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Wingate v. Byrd

United States District Court, D. South Carolina, Florence Division

September 30, 2016

Ernestine Wingate as the Personal Representative of the Estate of Ernest Russell, Plaintiff,
v.
Wayne Byrd, both individually and in his Official capacity as the Sherriff of Darlington County; Darlington County Sherriff's Office; The County of Darlington; The City of Darlington Police Department; The City of Darlington; Ben Weatherford; Clyde M Shephard; And John Does 1-10, Defendants.

          ORDER AND OPINION

          BRUCE HOWE HENDRICKS UNITED STATES DISTRICT JUDGE

         This action arises out of the execution of a search warrant, resulting in the death of Ernest Russell (“Russell”). On October 18, 2013, Plaintiff Ernestine Wingate (“Plaintiff”), as personal representative of the estate of Russell, filed this 42 U.S.C. § 1983 action alleging Defendants violated Russell's Fourth and Fourteenth Amendment rights. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., this matter was referred to United States Magistrate Kaymani D. West, for consideration of pretrial matters. The Magistrate Judge prepared three thorough Report and Recommendations, addressing Defendants' various motions for summary judgment. The first Report and Recommendation, (“Report One”), recommended granting in part and denying in part Defendant Ben Weatherford's (“Weatherford”) motion for summary judgment. (ECF No. 116.) Specifically, the Magistrate Judge recommended granting Weatherford summary judgment on Plaintiff's § 1983 claim for Fourth Amendment knock-and-announce violations based on qualified immunity. (Id. at 41.) However, she recommended denying Weatherford summary judgment on Plaintiff's Fourth Amendment cause of action for excessive force and for all remaining causes of action. (Id. at 41-42.) The second Report and Recommendation, (“Report Two”), recommended granting Defendants Wayne Byrd, Darlington County Sherriff's Office, and the County of Darlington's motion for summary judgment and dismissing these Defendants. (ECF No. 118.) The third Report and Recommendation, (“Report Three”), recommended granting Defendants City of Darlington, Darlington Police Department, and Clyde M. Sheppard's motion for summary judgment and dismissing these Defendants. (ECF No. 119.) Defendant Weatherford filed timely objections to Report One (ECF No. 125), and Plaintiff filed timely objections to Reports One and Two (ECF Nos. 124; 126).

         For the reasons set forth herein, the Court adopts Report One in part. Specifically, the Court adopts the portion of Report One denying Weatherford summary judgment on Plaintiff's excessive force claims and claims for wrongful death, survivorship, and civil conspiracy, and granting Weatherford summary judgment on Plaintiff's claim for Fourth Amendment knock-and-announce violations. However, the Court modifies Report One by dismissing Plaintiff's § 1983 conspiracy claim against Weatherford. The Court adopts Reports Two and Three and dismisses Defendants Wayne Byrd, Darlington County Sherriff's Office, County of Darlington, City of Darlington, Darlington Police Department, and Clyde M. Sheppard from this action.

         BACKGROUND AND PROCEDURAL HISTORY

         The Report sets forth in exhaustive detail the relevant facts and standards of law, and the Court incorporates them and summarizes below only in relevant part. Plaintiff filed this matter on October 18, 2013, bringing § 1983 claims for: (1) unlawful search, excessive force, and a violation of due process under the Fourth and Fourteenth Amendments against all Defendants; (2) deliberate indifference against Defendants Byrd, Darlington County Sherriff's Office, and Darlington County; and, (3) conspiracy against the state actors and civil conspiracy against the non-state actors . (ECF No. 1-1 ¶¶ 46-47, 56-57, 67-68.) Plaintiff also brings claims under South Carolina law for: (1) civil conspiracy; (2) negligence and gross negligence against Defendants Byrd, Darlington County Sherriff's Office, Darlington County, Darlington County Police, and the City of Darlington; (3) wrongful death; and (4) a “survivorship action.” (Id. ¶¶ 64-66, 73- 78.)

         On January 12, 2016, Defendant Weatherford moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 59.) On January 13, 2016, the remaining Defendants also moved for summary judgment. (ECF Nos. 63; 64.) After consideration of Plaintiff's response filed in opposition to these motions for summary judgment (ECF No. 76) and Defendants' replies (ECF Nos. 80; 82), the Magistrate Judge prepared three thorough Report and Recommendations. (ECF Nos. 116; 118; 119.) The Court has reviewed the objections to the Reports, [1] and finds them to be largely without merit. Therefore, it will enter judgment accordingly.[2]

         STANDARD OF REVIEW

         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of any portions of the Report and Recommendation to which a specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). The Court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the Magistrate Judge's conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

         DISCUSSION

         A. Report One

         In Report One, the Magistrate Judge recommended granting Defendant Weatherford summary judgment on Plaintiff's § 1983 claim for Fourth Amendment knock-and-announce violations based on qualified immunity. (Id. at 41.) However, she recommended denying Defendant Weatherford summary judgment on Plaintiff's Fourth Amendment cause of action for excessive force and § 1983 conspiracy cause of action. (Id. at 41-42.) She also recommended denying Weatherford summary judgment on Plaintiff's state law claims for civil conspiracy, wrongful death, and her survivorship action. (Id. at 33-34.)

         1. Defendant Weatherford's Objections

         Defendant Weatherford objects to Report One on two grounds, arguing that the Magistrate Judge erred in: (1) finding that a question of fact remains as to whether Weatherford used excessive force in executing the search warrant; and, (2) finding that Plaintiff's civil conspiracy claim should survive summary judgment. (ECF No. 125 at 1- 13.) The Court addresses these objections in turn.

         a. Excessive Force Claim

         Plaintiff alleges that Defendant Weatherford used excessive force by fatally shooting Russell when executing the search warrant. (ECF No. 1-1 ¶ 46-47.) “The Fourth Amendment governs claims of excessive force during the course of an arrest, investigatory stop, or other ‘seizure' of a person.” Riley v. Dorton, 115 F.3d 1159, 1161 (4th Cir. 1997) (citing Graham v. Connor, 490 U.S. 386, 388 (1989)), abrogated on other grounds by Wilkins v. Gaddy, 559 U.S. 34 (2010); see also Tennessee v. Garner, 471 U.S. 1 (1985). Thus, claims that law enforcement officers have used excessive force in the course of an arrest or other seizure should be analyzed under the Fourth Amendment and its reasonableness standard. See Graham, 490 U.S. at 395. In determining whether the force used in the context of an arrest is reasonable under the Fourth Amendment, the Court must pay “careful attention to the facts and circumstances of each particular 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.” Id. at 396 (citing Garner, 471 U.S. at 8-9). Moreover, “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.” Id. (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968). “The calculus of reasonableness 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. at 396-97. And the “reasonableness” inquiry in the context of the Fourth Amendment is an objective one: “the question is whether the officers' actions are ‘objectively reasonable' in light of the facts and circumstances confronting them, without regard to their intent or motivation.” Id. at 397.

         Here, the Magistrate Judge found that the Graham factors did not conclusively establish the reasonableness of Weatherford's actions in using deadly force against Russell. (ECF No. 116 at 29.) She found that the first factor-the severity of the crime- weighed in favor of Russell. (Id.) As she correctly noted, Russell was suspected of taking part in illegal gambling activities, a non-violent crime. (Id.) However, the Magistrate Judge determined she could not weigh the second two Graham factors because there remained genuine issues of material fact as to whether Russell posed a deadly threat to the officers and whether he was actively resisting arrest by arming himself with a firearm. (Id.)

         In finding a question of fact as to whether Russell was pointing and presenting a firearm at the officers when they entered the building where the shooting occurred, the Magistrate Judge cited “the lack of video evidence, coupled with Plaintiff's ability to prove absence of Russell's DNA on the gun and the improbability that Russell was aiming based on the gun's location in relation to Russell's body.” (Id. at 27.) She further found that even if Russell had grabbed his gun, “a jury could find he was justified in arming himself because of his fear of being robbed by someone other than police breaking and entering the location.” (Id. at 28.) She concluded that whether Weatherford was justified in using deadly force in this situation remains a question of fact. (Id. at 29.)

         Weatherford first objects that the Magistrate Judge erred in finding an issue of material fact as to whether Russell was pointing and presenting a firearm at the officers when they entered the building to execute the search warrant. On this point, Weatherford asserts that she disregarded the video evidence and failed to evaluate the totality of the evidence before the Court. (ECF No. 125 at 1.) He contends that the Magistrate Judge erred in stating “there is no footage of the shooting as it occurred” and ignored the fact that Weatherford can be heard announcing “Sherriff's Office!” when entering the building. (Id. at 2.) He further contends that the video “shows that, as the second officer, Robert McIntyre, entered the building and came around the left side of the first officer, Weatherford, where he could now clearly see Ernest Russell, McIntyre dives defensively to his left, toward the cover of a refrigerator, and raises his arm, firing upon Russell.” ECF No. 125 at 3.) According to Weatherford, “[t]he exercise of common sense leads to the conclusion that McIntyre observed an immediate threat from Russell.” (Id.)

         According to Weatherford, the video evidence, combined with the testimony from the confidential informant and other officers at the scene, supports the conclusion that Russell crouched behind the counter when the officers entered the building and came up with a firearm in his hand. (ECF No. 125 at 3.) He cites the scene photographs as further support of this conclusion, noting that the photographs depict the close proximity of the gun to Russell's body after his death. (Id. at 3-4.) Weatherford also contends that the Magistrate Judge improperly relied on the deposition testimony of Plaintiff's proposed expert witness, Ken Katsaris (“Katsaris”), in reaching her conclusions. (Id. at 4.)

         The Court has reviewed the evidence in the record, including the video evidence. Contrary to Weatherford's assertions, the Court finds that the Magistrate Judge thoroughly and accurately recounted the video evidence depicting the execution of the search warrant as recorded by a chest camera worn by Officer Specht. She summarized the video as follows:

During daylight hours, officers exited a vehicle and approached the side of a white building with two doors. The first door (the right-side door) had a glass or plastic storm door covering a wooden door. Officers opened the first door, and one officer (now known to be Defendant Weatherford) attempted to twist the inside wooden door's knob but finds it is locked. This officer then walks toward the other side door (the left-side door). At this point in the video, Officer Specht is behind two officers, and the first in line is wearing a vest with “SHERIFF” written across the back. One officer, the second officer (now known to be Officer McIntye), hits the locked wooden door with a battering ram, but the door does not open. This officer has “POLICE” written across the back of his vest. The second officer runs to the left-side door where the first officer is approaching. Based on the countdown clock on the video, this initial entry-the time officers exited the police vehicle to the time the first and second officers entered the left-side door-took approximately 20 seconds.
The first officer (Defendant Weatherford) enters, without knocking, through the left-side door. The video does not depict images from inside the house in the moments immediately following the first officer's entry. Next, the two officers (Officers McIntyre and Specht) following the first officer also enter the location through this door. Loud shouting is heard as the second officer enters into the location, and the third officer is immediately behind him. The video depicts a woman (the confidential informant) standing towards the front of the room, and the officers pass her during their entry. More yelling is heard, and several shots are fired. It is unclear from the video who fired the shots or the circumstances leading to the firing of the shots. One officer, with “SHERIFF” written on the front and back of his vest, looked at the camera and said, “he pointed a gun at me.” Based on the countdown clock on the video, 46 seconds elapsed between time of both officers' entry until the declaration by the officer (Defendant Weatherford).
After the shooting, the officers re-enter the location, and one officer says, “where's the gun now?” Russell is seen sitting or slumped behind a counter, and there is black gun lying on the counter to the left of where Russell's body is resting. One of the officers then goes outside and re-enters with a camera. Officer Specht then surveys the room and takes several photographs. Five video poker machines are seen lining one of the walls of the room.

(ECF No. 116 at 3-4.)

         The Court agrees with the Magistrate Judge's account of the video. Because the video is from the recording of Officer Specht's chest camera, the viewer is necessarily limited to what was observed and heard by Officer Specht. Officer Specht appears to have entered the building just before the shots were fired. However, as stated by the Magistrate Judge, “[i]t is unclear from the video who fired the shots or the circumstances leading to the firing of the shots.” (ECF No. 116 at 4.) The video is very shaky during the shooting. The Court agrees with Weatherford that for a brief moment, the video displays what appears to be Russell's head behind the counter, with the rest of his body hidden.

         However, such body language equally supports the conclusion that Russell was shielding himself from the officers' sudden entry, as it does the conclusion that Russell was attempting to grab a firearm. The Court also agrees with Weatherford that the video depicts, for a brief moment, an officer diving down toward the refrigerator. However, it is unclear from the video whether the officer is firing upon Russell. In addition, such body language equally supports the conclusion that the officer was diving down to avoid getting shot in the back by Weatherford as Weatherford was firing at Russell, as it does the conclusion that the officer was avoiding “an immediate threat from Russell.” (Id.) Further, while the Court agrees with Weatherford that it appears he announced “Sherriff's Office” upon entering the building, the sound is muffled. The Court is not convinced that Weatherford's statement upon entering the building is an established fact.

         The Court also finds it was proper for the Magistrate Judge to consider the testimony of Katsaris in finding an issue of fact as to whether Russell was aiming a gun when Weatherford fired at Russell. Katsaris offered testimony as Plaintiff's proposed expert witness based on his experience in law enforcement training and as a crime scene investigator. (ECF No. 133-1, Katsaris Dep. 16:1-21, 37:25-38:1-2.) Upon examining the crime scene photos, Katsaris opined that the gun was “far away” from Russell's body and not where investigators would expect it to be had Russell held the gun and raised it in the moments before he was shot. (Id., Katsaris Dep. 37:25-38:1-17.)

         Here, Weatherford argues that such testimony is not needed nor allowed where the expert is testifying on the credibility of other witnesses and on “matters of common observation in which a judge and jury can determine through their own eyes and their common sense.” (ECF No. 125 at 4.) The Court does not find that the testimony highlighted above expressly comments upon the credibility of any witnesses, nor does the testimony invade the province of the factfinder. Such evidence is admissible under Federal Rule of Evidence 702. Katsaris' experience in crime scene investigations renders his testimony on the position of the gun helpful to the factfinder and beyond the common knowledge of a layperson. See F.R.E. 702 (Rule 702(a) permits expert testimony if the expert's “knowledge will help the trier of fact to understand the evidence or to determine a fact in issue”); Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1055 (4th Cir. 1986) (“Rule 702 makes inadmissible expert testimony as to a matter which obviously is within the common knowledge of jurors.”).

         Weatherford cites a Sixth Circuit case, Gaddis v. Redford Township, 364 F.3d 763 (6th Cir. 2004), for the proposition that the evidence available in the instant matter is sufficient to find no material dispute of fact that Russell presented a gun at Weatherford. In Gaddis, the court held that officers acted reasonably when using deadly force to seize a mentally impaired man who allegedly threatened officers with a knife during a traffic stop. 364 F.3d at 772-777. Although a dashboard camera recorded the interaction, it was of such “low quality, ” that the court could not determine whether the suspect actually had the knife as the officers claimed. Id. at 773. The court noted that “[s]ince [the decedent] could not testify, the only relevant evidence is the videotape and the testimony of the four officers.” Id. The court found that the body language of the officers as depicted in the video reinforced the officers' testimony that there was a knife. Id. In addition, the video depicted the suspect “react[ing] violently: he wheeled and struck at [an officer] with his right, then his left hand.” Id. The court found the suspect's strike “was a windmilling motion arguably suggestive of an attempt to stab with a knife, ” and concluded that “[a]ll admissible evidence in the case points to the conclusion that the knife was present.” Id.

         A similar conclusion is not warranted here, where there is evidence disputing the assertion that Russell was presenting the gun. The Gaddis case presents the legal conclusion that Weatherford seeks, but the facts are readily distinguishable. As the Magistrate Judge noted, Plaintiff presented evidence that a post-incident investigation did not reveal any of Russell's DNA on the gun. (ECF No. 76-14.) In addition, Katsaris's testimony disputes the likelihood that Russell was aiming the gun based on the gun's location in relation to Russell's body. Finally, for the reasons stated above, the video evidence, when viewed in the light most favorable to the Plaintiff, does not establish that Russell was pointing and presenting a firearm at the officers. Unlike in Gaddis, Russell's head is seen only for the briefest of moments-the Court does not have the benefit of observing Russell's body language throughout his interaction with the officers, and the Court is not permitted to draw any inferences in the movant's favor at this procedural stage.

         Weatherford's final objection related to the excessive force claim is that the Magistrate Judge improperly incorporated the knock and announce requirement into the excessive force analysis, “essentially finding that Weatherford ‘teed up' the confrontation with an armed Ernest Russell.” (ECF No. 125 at 7.) He asserts that the inquiry here “is whether Weatherford acted reasonably in employing force, ” and that it is irrelevant whether Russell acted reasonably in arming himself. (Id. at 7-8.)

         After finding a genuine issue of material fact as to whether Russell was presenting and pointing a gun during the incident, the Magistrate Judge found that the officers' failure to comply with the knock and announce requirement “contributed to the perilous situation.” (ECF No. 116 at 28.) Her reasoning appears to be that, given the manner in which the officers entered the building, “a reasonable officer would expect Mr. Russell to defend himself.” (Id.) The Magistrate Judge concluded that even if Russell had grabbed his gun, “a jury could find he was justified in arming himself because of his fear of being robbed by someone other than police breaking and entering the location.” (Id.)

         The Court agrees with Weatherford that the events preceding the deadly shooting should not have been considered in the excessive force analysis. The Fourth Circuit has consistently found that pre-seizure conduct is irrelevant to the reasonableness inquiry in an excessive force analysis. For example, in Greenidge v. Ruffin, 927 F.2d 789 (4th Cir. 1991), the Fourth Circuit considered whether a district court had properly excluded evidence which established that prior to the time at which the plaintiff had been shot by a police officer, the officer violated “standard police procedure for night time prostitution arrests.” Id. at 791. Plaintiffs alleged that the officer “recklessly created a dangerous situation during the arrest” by violating standard police procedures and that this violation was probative on the issue of her reasonableness. Id. The trial court excluded evidence of the officer's alleged violation of police procedures immediately preceding the shooting. Id. at 790. In affirming this exclusion, and holding that the evidence of the officer's alleged violations prior to the shooting was “not relevant, ” the Fourth Circuit relied upon the following reasoning in Graham: (1) The “reasonableness” of an officer's 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”; (2) “reasonableness” means “the standard of reasonableness at the moment”; and (3) “split-second judgments” are often required to be made. Id. at 791-792.

         The Fourth Circuit reaffirmed Greenidge two years later in Drewitt v. Pratt, 999 F.2d 774 (4th Cir. 1993). In Drewitt, the court held that an off-duty plainclothes police officer who failed to display his badge when attempting to stop a fleeing robbery suspect was entitled to a qualified immunity defense. 999 F.2d at 780. Relying upon Greenidge, the court held that the failure to display the badge (a requirement of state law) was “irrelevant to the issue of whether at the moment of the shooting, [the officer] had probable cause to believe that [the suspect] posed a threat of death or serious bodily harm to him.” Id. at 779-780.

         More recently, the Fourth Circuit has held that “[a] police officer's pre-seizure conduct, regardless of whether it was ill-advised or violative of law enforcement protocol, is generally not relevant for purposes of an excessive force claim under the Fourth Amendment which looks only to the moment force is used.” Gandy v. Robey, 520 F.App'x 134, 142 (4th Cir. 2013). Greenidge, Drewitt, and Gandy make clear that the Court is to focus only upon the reasonableness of the conduct at the moment Weatherford made the decision to use deadly force. See also Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (“Graham requires us to focus on the moment force was used; conduct prior to that moment is not relevant in determining whether an officer used reasonable force.”).

         Thus, Weatherford's alleged failure to comply with the knock and announce ...


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