United States District Court, D. Oregon, Pendleton Division
ESTATE OF RICHARD LEE SHAFER, by and through its Personal Representative, Kristi Shafer, Plaintiff,
CITY OF ELGIN, OREGON; ERIC KILPATRICK; and KEVIN LYNCH, Defendants.
OPINION AND ORDER
PATRICIA SULLIVAN, Magistrate Judge.
The Estate of Richard Lee Shafer, by and through its Personal Representative Kristi Shafer, filed an Amended Complaint asserting Fourth Amendment claims under 42 U.S.C. § 1983 and Oregon state law for wrongful death against the City of Elgin, Oregon (the "City"), Eric Kilpatrick ("Officer Kilpatrick"), and Kevin Lynch ("Chief Lynch"). Plaintiff alleges Officer Kilpatrick, acting within the scope of his employment as a police officer for the City, used unreasonable force when responding to a domestic dispute at the home of Richard and Gloria Shafer, which resulted in the fatal shooting of Richard Shafer. Chief Lynch was the Chief of Police for the City at the time of the incident. Plaintiff's Amended Complaint alleges: (1) a claim against Officer Kilpatrick individually for unreasonable force in violation of Richard Shafer's Fourth Amendment rights; (2) a claim against Chief Lynch individually for supervisor liability; and (3) a claim against the City for municipal liability.
On March 28, 2014, the court granted defendants' Motion to Bifurcate all trial issues related to the claim against Officer Kilpatrick for unreasonable force from the claim against Chief Lynch for supervisor liability and the claim against the City for municipal liability. (doc. #64). Defendants now move for partial summary judgment (doc. #47) on the claims against Chief Lynch and the City. For the reasons set forth below, defendants' motion is denied.
Elgin, Oregon is a small city in Eastern Oregon with a population of approximately 1, 711 encompassing about one square mile in Union County. (Decl. of Jeff Groth Ex. 1 at 1, June 18, 2014.) In 2011, the City of Elgin Police Department, a municipal police department, had a full-time staff consisting of a chief of police, one police sergeant, and one police officer. ( Id. Ex. 1 at 2.) During the time period alleged in plaintiff's Amended Complaint, these persons were Chief Lynch, non-party Sergeant Nick Pallis ("Sgt. Pallis"), and Officer Kilpatrick. Sgt. Pallis left the Department in June of 2011, to join the Union County Sheriff's Department. (Nick Pallis Dep. 13:12-21, Jan. 30, 2013.) On August 1, 2011, Chief Lynch was out of the country and Officer Kilpatrick was in charge of the Police Department. (Kevin Lynch Dep. 39:17-19, 68:18-69:1, Jan. 25, 2013.)
On the morning of August 1, 2011, Gloria Shafer called 9-1-1 from her home in Elgin. (Am. Compl. ¶¶ 9-10; Gloria Shafer Dep. 114:12-18, Jan. 21, 2013 ("G. Shafer Dep.")) Gloria was in the process of moving out of the home, which she shared with her husband Richard Shafer and the couple's 11-year-old son John Shafer. (Am. Compl. ¶¶ 9, 12; G. Shafer Dep. 73:9-11, 76:9-11.) Gloria requested the presence of a police officer because Richard objected to her removing property from the residence and told her she couldn't leave unless she had a police escort. (Am. Compl. ¶ 10; G. Shafer Dep. 111:9-23, 112:22-25, 114:8-18.)
Officer Kilpatrick was at his home when he received a call dispatching him to the Shafer residence for a domestic disturbance. (Am. Compl. ¶ 10; Eric Kilpatrick Dep. 109:9-110:2, Jan. 22, 2013.) Officer Kilpatrick arrived at the Shafer residence approximately 20 minutes later. (G. Shafer Dep. 114:24-115:2; Kilpatrick Dep. 110:3-112:15.) Gloria remained on the phone with the 9-1-1 operator during this time. (G. Shafer Dep. 115:3-8.) Officer Kilpatrick testified when he arrived at the Shafer residence, he listened from outside but did not hear any sounds of a disturbance inside the home. (Kilpatrick Dep. 112:23-113:7.) Officer Kilpatrick knocked on the door, Richard answered it, and told Officer Kilpatrick to come inside. (Am. Compl. ¶ 11; G. Shafer Dep. 157:16-19; Kilpatrick Dep. 113:8-16.) After Gloria concluded her telephone call in the kitchen area of the home, Officer Kilpatrick, Richard, and Gloria moved into the living room area of the home. (G. Shafer Dep. 157:16-159:6; Kilpatrick Dep. 114:13-115:10, 116:10-117:7.) John sat quietly in a loft at the top of a staircase overlooking the living room area. (G. Shafer Dep. 171:2-4; Kilpatrick Dep. 126:19-127:13; John Shafer Dep. 23:3-11, Jan. 21, 2013 ("J. Shafer Dep."))
Officer Kilpatrick told the couple: "I'm here to listen. I know this is going to take some time." (Kilpatrick Dep. 117:8-10.) Richard then told Gloria she couldn't take any guns with her, and the couple began listing various calibers and discussed who owned which gun. (Kilpatrick Dep. 117:11-14.) Initially, Officer Kilpatrick did not see any firearms in the living room area. (Kilpatrick Dep. 117:15-16.) Gloria picked up a box containing ammunition and stated she intended to take it outside to her van. (G. Shafer Dep. 115:19-20, 159:7-11; Kilpatrick Dep. 118:16-119:9.) Richard blocked Gloria and stood with his fists clenched at his side. (G. Shafer Dep. 115:19-20, 159:23-160:15; Kilpatrick Dep. 119:14-120:14.) Gloria complained to Officer Kilpatrick who told Richard he couldn't stop her from taking anything and needed to let her go. (G. Shafer Dep. 115:21-22, 160:16-24; Kilpatrick Dep. 120:22-24, 124:24-125:10.) Richard stepped aside and Gloria walked out the front door to put the ammunition box in her van. (G. Shafer Dep. 160:25-162:10; Kilpatrick Dep. 120:25-121:2.) Gloria returned to the residence less than a minute later. (G. Shafer Dep. 162:9-10; Kilpatrick Dep. 122:22-123:3.)
The parties dispute the events that occurred after Gloria came back inside the house. According to Gloria, she came back inside the house and while walking towards the kitchen area of the home she heard Richard ask Officer Kilpatrick "If I want to - so, what you're saying is if I want to keep something, I have to take it someplace else?" to which Officer Kilpatrick replied "Yes." (G. Shafer Dep. 115:9-25, 162:11-20.) According to John, Richard then said "I'm going to get my AR-15." (J. Shafer Dep. 25:23-26:4.) Gloria testified she then saw Richard walk over to his recliner in the living room, reach behind it, and pull out an AR-15 assault rifle. (G. Shafer Dep. 164:7-9, 164:25-165:3, 168:2-5.) Both Gloria and John claim they saw Richard point the barrel of the AR-15 to the floor, eject the magazine clip, empty the chamber, and tell Officer Kilpatrick "It's empty, I'm taking it to the truck." (G. Shafer Dep. 116:1-24, 118:22-119:20, 120:20-121:7, 168:6-25, 171:15-25; J. Shafer Dep. 26:24-27:3, 28:7-30:15.) Officer Kilpatrick denies these events. (Kilpatrick Dep. 133:11-19, 138:8-20.)
According to Officer Kilpatrick, when Gloria came back inside the house, Richard asked him, "so she can just take whatever she wants and leave?" (Kilpatrick Dep. 123:4-5, 123:19-22, 133:18-19.) Officer Kilpatrick claims he did not answer Richard's question and instead turned to have a conversation with Gloria, while Richard walked away. (Kilpatrick Dep. 123:6-18; 124:2-8, 125:11-18.) Officer Kilpatrick testified before he was able to begin a conversation with Gloria, out of the corner of his eye he saw Richard do a stopping motion, and then turn back around holding a rifle. (Kilpatrick Dep. 127:14-24.) According to Officer Kilpatrick, he then spun around and saw Richard facing him holding the AR-15, while looking at Gloria, and with the barrel pointed up in the direction of John, who was still sitting quietly in the loft of the staircase. (Kilpatrick Dep. 130:2-7, 130:11-13, 131:2-4.)
It is undisputed that while Richard was holding the AR-15, Officer Kilpatrick drew his pistol with his right hand, aimed it full extension at Richard, and ordered him to drop the AR-15. (G. Shafer Dep. 129:22-25, 171:6-10; J. Shafer Dep. 30:16-25; Kilpatrick Dep. 130:6-18.) Richard did not respond and Gloria turned towards the kitchen, covered her face, and began to cry. (G. Shafer Dep. 171:11-13, 174:6-8; Kilpatrick Dep. 130:14-25, 131:19-132:2.) With his pistol still drawn, Officer Kilpatrick claims he began to close the distance between him and Richard in attempts to take control of the AR-15. (Kilpatrick Dep. 133:6-10, 133:20-23.) At the same time, Officer Kilpatrick drew his taser with his left hand. (Kilpatrick Dep. 133:25-134:10.) Officer Kilpatrick testified he then saw Richard's hand move, he heard a metallic snick, and this caused him to fire his taser from waist height. (Kilpatrick Dep. 134:13-16, 139:18-25, 158:4-16.) Officer Kilpatrick missed Richard with the taser probes and then moved in attempting to dry stun him with the taser. (Kilpatrick Dep. 134:17-22, 158:4-16.) However, when Officer Kilpatrick attempted to dry stun Richard, the taser skidded off the AR-15, and he dropped the taser. (Kilpatrick Dep. 134:23-25, 135:7-13, 136:6-10.) Gloria testified she did not see these events occur as she was still turned towards the kitchen covering her face, however she testified she heard a taser sound twice. (G. Shafer Dep. 132:1-16, 133:19-24, 173:18-174:11.) John testified however that he saw Officer Kilpatrick shoot his taser at Richard, hit him on the shoulder, and Richard started twitching. (J. Shafer Dep. 31:1-34:23.)
The parties also dispute the events that occurred after Officer Kilpatrick used his taser. According to Officer Kilpatrick, he grabbed the foregrip of the AR-15 and told Richard "give me that." (Kilpatrick Dep. 134:25-135:3, 136:11-15.) Officer Kilpatrick testified Richard would not let go of the AR-15 and the two began to struggle. (Kilpatrick Dep. 136:16-137:17.) Officer Kilpatrick claims Richard then jerked back the AR-15, causing Officer Kilpatrick to lose his grip. (Kilpatrick Dep. 137:18-22, 138:4-7, 140:12-18.) Officer Kilpatrick testified he then saw the barrel of the AR-15 coming towards his face and he backed up. (Kilpatrick Dep. 140:19-20, 141:4-12, 142:16-18.) With his pistol still drawn, Officer Kilpatrick testified he then shot Richard five times. (Kilpatrick Dep. 140:21-25.) According to Officer Kilpatrick, Richard fell back into his recliner still holding the AR-15 in his hands. (Kilpatrick Dep. 140:25-141:3, 145:10-15, 147:3-7.) Officer Kilpatrick testified John screamed and Gloria said "Jesus, Eric, I didn't want you to shoot him." (Kilpatrick Dep. 147:16-18.)
According to Gloria, while facing the kitchen with her hands covering her face, after she heard the taser sound twice, she then heard a loud thud which she believed to be the sound of Richard dropping the AR-15. (G. Shafer Dep. 132:1-134:2, 138:23-25.) Gloria testified she then heard a gunshot and turned around to see Officer Kilpatrick shoot Richard three times. (G. Shafer Dep. 134:1-10, 138:11-22, 174:12-16; 182:25-183:16.) Gloria claims the AR-15 was on the ground before the first bullet was fired at Richard. (G. Shafer Dep. 134:23-135:8, 135:23-25.) She then saw Richard fall back into his recliner, twitching and dying. (G. Shafer Dep. 174:12-18; 177:20-178:1.)
According to John, after Officer Kilpatrick used the taser, Richard still had the AR-15 in his hands, Officer Kilpatrick shot him, and then Richard dropped the AR-15. (J. Shafer Dep. 34:24-35:25.) According to John the barrel of the AR-15 was pointed to the ground when Officer Kilpatrick shot Richard. (J. Shafer Dep. 36:1-6.) John claims Officer Kilpatrick shot Richard a total of three times. (J. Shafer Dep. 36:20-22.)
Both Gloria and John testified after Officer Kilpatrick shot Richard, he then turned and pointed his gun at them and ordered them to "drop the gun" to which Gloria responded "what gun?" (G. Shafer Dep. 178:2-19; J. Shafer Dep. 44:11-45:3.) Officer Kilpatrick testified he saw John holding a gun and then John screamed and put his hands up. (Kilpatrick Dep. 147:18-148:9.) Officer Kilpatrick called out on his police radio "shots fired, I need an ambulance, man down." (Kilpatrick Dep. 148:17-18.) Officer Kilpatrick then lowered his gun and Gloria and John left the house. (G. Shafer Dep. 179:1-14; Kilpatrick Dep. 148:23-149:21.) Officer Kilpatrick followed Gloria and John out the front door and then went back inside to check on Richard. (G. Shafer Dep. 179:15-180:7.) Richard died on the scene. (Am. Compl. ¶ 15.)
As a preliminary matter, the court must consider defendants' evidentiary objections made in their reply brief. Defendants argue certain evidence submitted by plaintiff is not relevant, contains improper opinion testimony, and contains inadmissible hearsay. (Defs.' Reply at 2-16.) Plaintiff responded to these evidentiary objections in surreply pursuant to L.R. 56-1(b).
In a motion for summary judgment, "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed.R.Civ.P. 56(c)(2). The court must determine what evidence is admissible, relevant, and substantive. Fed.R.Evid. 104. "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4).
I. Witness Declarations
Plaintiff offers several declarations from witnesses who allege that prior to the shooting of Richard Shafer, Officer Kilpatrick had either used force or threatened use of force against other Elgin residents. Defendants argue many of these declarations are not relevant, contain improper opinion testimony, and contain inadmissible hearsay. (Defs.' Reply at 4-9.)
A. Relevance Objections
Defendants object to the declarations of Scott Huffman, Candy Huffman,  Amber Parks, John Michler, Lisa Johnson, Randy Laber, Robert Trump, Tom Leonard, and Tony Wise as not relevant. (Defs.' Reply at 4-9.) Evidence is considered "relevant" if: "(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed.R.Evid. 401. All of the declarations concern prior use of force or prior threatened use of force by Officer Kilpatrick. As such, the court finds these declarations relevant to plaintiff's claims against Chief Lynch and the City. Defendants' relevance objections are overruled.
B. Lay Witness Testimony
Defendants object to statements in the declarations of John Michler, Lillian Wall, Randy Laber, and Rodney Terry as improper opinion testimony. (Defs.' Reply at 5-8.) A lay witness may provide opinion testimony so long as it is: "(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed.R.Evid. 701; see also Fireman's Fund Ins. Cos. v. Alaskan Pride P'ship, 106 F.3d 1465, 1468 & n.3 (9th Cir. 1997) (discussing Fed.R.Evid. 701).
1. John Michler
Defendants object to the statement in Mr. Michler's declaration: "I do not feel Eric Kilpatrick should have deployed his taser on me that day." (Decl. of John Michler ¶ 3, April 10, 2014.) The court finds this statement is rationally based on Mr. Michler's lay perception of the circumstance he describes, helpful to determining a fact in issue, and not based on scientific, technical, or other specialized knowledge. Defendants' objection is overruled.
2. Lillian Wall
Defendants object to the statement in Lillian Wall's declaration: "[f]rom the look on Mr. Kilpatrick's face, I was afraid Mr. Kilpatrick was going to shoot Mr. Bryson." (Decl. of Lillian Wall ¶ 5, May 6, 2014.) The court finds this statement is rationally based on Ms. Wall's lay perception of what she observed regarding Officer Kilpatrick, helpful to determining a fact in issue, and not based on scientific, technical, or other specialized knowledge. As such, defendants' objection is overruled. Defendants also argue this statement is speculative. (Defs.' Reply at 6.) The court does not find this statement speculative as the witness described what she feared would happen based on Officer Kilpatrick's behavior not necessarily what would happen. Defendants' objection is overruled.
3. Randy Laber
Defendants object to Randy Laber's statement to Chief Lynch that Officer Kilpatrick's conduct during a car chase incident "was outrageous." (Decl. of Randy Laber ¶ 4, April 12, 2014.) The court finds this statement is rationally based on Mr. Laber's lay perception of events that he had observed, helpful to determining a fact in issue, and not based on scientific, technical, or other specialized knowledge. Defendants' objection is overruled.
4. Rodney Terry
Defendants object to statements in the declaration of Rodney Terry: "I was parked some distance from Kilpatrick and posed no threat to him at all and was shocked when Kilpatrick unexpectedly pulled out his pistol, pointed it at me and yelled, You're not going to run me over! I'll blow your ass away!' I felt like Kilpatrick pulled his gun on me for no justifiable reason." (Decl. of Rodney Terry ¶ 3, April 9, 2014.) The court finds these statements rationally based on Mr. Terry's lay perception of events he had observed, helpful to determining a fact in issue, and not based on scientific, technical, or other specialized knowledge. Defendants also argue these statements are speculative. (Defs.' Reply at 8.) The court does not find these statements speculative as the witness describes events he observed and his lay opinion regarding those events. Defendants' objections are overruled.
C. Hearsay Objections
Defendants object to statements in the declarations of Amber Parks, John Michler, and Lisa Johnson as hearsay. (Defs.' Reply at 5-7.) Hearsay is defined as an out-of-court statement offered in evidence to prove the truth of the matter asserted. Fed.R.Evid. 801. Hearsay is admissible only if it qualifies as an exception to the general hearsay rule.
1. Amber Parks
Defendants object to the statement in Ms. Parks declaration: "In mid-July, 2011, I was discussing Eric Kilpatrick with my mother and other family members. We all agreed that one of these days Eric Kilpatrick was going to shoot somebody. Approximately two weeks later Kilpatrick shot and killed Richard Shafer." (Decl. of Amber Parks ¶ 4, April 8, 2014.) Defendants also argue this statement is speculative and improper opinion testimony. (Defs.' Reply at 5.) The court finds this statement admissible only with regard to Ms. Parks' lay perception of Officer Kilpatrick's behavior not for the truth of the matter asserted, i.e. that Officer Kilpatrick was going to "shoot somebody." Defendants' objections to this statement are overruled.
2. John Michler
Defendants object to the statement in Mr. Michler's declaration: "Kilpatrick pointed his finger at me and said, You're going to do what we tell you to do.'" (Decl. of John Michler ¶ 3, April 10, 2014.) The court finds this statement not hearsay as it is a statement of a party opponent. Fed.R.Evid. 801(d)(2)(A). Defendants' hearsay objection is overruled.
3. Lisa Johnson
Defendants object to the statement in Ms. Johnson's declaration: "I ran outside and said, Excuse me Eric, why are you abusing him?'" (Decl. of Lisa Johnson ¶ 6, April 12, 2014.) The court finds this statement is not offered for the truth of the matter asserted, but rather to show how the witness reacted what she ...