Opinion
Case No. 2:01-CV-0551 DB.
June 15, 2005
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter came before the Court for trial on Wednesday, April 27, 2005. Jack Brian Dahl and Kim Duncan ("Plaintiffs") were present and represented by David Pace. The United States of America ("Defendant" or "United States") was represented by Carlie Christensen and Maggie H. AbuHaidar, Assistant United States Attorneys. The Court having heard and considered all the testimony and arguments of the parties, hereby makes and enters the following as its
FINDINGS OF FACT
A. Search Warrant and Briefing.
1. On February 22, 2000, Salt Lake Police Detective and Metro Narcotics Task Force Officer Michael Ross ("Detective Ross") obtained a night-time "no-knock" search warrant for a residence located at 1320 West 700 South and a person described as "Ray." The warrant authorized the Metro Narcotics Task Force ("the Task Force") to search for methamphetamines, drug paraphernalia, and items used to produce, possess, or distribute methamphetamine.
2. The search warrant was issued based upon information provided by a confidential informant to Detective Ross that individuals at the residence were selling and manufacturing methamphetamine. The informant had been inside the residence on three separate occasions and observed an active methamphetamine lab, methamphetamine, a 45 cal. handgun, and equipment used to forge identification cards. Based upon his experience and training, Detective Ross knew that the existence of an active methamphetamine lab posed safety hazards for law enforcement officers because of the flammable and explosive nature of the chemicals which were used, and because methamphetamine users tended to be more aggressive and more paranoid.
3. Detective Ross had observed short-term traffic to the residence on three separate occasions during the preceding seven days. Based upon his experience and training, Detective Ross knew that such short-term traffic was indicative of a location where narcotics distribution was taking place. Detective Ross also knew that short-term traffic posed safety hazards for law enforcement officers when executing a warrant because of the likelihood of unknown individuals entering an otherwise secure situation.
4. Detective Ross had also observed that the occupants of the residence employed active counter-surveillance. Detective Ross knew that active counter-surveillance posed safety hazards for law enforcement officers because it was used to warn residents if the police approached. Such advance warning could cause residents to flee, destroy evidence, or use force to impede the officers' entry into the residence.
5. On February 22, 2000, Task Force officers attended a briefing regarding the planned execution of the search warrant. Among the Task Force officers in attendance at the briefing and involved in the execution of the warrant were Phil Kearney, a special agent with the Drug Enforcement Administration ("DEA") and a six-year veteran of the Salt Lake City Police Department, having served as a patrol officer, undercover narcotics detective, and S.W.A.T. Team member ("Agent Kearney"); Jeff Payne, an 11-year veteran of the Salt Lake City Police Department and a Task Force officer for approximately four years ("Detective Payne"); and Andy Shavers, a ten-year veteran of the West Valley Police Department, having served as a police detective, S.W.A.T. team member, and Task Force officer ("Detective Shavers").
6. Detective Ross conducted the briefing and provided copies of the affidavit for the search warrant, the search warrant, and an operations plan. During the briefing, Detective Ross advised Task Force officers of the potential for an active methamphetamine lab; that a parole fugitive was living at the residence; and that a confidential informant reported seeing a .45 cal. handgun in the residence. Detective Ross also advised Task Force officers that he had observed short-term traffic and active counter-surveillance at the residence. The safety hazards posed by these circumstances were discussed and commonly understood by the law enforcement officers in attendance.
7. During the briefing, Task Force officers were also provided with copies of two photographs of the residence. Both photographs depicted a white Chevy Blazer parked in the driveway of the residence. Task Force officers were advised to be aware of that vehicle because it was believed to belong to the parole fugitive. At the conclusion of the briefing, Task Force officers traveled to 1320 West 700 South to execute the warrant.
B. Execution of Search Warrant
8. When Task Force officers arrived at the residence, Agent Kearney breached the east door of the residence. Within the residence, Task Force officers located, arrested and transported several individuals to the Salt Lake County Jail on charges of possession of controlled substances and other outstanding warrants. Other individuals in the residence were checked for outstanding warrants and released.
9. During the execution of the warrant, Task Force officers found within the residence drugs and drug paraphernalia, including syringes containing heroin and methamphetamine. In addition, officers located a computer system, stolen checks, identification cards, and photographs which were being used to create Utah State Drivers License and Identification Cards to match the checks. Finally, officers located $1,200 in currency.
10. During the execution of the warrant, Task Force Officers stopped two separate vehicles — one which pulled into the driveway of the residence and one which drove down the street in front of the residence. Agent Kearney, along with other Task Force officers, approached the vehicles, identified themselves as police officers, and told the occupants to put their hands in the air. Because the passenger in the first vehicle and the driver of the second vehicle engaged in threatening behavior, the Task Force officers drew their guns and pointed them at the occupants. The occupants complied with the officers' directions and were taken into custody without further incident or any shots being fired.
C. Shots Fired.
11. By approximately 11:00 p.m., Task Force officers had completed processing evidence and were preparing to leave the residence. At that time, another vehicle pulled into the driveway and stopped just short of the residence.
12. Agent Kearney saw the headlights coming through the front window of the residence and identified the vehicle as the white Chevy Blazer which appeared in the photographs he had seen during the briefing. He did not know who was in the vehicle or whether it was the parole fugitive.
13. Agent Kearney and Detective Payne went out the front door of the residence with DEA Special Agent Mark Webb and Detective Shavers to contact the vehicle.
14. The front porch light of the residence was turned on as well as the lights within the residence. There was also a street light on across the street. Agent Kearney saw the front end of the vehicle as he came out of the house and walked the short distance to the vehicle.
15. As the officers walked towards the vehicle, Agents Webb and Kearney repeatedly identified themselves as "police," and directed the driver to shut off his ignition. The officers identified themselves and gave their commands in a manner which was loud enough to be heard and understood by Jack Dahl, the driver of the vehicle.
16. The four officers, who approached the vehicle, were wearing clothing which clearly identified them as law enforcement officers. Detective Payne was wearing a black t-shirt with the word "POLICE" stamped on the front in 10-inch high white letters and a jacket over the t-shirt which had four separate patches on it. The patches on both shoulders of the jacket identified Detective Payne as a Metro Narcotics Task Force officer. One of the patches on the front of the jacket was a gold star and the other patch was a white DEA Clandestine Lab patch. Agent Kearney also wore a black long-sleeved shirt with "police-style" shoulder patches identifying him as a Metro Narcotics Task Force officer.
17. Based upon the clear commands given by the Task Force officers and their plainly marked clothing identifying them as police officers, Plaintiff Dahl knew the men approaching his vehicle were police officers.
18. As the officers approached the vehicle, Agent Webb positioned himself three to four feet in front of the vehicle; Agent Kearney stood next to and within arm's length of the driver's door; and Detective Payne stood on the left rear side. Detective Shavers moved down the driver's side of the vehicle and around the back in an effort to reach the passenger's side of the vehicle.
19. The vehicle's engine continued to run despite the officers' directions to the contrary. Agent Kearney could see the driver clearly inside the vehicle. Agent Kearney did not see Plaintiff Duncan in the passenger's side of the vehicle.
20. By the time that Agent Kearney walked the short distance to the vehicle, he was already concerned about the situation. Plaintiff Dahl had ignored his instructions to turn off the vehicle and was looking around him frantically. In his peripheral vision, Agent Kearney had seen an officer travel behind the vehicle, but lost sight of him due to the height of the Blazer and the downward slope of the driveway.
21. Rather than turn off his engine as directed by the officers, Plaintiff Dahl revved his engine, pushing the accelerator to the floor of the vehicle. The vehicle did not move because it was not in gear.
22. Based upon Dahl's refusal to turn off his ignition, the roar of the engine, and Agent Kearney's "more urgent commands", Agent Kearney believed that the officer behind the vehicle was in danger of being hit. At that point, Agent Kearney raised his gun to the high-ready position.
23. Agent Shavers, who was just two to three feet behind the vehicle when it revved, was concerned for his safety, and began backing out from behind the vehicle to avoid being hit.
24. Plaintiff Dahl then threw his vehicle into reverse and began moving down the driveway at a high rate of speed. Agent Kearney believed the vehicle was heading directly toward the officer who had gone behind the vehicle. Agent Kearney fired two shots in rapid succession to stop Plaintiff Dahl from hitting the officer. Agent Kearney fired the third shot when he realized that the vehicle had not stopped.
25. Only three shots were fired from Agent Kearney's gun. No other shots were fired that evening.
26. Once the vehicle left the driveway, Agent Kearney called out to the other officers that someone was behind the car and that he expected to find the body of a fellow officer. Agent Kearney's statements demonstrate his actual and well-founded concern for the safety of another officer.
27. Unbeknownst to Agent Kearney, no one was hit by the vehicle. After he called out to the other officers, Agent Kearney heard Detective Shavers indicate that he had been behind the vehicle. It was only after Plaintiff Dahl's vehicle left the driveway and began traveling up the street, that Agent Kearney realized Detective Shavers had reached safety and not been struck by Plaintiff Dahl's vehicle.
28. Plaintiff Dahl continued down the street at a high rate of speed and in an erratic manner, clipping another vehicle in the process. When Dahl reached the intersection of 700 South and 1300 West, he turned the car around and sped away.
29. Plaintiff Dahl was later found by law enforcement at a 7-11 convenience store and transported to a local hospital by ambulance, where he was treated for superficial gunshot wounds to his left bicep and shoulder. He was released the following day.
E. Credibility of Parties and Witnesses.
30. The testimony of Agent Kearney, and Detectives Shavers, Ross, and Payne, all career law enforcement officers, is more credible than that of Plaintiffs.
31. Further, Plaintiffs have engaged in conduct that reflects adversely on their credibility. Plaintiff Dahl has been convicted on two separate occasions for giving false information to a police officer. Plaintiff Duncan has been convicted of felony theft and aggravated assault.
32. Plaintiff Dahl was previously diagnosed with a substance abuse problem, namely methamphetamines; and was convicted for felony possession of a controlled substance. Plaintiff Dahl knew "ex-cons" that were living in the basement of the residence searched by the Task Force officers and had seen methamphetamines in the residence.
33. Although Plaintiff-Dahl denied using methamphetamines on the day of the shooting, he could not explain why the Salt Lake City Police found a syringe in his Blazer that same evening or why he tested positive for opiates and methamphetamines shortly after the shooting.
Based upon the foregoing Findings of Fact, the Court hereby makes and enters the following as its
CONCLUSIONS OF LAW
1. In Utah, an actor is subject to liability for battery if "(a) he acts intending to cause a harmful or offensive contact with the person of the other . . . or an imminent apprehension of such a contact" and "(b) a harmful contact with the person of the other directly or indirectly results." See Tiede v. State of Utah, 915 P.2d 500, 502 fn. 3 (Utah 1996) (citing Restatement (Second) of Torts § 13 (1965)); D.D.Z. v. Molerway Freight Lines, Inc., 880 P.2d 1, 3 (Utah App. 1994).
2. An actor, however, may defend against an assault and battery by raising the affirmative defense of self-defense. See Wilson v. Meeks, 98 F.3d 1247, 1253 (10th Cir. 1996) (applying Kansas law); see also Clark v. Martinez, 295 F.3d 809, 815-16 (8th Cir. 2002) (recognizing officer's right to raise self-defense against claims of excessive force in violation of the Fourth Amendment, assault and battery); Roberson v. Bethlehem Steel Corp., 912 F.2d 184, 188-89 (7th Cir. 1990) (recognizing defendant's right to raise self-defense against tort claims of assault and battery);Miller v. Taylor, 877 F.2d 469, 472 (6th Cir. 1989) (same);Cruz v. Montoya, 660 P.2d 723, 728 (Utah 1983) (same).
3. Utah has codified the principles of self-defense in Utah Code Ann. § 76-2-402(1). That section provides, in pertinent part, that:
[a] person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that force is necessary to defend himself or a third person against such other's imminent use of unlawful force. However, that person is justified in using force intended or likely to cause death or serious bodily injury only if he or she reasonably believes that force is necessary to prevent death or serious bodily injury to himself or a third person as a result of the other's imminent use of unlawful force, or to prevent the commission of a forcible felony.Id. The term "reasonable" in this context means "objectively reasonable." State v. Duran, 772 P.2d 982, 985 (Utah Ct.App. 1989) (quoting In re R.J.Z., 736 P.2d 235, 236 (Utah 1987)); 6 Am. Jur.2d, Assault Battery § 134 ("Where the defendant has used deadly force, the defense of self-defense requires the defendant to prove that he reasonably believed that he was in danger of death or serious bodily harm and could prevent that harm only by the immediate use of deadly force).
4. The burden of proof on self-defense lies with the defendant.See Redding v. Shelton's Harley Davidson, Inc., 534 SE.2d 656, 658-59 (N.C.Ct.App. 2000); Woodard v. Turpinseed, 784 So.2d 239, 245-46 (Miss.Ct.App. 2001).
5. In this case, the United States has proven, by a preponderance of the evidence, that Agent Kearney was justified in using deadly force in defense of Detective Shavers because he believed that such force was necessary under the circumstances and his belief was reasonable. See, e.g., Garcia v. United States, 826 F.2d 806, 810 (9th Cir. 1987) (finding that, although Border Patrol officer's action in shooting plaintiff constituted an assault and battery, the officer was justified in shooting the plaintiff under the doctrine of self-defense where the plaintiff attacked him with rocks and sticks); Abraham v. Raso, 15 F.Supp.2d 433, 448-50 (D.N.J. 1998) (finding that police officer, who shot and killed a shoplifter, was privileged to commit the assault and battery on the fleeing felon, who was driving his automobile toward her at a high rate of speed, putting her in reasonable apprehension of being struck),reversed in part vacated in part on other grounds, 183 F.3d 279 (3d Cir. 1999).
6. Accordingly, because the United States has proven, by a preponderance of the evidence, that Agent Kearney was justified in his use of deadly force, the United States is entitled to judgment in its favor.