McKinney v. Duplain

• Decision Date: 12 September 2006
• Docket Number: No. 05-3812.,05-3812.
• Citation: 463 F.3d 679
• Parties: Timothy McKINNEY, individually and as personal representative of the Estate of Michael McKinney, deceased, and Lisa McKinney, individually, Plaintiffs-Appellees, v. Robert DUPLAIN, in his individual capacity, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

463 F.3d 679

Timothy McKINNEY, individually and as personal representative of the Estate of Michael McKinney, deceased, and Lisa McKinney, individually, Plaintiffs-Appellees, v. Robert DUPLAIN, in his individual capacity, Defendant-Appellant.

No. 05-3812.

United States Court of Appeals, Seventh Circuit.

Argued April 6, 2006.

Decided September 12, 2006.

Geoffrey N. Fieger (argued), Robert M. Giroux, Jr., Fieger, Fieger, Kenney & Johnson, Southfield, MI, Thomas Malapit, for Plaintiffs-Appellees.

Scott E. Shockley, Defur, Voran, Hanley, Radcliff & Reed, Muncie, IN, John F. Kautzman, Ruckelshaus, Roland, Hasbrook & O'Connor, Bradley L. Williams (argued), Ice Miller LLP, Indianapolis, IN, for Defendant-Appellant.

Before RIPPLE, MANION, and KANNE, Circuit Judges.

MANION, Circuit Judge.

Michael McKinney's father, Timothy McKinney, as representative of Michael's estate, sued Officer Duplain under 42 U.S.C. § 1983, alleging a claim of excessive force after Officer Duplain shot and killed Michael while responding to a 911 burglary-in-progress call. Officer Duplain moved for summary judgment based on qualified immunity. The district court denied the motion and Officer Duplain appeals. We dismiss for lack of jurisdiction.

I.

On Saturday night, November 7, 2003, 21-year-old Ball State University student Michael McKinney went out drinking with some college friends. McKinney stayed out until closing time, leaving the last bar he had visited at 3:00 a.m. At approximately 3:15 a.m., another student, Brent Archambault, saw McKinney intoxicated and crawling on his hands and knees on North Street—a street near campus in an area called "The Village." McKinney eventually worked himself up into a sitting position, leaning against a tree. Archambault approached McKinney, asked if he needed any help, and offered him a ride home. McKinney told Archambault to leave him alone, indicating that he was already at his house. In fact, McKinney was not at home, but rather in front of the house of widow Jane Poole. One of McKinney's friends, Phil Justevice, later surmised that McKinney thought he was at Justevice's house, which was down the block.

A little while later McKinney made his way from the front yard to the back of Poole's home. McKinney then began banging on her patio door, pulling the door trying to gain entry. Poole heard the noise, went downstairs, flipped on the outside light and peeked through the blinds on the sliding glass door. There she saw McKinney, whom she later described as "a skinhead, fairly big looking guy." McKinney continued to pound on the door and pull on the handle, seeking entry. Not recognizing McKinney and fearing for her safety, Poole called Delaware County 911. The call came in at approximately 3:26 a.m., and a recording captured the following exchange:

911: 911, what's your emergency?

Poole: Hurry, someone's pounding, a man's pounding on my back door.

911: What's your address?

Poole: 1325 W[est] North Street. He's at the back door, he's pounding really hard.

911: Okay. Do you know who it is?

Poole: No, no!

911: Okay, what's your phone number?

Poole: 482-7613

911: Are you expecting anybody?

Poole: No, no!

911: What's your name?

Poole: Jane Poole. Please hurry!

911: Okay, we're on the way, ma'am. Do you know what he looks like?

Poole: No!

911: Okay, do you know if it's a male or not?

Poole: Yes, yes. He had no hair, white, very white.

911: Is he still there?

Poole: Yes, he's been pounding.

911: Is he saying anything?

Poole: No! He's just trying to get in, please!

911: We're on the way, ma'am. How long has he been there? Hello? She just hung up on me.

Unbeknownst to the 911 operator, Poole had hung up to call her neighbors, Mike and Nancy Ellis. Poole told Mike Ellis about the situation, but told him not to come over as she had already called the police. The Ellises then went to a second-story bedroom window which overlooked Poole's backyard. From there, Mike Ellis saw McKinney move away from Poole's deck and toward a tree in the backyard. Mike Ellis noticed McKinney stumble and testified that he appeared intoxicated. Nancy Ellis also described McKinney as "very wobbly."

Based on the 911 call, the Muncie Police Department ("MPD") dispatched officers to "1325 W[est] North on a burglary in progress." A few moments later, the MPD dispatcher reported an "emergency at 1325 West North," and then "[f]emale advised there was a subject pounding at the door. It was a white male with no hair. He's still pounding at the back door. Female subject just hung up on us. Trying to make contact back. All units unable to make contact back to female."

The MPD dispatched four officers—25% of its total available force—to Poole's home. Additionally, the MPD requested the assistance of the Ball State University Police Department ("BSUPD"). Because of the close proximity of their patrol areas, BSUPD continually monitors MPD dispatches. Four BSUPD officers responded to the dispatch: Officers Robert Duplain, Matt Gaither, and Eric Perkins and their shift supervisor, Corporal David Bell.

The four BSUPD officers, driving separate vehicles, arrived at Poole's residence between 3:26 a.m. and 3:27 a.m. After arriving, Corporal Bell and Officer Perkins walked up the east side of the house with their weapons drawn and Officer Gaither went to check the front of the house. Officer Duplain, seeing the other areas covered, approached the backyard from the west side of the house.

As they approached Poole's backyard from the east side, Corporal Bell and Officer Perkins discovered their access blocked by a six-foot-tall wooden fence that ran from the southeast corner of Poole's house, curved around the backyard, and then joined a detached garage on the south side. At the same time, Officer Duplain made his way down a rough, narrow stone walkway along the west side of the house. Like his fellow officers, Officer Duplain had also drawn his service weapon.

When Officer Duplain entered the backyard, he saw McKinney standing under a tree approximately ten to twenty feet away. The parties dispute what happened next. Officer Duplain explained that after entering the backyard, he began shouting commands at McKinney, although the various witnesses heard different things. Officer Duplain remembers saying: "Police. Show me your hands. Get on the ground. Get the f—on the ground. Get on the ground now." Mike Ellis heard only the words "Hey hey" and possibly, "Stop right there." Nancy Ellis remembered "Hey, hey." Poole heard "Hey." Corporal Bell remembered hearing shouts similar to what "you would hear a police officer shout to someone . . . it sounded like lawful verbal orders, `Stop. Get on the ground.'" Officer Perkins heard Officer Duplain say "Get on the ground. Get on the ground. . . [and] a couple, Get the f—on the ground," as well as "Police."

While the witnesses all heard different commands, the Ellises both testified that, from their vantage point next door, they were able to recognize Officer Duplain as a police officer. Specifically, Mike Ellis testified that he observed Officer Duplain wearing a dark uniform, and Nancy Ellis noticed an insignia on Duplain's shoulder. Additionally, the neighbor to the east of Poole's house, Donna Winters, stated that she likewise recognized the individuals approaching the backyard as police officers.

Officer Duplain further testified that while he was shouting commands to McKinney, McKinney showed no signs of intoxication, but instead turned toward Officer Duplain until he was "squared up." Officer Duplain explained that this took two or three seconds and that then McKinney suddenly charged him. Officer Duplain stated that he thought he would have to fight McKinney if McKinney reached him. According to Officer Duplain, he feared that McKinney had a weapon or would try to take his weapon. Officer Duplain testified that he feared for his life, as well as for the safety of the other officers and Poole. Officer Duplain explained that when McKinney came within a few feet of him, he fired his service weapon. As McKinney continued to advance, Officer Duplain fired again.

An autopsy later revealed that Officer Duplain shot McKinney four times: (1) an entrance gunshot wound just below the left eye; (2) an entrance gunshot wound to the left chest that pierced the left and right ventricles of the heart; (3) an entrance gunshot wound to the left shoulder that shattered the humerus bone; and (4) an entrance gunshot wound to the left lateral chest. The autopsy further established that the four bullets entered McKinney's body at a downward angle from the horizontal plane, and toxicology results showed that McKinney's blood alcohol level was.343.

The Ellises witnessed the shooting, and both testified that Officer Duplain did not fire his weapon until a few seconds after McKinney charged, and not until McKinney came within a few feet of Officer Duplain. Mike Ellis stated that McKinney "was running at the officer." Nancy Ellis observed McKinney "running. He came forward very assertively, very quickly toward the police officer." According to Nancy Ellis, McKinney "leaped toward the officer. He charged toward the officer." Mike Ellis also observed McKinney "lunging toward the officer" with his left arm out as he got near.

After hearing the shots, Corporal Bell kicked in the gate at the south side of Poole's backyard, entering the backyard between three to five seconds after the shots were fired. He saw Officer Duplain standing upright near the west edge of the concrete patio, with McKinney laying on his side about three to four feet away. Corporal Bell turned McKinney on his back and performed CPR until medical assistance arrived. The MPD officers had also arrived by this time and by agreement MPD took over the investigation of the shooting. McKinney was later pronounced dead at Ball Memorial Hospital.

A little over three months later, on February 10, 2004, McKinney's father, Timothy McKinney...