United States District Court, D. Kansas
KELLY WHITE, Individually, as Administrator of the Estate of Dominique T. White, deceased, and as Next Friend of minor grandchildren TUW, JSW, JKW, and NCW, Plaintiff,
CITY OF TOPEKA, MICHAEL CRUSE, JUSTIN MACKEY, and JOHN DOE OFFICERS #1-5, Defendants.
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
case involves a police shooting that caused Dominique T.
White's death. Before the court is plaintiff Kelly
White's “Motion to Delay Litigation of
Defendants' Motion for Summary Judgment in Order to
Conduct Additional Discovery Pursuant to Fed.R.Civ.P.
56(d)” (Doc. 30). Plaintiff filed the motion after
defendants Michael Cruse and Justin Mackey raised a qualified
immunity defense that they supported with two videos, their
own declarations, and an investigation report of the shooting
incident. The court concludes the videos alone do not
establish, for purposes of summary judgment, that Mr. White
reached for a gun before the shooting. Instead, the court
would need to rely on Officers Cruse and Mackey's
declarations for this factual proposition. The court thus
grants, in part, plaintiff's motion, permitting plaintiff
120 days to depose Officers Cruse and Mackey and 60 days to
produce an expert report.
court derives the following facts from the Complaint and the
videos and declarations submitted with Officers Cruse and
Mackey's motion. The court recites these facts for the
limited purpose of resolving plaintiff's “Motion to
Delay Litigation of Defendants' Motion for Summary
Judgment in Order to Conduct Additional Discovery Pursuant to
Fed.R.Civ.P. 56(d)” (Doc. 30). It does not adopt these
facts as the ones governing the pending summary judgment
September 28, 2017, Officers Cruse and Mackey responded to a
dispatch call of shots fired near Ripley Park in Topeka,
Kansas. Officers Cruse and Mackey saw Mr. White and his
girlfriend in Ripley Park. Mr. White and his girlfriend
separated, and started walking away from each other. Officer
Cruse interacted with Mr. White's girlfriend while
Officer Mackey pursued Mr. White. Mr. White initially ignored
Officer Mackey's request to ask him a question but
yielded once Officer Cruse also approached. In response to
questioning, Mr. White indicated that he had heard shots
coming from a few blocks away. After this response, Officers
Cruse and Mackey moved slightly away from Mr. White, as if
the interaction might conclude. But, Officer Cruse observed
that Mr. White was bent over at the waist and breathing
heavily. Officer Cruse asked Mr. White whether he needed
medical attention. Officer Mackey moved closer to Mr. White,
circling around behind Mr. White and then to his left.
Mackey observed a gun in the left pocket of Mr. White's
shorts. Officer Mackey alerted Officer Cruse about the gun
and then ordered Mr. White to the ground. Mr. White did not
obey this command, and Officer Cruse grabbed Mr. White's
arm. Mr. White escaped Officer Cruse's grasp, spinning in
a counterclockwise direction before running away from the two
Officers. While running, Mr. White's left hand neared the
left pocket of his shorts. Officers Cruse and Mackey assert
that they saw Mr. White reaching for the gun in his pocket.
Officers Cruse and Mackey opened fire at Mr. White, shooting
a total of eight shots at Mr. White's back. Approximately
four or five seconds elapsed between Mr. White breaking free
of Officer Cruse's grasp and the final shot. Three of the
shots struck Mr. White, resulting in his death.
Kelly White initiated this action by filing a two-count
Complaint. Doc. 1. Against Officers Cruse and Mackey, the
Complaint raises an excessive force claim under 42 U.S.C.
§ 1983 based on alleged violations of Mr. White's
Fourth and Fourteenth Amendments. Id. at 4-5 (Compl.
¶¶ 26-29). Defendants answered the Complaint. Doc.
8. Also, Officers Cruse and Mackey moved to stay discovery,
representing that they intended to move for summary judgment
based on qualified immunity, explaining that the video
evidence would resolve the case in their favor. Doc. 17.
Specifically, Officers Cruse and Mackey represented
“the video plainly shows [Mr.] White's left hand
reached toward the gun in his left pocket as his right hand
pinned his shirt out of the way.” Id. at 5.
the prospect that video evidence might resolve the
forthcoming summary judgment motion, Magistrate Judge James
P. O'Hara granted Officers Cruse and Mackey's Motion
to Stay Discovery. Doc. 24. But, when he granted the motion,
Magistrate Judge O'Hara noted the likelihood that
plaintiff would file a Federal Rule of Civil Procedure 56(d)
motion for limited discovery after Officers Cruse and Mackey
moved for summary judgment. Id. at 2.
Cruse and Mackey then moved for summary judgment based on
qualified immunity, supporting the motion with two
body-camera videos, their declarations, and an investigation
report of the shooting incident. Doc. 26; Docs. 27-2, 27-3,
27-4, 27-5, 27-6; see also Doc. 29 (filing of CDs
with video recordings). Detective M.T. Brown prepared the
investigation report, a report that primarily consists of
still shots taken from the videos. The summary judgment
motion advances the anticipated argument that Officers Cruse
and Mackey were entitled to qualified immunity because (1) as
a matter of fact, Mr. White, after breaking free of Officer
Cruse's grasp, reached for the gun in his pocket; and (2)
an objectively reasonable officer permissibly may use lethal
force when confronted with an armed suspect who has disobeyed
a lawful order and attempted to reach for a gun. Doc. 27 at
response, plaintiff moves for limited discovery, arguing
that, under Rule 56(d), he is entitled to depose eyewitnesses
to the shooting, including Officers Cruse and Mackey, before
responding to summary judgment. Doc. 30. Plaintiff also seeks
(1) additional investigatory reports from the City of Topeka
about the shooting; (2) to depose Detective Brown; and (3)
time to proffer an expert report about police shootings and
reaction times. Id. at 12. Attached to
plaintiff's motion is an affidavit from plaintiff's
counsel Rick E. Bailey. Doc. 30-1. It explains the probable
facts plaintiff anticipates acquiring from the limited
discovery. Id. Officers Cruse and Mackey maintain
that the video evidence provides a sufficient basis to
resolve their qualified immunity defense. Doc. 33 at 4-9.
They also contend that plaintiff fails to identify what other
investigatory reports are needed to respond to their motion
for summary judgment, and that any citations to the
investigatory report in support of their “Statement of
Uncontroverted Facts” may be disregarded because
statements of fact supported by citation to the report are
also supported by citation to the videos. Id. at 9.
judgment is appropriate if the moving party demonstrates that
“no genuine dispute [about] any material fact”
exists and that it “is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(a). When applying this
standard, the court views the evidence and draws inferences
in the light most favorable to the non-moving party.
Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th
Cir. 2010). An “issue of fact is ‘material'
‘if under the substantive law it is essential to the
proper disposition of the claim' or defense.”
Id. (quoting Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670 (10th Cir. 1998)). And a
disputed “issue of fact is ‘genuine'
‘if the evidence is such that a reasonable jury could
return a verdict for the non-moving party' on the
issue.” Id. (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). “When
opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary
judgment.” Scott v. Harris, 550 U.S. 372, 380
(2007). Under this rule from Scott, a defendant may,
at the summary judgment stage, rely on video evidence of the
incident underlying the action to overcome the
plaintiff's contrary version of events. See Id.
at 381-85 (rejecting plaintiff's version of events and
concluding video evidence of car chase demonstrated that
plaintiff created a risk of serious physical injury to the
public, justifying use of deadly force).
Qualified Immunity and ...