770 F.3d 368 (6th Cir. 2014), 13-4409, Cass v. City of Dayton

Docket Nº:13-4409
Citation:770 F.3d 368
Opinion Judge:JULIA SMITH GIBBONS, Circuit Judge.
Party Name:WILLIAM O. CASS, Administrator of the Estate of Derrick J. Jordan, Plaintiff-Appellant, v. CITY OF DAYTON; DAYTON POLICE DEPARTMENT; DAVID HOUSE; JOHN DOE, Defendants-Appellees
Attorney:Matthew C. Schultz, BRANNON & ASSOCIATES, Dayton, Ohio, for Appellant. Kelly M. Schroeder, FREUND, FREEZE & ARNOLD, Dayton, Ohio, for Appellees. Matthew C. Schultz, Dwight D. Brannon, BRANNON & ASSOCIATES, Dayton, Ohio, for Appellant. Kelly M. Schroeder, Neil F. Freund, FREUND, FREEZE & ARNOLD, D...
Judge Panel:Before: GIBBONS and McKEAGUE, Circuit Judges; LAWSON, District Judge.[*]
Case Date:October 16, 2014
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 368

770 F.3d 368 (6th Cir. 2014)

WILLIAM O. CASS, Administrator of the Estate of Derrick J. Jordan, Plaintiff-Appellant,

v.

CITY OF DAYTON; DAYTON POLICE DEPARTMENT; DAVID HOUSE; JOHN DOE, Defendants-Appellees

No. 13-4409

United States Court of Appeals, Sixth Circuit

October 16, 2014

Argued August 8, 2014.

Page 369

[Copyrighted Material Omitted]

Page 370

Appeal from the United States District Court for the Southern District of Ohio at Dayton. No. 3:12-cv-00248--Timothy S. Black, District Judge.

ARGUED:

Matthew C. Schultz, BRANNON & ASSOCIATES, Dayton, Ohio, for Appellant.

Kelly M. Schroeder, FREUND, FREEZE & ARNOLD, Dayton, Ohio, for Appellees.

ON BRIEF:

Matthew C. Schultz, Dwight D. Brannon, BRANNON & ASSOCIATES, Dayton, Ohio, for Appellant.

Kelly M. Schroeder, Neil F. Freund, FREUND, FREEZE & ARNOLD, Dayton, Ohio, for Appellees.

Before: GIBBONS and McKEAGUE, Circuit Judges; LAWSON, District Judge.[*]

OPINION

Page 371

JULIA SMITH GIBBONS, Circuit Judge.

After a " buy-bust" operation took an unexpected turn, Detective David House of the Dayton City Police Department shot and killed Derrick Jordan. Jordan, not the intended target of the bullet, sat in the front passenger seat of a vehicle that, moments before the shot was fired, had been driven into two officers in an attempt to escape. Jordan's estate brought suit under 42 U.S.C. § 1983, alleging that House used excessive force in violation of the Fourth Amendment and that the City failed to train and supervise its employees adequately. Jordan's estate also asserted claims under Ohio law. The district court awarded summary judgment to the defendants on all claims and Jordan's estate appeals. For the following reasons, we affirm.

I.

This case arises out of a May 16, 2008, " buy-bust" operation orchestrated by Detective James Mullins of the Dayton Police Department Special Investigations Division Drug Unit. The operation was based on information received from a confidential informant, who was to purchase an ounce of crack cocaine from Robert Moore.

That evening, Mullins briefed the following team members on the operation: Sergeant Mark Spiers, Sergeant Brian Johns, Detective David House, Detective Keith Coberly, Detective Dennis Murphy, Detective Doug Hall, Detective Joe St. Clair, Detective Tommy Harshman, Officer Mark Ponichtera, Officer Ron Velez, and Officer Tom Oney. Mullins advised the team that the informant had ordered an ounce of crack cocaine, that Moore was a known drug dealer, and that Moore was known to be armed with a gun. Mullins explained that it was to be a two-part operation. The first part called for officers to arrest Moore following a traffic stop. If that was unsuccessful, Mullins would take the informant to the Econo Lodge on Edwin C. Moses Blvd. where the officers would arrest Moore after he sold the crack cocaine to the informant. Mullins advised that the team was to move in and " take down" Moore once the informant gave a visual signal to confirm that Moore was actually there to make the deal. The first part of the plan was unsuccessful so the officers turned to the second.

The Dayton Econo Lodge is a U-shaped building with an overhang that juts out along the east side. It faces Edwin C. Moses, and an access road runs between that street and the hotel. The road provides access to a McDonald's (to the west of the Econo Lodge), a Wendy's (to the east of the Econo Lodge), and a BP gas station (further to the east of the Econo Lodge). Detective House arrived in the vicinity of the motel at approximately 7:15 pm in an unmarked City of Dayton vehicle. After twice moving his car, House parked near the McDonald's drive-through to the

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west of the Econo Lodge with a view of the informant.

Not long after House parked, Detective Knight came on the radio and informed the team that Moore was arriving in a blue Ford Taurus and that there were three or four occupants in the vehicle. Shortly thereafter, the Taurus stopped under the overhang and made contact with the informant. Satisfied that Moore was there to complete the deal, the informant made the signal and then turned to walk toward the hotel. Mullins instructed the team to " move in." The plan was to surround the Taurus while Moore was still in front of the Econo Lodge waiting for the informant to return.

It was at this point that the plan went awry and the situation began to escalate. Instead of waiting for the informant, the Taurus drove through the Econo Lodge parking lot at " normal speed," westbound, in the direction of House and the McDonald's. Believing that if he continued with the original plan the vehicle would simply drive around him, House positioned his car in the exit that led from the Econo Lodge parking lot onto Edwin C. Moses. After partially blocking the exit, House got out of his vehicle and walked toward the Taurus as it came to a stop in front of him. At about the same time, Detective St. Clair, with Sergeant Johns, parked alongside his car, leaving about one car's length between the two. Because the signal had been given, House believed that the other detectives would converge on the Taurus.

The Taurus came to a stop approximately 30 feet from House's vehicle, giving House a clear view of the driver and passenger and the driver a clear view of him. House, wearing his badge and his Dayton Police utility vest with " Police" written in reflective lettering, approached the Taurus from the front with his gun drawn, yelling " Dayton Police. Stop the car." St. Clair did the same. When House was approximately ten feet from the stopped Taurus, the driver of the car, later identified as Charles Stargell, " punched the gas" and accelerated.1 House ran to the left. Realizing he could not avoid being hit, House put his hands on the hood of the Taurus and jumped in the air to ensure that the car would not drive over his body. The Taurus struck House in the right leg as he rolled across the hood to the passenger side of the vehicle. The impact carried House in the direction from which he came, and he landed facing the same direction as the Taurus, which continued to accelerate.

Almost immediately after the car struck House, it struck St. Clair in the hand, prompting him to discharge his weapon. At that point, House did not know where St. Clair was or even that St. Clair had been the one to fire the shot. Nevertheless, based on the fact that House had last seen St. Clair behind him, House believed that St. Clair had fired the shot and had done so in self-defense. In fact, St. Clair was...

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