front of the car with his gun drawn and ordered the decedent to stop the car. 31i Doc. 26-1, Byrd Depo., p. Doc. 21-1, Lapel Video at 1:27:55-58; Doc. 15-2, Finish Line Video at 1: 19: 11-13. "stop" four times. 4 The officer commanded the decedent to Doc. 21-1, Lapel Video at 1:27:55-58. The decedent accelerated forward at a rate of five to ten miles per hour. Doc. 26-1, Byrd Depo., p. 32. The officer did not fire when the decedent began driving towards him. Id. The Finish Line surveillance video, which does not contain audio, displays a timeclock readout, the timing of which differs from the officer's lapel video. 4 -5 The officer decedent in the continued left leg to around officer onto the hood on the Lapel 1:27:58-59; Video 1:19:13. at drive the car. forward knee, Id. Doc. at which 33, 15 2, and 99; Finish struck the knocked the Doc. Line 21-1, Video, The car traveled forward while the officer was on the hood of the car and his feet were off the ground. Byrd Depo., p. 100. 26 -1, The impact of the officer and the vehicle cannot be clearly seen on the lapel crash can be heard. Doc. camera video, but a loud Doc. 21-1, Lapel Video, 1:27:58 59. The officer came off the hood on the passenger side of the vehicle with his pistol drawn while the decedent drove the exit of the Finish Line parking lot. toward Doc. 26-1, Byrd Depo., p. 33; Doc. 21-1, Lapel Video at 1:27:58-1:28:00. within seconds of landing on his feet, the officer fired a single shot from his already-drawn gun at the decedent through the passenger side of the car. Doc. 26-1, Byrd Depo., pp. 32-33. The shot cannot be heard on either video, fired within a 1:27:58-1:28:02; The bullet the surveillance four-second Doc. entered 15-2, the range. Finish decedent's area and lodged in his chest. or lapel but it was Doc. 21-1, Lapel Video at Line Video at right shoulder, 1:19:11-15. upper back Doc. 15-6, Autopsy Photos. After he was shot, the decedent made a left-hand turn out of the parking lot and proceeded southbound on Dixie Highway. 26-1, Byrd Depo., p. 36; Doc. 21-1, Lapel Video at 1:28:02. -6 Doc. The officer radioed in what happened. 26-1, Byrd Depo., p. parking lot and 36. drove Then, back Doc. 21-1, Lapel Video; Doc. the decedent turned around in a towards the Finish Line where officer was now standing in the middle of Dixie Highway. the DOC. 26 I, Byrd Depo., pp. 36-37. When the car carne back towards the officer, the officer did not fire his gun because the· car slowed down and the officer observed that the decedent was slumped over the steering wheel and appeared ordered the to be inj ured. decedent to accelerated northbound. Id. stop the at 37. The vehicle, officer but the again decedent at 37-38. Id. The decedent struck a utility pole at the next intersection where two other responding impact. Id. at 38-39. parking lot, picked officers arrived shortly after The officer returned to the Finish Line up his bicycle, and joined the other officers at the decedent's car where the officers were waiting for paramedics to arrive. Elsmere police and Id., Doc. 21 I, Lapel Video. officers responded followed by emergency medical technicians. to Doc. the 15-4, scene, EMS Run Report. The decedent died from exsanguination due to perforation of his right lung from the gunshot wound to his chest. Hamilton County Coroner's Report. -7 Doc. 54 -I, Plaintiffs Edward and Tina Godawa, the decedent's parents, opened an estate for their son and filed this action on August 13, 2012. Doc. I, Complaint. motion for leave to file 2012. Docs. 17 -18, The Court granted Plaintiffs' an amended complaint on December 27,. Order and Amended Complaint. On July 17, 2013, Plaintiffs filed a premature motion for summary judgment (Doc. 21), which the Court denied (Doc. 32). Discovery then ensued, and the motions now before the Court were fully briefed. Analysis 1. Qualified Immunity ~In §1983, is] order [the defendant] to be held it is the plaintiff/s burden to show that not entitled Sheffey v. 2014 for WL to the protection City of Covington, 1663063, *4 (6th April 28 1 under [the defendant qualified Fed. App'x --- Cir. of liable ---I immunity./I No. 2014). 12-5109, The Court determines qualified immunity by application of two factors: whether the action violated a constitutional righti so, whether that constitutional right was and (2) (1) if clearly established such that a reasonable officer would understand that what he is doing would violate that right. Id. Trs. Of Green Twp., 583 F.3d 394, 400 (citing Morrison v. Ed. Of (6th Cir. 2009)). A. No Constitutional Violation To prove that an officer's use of violation of the Fourth Amendment, -8 force was excessive in the plaintiff must show that the use of force circumstances. 1865, 104 Ed. reasonableness of individual's objectively Graham v. L. balancing was of a the (1989). particular nature and Fourth (internal Determining seizure quality Amendment countervailing governmental quotations the at citations the a reasonable officer is on vision of hindsight.' analyzed stake." the scene, to make circumstances that are tense, the amount situation. '" 2020, L. of force plumhoff v. Ed. The 2d that 82 to "the poses others, an 396 inquiry Id. with 'of the a 20/20 in and rapidly evolving necessary in a particular 134 S. Ct. 2012, -- U.S. USLW 4394 of a particular use of force, at split-second judgments - is Rickard, the perspective than the for the fact that police uncertain, 4 9 0 U. S . at 3 96 - 3 9 7 ) Graham, rather We thus 'allo[w] officers are often forced about the on Id. omitted). "from careful against requires analyzing the totality of the circumstances. Reasonableness obj ective intrusion interests the 109 S. Ct. "requires of interests and under 490 U.S. 386, 399, Connor, 2d 443 unreasonable (May 27, 2014) (citing In assessing the reasonableness the courts pay special attention severity of the crime at issue, whether the immediate threat to the safety of officers or is actively arrest or and whether he attempting to evade arrest by flight." -9 the resisting Graham, suspect 490 U.S. at 396. Consistent with Supreme Court and Sixth Circuit precedent, Officer Byrd did not violate the decedent's Fourth Amendment rights in this case. The evidence officer establishes suspected officer's driving was bicycle, while intoxicated, nearly ignoring commands to stop. that the officer's The decedent decedent, backed hitting the the whom the the his car over officer, and continued drawn then drove gun and repeated into the officer, using the vehicle as a weapon to strike the officer and knock him up and over the hood of his flight by driving forward. this vehicular judgment, assault, car, and then continued his Within approximately four seconds of in what was clearly a split-second the officer fired a single shot at the decedent, the driver continued to flee the scene. 1:27:58-1:28:02. The entire and Doc. 21-1, Lapel Video, incident, from the time the decedent started his car to the time the decedent pulled his car out onto the busy twenty seconds. highway, lasted only between fifteen and Id. at 1:27:44-1:28:02. The severity of the crime inquiry is one of totality of the circumstances, and, in this case, insignificant crime. fired, Rather, at does not involve a minor or the time the fatal shot was the officer had probable cause to believe the decedent committed a number of violent and serious offenses, attempted murder, first-degree assault, -10 including wanton endangerment in the first degree, See Sheffey, *6 (6th --- Cir. and fleeing and evading in the first degree. Fed. App'x ---, April 28, No. 2014) permit) F.3d charge see i 150, also 156 of Hocker (6th misdemeanor that carrying v. Cir. 2014 WL 1663063, (circumstances significantly more severe than usual misdemeanor 12 5109, a a risk in an investigation of a concealed Pikeville 2013) created firearm City Police (considering without Dep't, 738 only the felonies the not justified the stop but also the a suspect incurred as a result of his flight from police) . The evidence also demonstrates the officer had reason to believe that both his life and the safety of the public at large were at risk. The officer fired within seconds of being struck by the decedent's car and when within feet of the still-moving vehicle; thus, the risk to the officer had not subsided at the time the officer fired the shot. 7, 33. See Doc. Rather, as in Hocker, the officer had a reasonable basis for assuming the decedent was not weapon at Williams (6th the v. r. immediately time he posed a fired his City of Grosse 2007) (approving following suspect's attempt to f In 26-1, Byrd Depo., pp. addition, the a Pointe an of vehicular finished using his car as a shot. Park, 738 F.3d at 496 F.3d 482, cer's use assault of 156; 487-488 deadly occurring see force during a ). record demonstrates threat to the public at large. -11 that the decedent The decedent's flight occurred in a standing parking video surveillance bar confirms near the lot during business hours. at least four entrance bar that in close proximity The people were to the decedent's vehicle in the two minutes before the flight began. Doc. 15-2, Finish Line Video, 1:17:30-1:19:12. attempting to flee onto a busy U.S. Highway, to pose a serious Rickard, No. Plumhoff v. 2022, risk of harm to L. shots fifteen at 82 a USLW fleeing where he continued the motoring public. u.s. 12-1117, Ed. 2d The decedent was 4394 suspect 134 S. Ct. (May was 27, 2014) reasonable See 2012, (firing where the suspect posed a grave risk to public safety after engaging in a high speed Harris, chase and 550 U.S. 372, (police officer I s colliding with a police car) Scott i 127 S. Ct. 1769, 167 L. Ed. 2d 686 attempt to terminate a dangerous v. (2007) high-speed car chase that threatened the lives of innocent bystanders did not violate the Fourth Amendment, even when it placed fleeing motorist at risk of serious injury or death) 496 F.3d at knocked a danger, and 487 (use sergeant the of to force the attempt reasonable ground, to escape where i him posed threat a williams, the putting in the suspect immediate to anyone within the vicinity) . Lastly, it is undisputed that the decedent was resisting arrest when the officer used deadly force. Pl. Response Brief, p. 15. actively DoC. 54, The decedent's conduct made it clear -12 he was evading the officer's fleeing an arrest. ignored nine exercise See Williams, commands to of police authority by 496 F.3d at 487. stop, struck bicycle and nearly hit the officer the The decedent police officer1s and then struck the police l officer with total disregard for his authority and safety. Thus the weighing all of the Graham factors I situation officer s without the benefit of and considering I 20/20 hindsight use of force was objectively reasonable. l the I Plaintiffs have failed to prove that the Defendant violated the decedent/s right to be free from excessive force. B. No Violation of a Clearly Established Right Even if the officer had used excessive force in violation of the Fourth Amendment For that the sake the of I he is entitled to qualified immunity. completeness officer used I the excessive Court will force in assume violation arguendo of the decedent1s Fourth Amendment rights sufficient to advance to the qualified immunity analysis. The officer cannot be said to have violated the decedent1s clearly established sufficiently defendant's it.1I definite "'existing "unless that any shoes would have Plumhoff 131 S. Ct. right 2074 I 2083 - 2084 precedent I must right/s reasonable -13 were in the he was violating (citing Ashcroft v. al-Kidd 179 L. Ed. have contours official understood that 134 S. Ct. at 2023 l the 2 d 1149 placed the (2011)) Thus statutory l I or constitutional debate. ' " question' Id. In confronted addition, by law the the official must be 'beyond sufficiently specific to the facts alleged and not defined at a -high level of generality" as "doing so avoids the crucial question whether the official that he or acted she reasonably faced." Id. in the particular (citing Ashcroft, circumstances 131 S. Ct. at 2074). Plaintiffs are unable to meet their burden to show that the officer was not entitled to use deadly force, because as of June 23, 2012, there was no binding officer's use of deadly force precedent following a that precluded an physical assault on the officer while the suspect is actively fleeing from arrest. Rather, relevant authority In Plumhoff, force was justified. that, establ ishes a fleeing of such the officer was entitled to qualified immunity for his use of force. Plumhoff, use the Supreme Court determined in an analogous circumstance, In that suspect 134 S. Ct. at 2024. and his passenger led officers on a high speed car chase that came to a temporary halt when the suspect spun out in a parking lot and made contact with the officers' cruiser. Id. at 2017. The suspect maneuvered his car and continued to use the accelerator even though his bumper was flush against a patrol car. Id. An officer fired three shots into the car and the driver drove away, almost hitting an officer in the process. Id. Officers then fired twelve more -14 shots as the driver sped away, striking him and his passenger, both of 2018. whom died. at Id. The Court found that the officers did not violate clearly established law in ending the chase with deadly force. Similarly, S. Ct. 596, authority by Id. at 2022. in Brousseau v. 160 the L. Ed. 2d Plumhoff 543 U. S. Haugen, 583 (2004), Court, an cited officer 194, as did 197, 125 controlling not violate clearly established law when she fired at a fleeing vehicle to prevent possible harm to other officers on foot in the immediate area, occupied vehicles in the suspect's path, and other citizens in the area. Plaintiffs have failed to meaningfully distinguish Plumhoff and Brosseau from the facts of this case. In the view of this Court, Plumhoff controls the result of this case. Plumhoff held that, as of July 18, 2004, an officer was entitled to qualified immunity from an excessive force claim where he fired his pistol into a car, the driver of which was attempting to escape from a parking lot onto a public highway. following statement by the 134 S. Supreme Court Ct . is at 2024. particularly relevant: Thus the record concl usively disproves respondent' s claim that the chase in the present case was already over when petitioners began shooting. Under the circumstances at the moment when the shots were fired, all that a reasonable police officer could have concluded was that Rickard was intent on resuming his flight and that, if he was allowed to do so, he would I -15 The once again pose a deadly threat for others on the road. Rickard's conduct even after the shots were fired - as noted, he managed to drive away despite the efforts of the police to block his path - underscores the point. Id. at 2021-2022. Although Plaintiffs have attempted to distinguish Plumhoff by pointing out that the shooting there followed a 100 mile-per hour chase on the highway, the fatal shooting actually took place in a parking lot when the subject car was at a standstill. Id. at 2021. If it was the law in 2004 that excessive force was could justified to protect the public in such circumstances, not have been obvious would violate to Godawa's Officer Byrd constitutional that what he In rights. did here fact, the contrary is the more likely conclusion. 2. Fourteenth Amendment Due Process Claim Summary judgment in favor of the officer on the Plaintiffs' Fourteenth plaintiffs' Amendment due allegation process that the claim is decedent's also due appropriate. process rights were violated is a reiteration of their Fourth Amendment claim. Claims for excessive use of force upon arrestees must be pursued and analyzed only under the Fourth Amendment. 490 U.S. 386, 395,109 S. {holding that "all used excessive arrest, claims force Ct. 1865,104 L. that deadl y law or Graham v. Ed. enforcement not in the Connor, 2d 443 officers course (1989) have of an investigatory stop, or other 'seizure' of a free citizen -16 should be analyzed 'reasonableness' process' under standard, approach."). the Fourth Amendmen t rather than under a Thus, summary judgment and its 'substantive due in favor of the officer on Plaintiffs' due process claim is appropriate. 3. laintiff's Remaining State Law claims P Plaintiffs concede they are consortium claim for their son, of death. Judgment, Doc. p. 54, to bring a Comair, Summary Inc., judgment of who was twenty-one at the time type of claim is limited to children under the express language of KRS §411.135. V. loss Response to Defendant' sMotion for Summary This 1. unable 556 F. Supp. 2d for the officer 665, on 673 this See Combs (E.D. claim "minor" Ky. is 2008). therefore appropriate. The Court declines jurisdiction over Plaintiffs' to exercise its supplemental remaining state law claims, since the law of state immunity differs from that of federal immunity. See 28 U.S.C. §1367. 4. efendant's Motion to Strike the Report and Testimony of D Spicer Defendant's motion to strike proffered expert, J. Scot t the Spicer, testifying at trial is moot. -17 report and and testimony of prevent him from Therefore, the Court having heard from the parties, and being sufficiently advised, IT IS ORDERED: (1) Plaintiffs' motion for summary judgment (Doc. 47) be, and hereby is, DENIED; (2) be, Defendant's motion for summary judgment and hereby is, GRANTED in part motion is GRANTED as to Plaintiffs' loss of consortium Plaintiffs' remaining claim. state The law and DENIED in (Doc. 48) The part. federal claims and state law motion claims, is but as to claims are GRANTED these dismissed without prejudice. (3) and testimony Defendant's motion to strike the expert's report and pr~clude his trial testimony (Doc. 49) is DENIED AS MOOT; and (4) A separate judgment will enter concurrently The Honorable William o. Bertelsman herewith. This 1st day of August, 2014. United States District Judge -lS
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