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White v. City of Topeka

United States District Court, D. Kansas

June 18, 2019

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,
v.
CITY OF TOPEKA, MICHAEL CRUSE, JUSTIN MACKEY, and JOHN DOE OFFICERS #1-5, Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge

         This 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.

         I. Factual Background

         The 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 motion.

         On 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.

         Officer 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.

         II. Procedural Background

         Plaintiff 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.

         With 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.

         Officers 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 13-23.

         In 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.

         III. Legal Standards

         A. Summary Judgment

         Summary 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).

         B. Qualified Immunity and ...


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