Opinion
IP 02-1083 C T/K.
June 8, 2004
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Plaintiffs, Tawny Marie Franklin by next of friend, Leigh Wohlschlaeger, and Leigh Wohlschlaeger, as Administratrix of the Estate of Robert E. Franklin, Jr., Deceased, bring this action against Defendants, Officer Andrew Manek and Town of Avon Police Department, under § 1983, alleging excessive force in violation of the Fourth Amendment and that the Town of Avon failed to adequately train and supervise Officer Manek on the proper use of force. Plaintiffs also bring suit against Defendants for wrongful death under state law. This matter is before the court on Defendants' Motion for Summary Judgment. The court decides the matter as follows:
I. Facts
Defendants move to strike the Affidavit of Dr. George Kirkham, and accompanying exhibits (Pls.' Ex. G), for noncompliance with the Case Management Plan, and Order of November 7, 2003 granting an extension of time, which required Plaintiffs to serve a report of any expert pursuant to Federal Rule 26(a)(2)(B) within fifteen days after Officer Manek and Police Chief Ritorto were deposed. According to Defendants, the depositions were taken on November 28, 2003, and Plaintiffs did not serve the report on Defendants until Plaintiffs filed the Response Memorandum in the Summary Judgment Motion, which was filed on March 15, 2004. Additionally, Defendants contend that the report does not comply with the other requirements of Rule 26(a)(2)(B). Plaintiffs do not cite the report in the Statement of Material Facts in Dispute, but the report is referenced throughout the remainder of Plaintiffs' Brief. For the reasons detailed by Defendants, Defendants' Motion to Strike Plaintiffs' Exhibit G is GRANTED.
Defendants also move to strike Plaintiffs' Exhibit H, portions of Plaintiffs' Exhibit F, and portions of Plaintiffs' Exhibit I. Defendants move to strike Plaintiffs' Exhibit H because it is not sworn. Plaintiffs' Exhibit H is not included as part of Plaintiffs' Statement of Material Facts in Dispute or cited anywhere else in the Plaintiffs' Brief. Defendants move to strike portions of Plaintiffs' Exhibit F, specifically paragraphs 7, 10, and 11 of Lee Wohlschlaeger's Affidavit, on the ground that these paragraphs of Ms. Wohlschlaeger's Affidavit are irrelevant. Again, Plaintiffs do not cite this evidence in Plaintiffs' Statement of Material Facts in Dispute or Brief. Finally, Defendants move to strike portions of Plaintiffs' Exhibit I on the ground of hearsay. Again, Plaintiffs do not cite the contested evidence. Because the contested portions of Plaintiffs' Exhibits H, F, and I are not included in the Plaintiffs' Statement of Material Facts in Dispute or relied on by the court, the court finds it unnecessary at this time to rule on Defendants' Motion to Strike Plaintiffs' Exhibit H, and portions of Plaintiffs' Exhibits F, and I.
Robert E. Franklin was shot and killed by Officer Andrew Manek of the Town of Avon Police Department on the night of July 14, 2001. Late in the evening on July 14, 2001, Officer Manek was on patrol and received a dispatch that there was a domestic dispute at an address in the Town of Avon. (Defs.' App., Ex. 1, ¶ 3; Ex. 3, ¶ 13, Defs.' Ex. G.) The second 911 call to dispatch informed that a gunshot had been heard at the subject residence. (Defs.' App., Ex. 3, ¶ 13, Defs.' Ex. H.) Before arriving at the scene, Officer Manek learned from dispatch that a female at the address to which he was headed had been beaten and received physical injuries from an assailant nearby. (Defs.' App., Ex. 1, ¶ 4.) He further learned from dispatch, following the second 911 call, that people in the neighborhood had just heard a gunshot fired from the area where the injured female had come from. ( Id.)
Upon arriving at the scene, Officer Manek talked to a witness, whose name he could not recall, who indicated that a female had been beaten by a male suspect, that the victim was located in the backyard of a different residence than where the shot was heard, and that a shot had been fired from the suspect's house. (Pls.' App, Ex. A, at 34-36; Defs.' App., Ex. 1, ¶ 5.) After speaking to the individual, Officer Manek initially went to the wrong house. (Pls.' App., Ex. A, at 37.) At that first house, Officer Manek spoke again to the same witness to whom he had talked upon arriving at the scene. The witness pointed out the A-frame house from where the shot had been fired. ( Id.)
Deputy Scott Neville of the Hendricks County Sheriff's Department had also arrived on the scene. (Defs.' App., Ex 1, ¶ 6.) When Deputy Neville arrived, he overheard Officer Manek talking to the unnamed neighbor, who indicated that a female had wandered into her backyard and said that she had been injured by her boyfriend. (Pls.' App., Ex. B, at 5.) Neither Officer Manek nor Deputy Neville spoke with the alleged battery victim prior to approaching Robert Franklin's home. (Pls.' App., Ex. A, at 36; Ex. B, at 6-7.) The officers had no idea who else may have been in the residence, if anyone, at the time of the beating and the gunshot, or if anyone was injured or at risk of being so injured. (Defs.' App., Ex. 1, ¶ 7.)
Together, Deputy Neville and Officer Manek approached on foot the A-frame house where they understood that the assailant was and where they understood the shot had been fired from. ( Id. ¶ 6; Pls.' App., Ex. A, at 39-40.) Officer Manek had his service gun in his right hand and a flashlight in his left. (Defs.' App., Ex. 1, ¶ 8.) Officer Manek had his gun drawn at this time for protection. ( Id. ¶ 6.) Officer Manek approached the A-frame house without his flashlight on. (Pls.' App., Ex. A, at 44.) It was very dark and there were no lights on in the yard. (Pls.' App., Ex. A, at 43; Ex. B, at 9.) The lighting inside the A-frame was very dim. (Pls.' App., Ex. A, at 44.)
Officer Manek was approximately fifteen feet away from Robert Franklin when he first saw him. ( Id. at 46.) Mr. Franklin appeared to be walking towards the front door, which was open. ( Id. at 44, 46-47.) Officer Manek turned on his flashlight as soon as he saw Robert Franklin. ( Id. at 44, 47.) Officer Manek noticed that Mr. Franklin had what appeared to be a machine pistol tucked in his belt in front of him. ( Id. at 47; Defs.' App., Ex. 1, ¶ 8.) The grip was facing to the right, in the position for the right hand to grab it. (Defs.' App., Ex. 1, ¶ 8.) Mr. Franklin's hands were to his front at either side of his body, his right hand just above the weapon and very close to it. ( Id.) Deputy Neville described Mr. Franklin, upon first seeing him, as being in a trance, staring straight ahead as if the officers were not there. (Pls.' App., Ex. B, at 15-16.)
Officer Manek shouted to Deputy Neville that Mr. Franklin had a gun. (Defs.' App., Ex. 1, ¶ 9; Pls.' App., Ex. A, at 48.) Officer Manek said "Police Department" to Mr. Franklin. (Pls.' App., Ex. A, at 48.) Mr. Franklin made eye contact with Officer Manek and slowly and methodically closed the front sliding glass door. ( Id. at 48-49, Ex. E.) After Mr. Franklin closed the door, he moved to his right and grabbed a bar to secure the sliding glass door. (Pls.' App., Ex. A, at 56.) Officer Manek also repeatedly shouted commands at Mr. Franklin to put his hands up, and to keep his hands off the weapon and away from the gun. (Pls.' App., Ex. A, at 57-58; Defs.' App., Ex. 1, ¶ 9.) Mr. Franklin failed to comply with any of Officer Manek's commands. ( Id. ¶ 10.)
Either while Mr. Franklin was securing the door or after Mr. Franklin secured the door, Officer Manek stepped up onto the porch. (Pls.' App., Ex. A, at 57-58; Defs.' App., Ex. 1, ¶ 8.) Officer Manek was three to five feet away from Mr. Franklin. (Pls.' App., Ex. A, at 60.) Mr. Franklin's hands were at the middle of his body, moving up and down, the right hand cupped and close to the gun. ( Id. at 58.) Officer Manek trained the flashlight on Mr. Franklin's hands and gave Mr. Franklin commands. ( Id. at 59.)
Mr. Franklin made eye contact with Officer Manek and bladed himself. ( Id.) Mr. Franklin stepped back with his right foot, turning his body slightly so that his left shoulder was facing toward Officer Manek. Mr. Franklin's right hand appeared to make a cupping motion and appeared to have grabbed the gun. ( Id. at 60-61.) Officer Manek testified that Mr. Franklin did not take any steps backwards prior to blading himself. (Pls.' App., Ex. A, at 61.) Deputy Neville, however, testified that Mr. Franklin took several steps back and was out of his view prior to Officer Manek shooting. (Pls.' App., Ex. B, at 17.)
As the term "blade," "bladed," or "blading" is used in the Entry, it means that Mr. Franklin turned from a position in which he was facing the direction of Officer Manek by dropping his right foot back and turning slightly to the right. The bladed position or stance, which resembles the stance a right handed archer would assume, is a common firearm shooting stance.
In Officer Manek's Affidavit, he states that Mr. Franklin pulled his gun out with his right hand (Defs.' App., Ex. 1, ¶ 12.) However, in Officer Manek's deposition he testified that Mr. Franklin appeared to be pulling the gun up and that Officer Manek believed Mr. Franklin was pulling the gun out. (Pls.' App., Ex. A, at 61.) In a statement that Officer Manek gave on July 16, 2001, two days after the incident, regarding the shooting, Officer Manek initially did not state that Mr. Franklin pulled the gun out but stated: "His hands were in the middle of his body, then reached down in a cupped fashion, in a cupped manner with his right hand; reached down to the gun and put his hand on the gun," but said nothing about Mr. Franklin actually pulling the weapon out. (Pls.' App., Ex. E, at 4.) Later in that same statement, Officer Manek was asked whether the fact that after the shooting the gun was ten or fifteen feet away would lead Officer Manek to believe that Mr. Franklin pulled the weapon out. Officer Manek responded: "It is my belief that he would have had to have pulled the weapon all the way out." ( Id. at 6.) Additionally, in his deposition, Officer Manek testified that Mr. Franklin was facing him squarely when he took his first shot. (Pls.' App., Ex. A, at 62-63.)
Officer Manek shot Mr. Franklin a number of times until he showed signs of turning and falling. ( Id. at 62.) Mr. Franklin's body was turning to the left. ( Id.) Following the shooting, Officer Manek entered the residence. (Defs.' App., Ex. 1, ¶ 14.) Deputy Neville followed him, covering Officer Manek with his weapon pointed at Mr. Franklin. ( Id.) Mr. Franklin was lying face down with his right arm underneath him. Officer Manek still did not know where the gun was, and repeatedly shouted at him to drop the weapon and put his hands out. ( Id.) Mr. Franklin did not respond. Officer Manek turned him over, with Deputy Neville still covering Officer Manek. ( Id.) The gun was not under Mr. Franklin. Officer Manek and Deputy Neville began looking for it. ( Id.) Officer Manek and Deputy Neville shortly found the gun near the sliding door. ( Id. ¶ 15.) When the medics arrived, the officers were informed that Mr. Franklin was dead. (Defs.' App., Ex. 1, ¶ 17.)
Clark Fine, a detective with the Hendrick's County Sheriff's Department, investigated the shooting. (Defs.' App., Ex. 2, ¶ 1.) Detective Fine is a graduate of the Indiana Law Enforcement Academy at Plainfield, Indiana, and was certified there as a firearm's instructor. ( Id. ¶ 2.) Photographs and diagrams of the incident were made at Detective Clark's direction, including a diagram (not to scale) showing the position in which Mr. Franklin's body was found and the position of the gun. ( Id. ¶¶ 3, 4.) Detective Fine concluded from the investigation that Mr. Franklin's gun was never moved from the time of the shooting until the diagram was made. (Defs.' App., Ex. 3, ¶ 5.) Detective Fine also concluded from his investigation that Mr. Franklin's body was only slightly moved, being turned over by the officers and the paramedics. (Defs.' App., Ex. 2, ¶ 5.) These conclusions were made on the basis of the statements of Officer Manek, Deputy Neville, and all paramedics and officers who were in the Franklin residence after the shooting. ( Id.) A photograph of Mr. Franklin's body shows the gun's proximity to the sliding door of the A-frame. ( Id. ¶ 6.) Mr. Franklin's weapon was a Cobray 9 mm PM 11, which is a semiautomatic pistol, capable of shooting twenty rounds in three to four seconds. ( Id. ¶ 8.) In appearance, it is indistinguishable from a fully automatic weapon. ( Id.) Photographs taken at the scene show that the box from which Mr. Franklin loaded his 9 mm Cobray weapon with ammunition lay on the floor of an upstairs bedroom. ( Id. ¶ 9.)
Detective Fine's Affidavit states that he investigated the "police shooting incident of July 1, 2002, in which Officer Andrew Manek of the Avon Police Department shot and killed Robert E. Franklin, Jr. at point blank range." (Defs.' App., Ex. 2, ¶ 1.) The shooting occurred on July 14, 2001. Because Plaintiffs have not raised any contention about the date, the court will assume that Detective Fine's assertion that the shooting occurred on July 1, 2002 that is an immaterial error.
Officer Manek is a 1997 graduate of the Indiana Law Enforcement Academy in Plainfield, Indiana. (Defs.' App., Ex. 1, ¶ 2; Ex. C, ¶ 5.) Prior to the incident in issue, Officer Manek had completed his yearly firearms training with a Beretta 40 caliber handgun on June 14, 2001. (Defs.' App., Ex. 3, ¶ 7.) This was the department authorized weapon he used in the shooting of Mr. Franklin. ( Id.) Officer Manek received post-police academy in-house training. (Defs.' App., Ex. 3, ¶¶ 6, 8, 9, Exs. D, E.) Officer Manek has had training in dealing with domestic violence scenarios. (Pls.' App., Ex. A, at 31.) Officer Manek has been told that many officers have been hurt frequently when they come into contact with domestic violence. ( Id.) He is taught that in dealing with domestic violence that people are highly emotional and unpredictable, which creates a very intense atmosphere. ( Id.) Officer Manek is taught to keep his sensitivities higher in dealing with a domestic violence situation because of the possibility of danger to himself or others. ( Id. at 32.) He is taught to analyze a domestic violence incident on first approach and has been taught to try to do that in a strategic manner. ( Id. at 31.) He is taught to listen, and to establish what is going on first. ( Id. at 32, 33.) The second thing he is taught is to identify himself and make contact with the parties. ( Id. at 33.) The records provided by Defendants pertaining to Officer Manek's training at the Avon Police Department indicate that Officer Manek was not trained in hostage situations nor situations involving armed subjects who are intoxicated and located within their own homes. (Pls.' App., Ex. D.)
Plaintiffs filed a Complaint in this court against Defendants on July 15, 2002, and an Amended Complaint on November 19, 2002. On August 15, 2003, Defendants filed this Motion for Summary Judgment. Plaintiffs filed their Response on March 15, 2004. Defendants filed their Reply on April 21, 2004.
II. Summary Judgment Standard
A court will grant summary judgment "`if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Scott v. Edinburg, 346 F.3d 752, 755 (7th Cir. 2003) (quoting Fed.R.Civ.P. 56(c) and citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The court is required to "construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party." Morfin v. City of E. Chi., 349 F.3d 989, 996-97 (7th Cir. 2003) (quotations and citations omitted). But the nonmoving party has the burden of coming forward with specific facts from the record which show that there is a genuine issue of material fact. Id. at 997 (citing Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 950 (7th Cir. 2000)).III. Section 1983
Section 1983 states, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .42 U.S.C. § 1983. To be successful in a claim under § 1983, the Plaintiff must demonstrate that: "(1) the defendant deprived the plaintiff of a right secured by the Constitution and laws of the United States, and (2) the defendant acted under color of state law." Higgin v. Johnson, 346 F.3d 788, 791 (7th Cir. 2003) (citing Reed v. City of Chi., 77 F.3d 1049, 1051 (7th Cir. 1996)).
A. Officer Manek
It is unclear from Plaintiffs' Complaint whether Officer Manek is being sued in his official or individual capacity. For § 1983 claims in which the plaintiff fails to designate in which capacity a defendant is being sued, the Seventh Circuit has adopted the following rule: "Where the plaintiff seeks injunctive relief from official policies or customs, the defendant has been sued in her official capacity; where the plaintiff alleges tortious conduct of an individual acting under color of state law, the defendant has been sued in her individual capacity." Miller v. Smith, 220 F.3d 491, 494 (7th Cir. 2000) (citing Hill v. Shelander, 924 F.2d 1370, 1373-74 (7th Cir. 1991)). Thus, the court assumes that Plaintiffs bring this action against Officer Manek in his individual capacity.Plaintiffs claim that Officer Manek violated Mr. Franklin's rights under the Fourth Amendment because his use of deadly force was unreasonable and unjustifiable. Defendants argue that there has been no Fourth Amendment violation, and in the alternative, that Officer Manek is entitled to qualified immunity. "A police officer's use of deadly force constitutes a seizure within the meaning of the Fourth Amendment, and therefore it must be reasonable." Scott, 346 F.3d at 755 (citing Tennessee v. Garner, 471 U.S. 1, 7 (1985); Muhammed v. City of Chi., 316 F.3d 680, 683 (7th Cir. 2002)). "The fact-specific nature of whether an officer used excessive force depends on the totality of the circumstances surrounding the encounter." Id. at 756 (citing Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 592 (7th Cir. 1997)). "The issue of whether an intentional use of deadly force by a police officer is permissible under the Fourth Amendment requires an objective reasonableness inquiry." Id. (citing Graham v. Connor, 490 U.S. 386, 399 (1989)). "The `particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'" Id. (quoting Graham, 490 U.S. at 396, and citing Bell v. Irwin, 321 F.3d 637, 639 (7th Cir.), cert. denied, 124 S. Ct. 84 (2003); Estate of Phillips, 123 F.3d at 592). "Moreover, the reasonableness calculation `must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.'" Id. (quoting Graham, 490 U.S. at 396-97). "[W]hen an officer believes that a suspect's actions [place] him, his partner, or those in the immediate vicinity in imminent danger of death or serious bodily injury, the officer can reasonably exercise the use of deadly force." Id. (quotations and citations omitted). "`[I]f the suspect threatens the officer with a weapon' that risk has been established." Bell, 321 F.3d at 639 (quoting Garner, 471 U.S. at 11 and citing Sherrod v. Berry, 856 F.2d 802 (7th Cir. 1988) (en banc); Ford v. Childers, 855 F.2d 1271 (7th Cir. 1988) (en banc)).
In Plaintiffs' Amended Complaint, Plaintiffs argued that Officer Manek violated Mr. Franklin's Fourteenth Amendment rights, but now agrees that Plaintiffs' claim is actually under the Fourth Amendment.
The material facts are undisputed. Upon approaching Mr. Franklin, Officer Manek noticed that Mr. Franklin had what appeared to be an automatic or sem-automatic pistol tucked in his belt in front of him. The grip was facing to the right, in the position for the right hand to grab it. Mr. Franklin's hands were to his front at either side of his body, his right hand just above the weapon and very close to it. Officer Manek said "Police Department" to Mr. Franklin. Officer Manek also repeatedly shouted commands at Mr. Franklin to put his hands up, and to keep his hands off the weapon and away from the gun. Mr. Franklin failed to comply with any of Officer Manek's commands. Officer Manek was three to five feet away from Mr. Franklin. Mr. Franklin's hands were at the middle of his body, moving up and down, the right hand cupped and close to the gun. Mr. Franklin made eye contact with Officer Manek and bladed himself. Mr. Franklin stepped back with his right foot, turning his body slightly so that his left shoulder was facing toward Officer Manek. Mr. Franklin's right hand appeared to make a cupping motion and appeared to have grabbed the gun. That is when Officer Manek shot Mr. Franklin. Based on these facts, it was clear that Mr. Franklin threatened Officer Manek with a gun, and the court cannot find that Officer Manek's use of deadly force was unreasonable.
Officer Manek described it as a "machine pistol" in his Affidavit. (Defs.' App., Ex. 1, ¶ 8.) The firearm in question, depicted in a photograph attached to Detective Fine's Affidavit (Defs.' App., Ex.), very much resembles fully automatic weapons which have been in evidence before the court in other cases.
Plaintiffs argue that when Officer Manek arrived at the scene, he knew that the putative victim of domestic violence was out of the house and that the reasonable course of action would have been to make contact with the victim and ascertain from her what had occurred and the situation in Mr. Franklin's residence prior to approaching Mr. Franklin. Plaintiffs further contend that "had Officer Manek known that Robert Franklin was in his own home, that he was acting extremely erratically, and that he was perhaps extremely intoxicated and armed with a weapon, Officer Manek would have been able to set up a perimeter and establish contact with Robert Franklin in order to attempt to have Robert Franklin disarm himself, rather than confront Robert Franklin in a very dark area and fatally shoot him."
Plaintiffs essentially attack Officer Manek's pre-seizure conduct. "[P]re-seizure conduct is not subject to Fourth Amendment scrutiny." Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir. 1992). In Carter, the Illinois State Police sought to arrest Mr. Ruhl for solicitation to murder his wife. Because Mr. Ruhl ran a gun shop at his home and bragged to others that he was always armed, the Illinois State police came up with a scheme to arrest Mr. Ruhl on a highway in order to minimize Mr. Ruhl's ability to access weapons. In Carter, the plaintiff argued that "the Fourth Amendment prohibits creating a foreseeably dangerous situation in which to arrest a suspect." The plaintiff alleged that "`by reason of their ill conceived plan in the attempt to arrest [Mr. Ruhl] along a darkened highway instead of inside the correctional institution where he worked, the Defendants . . . provoked a situation whereby unreasonable deadly force was used in the attempt to seize his person in violation of the Fourth Amendment.'" Id. at 1330 (quoting plaintiff's complaint). The Seventh Circuit stated that the plaintiff misapprehended the reasonableness requirement of the Fourth Amendment: "The Fourth Amendment prohibits unreasonable seizures not unreasonable, unjustified or outrageous conduct in general." Id. at 1331-32 (citing Tom v. Voida, 963 F.2d 952, 956 (7th Cir. 1992); Cameron v. City of Pontiac, 813 F.2d 782, 784 (6th Cir. 1987)). "Even if the defendants concocted a dubious scheme to bring about [Mr.] Ruhl's arrest, it is the arrest itself and not the scheme that must be scrutinized for reasonableness under the Fourth Amendment." Id. at 1333.
Furthermore, in the present case, the risks of doing nothing appeared to outweigh the risks of intervention. See Bell, 321 F.3d at 640 (citing Pena v. Leombruni, 200 F.3d 1031 (7th Cir. 1999)). Officer Manek and Deputy Neville did not know if there were other individuals still in the Franklin residence. "It is easy in retrospect to say that officers should have waited, or should have used some other maneuver — these propositions cannot be falsified — but Graham makes it clear that the fourth amendment does not require second-guessing if a reasonable officer making decisions under uncertainty and the press of time would have perceived a need to act." Id. Moreover, the fact that Mr. Franklin might have been intoxicated is not helpful to Plaintiffs. In Bell, the Seventh Circuit considered the fact that the suspect might be intoxicated as a factor that might require immediate action. See id. ("[B]ut in his depressed and irrational state, aggravated by liquor, he might have done himself or others greater injury had they not intervened.").
Next, Plaintiffs contend that there are several disputes of material fact which preclude entry of summary judgment. "When material facts are in dispute, then the case must go to a jury, whether the argument is that the police acted unreasonably because they lacked probable cause, or that they acted unreasonably because they responded overzealously and with too little concern for safety. But when material facts (or enough of them to justify the conduct objectively) are undisputed, then there would be nothing for a jury to do except second-guess the officers, which Graham held must be prevented. Since Graham we have regularly treated the reasonableness of force as a legal issue, rather than an analog of civil negligence." Id. (citing Smith v. Ball State Univ., 295 F.3d 763, 770-71 (7th Cir. 2002); Smith v. City of Chi., 242 F.3d 737, 743-44 (7th Cir. 2001); Hebron v. Touhy, 18 F.3d 421 (7th Cir. 1994); Titran v. Ackman, 893 F.2d 145 (7th Cir. 1990)). "Under the Constitution, the right question is how things appeared to objectively reasonable officers at the time of the events, not how they appear in the courtroom to a cross-section of the civilian community." Id. at 640 (citing Ornelas v. United States, 517 U.S. 690 (1996)).
Plaintiffs argue that Officer Manek has given two different versions regarding whether Mr. Franklin pulled his out gun out. Officer Manek in his Affidavit states that "Robert Franklin pulled his weapon out of his waistband and began turning slightly to his right, blading himself, and turning his body at an angle, such that his left shoulder was facing toward me." Officer Manek stated in his statement two days after the incident that Mr. Franklin "placed his hand on the gun" but said nothing about Mr. Franklin actually pulling the weapon out. But as Plaintiffs point out, later in the same statement, Officer Manek stated that it was his belief that Mr. Franklin would have had to have pulled the weapon out. According to Plaintiffs, this statement should be discounted because Officer Manek made it in response to a "leading and self serving" question. However, at the point of the statement where Officer Manek failed to mention that Mr. Franklin pulled out the gun, Officer Manek was providing an uninterrupted summary of all the events of the night of July 14, beginning with Officer Manek being dispatched to the residence through the point when the officers cleared the house. Chief Ritorto then asked Officer Manek numerous follow up questions, one of which was whether he believed Mr. Franklin was pulling out the gun. It was reasonable for Chief Ritorto to ask more detailed follow up questions to Officer Manek's general summary of the events of the night. Officer Manek also testified in his deposition that it was his belief that Mr. Franklin was pulling out the gun.
Next, Plaintiffs argue that there is a dispute of material fact because Deputy Neville stated that Mr. Franklin had taken several steps backward prior to Officer Manek shooting him, but Officer Manek stated that Mr. Franklin had not taken any steps back. Whether Mr. Franklin was directly behind the door or several steps behind the door when Officer Manek saw Mr. Franklin blade and pull his gun out is immaterial. This dispute of fact is immaterial. Either way, Mr. Franklin was threatening the safety of Officer Manek and Deputy Neville and it was constitutionally permissible for Officer Manek to use deadly force. See Maravilla v. United States, 60 F.3d 1230, 1233 (7th Cir. 1995) (variance between facts must be material to prevent entry of summary judgment).
Plaintiffs also contend that summary judgment should not be granted because Officer Manek did not apply the skill of double tapping at the time he shot Mr. Franklin based on Officer Manek's statement that he shot Mr. Franklin "a number of times until the deceased shows signs of turning and falling." The purpose of double tapping is "to make two quick shots in rapid succession and then reassess whether or not any further deadly force needs to be applied." (Pl.'s App., Ex. A, at 69-70.) There is no requirement that an officer use the least amount of deadly force. See Plakas v. Drinski, 19 F.3d 1143, 1149 (7th Cir.), cert. denied, 513 U.S. 820 (1994). Under the Fourth Amendment, there is no requirement that an officer use the least deadly or a less deadly use of force as long as it was reasonable for the officer to use deadly force. Id. As discussed above, Officer Manek's use of deadly force was reasonable. Moreover, the court cannot find that it was unreasonable to fail to use the skill of double tapping. Officer Manek testified that after the first shot, Mr. Franklin did not react like he had been hit. (Pl.'s App., Ex. A, at 62.) Mr. Franklin was facing Officer Manek when he continued shooting. ( Id.) When Mr. Franklin turned to the his left, Officer Manek realized that Mr. Franklin had been injured and stopped shooting when Mr. Franklin fell. ( Id.) Officer Manek testified that he did not use double tapping because the threat to him was continuous until Mr. Franklin turned. ( Id. at 70.)
The Seventh Circuit has recognized that a plaintiff who alleges deadly force may face practical problems in a motion for summary judgment because "the witness most likely to contradict the officers' testimony is dead." Maravilla, 60 F.3d at 1233. The Seventh Circuit has stated that "[i]n these situations we think it wise to examine all the evidence to determine whether the officers' story is consistent with other known facts." Id. at 1233-34 (citing Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994), cert. denied, 515 U.S. 1159 (1995)). In the present case, the evidence is consistent with Officer Manek's explanation of the shooting. Officer Manek and Deputy Neville shortly found the gun near the sliding door. Clark Fine, a detective with the Hendrick's County Sheriff's Department, investigated the shooting. Photographs and diagrams of the incident were made at Detective Clark's direction, including a diagram (not to scale) showing the position in which Mr. Franklin's body was found and the position of the gun. Detective Fine concluded from the investigation that Mr. Franklin's gun was never moved from the time of the shooting until the diagram was made. Detective Fine also concluded from his investigation that Mr. Franklin's body was only slightly moved, being turned over by the officers and the paramedics. These conclusions were made on the basis of the statements of Officer Manek, Deputy Neville, and all paramedics and officers who were in the Franklin residence after the shooting. A photograph of Mr. Franklin's body shows the gun's proximity to the sliding door of the A-frame. Mr. Franklin's weapon was a Cobray 9 mm PM 11, which is a semi-automatic pistol, capable of shooting twenty rounds in three to four seconds. In appearance, it is indistinguishable from a fully automatic weapon. Photographs taken at the scene show that the box from which Mr. Franklin loaded his 9 mm Cobray weapon with ammunition lay on the floor of an upstairs bedroom. Defendants' Motion for Summary Judgment on the claim against Officer Manek in his individual capacity will be GRANTED.
Thus, the court finds that these facts do not constitute an unreasonable seizure under the Fourth Amendment. Even if such a constitutional violation had been demonstrated, the split second decision that Officer Manek was required to make under the circumstances presented would fall well within the protection of qualified immunity.
B. Town of Avon
"[T]o prevail on a Monell claim, the plaintiff must establish (1) that he suffered a constitutional injury, e.g., he was a victim of excessive force by a police officer, and (2) that the city authorized or maintained a custom of approving the unconstitutional conduct." Thompson v. Boggs, 33 F.3d 847, 859 (7th Cir. 1994), cert. denied, 514 U.S. 1063 (1995). "`[I]f a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.'" Id. (quoting City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam)); see also Voida, 963 F.2d at 962. Because the court finds that Mr. Franklin did not suffer constitutional injury, Defendants cannot prevail on their claim against the Town of Avon.Even if municipal liability could be found without an underlying constitutional injury, Plaintiffs have not demonstrated that a municipal policy of failure to train was the cause of any alleged injury. Section 1983 liability cannot be imposed against a municipality based on a theory of respondeat superior. Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003) (citing Garrison v. Burke, 165 F.3d 565, 571 (7th Cir. 1999) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978)). Instead, "`[i]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.'" Id. (quoting Monell, 436 U.S. at 694). Thus, in order to bring suit against the Town of Avon, Plaintiffs must demonstrate that a municipal policy or custom caused the deprivation of Mr. Franklin's constitutional rights. Rasche v. Vill. of Beecher, 336 F.3d 588, 597 (7th Cir. 2003) (citing Kujawski v. Bd. of Comm'rs, 183 F.3d 734, 737 (7th Cir. 1999)). Plaintiffs must demonstrate "the requisite culpability (a `policy or custom' attributable to municipal policymakers) and the requisite causation (the policy or custom was the `moving force' behind the constitutional deprivation)." Gable v. City of Chi., 296 F.3d 531, 537 (7th Cir. 2002) (citations omitted). In sum, to establish liability against Bartholomew County, there are three things Plaintiffs must show: "(1) he suffered a deprivation of a federal right; (2) as a result of either an express municipal policy, widespread custom, or deliberate act of a decision-maker with final policy-making authority for the [municipality]; which (3) was the proximate cause of his injury." Ienco v. City of Chi., 286 F.3d 994, 998 (7th Cir. 2002) (citing Monell, 436 U.S. at 690-91; Frake v. City of Chi., 210 F.3d 779, 781 (7th Cir. 2000), cert. denied, Angarone v. Ienco, 537 U.S. 1028 (2002)).
An unconstitutional policy or custom may take any one of the following three forms: "(1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a `custom or usage' with the force of law; or (3) an allegation that the constitutional injury was caused by a person with final policymaking authority." Rasche, 336 F.3d at 597-98 (citing Palmer, 327 F.3d at 594-95). In City of Canton v. Harris, the Supreme Court held that a municipality could be held liable under § 1983 for inadequate police training "where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." 489 U.S. 378, 388 (1989). "The issue . . . is whether that training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to represent `city policy.'" Id. at 390. "It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need." Id.
"`The inadequacy of police training may serve as a basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.'" Palmquist v. Selvik, 111 F.3d 1332, 1344 (7th Cir. 1997) (quoting City of Canton, 489 U.S. at 388). "`Moreover, for liability to attach in this circumstance the identified deficiency in a city's training program must be closely related to the ultimate injury.'" Id. (quoting City of Canton, 489 U.S. at 391). Thus, to prevail Plaintiffs must demonstrate that the Town of Avon "failed to train its police officers in a `relevant respect.'" Id. (citing Cornfield by Lewis v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1327 (7th Cir. 1993)). Plaintiffs must also show that the failure to provide training was causally connected to the injury. Id. at 1346. "The plaintiff must demonstrate that `the injury [would] have been avoided had the employee been trained under a program that was not deficient in the identified respect.'" Id. (quoting City of Canton, 489 U.S. at 391). Additionally, Plaintiffs need to show that the failure to train reflects a "`deliberate or conscious choice.'" Id. (quoting Erwin v. County of Manitowoc, 872 F.2d 1292, 1298 (7th Cir. 1989)). "[B]efore liability can legally attach, the municipality must be on notice of the deficiency, and have a `high degree of culpability.'" Id. (citing Cornfield, 991 F.2d at 1327).
Plaintiffs contend that the Town of Avon failed to train Officer Manek on how to properly assess and handle situations involving highly intoxicated individuals who are located in their own private residences with unknown intentions. According to Plaintiffs, had Officer Manek had proper training, he would never have found himself fifteen feet from Mr. Franklin.
In Palmquist, the plaintiff alleged that the defendant failed to train its police officers in handling "abnormally behaving persons." Id. at 1344. The Seventh Circuit noted that the plaintiff's argument essentially was that "`no special training = deficient training'" and that such an equation could not be accepted. Id. at 1345. As the Seventh Circuit noted, "[t]o do so would ignore the training the officers did receive." Id.; see also Pena, 200 F.3d at 1033 ("failing merely to instruct police on the handling of dangerous people who appear to be irrational cannot amount to deliberate indifference, at least on the facts presented in this case"). "In Indiana, police officer training is governed by state law." Tapia v. City of Greenwood, 965 F.2d 336, 339 (7th Cir. 1992). Plaintiffs have not offered any evidence demonstrating that the Town of Avon does not adhere to minimum standards for police officer training as established by Indiana law. Officer Manek is a 1997 graduate of the Indiana Law Enforcement Academy in Plainfield, Indiana. Furthermore, prior to the incident in issue, Officer Manek had completed his yearly firearms training with a Beretta 40 caliber handgun on June 14, 2001. The Beretta 40 caliber handgun was the department authorized weapon Officer Manek used in the shooting of Mr. Franklin. Officer Manek received post-police academy in-house training. Officer Manek has had training in dealing with domestic violence scenarios.
In Ross v. Town of Austin, 343 F.3d 915 (7th Cir. 2003), the widow of a man who was fatally shot after being taken hostage by a man in a liquor store where her husband worked brought a § 1983 action, alleging that the Town of Austin, Indiana, failed to train its officers adequately in tactical combat and hostage negotiation. The Seventh Circuit, affirmed the district court's grant of summary judgment, holding: "The fact that Noble, a police officer in a town with a population of fewer than 5000, completed training from the Indiana Law Enforcement Academy and had met all other statutorily mandated training standards, is further evidence that, as a matter of law, it was not the policy of Appellees inadequately to train police officers." Id. at 918. The Seventh Circuit further stated: "By creating a law requiring municipalities to exceed the standards for police training established by state law, not only would this court exceed the scope of our judicial authority by usurping the policy-making authority of state legislators, but we would also impose upon smaller municipalities such as Austin, the untenable burden of maintaining the same standards of law enforcement training specialization as those of large cities or even national armies. Even were it within the province of this court to establish such a policy, it seems neither wise nor practical." Id. at 918-19. Defendants' Motion for Summary Judgment on the claim against the Town of Avon for failure to train will be GRANTED.
IV. Wrongful Death
"According to the supplemental jurisdiction statute, a district court `may decline to exercise supplemental jurisdiction' over pendent state law claims if the court has dismissed all claims over which it has original jurisdiction." Kennedy v. Schoenberg, Fisher Newman, Ltd., 140 F.3d 716, 727 (7th Cir.) (quoting 28 U.S.C. § 1367(c)(3) and citing Wright v. Associated Ins. Cos., 29 F.3d 1244, 1250 (7th Cir. 1994)), cert. denied, 525 U.S. 870 (1998). "`[T]he general rule is that, when all federal claims are dismissed before trial, the district court should relinquish jurisdiction over pendent state-law claims rather than resolving them on the merits.'" Id. (quoting Wright, 29 F.3d at 1251, and citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 727-28 (1966)). However, a district court may decide the merits of a state law claim if the claim does not present any "novel or unsettled" questions of state law, Binz v. Brandt Constr. Co., 301 F.3d 529, 532 (7th Cir. 2002) (citing Kennedy, 140 F.3d at 727-28), or the appropriate disposition of the claim is "crystal clear," and it is "otherwise efficient to do so," Bilow v. Much Shelist Freed Denenberg Ament Rubenstein, P.C., 277 F.3d 882, 896 (7th Cir. 2001) (citing Centres, Inc. v. Town of Brookfield, 148 F.3d 699, 704 (7th Cir. 1998)). "If . . . an interpretation of state law that knocks out the plaintiff's state claim is obviously correct, the federal judge should put the plaintiff out of his misery then and there, rather than burdening the state courts with a frivolous case." Van Harken v. City of Chi., 103 F.3d 1346, 1354 (7th Cir. 1997) (citing Boyce v. Fernandes, 77 F.3d 946, 951 (7th Cir. 1996); Bowman v. City of Franklin, 980 F.2d 1104, 1109-10 (7th Cir. 1992)), cert. denied, 520 U.S. 1241 (1997).It is clear from the Indiana Court of Appeals decision in Tom v. Voida, 654 N.E.2d 776 (Ind.Ct.App. 1995), that Plaintiffs will not be able to prevail on a wrongful death claim in state court. Thus, the court will determine the state law claim on the merits rather than burdening the Indiana courts with a claim which, because of this court's disposition of the § 1983 claim, cannot succeed in state court. In Voida, the plaintiff, after losing summary judgment on her § 1983 claim for excessive force in federal court, brought claims for wrongful death, assault, and battery against the defendants in state court. The Indiana Court of Appeals held that the doctrine of collateral estoppel barred the wrongful death action. The Court noted that the elements of a claim for wrongful death under Indiana law are 1) "a duty owned by the defendant to the decedent"; 2) "breach of that duty"; and 3) "and an injury proximately caused by the breach." Id. at 787 (citation omitted). The Court also noted that under Indiana law, the defendant police officer owed the decedent whom she had fatally shot a "private duty to refrain from using excessive force in effecting his arrest." See id. (citation omitted). The Court held that the plaintiff was collaterally estopped from relitigating the issue of excessive force, as part of the wrongful death claim, because the federal court had decided as a matter of law that the defendant did not use excessive force in the § 1983 action. Although the burden of proof in a summary judgment motion in Indiana state court is different than the burden of proof under federal procedure, the Court held that this difference did not preclude the application of collateral estoppel.
The Indiana Court of Appeals in Voida further noted that even if the plaintiff's wrongful death action was not collaterally estopped, it would have reached the same conclusion under Indiana Code § 35-41-3-3. Indiana Code § 35-41-3-3 states, in relevant part:
(b) A law enforcement officer is justified in using reasonable force if the officer reasonably believes that the force is necessary to effect a lawful arrest. However, an officer is justified in using deadly force only if the officer:
(1) Has probable cause to believe that that deadly force is necessary:
(A) To prevent the commission of a forcible felony; or
(B) To effect an arrest of a person who the officer has probable cause to believe poses a threat of serious bodily injury to the officer or a third person; and
(2) Has given a warning, if feasible, to the person against whom the deadly force is to be used.
Ind. Code § 35-41-3-3(b). As discussed above, Officer Manek reasonably believed that Mr. Franklin posed a threat of death or serious bodily injury to Officer Manek and Deputy Neville. The undisputed evidence shows that Officer Manek identified himself and pointed his gun at Mr. Franklin while shouting commands repeatedly at Mr. Franklin to put his hands up. Mr. Franklin did not comply with Officer Manek's commands and instead bladed himself when Officer Manek was only three to five feet away. It appeared to Officer Manek that Mr. Franklin, whose right hand was cupped by the gun in his waistband, was pulling out his gun. Officer Manek was justified in using deadly force. See Voida, 654 N.E.2d at 787 (deadly force justified where suspect, who had physically attacked police officer, continued to attack police officer by coming at police officer with arms spread out). Defendants' Motion for Summary Judgment on the state law claim of wrongful death will be GRANTED.
V. Conclusion
For the foregoing reasons, Defendants' Motion for Summary Judgment will be GRANTED on all claims.ALL OF WHICH IS ORDERED.