Opinion
Case No. 2:01-CV-1000TC
October 7, 2003
ORDER
Plaintiffs Blaine and Lisa Phillips have brought this action under 42 U.S.C. § 1983 against Shaun Adamson and Utah County (collectively, the "Utah County Defendants") and Brad James and Salem City (collectively, the "Salem City Defendants"). All Defendants seek summary judgment on the claims against them.
The factual background of this case is found in the parties' pleadings and will be discussed in this Order when necessary to explain the court's decision. The court has viewed the facts in the light most favorable to the Plaintiffs when the Plaintiffs have produced evidence that supports their factual contentions.
Analysis
A. Legal Standards
1. Summary Judgment
Under Federal Rule of Civil Procedure 56, a court may enter summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett 477 U.S. 317, 322-23 (1986); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). The party moving for summary judgment bears the initial burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 323; Adler, 144 F.3d at 670-71. A movant "may make its prima facie demonstration simply by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Adler, 144 F.3d at 671. In applying this standard, the court views the factual record and must construe all facts and reasonable inferences therefrom in the light most favorable to the nonmovant.Matsushita Elec. Indus. Co., Ltd, v. Zenith Radio Corp., 475 U.S. 574. 587 (1986); Aramburu v. Boeing Co., 112 F.3d 1398, 1402 (10th Cir. 1997).
Once the moving party has carried its initial burden, Rule 56(e) requires the nonmovant to "go beyond the pleadings and `set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."Adler, 144 F.3d at 671 (quoting Fed.R.Civ.P. 56(e)). The specific and pertinent facts put forth by the nonmovant "must be identified by reference to an affidavit, a deposition transcript or a specific exhibit incorporated therein." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992). Mere allegations and references to the pleadings will not suffice, Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986).
2. Qualified Immunity
The United States Supreme Court has recently reiterated the two-part test to be applied in cases where the qualified immunity defense is raised:
A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? . . . If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established.Saucier v. Katz, 533 U.S. 194, 201 (2001) (internal citation omitted).
B. Brad James and Salem City's Motion for Summary Judgment
To successfully state a Fourth Amendment claim in a section 1983 action, a plaintiff must demonstrate "both that a `seizure' occurred and that the seizure was `unreasonable.'" Childress v. City of Arapaho, 210 F.3d 1154, 1156 (10th Cir. 2000). Mr. Phillips argues that he was unreasonably seized when Salem City officers blocked his only means of exit, continuously asked him to leave his bedroom, and called the SWAT Team. Mrs. Phillips' claim is similar to that of Mr. Phillips. She contends that when the Salem City Defendants refused to leave her home, instead calling for more police assistance, including the SWAT Team, she was seized in violation of the Fourth Amendment. The Salem City Defendants argue that they did not "seize" either Mr. or Mrs. Phillips. They also maintain that their actions were completely reasonable in light of all the circumstances.
Assuming, without deciding, that the Phillips were seized, it is clear from the evidence in the record that the Salem City Defendants acted reasonably. Whether a seizure is reasonable depends on all of the circumstances, including the nature of the seizure. See Rutherford v. City of Albuquerque, 77 F.3d 1258, 1260 (10th Cir. 1996). In making its determination, a court "must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Holland v. Harrington, 268 F.3d 1179, 11881 (10th Cir. 2001) (quoting United States v. Place, 462 U.S. 696, 703 (1983)).
The reasonableness inquiry in a Fourth Amendment context is an objective one. See Graham v. Connor, 490 U.S. 386, 396 (1989). Whether an officer's conduct was reasonable must be assessed "from the perspective of a reasonable officer on the scene, recognizing the fact that the officer may be forced to make split-second judgments under stressful and dangerous conditions," Holland, 268 F.3d at 1188 (internal quotation omitted); see also Graham, 490 U.S. at 396-97. The Salem City Defendants point to the following facts as evidence that their refusal to leave the Phillips home without first having seen Mr. Phillips was reasonable: (1) Mr. Phillips' irrational response to the officers' requests that he come out of his bedroom; (2) Mr. Phillips' decision to barricade himself in his bedroom, where he had weapons and ammunition; (3) Ms. Phillips' statement that Mr. Phillips was on antidepressant medication; (4) Mrs. Phillips expressed concern that Mr. Phillips would hurt himself; and (5) the officers' knowledge that Mr. Phillips had been drinking.
In light of these facts, the court concludes that it was reasonable for Officer Dibble and Chief James to insist on seeing Mr. Phillips. Indeed, the Phillips' police standards and procedures expert, Dr. Kirkham, testified at his deposition that based on the information before him, he had no criticism of Officer Dibble's actions and that he saw no indication that Officer Dibble or Chief James did anything to threaten or escalate the situation. (Deposition of George Kirkham ("Kirkham Dep."), Salem Ex. C. at 64-65.)
Similarly, the evidence supports the conclusion that Chief James's request for SWAT team assistance was reasonable under the Fourth Amendment. In Fourth Amendment cases, courts in the Tenth Circuit separate the request for the assistance of a SWAT team from the SWAT team's conduct. See Holland, 268 F.3d at 1190-91. The Tenth Circuit has stated that the decision to call for a SWAT team "necessarily involves the decision to make an overwhelming show of force — force far greater than that normally applied in police encounters with citizens."Holland, 268 F.3d at 1190. Therefore, when considering a claim that "the use of a SWAT team to effect a seizure itself amounted to excessive force," courts should "balanc[e] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Id. (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)).
In Holland, the Tenth Circuit held that the decision to deploy a SWAT team to execute a warrant was not unreasonable where it was known, among other things, that the suspect had a history of violence, that there would be guns at the house in question, that there would probably be children there, and where the police did not know how many people they would encounter at the residence. Holland, 268 F.3d at 1190-91. The court found reasonableness despite the following facts put forward by the plaintiff's: (1) the raid involved a misdemeanor warrant; (2) the officers knew that the suspect in question had no criminal record; and (3) the officers had no reason to believe that anyone living at the home in question would resist arrest or that the suspect would resist arrest.See id. at 1190-91. Further, as to the conduct in which the SWAT team engaged, the court stated that absent evidence that the officers who called the SWAT team knew that the SWAT team would use excessive force or ordered them to use excessive force, "no violation of a constitutional right arising from the decision to deploy the SWAT Team . . . ha[d] been established." Id. at 1191.
In Williams v. Richmond County, Georgia, the court held that it was not unreasonable to call for the assistance of a SWAT team where: (1) evidence showed that a mentally ill woman presented a substantial risk of imminent harm to herself and others; (2) the woman locked herself in a room and threatened to shoot the officers who tried to serve a court order for evaluation; and (3) the woman swung or stabbed a butcher knife at an officer who tried to get in the door. Williams v. Richmond County, Georgia, 804 F. Supp. 1561, 1570 (S.D. Ga. 1992).
In this case, the Salem City Defendants point to the following facts (in addition to the facts set forth above) to justify the decision to call for the help of the SWAT Team: (1) at some point during his conversation with Mr. Phillips, Officer Dibble believed he heard through the bedroom door the sound of a shotgun being racked; (2) Mr. Phillips told Chief James that "if the door moved even an inch, that there would be five shotgun rounds coming through it." (James Dep., Pl.'s Salem Ex. 27, at 26); (3) the Phillips home had "very thin walls" and stood in close proximity to the street and to other houses; and (4) Chief James did not think the six-officer Salem City police force could sufficiently handle the perimeter of the Phillips home, "let alone what was happening in the home." (James Dep., Salem Ex. D, at 62.) The Phillips have put forth no evidence to contest these facts.
As the Williams court explained, "[e]ven if law enforcement officials here arguably erred in judgment when they decided on a plan that employed potentially deadly force, such evidence falls short of a showing that there was no plausible basis in this instance for the officials' belief that this degree of force might be necessary."Williams, 804 F. Supp. at 1569. In sum, there are no facts from which a rational trier of fact could find that Chief James' decision to ask for the assistance of the SWAT team was not reasonable.
The Salem City Defendants also contend that there is no evidence of the use of force, let alone excessive force, by the Salem City Defendants. They emphasize that Mr. Phillips, in response to the question, "You're not aware of any Salem City Police Department employee using any force of any kind against you on August 12, of 2001, correct?" answered "Correct." (Deposition of Blain Phillips ("Phillips Dep."), Salem Ex. D, at 181.) The court agrees. The evidence demonstrates that once the SWAT Team arrived, the Salem City Defendants' role in the events was, for all intents and purposes, over. Accordingly, the Salem City individual Defendants did not violate the Phillips' constitutional rights and are entitled to qualified immunity.
Because the court has concluded that the Phillips suffered no constitutional injury, the municipality, Salem City, is also granted summary judgment.
B. Shaun Adamson and Utah County's Motion for Summary Judgment
Mr. Phillips argues that Sgt. Adamson used excessive force when he shot him. (Both parties view this issue as the use of "deadly force.") The Utah County Defendants contend (1) that Sgt. Adamson is entitled to qualified immunity and (2) that the Phillips have not established that Utah County injured Mr. Phillips pursuant to an unconstitutional policy, custom, or failure to train.
"[A]ll claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard." Graham, 490 U.S. at 395. A court must ascertain whether the officer's actions were objectively reasonable in light of the facts and circumstances confronting him. A court must view the facts, not with 20/20 hindsight, but from the perspective of the officer at the scene, taking into account the split-second nature of many law enforcement decisions. Id. at 396, A reviewing court must consider "the crime's severity, the potential threat posed by the suspect to the officer's and others' safety, and the suspect's attempts to resist or evade arrest."Medina v. Cram, 252 F.3d 1124, 1131 (10th Cir. 2001) (citing Graham, 490 U.S. at 396).
For purposes of this motion only, the Utah County Defendants agree that Mr. Phillips was not holding a gun at the moment Sgt. Adamson shot him. But they argue that this is not the controlling fact. According to the Utah County Defendants, Sgt. Adamson reasonably believed that Mr. Phillips was, in fact, holding a gun when he shot him. The Utah County Defendants argue that the issue in this case is whether Sgt. Adamson's decision to shoot was reasonable in light of his mistaken perception. The court agrees. The case law indicates that a court should focus on an officer's reasonable belief concerning a threatening situation as opposed to the facts as they actually occurred. See Pride v. Does, 997 F.2d 712, 717 (10th Cir. 1993) (stating that "the relevant question for the court [was] not whether [the plaintiff] acted in a threatening manner but whether [the officer] reasonably believed so"); Saucier v. Katz, 533 U.S. 194, 206 (2001) (stating that in excessive force cases, "qualified immunity can apply in the event the mistaken belief was reasonable");Stuart v. Jackson, 24 Fed. Appx. 943, available at 2001 WL 1600722, at **8 n. 5 (10th Cir. 2001) (unpublished decision) (stating that "even if the officer unreasonably used force in violation of the Fourth Amendment, qualified immunity should be granted if the officer had a reasonable, albeit mistaken, belief about the legality of the officer's actions"). In Wood v. City of Lakeland, Fl., for example, an Eleventh Circuit case on which the Utah County Defendants rely, the court stated that a plaintiff must do more than put forth evidence that if believed "would allow a fact-finder to find just that the government-agent defendant was, in reality, wrong about the facts on which the defendant acted." 203 F.3d 1288, 1292 (11th Cir. 2000) (citingPost v. City of Ft. Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993)). "Instead, to defeat summary judgment because of a dispute of material fact, a plaintiff facing qualified immunity must produce evidence that would allow a fact-finder to find that no reasonable person in the defendant's position could have thought the facts were such that they justified defendant's acts." Id. (quoting Post, 7 F.3d at 1557).
Sgt. Adamson stated in his interviews that when he shot Mr. Phillips, he believed that he saw Mr. Phillips pointing a 44 magnum revolver directly at Sgt. Adamson. Mr. Phillips has not put forth evidence to challenge Sgt. Adamson's belief that Mr. Phillips was holding or pointing a gun at him when Sgt. Adamson shot Mr. Phillips. Instead, Mr. Phillips has moved to exclude Sgt. Adamson's statements as inadmissible hearsay. The Utah County Defendants emphasize that they are not using Sgt. Adamson's interview to prove the truth of what he said. Rather, according to the Utah County Defendants, Sgt. Adamson's statements are admissible, not to establish the truth of his statements but to establish his perception of what occurred immediately prior to shooting. They rely on the decision inHenry v. Board of Leavenworth County Comm'rs. 64 F. Supp.2d 1042, 1048 n. 17 (D. Kan. 1999) (considering statements concerning what an officer perceived immediately before shooting a suspect because "[the] evidence show[ed] what [the police officer] believed when he shot [the suspect] and [was] not offered for the truth of the statements"),aff'd, 229 F.3d 1163, available at 2000 WL 1227908, at **1-2 (10th Cir. 2000) (unpublished decision). Similarly, inUnited States v. Harris, the Seventh Circuit Court of Appeals held that it was reversible error to exclude letters from a deceased widower to his mistress, Harris, at her trial for failure to file income tax returns. The court found that the letters were not offered to prove the truth of the matters asserted in the letters but should have been admitted because they were offered to show that Harris believed that the items the widower gave her were intended as gifts. 942 F.2d 1125, 1129 (7th Cir. 1991). Accordingly, the court concludes that the statements of Sgt. Adamson can properly be considered as evidence of his belief.
Sgt. Adamson is deceased. Before he died, he was interviewed twice by an investigator from the Utah County Attorney's Office shortly after the incident. Transcripts of the interviews are attached as Exhibit K to the Utah County Defendants' Memorandum in Support of Motion for Summary Judgment.
But even without the statements of Sgt. Adamson, the evidence shows that Sgt. Adamson acted reasonably when he shot Mr. Phillips. The following facts are undisputed. All members of the SWAT team were informed, through their radios that (1) Mr. Phillips was aggressive; (2) he possessed a number of firearms in the house, including a high powered rifle; (3) he might be intoxicated; and (4) he had stated that he would shoot any officers who tried to remove him from his home. The evidence is also undisputed that shortly before the shooting, Mr. Phillips walked into his backyard with a gun in his hand; (2) Sgt. Adamson saw the gun; (3) Mr. Phillips refused to drop his gun despite several orders to do so by Sgt. Adamson and another SWAT Team member; (4) Mr. Phillips looked directly at both Sgt. Adamson and the other SWAT Team member and it appeared he knew their locations if he wanted to fire at them; (5) immediately after he re-entered his house, Mr. Phillips slid one of the back door's glass windows open and propped it with a cup; (6) as two officers attempted to shut off power to the Adamsons' home, Mr. Phillips said, "You guys might have a clean shot, [Inaudible] but you know what, I can take somebody's arm off;" (7) Mr. Phillips then knocked out the screen of a small, backside window; (8) before being shot, Mr. Phillips yelled, "I got a clean shot;" and (9) Mr. Phillips was holding a telephone in his hand at the time that he was shot.
The Tenth Circuit decision in Medina is instructive here. InMedina, the court held that the police officers were entitled to qualified immunity on Medina's claims of excessive force. The officers shot Medina, who had, similar to Mr. Phillips, barricaded himself in his house during a confrontation with the police. When Medina finally left his house, he carried a staple gun, wrapped in a towel. Medina wanted the staple gun to look like a firearm, The officers, who mistakenly believed the staple gun was an actual weapon, shot Medina several times. The Tenth Circuit held that, despite the fact that the officers' belief was mistaken, the officers had responded reasonably under the circumstances. 252 F.3d at 1132.
Here, in light of all the circumstances known to Sgt. Adamson when he shot Mr. Phillips, the court must conclude that Sgt. Adamson's response was reasonable. Sgt. Adamson did not use excessive force and did not violate Mr. Phillips's Fourth Amendment right. He is therefore entitled to qualified immunity.
And because Mr. Phillips did not suffer any constitutional injury, Utah County is also entitled to summary judgment on the Fourth Amendment claims against it.
For the reasons explained above, the Salem City Defendants' and the Utah County Defendants' Motions for summary judgment are GRANTED.
SO ORDERED.