963 F.2d 952 (7th Cir. 1992), 91-2293, Tom v. Voida

Docket Nº:91-2293.
Citation:963 F.2d 952
Party Name:Cheryl TOM, individually and as administratrix of the estate of Wayne Lee Tom, deceased, Plaintiff-Appellant, v. Dawn E. VOIDA, individually and in her official capacity as a Police Officer of the City of Indianapolis, Paul Annee, individually and in his official capacity as Chief of Police, Indianapolis Police Department and City of Indianapolis,
Case Date:May 08, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 952

963 F.2d 952 (7th Cir. 1992)

Cheryl TOM, individually and as administratrix of the estate

of Wayne Lee Tom, deceased, Plaintiff-Appellant,


Dawn E. VOIDA, individually and in her official capacity as

a Police Officer of the City of Indianapolis, Paul Annee,

individually and in his official capacity as Chief of

Police, Indianapolis Police Department and City of

Indianapolis, Defendants-Appellees.

No. 91-2293.

United States Court of Appeals, Seventh Circuit

May 8, 1992

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[Copyrighted Material Omitted]

Argued Feb. 11, 1992.

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Richard Kammen, argued, Katharine C. Liell, McClure, McClure & Kammen, Indianapolis, Ind., for Cheryl Tom.

Frances W. Hardy, Marion County Legal Div., John C. Ruckelshaus, Ruckelshaus, Roland, Hasbrook & O'Connor, Douglas J. Webber, City-County Legal Div., Andrew P. Wirick, Corp. Counsel, argued, Office of the Corp. Counsel, City Counsel Legal Div., Indianapolis, Ind., for Dawn E. Voida.

Frances W. Hardy, Marion County Legal Div., Douglas J. Webber, City-County Legal Div., Andrew P. Wirick, Corp. Counsel, Office of the Corp. Counsel, Indianapolis, Ind., for Paul Annee and City of Indianapolis.

Before CUMMINGS, Circuit Judge, and WOOD, Jr., and ESCHBACH, Senior Circuit Judges.

ESCHBACH, Senior Circuit Judge.

This case began when a police officer benevolently approached an eighteen-year-old whom she did not suspect of any wrongdoing. For various reasons, this innocent encounter progressively escalated into a leisurely pursuit on foot, a rough-and-tumble chase, an attempted handcuffing, a violent physical struggle, another chase, another violent struggle, and ultimately a fatal shooting of the citizen. The question is whether the circumstances surrounding the escalation to violence give rise to a § 1983 suit on behalf of the decedent's estate. The end result of this encounter was undeniably tragic; a citizen who was initially suspected of no crime was killed. Analyzing the encounter step by step, however, we conclude that the victim's actions, not the officer's reactions, precipitated every step of the escalation to violence; the plaintiff has not adduced any evidence to indicate that the police officer acted impermissibly at any point. Accordingly, we affirm the district court's grant of summary judgment to the officer and to the other defendants.

Facts 1

On December 10, 1988, Dawn E. Voida, an Indianapolis police officer, was investigating a report that shots had been fired in a certain neighborhood. While driving in her car, she noticed Wayne Lee Tom, an eighteen-year-old male, fall off his bicycle and remain on the ground. Tom was lying

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down with his arms and legs in the air, "like a bug." Voida Depo. at 118; R. 103 at 4. Voida did not suspect Tom of any crime, but she was concerned that he might have hurt himself or had some medical problem, and wished to help him. Voida Depo. at 122-25; R. 103 at 4. She stopped her vehicle to investigate. As Voida approached Tom on foot while in full uniform, Tom immediately got up, grabbed the bicycle, and began to walk away. Voida Depo. at 121; R. 103 at 4. Voida asked Tom if he was alright, but Tom did not respond and continued to walk away for approximately 35 seconds. He glanced back at Voida all the while. Voida Depo. at 125-26; R. 103 at 1. Voida followed him, but Tom began to walk faster. Finally, Voida said, "Hey, wait a minute." Tom then looked "sharply" over his shoulder at Voida, threw down the bicycle, and ran away. Although Voida repeatedly ordered Tom to stop, he did not. Voida Depo. at 127; R. 103 at 1.

At this point, Voida noticed that the bicycle was fairly nice, and that she was in a neighborhood where property crimes, drug abuse, and alcohol abuse were common. Based on these facts, Voida now suspected that the bicycle was stolen. R. 103 at 6-7; Voida Depo. at 140. In addition, Tom had just fled from a law enforcement officer. Voida began to pursue him. Voida Depo. at 135; R. 103 at 6-7. She followed him for a few blocks, and over at least one fence. Eventually, Tom slipped on a patch of ice, allowing Voida to catch him. She kneeled on Tom and attempted to handcuff him. For approximately 25 seconds, they struggled violently, with Tom repeatedly hitting Voida's head on the concrete. Voida feared for her life and screamed for help. Witnesses heard her scream and saw some of the struggle. Tom ultimately broke free and continued his flight. Voida Depo. at 145-47; R. 103 at 2, 11-14; Briley Report at 7.

By this time, Tom had committed a felony--battery on a police officer, I.C. § 35-42-2-1 (Burns 1991 Supp.)--as well as a misdemeanor--fleeing a law enforcement officer. I.C. § 35-44-3-3 (Burns 1991 Supp.). So Voida continued to pursue Tom. Voida Depo. at 149; R. 103 at 16. When she caught up to him, they struggled some more. During this second physical confrontation, witnesses saw Tom continue to hit Voida's head and beat her. Briley Report at 7; Voida Depo. at 157; R. 103 at 9. With Tom gaining an advantage in this struggle, Voida apparently realized that she would not be able to subdue Tom solely by hand. But Voida did not have her nightstick with her. Voida Depo. at 137, 158. Moreover, her left arm was incapacitated, preventing her from grabbing her chemical repellant without exposing her right side where her gun was holstered, to Tom's grasp. Voida Depo. at 158-59; R. 103 at 2-3, 9. With no indication where her back-up was, Voida finally decided that she would have to pull her gun to subdue Tom and prevent him from gaining access to the gun himself. She pulled away from Tom so that he would not be able to get to the gun when she pulled it. While sitting or crouching on the ground, Voida pulled her revolver and three times said, "Please. Don't make me shoot you." Voida Depo. at 162; R. 103 at 3. Tom moved toward Voida anyway, and Voida fired an errant shot. Tom stepped back and then lunged at Voida again, with his arms outstretched. She fired another shot, which pierced Tom's chest. The wound killed him. An initially innocent encounter ended in death.

In the subsequent investigation, additional information came to light. The police determined that the serial number of the bicycle had been obliterated, indicating that the bicycle may have been stolen. Briley Depo. at 59-60. In addition, Tom was found to have been legally drunk, and he had a marijuana pipe in his pocket. Finally, Tom had both a juvenile and an adult felony history. R. 103 at 17.

The district court decided this case after the investigation was concluded. Cheryl Tom, the administratrix of Wayne Lee Tom's estate, had brought suit against Officer Voida, Indianapolis police chief Paul A. Annee, and the City of Indianapolis. In the two federal claims in her complaint, she claimed that the defendants violated the decedent's Fourth Amendment rights as protected through the Fourteenth Amendment

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to the United States Constitution. 2 Voida allegedly violated those rights by seizing Tom without a reasonable suspicion or probable cause, and by employing excessive force in pursuing him and ultimately killing him. The district court granted the defendants summary judgment on these federal claims and dismissed the pendent state claims without prejudice.

As we see it, Voida made three distinct sets of decisions in her encounter with Tom: 1) first were Voida's decisions to press an encounter with Tom: when he was lying on the ground, she decided to approach him and ask if he was alright; when he refused to answer her questions, she decided to follow him slowly; and when he threw down the bicycle and fled, she decided to order him to stop, and then pursue him; 2) next was her decision, after catching up with him on the ice, to cuff him and seize him physically; and 3) last were her decisions to subdue him: when he escaped from the first physical confrontation, she decided to continue to pursue him, and when he rushed at her, in the midst of the second of two physical confrontations and after she had already fired one shot, she decided to fire again. The plaintiff argues that some of these actions violated Tom's constitutional rights and entitle her to damages in and of themselves. The plaintiff also argues that because some of these actions violated Tom's constitutional rights, Voida herself created the need for force, so that her ultimate decision to shoot Tom was tainted by prior unconstitutional acts. Appellant's Br. at 36-38; see Gilmere v. City of Atlanta, Georgia, 774 F.2d 1495, 1501-1502 (11th Cir.1985) (when officer improperly beat the suspect-decedent and this improper use of official power created need for use of deadly force, officer could be held liable for shooting even if officer had "a moment of legitimate fear"), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654, 476 U.S. 1124, 106 S.Ct. 1993, 90 L.Ed.2d 673 (1986). Because we hold that Voida did not violate Tom's constitutional rights at any point in this series of events, we need not distinguish between these two theories.

  1. Voida's Decisions to Question and Follow Tom

    The plaintiff argues that Voida created this entire incident by overreacting to circumstances which demonstrated little more than teen panic. According to the plaintiff, Voida should never have insisted on following Tom and continuing to ask him questions...

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