Claybrook Jr. v. Birchwell

• Citation: 199 F.3d 350
• Decision Date: 10 August 1999
• Docket Number: No. 98-6029,98-6029
• Parties: (6th Cir. 2000) Royal E. Claybrook, Jr., Gwannette Claybrook, Petrece Claybrook, Co-Administrators of the Estate of Royal Claybrook, Sr., and Quintana Claybrook, Plaintiffs-Appellants, v. Jesse Birchwell, Steve Lewis, Ken Spencer, Robert Kirchner, and Metropolitan Government of Nashville & Davidson County, Defendants-Appellees. Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 350

199 F.3d 350 (6th Cir. 2000)

Royal E. Claybrook, Jr., Gwannette Claybrook, Petrece Claybrook, Co-Administrators of the Estate of Royal Claybrook, Sr., and Quintana Claybrook, Plaintiffs-Appellants, v. Jesse Birchwell, Steve Lewis, Ken Spencer, Robert Kirchner, and Metropolitan Government of Nashville & Davidson County, Defendants-Appellees.

No. 98-6029

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: August 10, 1999

Decided and Filed: January 11, 2000

[Copyrighted Material Omitted]

E. E. Edwards III, Wesley M. Oliver, EDWARDS, SIMMONS & OLIVER, Nashville, Tennessee, for Appellants.

Kennetha Sawyers, THE METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY DEPARTMENT OF LAW, Nashville, Tennessee, for Appellees.

Before: KRUPANSKY, BOGGS, and CLAY, Circuit Judges.

KRUPANSKY, J., delivered the opinion of the court, in which BOGGS, J., joined. CLAY, J. (pp. 19-23), delivered a separate opinion concurring in part and dissenting in part.

OPINION

KRUPANSKY, Circuit Judge.

The plaintiffs-appellants Royal E. Claybrook Jr. ("Royal Jr."), Gwannette Claybrook ("Gwannette"), Petrece Claybrook ("Petrece"), and Quintana Claybrook ("Quintana") have disputed the district court's dismissal of their complaint for failure to state a claim, and/or its award of summary judgment to the defendants,¹ against the defendants-appellees Jesse Birchwell ("Birchwell"), Steve Lewis ("Lewis"), Ken Spencer ("Spencer"), Robert Kirchner ("Kirchner"), and the Metropolitan Government of Nashville and Davidson County, Tennessee ("Nashville"). The plaintiffs have alleged that peace officers Birchwell, Lewis, and Spencer used excessive force, in violation of 42 U.S.C. § 1983,² which resulted in the death of Royal Claybrook Sr. ("Claybrook") and the serious bodily injury of Quintana Claybrook. They further contended that Kirchner, as the Chief Executive Officer of the Nashville-Davidson County Metropolitan Police Department, failed to properly train and/or supervise the three faulted field officers, and neglected to develop appropriate official departmental guidelines restraining the unjustifiable utilization of lethal force. The trial court concluded that (1) Royal Jr., Gwannette, and Petrece Claybrook (the children of Royal Sr.) lacked standing to recover for alleged personal losses derivatively generated by their father's violent demise, and had failed to seek recovery for Claybrook's alleged constitutional injuries as representatives oft his estate; and (2) Quintana had suffered no cognizable constitutional tort.

On the evening of February 28, 1995, plainclothes caucasian undercover police officers Birchwell, Lewis, and Spencer of the Nashville Crime Suppression Unit were engaged in anti-crime surveillance, from an unmarked squad vehicle, in a high-crime Nashville neighborhood. At approximately 9:11 p.m., they observed an African-American male (later identified as Royal Claybrook Sr.) standing near the street curb in the dimly-lit parking lot of the F & J Market ("the market") while displaying a long gun at port-arms. A gray Maxima automobile blocked the business' entrance. The patrolmen knew that the market had been the target of recent crimes. Suspecting that a robbery was in progress, the driver of the incognito patrol car, Officer Birchwell, in conformity with his department's standard operating procedures, radioed the police force headquarters to report the gunman's location and to request the immediate dispatch of a marked police cruiser containing uniformed law enforcers.

Birchwell then drove the undercover vehicle into the market's parking lot. He intended to stop his vehicle on what appeared to be a driveway or alleyway which abutted the building's western side, to enable the officers to surreptitiously observe the firearm-toting suspect and the suspicious gray automobile, pending arrival of the summoned marked squad car. However, Birchwell subsequently discovered that no contiguous roadway paralleled the structure's west end. Consequently, while repositioning his vehicle to prevent the armed suspect from facing the officers' backs, Birchwell maneuvered the unidentified patrol car towards the stationary gray automobile.

That movement prompted the wary gunman to advance menacingly behind the hood of the gray Maxima while facing the intruders. Unbeknownst to the peace officers, Claybrook's daughter-in-law, Quintana Claybrook, worked at the market. Because that establishment served as a "front" for an unlawful "numbers" gambling operation, thieves occasionally targeted it. Quintana was responsible for depositing illegal betting proceeds. The associated physical danger prompted Claybrook habitually to escort Quintana, while armed, from the store to her automobile. He customarily remained in the parking lot, holding his shotgun in plain view, until Quintana had exited the area. Claybrook was acting as a security guard for his daughter-in-law on the evening of February 28, 1995. When the unmarked police vehicle arrived at the scene, Quintana was already inside the Maxima, seated behind the steering wheel with her back towards the three defendant peace constables, although each of them testified that he did not know that anyone then occupied that automobile.

Quintana testified that a passenger within the strange vehicle (the unmarked police car) ordered Claybrook to drop his weapon, to which he responded, "no, you drop your gun." She further attested:

And then the next thing I know, I heard like a firecracker sound, and then I felt something in my back, and I kind of jumped, like, you know. And I really didn't know what had happened, because, you know, I hadn't heard a gun shot, you know, before.

And then I kind of felt like I was wet, and so I kind of felt, and I was like, you know, -- and then I realized that I had been shot. And I kind of leaned over in the seat, and I looked up at my father-in-law, and he looked at me. He was still standing in front of my car.

And then I just -- you know, I saw like -- I guess it was a burst of fire or something. I don't know what it was. It was just like some fire or something. And I heard a big boom. And then I just heard a whole bunch of just fireworks and, you know. And then I heard another boom³. And I was like, we're getting robbed. Somebody's robbing us.

Tragically, Quintana's back had been struck by a stray bullet. She testified that she unsuccessfully attempted to telephone "911" on her cellular phone. She then called her husband, Royal Jr., to report that armed assailants were attempting to rob her and Claybrook. However, because she crouched inside her vehicle following the initial volley, she did not witness the shoot-out.

During much of the ensuing firefight, Claybrook shielded himself behind the Maxima. Rounds discharged by Claybrook struck the windshield, hood, and door of the officers' cruiser. The three police officers testified, contrary to Quintana's assertion, that Claybrook discharged his firearm at least twice before they were able to return the assailant's fire. They further asserted that, following the initial exchange of gunfire, they endeavored to identify themselves as police officers by verbalizations reinforced by manual displays of their official badges which each wore on a neck chain. Nevertheless, Claybrook continued to shoot at them. Officer Birchwell sustained gunshot wounds to his right thigh and knee and left foot. He then reported to the police dispatcher, via radio, that shots had been fired, and again requested immediate back-up assistance. At approximately that time, the suspected perpetrator fled behind the market. However, apparently rejecting the available option of escaping unharmed by means of an adjacent street, Claybrook circumambulated the structure in a bid to ambush the agents from the rear.

Claybrook concealed himself behind a slightly elevated concrete structure which afforded a dominant strategic firing posture. Each of the three officers testified that they once again warned the assailant to drop his weapon. Instead, he aimed his shotgun directly at them. The officers defensively fired at the suspect, bringing him to the ground. Approximately at that same moment, marked police units transporting uniformed officers, as well as an ambulance containing emergency medical technicians ("EMTs"), arrived at the scene. The

entire incident had transpired within only one or two minutes.

Claybrook, pronounced dead at the scene, had sustained a mortal head wound. Upon discovering the seriously injured Quintana inside the Maxima, the EMTs rushed her to Vanderbilt University Hospital, where she received emergency medical attention and subsequent extended hospitalization.

On February 12, 1996, the plaintiffs instigated a complaint in district court under section 1983 and Tennessee law. Count one asserted that Royal Jr., Gwannette, and Petrece Claybrook, as the "heirs at law" of their deceased father, suffered injuries consequent to the three defendant officers' alleged violations of their parent's civil rights. Via Count two, Claybrook's three children sought recovery from Robert Kirchner, the Chief Executive Officer of the Nashville-Davidson County Metropolitan Police Department,⁴ for his alleged failure to (1) properly train and/or supervise the three police officer defendants and/or (2) implement adequate departmental policies circumscribing the application of deadly force. Count three advanced the claims of Quintana and her husband Royal Jr. for the officers' averred infringements of Quintana's civil rights. Count four articulated Quintana's claim against Kirchner anchored in allegations similar to those stated in count two. Count five, asserted by all plaintiffs, alleged that Birchwell, Lewis, and Spencer had committed state law torts.⁵

Each of Claybrook's three children requested $125,000 in actual damages, plus an equivalent sum in punitive damages, against each defendant. Quintana sought $250,000 in compensatory...