287 F.3d 492 (6th Cir. 2002), 00-3066, Ewolski v. City of Brunswick

Docket Nº:00-3066
Citation:287 F.3d 492
Party Name:Ewolski v. City of Brunswick
Case Date:April 18, 2002
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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287 F.3d 492 (6th Cir. 2002)

Emil EWOLSKI, Plaintiff-Appellant,


CITY OF BRUNSWICK, et al., Defendants-Appellees.

No. 00-3066.

United States Court of Appeals, Sixth Circuit

April 18, 2002

Argued: Sept. 19, 2001.

Rehearing and Suggestion for Rehearing En Banc Denied July 16, 2002. [*]

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Terry H. Gilbert (argued and briefed), Friedman & Gilbert, Cleveland, OH, Roy

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J. Schechter (briefed), Teamor & Associates, Cleveland, OH, for Plaintiff-Appellant.

Nick C. Tomino (argued and briefed), Tomino & Latchney, Medina, OH, for Defendant-Appellee.

Before: GUY and MOORE, Circuit Judges; HULL, District Judge. [*]

MOORE, J., delivered the opinion of the court, in which RALPH B. GUY, JR., J., joined. HULL, D.J. (pp. 517-521), delivered a separate dissenting opinion.


MOORE, Circuit Judge.

Plaintiff-Appellant Emil Ewolski, acting as Administrator for the estates of John M. Lekan, Beverly Lekan, and John T. Lekan, appeals the district court's decision granting summary judgment to all defendants in the instant § 1983 and state law tort action. Appellant's suit alleges violations of the Lekans' federal constitutional rights as well as several state law tort claims arising from the conduct of the Brunswick Police Department leading up to and during a two-day armed standoff with Mr. Lekan, which tragically ended with Mr. Lekan's decision to kill his son and himself. Specifically, Appellant claims: (1) that the police violated the Fourth Amendment by making a warrantless entry into the Lekan home without sufficient evidence of exigent circumstances, (2) that the police used excessive force against Mr. Lekan and his family during the standoff in violation of the Fourth Amendment, (3) that the police's conduct during the standoff demonstrated deliberate indifference to the safety of the Lekan family in violation of the Fourteenth Amendment, (4) that the City of Brunswick was liable for the Lekans' constitutional injuries because the decisions of the Brunswick Chief of Police in supervising the standoff were those of a final policymaker and because the City failed adequately to train its officers; and (5) that the police are liable under state law for trespass, assault and battery, intentional infliction of mental distress, conspiracy, and wrongful death. For the reasons stated below, we AFFIRM the decision of the district court.


On March 28, 1996, Beverly Lekan and Emil Ewolski, the administrator for the estates of John M. Lekan and John T. Lekan, filed this action alleging that the defendants violated the Lekans' Fourth and Fourteenth Amendment rights as secured by the United States Constitution. The complaint also alleged state common law claims of trespass, assault and battery, intentional infliction of mental distress, and conspiracy, as well as statutory claims for wrongful death. After the commencement of this lawsuit, Beverly Lekan died of illness unrelated to the instant action, and her claims were assumed by Emil Ewolski as administrator of her estate. On December 8, 1999, the trial court granted a motion for summary judgment filed by the defendants in regard to all of plaintiffs' federal and state claims, and dismissed the plaintiffs' complaint in its entirety.

At the time of the incident, Beverly Lekan was bedridden with multiple sclerosis and had been receiving home health services from Tri-County Home Nurses, Inc. ("Tri-County") for approximately one year without any significant problems. While

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Tri-County provided Mrs. Lekan with assistance with her catheter and helped her to bathe, she relied on her husband John Lekan for the care of their nine-year-old son J.T., as well as the cooking and cleaning for the household.

On March 19, 1995, while Mrs. Lekan was receiving her bi-weekly home health services, Mr. Lekan, carrying a rifle, entered the room where a Tri-County aide was caring for Mrs. Lekan. At one point, Mr. Lekan placed the weapon only a few inches from the aide's face. Mr. Lekan again displayed a rifle during the visit by the aide on March 22, 1995. Subsequently, on March 27, 1995, the Tri-County aide reported the incidents to her superior Barbara Hillegass. Because of her concern for the safety of the healthcare workers going to the Lekan home, Hillegass called Mrs. Lekan on March 30, 1995, and advised her that Tri-County wanted her husband to sign a contract regarding his guns. Hillegass also asked Mrs. Lekan if she was comfortable discussing this contract with her husband, and she indicated that she would talk to him about it. However, in about half an hour, Mrs. Lekan called back and stated that she was not comfortable discussing the contract with her husband. In response, Hillegass stated that Tri-County would discuss the contract with Mr. Lekan.

On the morning of March 31, 1995, Mrs. Lekan called Tri-County and informed them that she did not want a home health aide that day and that she wanted to consider a nursing home placement. She also allegedly informed Tri-County that her husband was angry and he had kept their son home that day. Because of concern for Mrs. Lekan, Hillegass called Mrs. Lekan back and asked her if there was a problem. When Mrs. Lekan did not respond, Hillegass asked her again if there was a problem. At that point, Mr. Lekan spoke from an extension and spewed various profanities at Hillegass.

Later, at about 8:50 a.m. that same morning, Mrs. Lekan's mother, Helen Ewolski, advised Hillegass that Mr. Lekan suffered from post-traumatic stress syndrome, and that although he had been verbally abusive to his wife in the past, he had never been physically abusive. At 11:15 a.m., Hillegass called the Cleveland Clinic to talk to Dr. Kinkle who was Mrs. Lekan's physician. She expressed concern for Mrs. Lekan and for the safety of J.T., her son. She was told that Dr. Kinkle was not available, but that he also had a message to call Mrs. Lekan.

Hillegass also confirmed that around noon on March 31, 1995, Tri-County notified Adult Protective Services of their concerns in regard to Mrs. Lekan, and Children's Services of their concerns in regard to J.T. At around 1:30 p.m., Hillegass received information that neither Adult Protective Services nor Children's Services considered this to be an emergency situation, and that neither agency would be taking further immediate action that day in regard to the Lekan home situation. Nevertheless, Medina County Human Services contacted the Brunswick Police Department concerning the information they had received from Hillegass.

At 1:45 p.m., Hillegass received a phone call from Sergeant Nick Solar concerning the Lekan situation. Hillegass asked Sergeant Solar what actions he anticipated the police would take. He told her that this was a potential stand-off situation, that he was going to devise a game plan, and that the police would probably make a call. He indicated that he had been made aware of the situation sometime before 1:45 p.m. by the social services agencies.

Sergeant Solar then met with Sergeant Stukbauer, Detective Schnell, Patrol Officer Marok, and Patrol Officer Sam Puzella

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to discuss the situation. Detective Schnell told Solar that he had learned in December of 1994 that John Lekan was a paranoid schizophrenic and if any police officers tried to commit him to a mental facility, there was a potential for violence. Schnell also had confirmed just prior to the meeting after a contact with Suzanne Lekan, who was a police dispatcher and John Lekan's sister-in-law, that John Lekan was a paranoid schizophrenic and he had not been taking his medication. Suzanne further informed Schnell that John Lekan had loaded guns, and that she believed he would shoot at police officers if they went to the home.

After a discussion, Solar decided to dispatch two officers to the Lekan residence in order to determine whether Beverly Lekan or her son was in danger. Officer Dale Schnell volunteered to go to the Lekan home with Officer Sam Puzella. Solar and other officers went to the Rolling Hills Shopping Center near the Lekan residence in case further assistance was needed. Because of the information they had received regarding John Lekan's possible violent reaction to police officers, Solar advised Puzella to wear civilian clothes rather than a police uniform. Schnell was already wearing civilian clothes.

Schnell and Puzella drove to the Lekan residence in an unmarked car, parked, and walked up to a small porch by the front door. Schnell knocked on the outer storm door which was in front of the interior door and John Lekan opened the interior door. The officers did not identify themselves and Puzella asked to speak to Mrs. Lekan. The officers could not hear Mr. Lekan's response. Puzella asked him to open the storm door so they could hear him, but Mr. Lekan did not open the door. Instead, he went to a small nearby open window and said that the officers could hear him through the window. When Puzella again asked to speak to Mrs. Lekan, Mr. Lekan did not respond, and at one point he started to sing the Star Spangled Banner.

Puzella then took out his police badge and identification card and held them up to the open window. He told Mr. Lekan that he was a police officer and that he needed to speak to Mrs. Lekan. Mr. Lekan immediately moved away from the window and slammed the front door. Puzella pulled the storm door open and tried to open the front door, but it was locked. Puzella then kicked the door until it finally opened. Puzella entered the house and was shot by Mr. Lekan. Puzella and Schnell retreated from the home and called for assistance. Puzella was then removed from the scene.


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