C. LYNWOOD SMITH, Jr., District Judge.
Plaintiff, Sandra Jones, is the widow of Chris Jones, who was shot and killed by an Albertville, Alabama Police Officer. Her complaint alleged claims against Officers Michael Maher and Nathan Shipp, the City of Albertville, and Albertville Police Chief Doug Pollard,
Upon consideration of the pleadings, briefs, evidentiary submissions, and oral arguments of counsel, this court concludes that both motions are due to be granted, but only in part.
Federal Rule of Civil Procedure 56 provides that a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In other words, summary judgment is proper "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving party are not unqualified, however. "[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation." Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration supplied). see also Saucier v. Katz, 533 U.S. 204, 201 (2001) ("A court required to rule upon the qualified immunity issue must consider . . . this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officers conduct violated a constitutional right?") (emphasis supplied).
The following statements are the "facts" for summary judgment purposes only, and may not be the actual facts. See Cox v. Adm'r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994). All reasonable doubts have been resolved in favor of plaintiff, the nonmoving party. See Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002).
Plaintiff and her husband, Chris Jones, drove to 272 Old Glory Lane in Albertville, Alabama on the night of Monday, March 21, 2011, for the purpose of visiting their daughter, Fendi, who then was residing at that location with her boyfriend, Zach Collins.
The 911 operator dispatched Albertville Police Officers Josh Isbell and Nathan Shipp in response to the call,
The fight escalated after Fendi Jones placed the 911 call. Chris Jones eventually got into his pickup truck and attempted to run over Zach Collins, who had twice disarmed him, but in his intoxicated state Jones missed Collins and rammed the house instead.
Jones fled the scene in his pickup truck, and led all three officers in a lengthy pursuit. During the chase, Jones drove recklessly, at speeds often exceeding 70 miles per hour, across several lawns, in and out of ditches on each side of the road, and swerved back and forth across both lanes. He failed to stop for at least five stop signs.
Jones continued his reckless course for several more minutes, swerving back and forth across both lanes, running stop signs, and speeding through an intersection.
At that moment, Shipp began to fire his duty weapon at Jones through the front windshield of his patrol car.
Officer Maher began firing his pistol at Jones as soon as Shipp discharged all of the rounds in his weapon.
It later was determined that Jones had sustained three gunshot wounds, and that all of them had been inflicted by bullets fired from Officer Maher's duty weapon.
Defendant contends that the testimony of plaintiff's proposed expert witness, Daniel Busken, Chief of the Greenville, Texas, Police Department, should be excluded or limited because he is not qualified as an expert, his opinions are based on an improper foundation, and his testimony would invade the province of the jury.
Fed. R. Evid. 702. Courts are required to conduct an exacting analysis of the foundations of the witness's opinions, "to ensure they meet the standards for admissibility under Rule 702." United States v. Abreu, 406 F.3d 1304, 1306 (11th Cir. 2005) (quoting United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (internal quotation marks and emphasis omitted)).
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (alteration supplied).
"The inquiry . . . is a flexible one," because "[m]any factors will bear on the inquiry, and . . . [there is no] definitive checklist or test." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993) (alterations supplied). Factors that may be relevant include:
Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1194 (11th Cir. 2010) (internal quotation marks and alterations omitted).
Daniel Busken has almost thirty years of law enforcement experience in the states of Missouri, Alabama, and Texas. He began his career in 1983, in University City, Missouri, where he served as a police officer, field-training instructor, and investigator. During his tenure there, Busken also served as a field commander and deputy director of a narcotics task force. He left that municipality during December of 1992, after accepting the position of Chief of Police in Crystal City, Missouri: a position that he held for seven years. He resigned that position in January of 2000, in order to accept the position of Chief of Police in Madison, Alabama, where he served for nine years, leaving in February of 2009. He became Chief of Police in Greenville, Texas in September of 2010.
Busken developed policies for the use of force and pursuit procedures while serving as the Chief of Police for the three municipalities identified in the preceding paragraph, and reviewed compliance with those policies. Those reviews generally required him to investigate the events preceding an officer's use of force or pursuit of a fleeing suspect, the actions of the offenders and officers and, ultimately, to determine whether the outcome complied with relevant departmental policies.
In addition to his thirty years of on-the-job experience in police procedures, Busken has some education and training in law enforcement. He completed 33 hours of course credit toward a Doctorate degree in Business and Criminal Justice at Northcentral University, and he received training at the FBI National Academy's Law Enforcement Executive Development Seminar.
The written report required by Federal Rule of Civil Procedure 26(a)(2)(B) is quoted in the Appendix to this opinion.
Officer Maher contends that Busken is not qualified to testify as an expert because he does not have any special education or training in police practices, tactics, or deadly force decision making, his experience in pursuits and the use of force as a law enforcement officer is limited, and his experience as Chief of Police is not sufficient.
As previously noted, however, more than twenty of Busken's thirty years of law enforcement experience was spent as a Chief of Police. As such, he participated in numerous investigations of pursuits and the use of force.
Busken opines that Officers Isbell and Shipp failed to adhere to the provisions of the Albertville Police Department's Policies and Procedures Manual related to reaction time and reactionary gaps because their pursuit tactics put too little distance between them and Jones's pickup truck during the high-speed chase.
Doc. no. 41-5 (Busken Report), at 3.
This contested opinion relates only to the actions of Officer Shipp, and plaintiff has conceded that Shipp is entitled to summary judgment.
Busken also opined that:
Doc. no. 41-5 (Busken Report), at 4-5 (emphasis and alteration supplied).
Officer Maher contends that Busken's opinion that Officer Shipp was adequately protected by the push bumper on the front of his police cruiser has no factual foundation.
Busken testified during deposition that, in his opinion, it was unreasonable for Officer Maher to attempt to protect Officer Shipp by shooting Jones.
Busken admits that he is not an engineer,
While Busken's thirty years of law enforcement experience is admirable, he lacks the foundation necessary to render opinions based upon the "strength" of Officer Shipp's push bumper. Moreover, Busken admitted that he did not know whether Jones's truck could have overpowered the push bumper, if Jones had attempted to back his truck into Shipp's cruiser a second time:
Doc. no. 37-15 (Busken Deposition), at 79 (alterations supplied). In addition, Busken did not know the engine size or capabilities of Jones's pickup truck.
Thus, both of his contested opinions — that the push bumper was strong enough to resist Jones's truck, and that the truck was "disabled" — lack a sufficient factual foundation and are due to be excluded.
Busken's opines that Officer Maher's use of lethal force was not "reasonable." That conclusion is based, in part, on his opinion that Chris Jones's truck was "disabled."
Doc. no. 41-5 (Busken Report), at 6.
The court previously excluded Busken's opinion that Jones's truck was "disabled." It follows, therefore, that this opinion, based upon the witness's factually unsupported conclusions about the status and capabilities of Jones's truck, should also be excluded.
Officer Maher also contends that Busken's testimony usurps the role of the jury, because he reached the ultimate issue when he opined that Officer Maher acted "unreasonably." Federal Rule of Evidence 702 provides that:
Fed. R. Evid. 702(a) (emphasis supplied). At the summary judgment stage, however, once the court has "determined the relevant set of facts and drawn all inferences in favor of the nonmoving party to the extent supportable by the record, the reasonableness of [the officer's] actions . . . is a pure question of law.'" Penley v. Eslinger, 605 F.3d 843, 848-49 (11th Cir. 2010) (quoting Scott v. Harris, 550 U.S. 372, 396 (2007)) (emphasis, alteration, and ellipsis in original).
Here, Busken's opinions as to the reasonableness of Officer Maher's actions will not assist the trier of fact, because it is the role of the judge, and not an expert witness, to instruct the jury on the applicable principles of law. As the Eleventh Circuit has stated: "`Domestic law is properly considered and determined by the court whose function it is to instruct the jury on the law; domestic law is not to be presented through testimony and argued to the jury as a question of fact.'" United States v. House, 684 F.3d 1173, 1209 (11th Cir. 2012) (quoting United States v. Oliveros, 275 F.3d 1299, 1306-07 (11th Cir. 2001)). In other words, "[a]n expert may not . . . merely tell the jury what result to reach," and "[a] witness also may not testify to the legal implications of conduct." Montgomery v. Aetna Casualty & Surety Co., 898 F.2d 1537, 1541 (11th Cir. 1990) (citations omitted, alterations supplied). Instead, "the court must be the jury's only source of law." Id. (citations omitted).
Although plaintiff does not expressly concede this issue, neither does she contest it.
Plaintiff asserts two claims against Officer Michael Maher: a federal claim, asserted under 42 U.S.C. § 1983, that Maher employed excessive or unreasonable force in violation of rights guaranteed to Chris Jones by the Fourth Amendment to the United States Constitution;
Officer Maher contends that the doctrine of qualified immunity shields him from liability for plaintiff's Fourth-Amendment, excessive-force claim. That doctrine provides "immunity from suit to governmental officials performing discretionary functions as long as `their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known.'" Green v. Brantley, 941 F.2d 1146, 1148 (11th Cir. 1991) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The purpose of the doctrine is to allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation. Anderson v. Creighton, 483 U.S. 635, 638 (1987); Lee v. Ferraro, 284 F.3d 1188, 1193-94 (11th Cir. 2002). It protects from suit "all but the plainly incompetent or one who is knowingly violating the federal law." Hope v. Pelzer, 536 U.S. 730, 752 (2002) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); see also, e.g., Lee, 284 F.3d at 1193-94; Chesser v. Sparks, 248 F.3d 1117, 1121-22 (11th Cir. 2001).
In order to be eligible to claim the benefits of the doctrine, however, the public official "must first prove that `he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.'" Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991) (quoting Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir. 1988)). Officer Maher contends that he has done so,
Courts generally apply a two-part test for determining whether a defendant is entitled to claim the benefits of the doctrine of qualified immunity. The "threshold question" is: Do the facts, viewed "in the light most favorable to the party asserting the injury," show that the officer's conduct violated a constitutional right? Saucier v. Katz, 533 U.S. 194, 201 (2001). If that question is answered "yes," then the court will proceed to analyze the second part of the inquiry: i.e., was the right "clearly established"? Id.
The Supreme Court has said that the use of deadly physical force when attempting to apprehend a fleeing suspect "is a seizure subject to the reasonableness requirement of the Fourth Amendment." See Tennessee v. Garner, 471 U.S. 1, 7 (1985). "The reasonableness of a 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." Long v. Slaton, 508 F.3d 576, 580 (11th Cir. 2007) (internal citation and quotation marks omitted). "[T]he question is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham v. Connor, 490 U.S. 386, 397 (1989) (alteration supplied); see also, e.g., Whren v. United States, 517 U.S. 806, 813 (1996) (holding that a court may not inquire into the actual motivations for the defendant's use of force; instead, the only appropriate question is whether a reasonable officer could have made the same decision); McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009) (holding that a court must "look at the fact pattern from the perspective of a reasonable officer on the scene with knowledge of the attendant circumstances and facts, and balance the risk of bodily harm to the suspect against the gravity of the threat the officer sought to eliminate").
The reasonableness inquiry "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." Graham, 490 U.S. at 396-97.
An objective determination of the reasonableness of an officer's use of force requires an analysis of all circumstances. See, e.g., Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. 2013) (holding that a court must "pay `careful attention to the facts and circumstances' of the case, `including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight'") (quoting Graham, 490 U.S. at 396).
More importantly, however, the Supreme Court recently held that, when a suspect's flight poses a grave risk to public safety, a police officer's use of deadly force to end that risk is reasonable. Plumhoff v. Rickard, — U.S. —, 134 S.Ct. 2012, 2022 (2014). The police in that case terminated a dangerous chase by firing fifteen shots at a suspect after his automobile collided with a police cruiser, came temporarily to a near standstill, and the suspect threw his vehicle into reverse in an attempt to escape. Id. at 2021.
This case is virtually indistinguishable from Plumhoff. Chris Jones, like the suspect in that case, posed a grave risk to public safety. The chase in this case exceeded 70 miles per hour at night and lasted just over five minutes. During the wild pursuit, Jones drove recklessly through residential areas and on poorly lit rural roads, passed a vehicle, failed to stop at five or six stop signs, swerved into the opposite lane of traffic on numerous occasions, drove into and out of a ditch, and disabled a police car by slamming on his brakes and allowing it to collide with his truck. It simply was fortuitous that, due to the time of night and the sparsely-populated rural areas in which the dangerous pursuit occurred, so few persons were endangered by Jones's conduct. Similar to the police officers in Plumhoff, at the time Maher fired his initial volley of shots, Jones had backed his truck onto the hood of Officer Shipp's cruiser, and come to a temporary standstill. Under the circumstances recorded by the officers' dash cameras, a reasonable officer could have concluded that Jones had transformed his truck into a deadly weapon, and was attempting to crush Officer Shipp. See Pace v. Capobianco, 283 F.3d 1275, 1281-82 (11th Cir. 2002) ("By the time of the shooting, Davis had used the automobile in a manner to give reasonable policemen probable cause to believe that it had become a deadly weapon with which Davis was armed.").
Just before Officer Maher fired his final shots, Jones sat up behind the wheel of his still-running truck.
Plaintiff contends that, unlike the chase in Plumhoff, "the pursuit of Chris Jones `ended' by the time [Officer] Shipp, and then [Officer] Maher, began their initial volleys into Jones's truck, and certainly had `ended' by the time [Officers] Shipp and Maher completed those volleys," because Jones's truck was hooked on Officer Shipp's push bumper.
Even if, as plaintiff contends, Jones's rear bumper was hooked onto Officer Shipp's push bumper, there is no guarantee that the push bumper would have remained attached to the patrol car if Jones had attempted to speed off, or that it would have remained intact and prevented Jones from backing his truck over the hood of Shipp's patrol car, possibly injuring (or crushing) him in the process.
Plumhoff, 134 S. Ct. at 2021-22 (alterations supplied).
Plaintiff attempts to distinguish this case from Plumhoff, based upon the fact that approximately seven and a half seconds elapsed between the end of Maher's initial volley and his final two shots. However, if Maher was "justified in firing at [Jones] in order to end a severe threat to public safety, [he] need not stop shooting until the threat has ended." Id. at 2022 (alterations supplied).
The defendant police officers in Plumhoff fired fifteen shots during a ten-second span. Id. Here, Maher fired fifteen shots during an eleven-second span, albeit with a seven-and-a-half-second delay between his initial volley and the final two shots.
Other factors support Officer Maher's use of deadly force.
Even though Maher did not give a verbal warning of his intent to use deadly force if Jones did not surrender, courts "have `decline[d] . . . to fashion an inflexible rule that, in order to avoid civil liability, an officer must always warn his suspect before firing. . . .'" Penley v. Eslinger, 605 F.3d 843, 854 n.6 (11th Cir. 2010) (quoting Carr v. Tatangelo, 338 F.3d 1259, 1269 n.19 (11th Cir. 2003)) (alteration in original). At the time Maher began firing his initial volley of shots, Jones's truck had just rolled off Officer Shipp's hood.
Plaintiff has not established that Officer Maher violated the Fourth Amendment.
Even if this court had found a violation of the Fourth Amendment, Maher still would be entitled to summary judgment because plaintiff has not demonstrated that Maher violated a "clearly established" constitutional right.
In determining whether a constitutional right is clearly established, "`the salient question is whether the state of the law [at the time of the unconstitutional act] gave respondents fair warning that their alleged treatment of [the plaintiff] was unconstitutional.'" Williams v. Consolidated City of Jacksonville, 341 F.3d 1261, 1270 (11th Cir. 2003) (alterations in original) (quoting Hope, 536 U.S. at 741). The Supreme Court has rejected the requirement that the facts of previous cases must always be "materially similar" to those facing the plaintiff. Hope, 536 U.S. at 739. Instead, for a constitutional right to be "clearly established,"
Hope, 536 U.S. at 739 (emphasis supplied, alteration in original).
As the Eleventh Circuit has observed, there are various ways in which an officer may be placed on "fair warning" that his conduct in specific circumstances may violate the constitution or federal law.
Vinyard v. Wilson, 311 F.3d 1340, 1350-52 (11th Cir. 2002) (emphasis in original, alterations supplied). See also Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2083 (2011) ("We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.").
It should also be emphasized that it is the plaintiff who bears the burden of establishing that the constitutional right at issue was clearly established on the date of its alleged violation. Youmans v. Gagnon, 626 F.3d 557, 562 (11th Cir. 2010).
In light of Plumhoff, and other cases involving police use of deadly force to stop a fleeing felon involved in a high speed car chase, see, e.g., Scott, 550 U.S. at 381, and Brosseau v. Haugen, 543 U.S. 194, 201 (2004), this is not an "obvious clarity" case. Thus, the court must turn to case law to determine whether the purported constitutional violation was clearly established at the time Officer Maher employed deadly force against Chris Jones.
Plumhoff "makes plain that as of [July 18, 2004] — the date of the events at issue in that case — it was not clearly established that it was unconstitutional to shoot a fleeing driver to protect those whom his flight might endanger." Plumhoff, 134 S. Ct. at 2023.
Plumhoff, 134 S. Ct. at 2023 (alterations supplied).
Plaintiff does not contend that controlling authority emerged between July 18, 2004, the date of the events at issue in Plumhoff, and March 21, 2011, the date on which Officer Maher fatally wounded Chris Jones. Instead, she argues that Maher's conduct was different from the conduct at issue in Plumhoff, because Chris Jones was not fleeing at the moment Maher fired his final two shots. Plaintiff contends that the facts of this case are more like those of Smith v. Mattox, 127 F.3d 1416 (11th Cir. 1997), an excessive-force case in which the Eleventh Circuit found that an officer was not entitled to qualified immunity. In the latter case,
Id. at 1417-18 (alteration supplied). Based upon these facts, the Eleventh Circuit held that, even though some use of force was reasonable,
Id. at 1420 (emphasis in original).
This court disagrees with plaintiff. The facts of this case are not at all like those at issue in Smith. Here, there was no indication that Chris Jones had given himself up, or that he was incapacitated, at the moment Maher fired his final two shots.
For these reasons, even if it were to be determined that Officer Maher's final two shots violated Chris Jones's Fourth Amendment right to be free of unreasonable force, Maher still would be entitled to summary judgment based on the doctrine of qualified immunity because plaintiff has not demonstrated that the right was "clearly established" on the date the deadly force was applied.
The remaining claim is plaintiff's supplemental state-law claim for wrongful death. In cases where the court's jurisdiction is based solely upon a federal question, the district court has discretion to entertain state claims that are supplemental to the federal claim. See 28 U.S.C. § 1367(a). The district court may decline to exercise supplemental jurisdiction when:
28 U.S.C. § 1367(c) (emphasis supplied). "[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n.7 (1988).
Here, plaintiff's federal claim has been eliminated. Accordingly, this court declines supplemental jurisdiction over the remaining state law claim, and exercises its discretion to dismiss that claim, but without prejudice to plaintiff's right to reassert it in an appropriate state forum, if she desires to do so.
A separate order, consistent with this memorandum opinion, will be entered contemporaneously herewith.
I reviewed video of this incident many times and was "troubled" by what I watched. Throughout the incident, the police officers used tactics bringing them too close to Jones. Albertville Police Department policy (p. 50) clearly defines Reaction Time and Reactionary Gap:
Literature on emergency vehicle operations also identifies the need for reaction time and a reactionary gap during a police pursuit. According to Beach, Morris & Smith (1993), "Safety Considerations When Pursuing — Always leave yourself an out. Try to maintain a space cushion around your vehicle. Your following distance should increase as speeds increase. A gap of approximately 4 seconds should allow you to maintain contact safely." According to Albertville's Lethal Force policy (p. 49), "Lethal Force is considered a measure of "Last Resort" [sic]. Had the officers allowed more distance between them and Jones they would have probably had other options.
Officer Isbell's police vehicle was too close to Jones' truck during the pursuit. This prohibited Officer Isbell from reacting to Jones' maneuvers and avoiding a collision. Later in the incident, when Jones stopped the truck, Officer Shipp was too close to Jones' truck, leaving Shipp with no Reactionary Gap. Some may argue this portion of policy is not relevant during a vehicular pursuit; however, the Albertville policy clearly states Reaction Time and Reactionary Gap are relevant "during all police contacts".
The primary question regarding a police pursuit is: Does the need to apprehend the suspect outweigh the danger associated with continuing the pursuit? Three Albertville police officers responded to the scene of this incident. I believe one of the officers should have stayed at the scene and gathered information. This opinion is reinforced by a statement from Officer Shipp's deposition, "We pursued him in an attempt to get him to stop and try to figure out what was going on at the residence" (p. 19). This officer could have identified Jones and identified the location of his residence. These details could have been provided via radio to the two pursuing officers. The officer at the scene would have also confirmed Jones was impaired/intoxicated, which may have explained Jones' erratic driving behavior. Additionally, this officer, through the course of gathering details, may have learned Jones was no longer armed with the knife. During the pursuit, the dispatcher is heard saying, "We got the caller on the line — we know she's ok." All of this information would have been helpful for the pursuing officers and any supervisory personnel monitoring the pursuit with regard to decisions about continuing the pursuit and actions leading to the use of lethal force.
Albertville Police Department policy regarding Use of Lethal Force (p. 49) allows Lethal Force as a measure of "Last Resort".
Review of the video from Officer Shipp's patrol vehicle shows Jones back his truck into the front of Shipp's vehicle. While the police vehicle is stationary, the truck continues and the rear of the truck "rides up" slightly onto the push-bumper and hood of Shipp's patrol car. The push bumper stopped the backward motion of Jones' truck, disabled Jones' truck preventing it from continuing its backward movement, and ended the immediate threat of death or serious physical injury. Jones' truck appears to be stuck on the push bumper preventing the truck from moving backward any further. Both Officer Shipp and Officer Maher acknowledge this in depositions:
Jones' truck then moves forward disengaging contact with Shipp's vehicle. Shipp's patrol car video shows the white (reverse gear) lights illuminated on Jones' truck as Jones backed into the front of Shipp's patrol car; however, as Jones' truck moves forward the white lights go off indicating the truck is no longer in reverse gear.
ABI Agent Investigative Summary File Number 2C-0486-96-2011 prepared by Agent Terry Thomas includes a statement attributed to Shipp. According to Agent Thomas, Shipp stated he shot until the truck stopped coming toward him (p. 1). However, Shipp's in-car camera clearly shows that Officer Shipp begins the use of lethal force (shooting) after the push bumper disables the truck, after Jones' truck is disengaged from the front of the patrol vehicle, and after the immediate threat of death or serious injury subsided.
This raises several questions:
1. Did Officer Shipp have other options he could have used prior to using lethal force?
Again, according to Albertville policy, Shipp could "Disengage to create distance". This then "affords the officer more time to react to aggression" and in my opinion gives the officer(s) time to contemplate options other than Lethal Force.
2. Could Officer Shipp and Officer Maher have used some other technique to end this encounter without using Lethal Force?
According to training records provided by the Albertville Police Department, both Shipp and Maher attended training in Pursuit Termination Techniques (Source — Training Certificates dated August 12, 2010). Although the description of this course and course curriculum was not included in the materials I reviewed, I assume this course would have provided participants with options other than Lethal Force to end this sort of encounter. In his deposition (p. 22), Officer Shipp indicated he has an understanding of the unpredictable nature associated with pursuits when he said, "Typically they end with the offender either wrecking or running out of gas. Occasionally they just decide they want to pull over, but typically they wreck for the most part, probably."
Some of the other options available to Officer(s) Shipp and Maher would have been:
Officer Shipp was aware of these options according to his deposition (p. 42-43). Shipp was asked, what would your training teach you to do when, at the end of a chase, a vehicle is disabled now and can't go anywhere? Shipp replied, "You either make verbal communications with the suspect and order them to get out of the vehicle. Or you can approach the vehicle and remove the suspect from the vehicle that way."
3. Was the use of Lethal Force by Officer Shipp reasonable?
I do not think the lethal force used by Officer Shipp was reasonable because Jones backed into the strongest part of the police car. Officer Maher reinforced this opinion in his deposition. "You cannot disable a vehicle by shooting at the engine block, it's the strongest part on the vehicle" (p. 58). Jones backed into the engine compartment. The front of Shipp's police vehicle was fortified by what is referred to as a "push bumper". Shipp was aware of the protection provided by a push bumper. In his deposition, referring to the push bumper, Shipp said, "It's a metal push bar that we use to — that kind of protects the front end of the car" (p. 84). A manufacturer website, Go Rhino — Public Safety Division (www.gorhinopd.com/testimonials.aspx), offers several testimonials of police officers throughout the United States. These stories prove the push bumper absorbs a lot of the impact, allowed an officer to walk away from a head-on collision, and another push bumper saved the officer from serious injury or death.
I do not think the lethal force used by Officer Shipp was reasonable because of conflicting statements in his deposition. Shipp was asked, was the truck coming at you when you shot towards it? Shipp responded, "Yes, sir" (p. 34). Shipp's in-car camera clearly shows that Officer Shipp begins the use of lethal force (shooting) after the push bumper disables the truck, after Jones' truck is disengaged from the front of the patrol vehicle, and after the immediate threat of death or serious injury subsided. Shipp was asked about this later in the deposition (p. 38), ["]So if the video is correct, you didn't shoot until he put it back in drive and went forward, is that right?["] Shipp replied, "Seems to be per the video, yes, sir."
4. Was the Use of Lethal Force by Officer Maher reasonable?
I do not think Officer Maher's use of lethal force was reasonable because, according to Maher's deposition (p. 21), the sole reason Maher fired at Jones was because Maher believed Jones presented a threat to Officer Shipp. Jones was backing his truck up onto Shipp's police vehicle. Maher's account is contrary to the video evidence. Shipp's in-car camera clearly shows Officer Maher begin the use of lethal force (shooting) after the truck is disabled by the push bumper, after the truck is disengaged from the front of the patrol vehicle, and after the immediate threat of death or serious injury subsided.
I also do not think the lethal force used by Officer Maher was reasonable because, as noted earlier in this report, Albertville Police Department policy regarding Use of Lethal Force (p. 49) only allows Lethal Force as a measure of "Last Resort"
Apparently, Officer Maher began his use of lethal force, not because Maher perceived any threat posed by Jones, but because he heard gunshots behind him and Maher thought the shots were coming from Officer Shipp (ABI Agent Investigative Summary File Number 2C-0486-96-2011 p. 2). During the ABI investigation, the only justification Maher provided for the final two shots Maher fired as Maher approached the driver's door of Jones' truck was because the driver (Jones) tried to sit back up. Maher was asked about this in his deposition (p. 37). Maher answered, "Yes" to the question, "You shot him because he was still alive?["] This was not a "split second" decision according to Maher's deposition (p. 53), "His life was in definite danger. I had about three seconds to make that decision and I made [the] decision based on that."
During Maher's deposition (p. 37), Maher cites his training as justification for his use of lethal force.
Again, I would emphasize I do not think Maher's use of lethal force was reasonable because Shipp's in-car camera clearly shows Officer Maher begin the use of lethal force (shooting) after the truck is disabled, after the truck is disengaged from the front of the patrol vehicle, and after the immediate threat of death or serious injury subsided.
Members of Albertville's Firearms Discharge Review Committee were in unanimous agreement that the actions of both Officer Shipp and Officer Maher are justified and are deemed In Policy (Committee Findings dated March 24, 2011)[.] Although I understand the points noted by this Committee in their report, I believe the findings are debatable, based upon opinions noted previously in my report. Furthering my opinion these results are debatable is a recent case from Garland, Texas. According to the Dallas Morning News, a Garland, Texas police officer was fired following an investigation into an August 31, 2012 chase in which the officer shot 41 times at a suspect the officer believed was armed. The Garland officer believed the suspect posed a threat, however, the suspect was unarmed.
The use of deadly force to stop Jones from continuing to back the truck over Officer Shipp's patrol car would have been reasonable. However, the push bumper disabled Jones' truck, stopped the backward motion of Jones' truck, and ended the immediate threat of death or serious physical injury. The truck then moved forward and disengaged from Shipp's patrol vehicle furthering my belief the immediate threat of death or serious physical injury subsided. Additionally, the white (reverse gear) lights go off indicating the truck is no longer in reverse gear. We have no way of determining what Jones' intentions were at this point, but one thing is certain, Jones was not provided the opportunity to surrender.
Fed. R. Evid. 702 advisory committee's note to 2000 amendments (internal citations omitted).
Doc. no. 37-11 (ABI Report), at ECF 18. Nothing in that report establishes that Officer Maher began firing his weapon because he heard gunshots behind him. Busken's contention regarding Maher's motivation for firing his initial volley of shots is based upon his supposition and lacks a sufficient factual foundation. Moreover, even if there was evidence that Officer Maher fired his duty weapon only because Officer Shipp fired his, Busken's contention regarding Maher's initial volley of shots relates to Maher's motivations. "[T]he question is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham v. Connor, 490 U.S. 386, 397 (1989) (emphasis and alteration supplied). Accordingly, Busken's opinion applies an incorrect legal standard if it relies upon the contention that Maher fired his duty weapon because Shipp fired his.
Morton, 707 F.3d at 1281 (emphasis supplied) (quoting McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009)). Although the second precondition listed in the Morton framework was qualified as "necessary to prevent escape," that is not accurate. The "necessity" at issue actually is "`the need to prevent `serious physical harm, either to the officer or to others.''" Scott v. Harris, 550 U.S. 372, 382 n.9 (2007) (quoting Garner, 471 U.S. at 11). Thus, in a police chase where the suspect is in a speeding automobile, the "necessity to prevent escape" satisfies the second precondition because the suspect's flight itself poses a threat of serious physical harm to others. Id. The Morton framework, however, is not the sine qua non for determining whether deadly force was reasonable. As the Eleventh Circuit has noted, Morton's analytical framework "says something about deadly force but not everything." Long, 508 F.3d at 580 (emphasis added). "The Supreme Court has cautioned that `[Morton's analytical framework] did not establish a magical on/off switch that triggers rigid preconditions whenever an officer's actions constitute `deadly force.''" Id. (quoting Scott, 550 U.S. at 382).
Doc. no. 40 (Albertville Police Department Policies and Procedures Manual), at ECF 76 (alterations supplied).
Doc. no. 40 (Albertville Police Department Policies and Procedures Manual), at ECF 75. The court cannot locate "section II.E." in the record.