Aipperspach v. McInerney
| Decision Date | 02 August 2013 |
| Docket Number | Case No. 11–01225–CV–W–DGK. |
| Parties | Noelle Roselyn AIPPERSPACH, as Personal Representative of the Estate of Mahir S. Al–Hakim, deceased, Plaintiff, v. Patrick McINERNEY, et al., Defendants. |
| Court | U.S. District Court — Western District of Missouri |
OPINION TEXT STARTS HERE
Robert C. Sullivan, Sullivan Morgan & Chronic, LLC, Kansas City, MO, for Plaintiff.
Diane F. Chirnside, Missouri Attorney General's Office, Steven F. Coronado, Christopher L. Heigele, Coronado Katz, LLC, Kansas City, MO, for Defendants.
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
In the present lawsuit, Plaintiff Aipperspach,1 the Personal Representative of Mahir Al–Hakim's (“Al–Hakim”) Estate, alleges that Al–Hakim was subjected to excessive force when he was shot and killed by law enforcement officers on March 18, 2010 in Riverside, Missouri. Currently pending before the Court are summary judgment motions on behalf of the Riverside Defendants 2 (Docs. 164 and 165) and Defendants Kansas City Board of Police Commissioners 3 (“KCBOPC”) and Officer Robbie McClaughlan (Doc. 171).4 Also pending is Plaintiff's “Motion to File a Supplement to Her Suggestions in Opposition to Defendants' Motions for Summary Judgment, to Further Comply with Local Rule 56.01(a) (Doc. 182) 5 and the Riverside Defendants' “Motion to Exclude the Testimony of Plaintiff's Designated Expert Brian Frist, M.D.” (Docs. 167, 168) 6 and “Motion to Exclude the Testimony of Plaintiff's Designated Expert D.P. Van Blaricom (Docs. 169 and 170).” 7
Because there is no genuine issue of material fact, the motions for summary judgment on behalf of the Riverside Defendants and the KCBOPC and Officer McLaughlan (collectively “the Defendants”) are GRANTED.
As a preliminary matter, the Court grants Plaintiff's motion to supplement her suggestions in opposition to the Defendants' motions for summary judgment. Local Rule 56.1(a) provides in pertinent part that “[a]ll facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the opposing party.” Plaintiff filed one response to Defendants' two motions for summary judgment. In this combined response, Plaintiff did not comply with Rule 56.1(a), making it difficult for Defendants and the Court to determine which facts were controverted and which were not.
To rectify this error, Plaintiff filed a motion to supplement her suggestions in opposition to controvert specific paragraphs of Defendants' statements of facts. Rather than deem the entirety of Defendants' statement of facts admitted because of Plaintiff's failure to comply with the Local Rules, the Court grants Plaintiff's motion to supplement (Doc. 182). However, where Plaintiff has not controverted Defendants' statements of facts with reference to specific paragraph numbers, the Court deems Defendants' facts admitted. Additionally, where Plaintiff interjects information into her argument not set forth in her statement of uncontroverted facts, the Court disregards such information.8
The following facts are undisputed unless otherwise noted.10
On March 18, 2010, William Hart (“Hart”) made a 911 call to the Riverside Missouri Police Department indicating that his friend, Mahir Al–Hakim, refused to leave Hart's apartment. Detective Billy Aaron and Captain Michael Costanzo arrived at Hart's apartment in response to this call. Upon arrival, Hart told Detective Aaron that Al–Hakim had come to his apartment asking to borrow money. Hart informed Detective Aaron and Captain Costanzo that Al–Hakim had left shortly before their arrival and had started walking to the wooded area west of his apartment. Hart never informed Detective Aaron or Captain Costanzo that Al–Hakim was armed.
After speaking with Hart, and while Detective Aaron and Captain Costanzo were still outside Hart's apartment, Defendants allege that the Riverside Police Dispatch informed them there was an outstanding warrant for Al–Hakim's arrest.11 They then began looking for Al–Hakim in the wooded area behind Hart's apartment. Riverside Police Sergeant Dennis Jones arrived soon after and also began looking for Al–Hakim in the woods.
Sergeant Jones found Al–Hakim sitting in a ravine to the west of Hart's apartment. Sergeant Jones identified himself multiple times as a Riverside police officer and asked Al–Hakim to come up the hill and talk with him. Al–Hakim refused and produced what Defendants allege appeared to be a handgun held against his jaw. Sergeant Jones dropped his radio, pulled his own gun, and told Al–Hakim in a loud voice to drop the gun. Detective Aaron and Captain Costanzo heard Sergeant Jones yell “drop the gun,” and responded to Jones' location. Detective Aaron then went down the hill to stand next to Sergeant Jones. Detective Aaron also identified himself as a Riverside police officer and told Al–Hakim to drop his gun. Captain Costanzo immediately radioed that an officer needed assistance with an armed party.
Hearing Captain Costanzo's request for assistance, Riverside Police Officer Matthew Westrich and Riverside Police Sergeant Trevor Ballard left the scene of a fatality accident and traveled to the wooded area. Upon arrival, Officer Westrich took a seated firing position with his department shotgun in the area above Al–Hakim. Captain Costanzo instructed Sergeant Ballard to provide cover with his patrol rifle for Sergeant Jones and Detective Aaron because Ballard was wearing a ballistic vest and Jones and Aaron were in plainclothes without vests. Sergeant Ballard complied and took a position next to Sergeant Jones and Detective Aaron nearest Al–Hakim, aiming at Al–Hakim with his rifle sight.
Several officers from neighboring police departments, including Kansas City Police Department (“KCPD”) Officers Robbie McLaughlan, Chris Stammler, J.D. Petty, Pete Schultz; KCPD Sergeant Phil Smith; Platte County Deputy Daniel Fred Green; Gladstone Officer Christopher Morales; North Kansas City Officer Kyle Pansing; and Platte Woods Officer William Babbitt, also responded to Captain Costanzo's request for assistance.
Upon arrival, Officer McLaughlan grabbed his patrol rifle, and he and the other officers walked to the embankment near the woods where they saw Al–Hakim sitting at the bottom of the ravine, holding a gun to his neck. Defendants allege that Al–Hakim's gun looked like a .45 Hi–Power pistol to Officer McLaughlan, a semi-automatic handgun to the Riverside Defendants, and a real gun to the other officers. In reality, Al–Hakim was holding a Daisy 08 BB/pellet gun, whose packaging was lying nearby.12 Officer McLaughlan positioned himself behind a small tree facing Al–Hakim. The tree width did not cover Officer McLaughlan's entire body.
At that point, officers began telling Al–Hakim to put down his gun. Sergeant Jones pleaded with Al–Hakim, requesting several times that he relinquish his weapon. Sergeant Jones also offered to lower his firearm if Al–Hakim would drop his gun. Defendants allege that at one point Al–Hakim started to point his gun away from his head and in the general direction of Sergeant Jones, and Jones told Al–Hakim to not point the gun at him again or he would shoot him.
Officer Morales also attempted to get Al–Hakim to set down his gun. Recognizing him from past dealings, Officer Morales used Al–Hakim's first name when he told him, “Mahir, put the gun down.” Officer Morales also told him,
Officer Westrich saw Al–Hakim shake his head from side to side, indicating “no,” in response to the officers' commands for him to put down his gun. Al–Hakim did not comply with the officers' repeated requests, which were recorded on the audio portion of Officer Morales' patrol car video. A recording from the Channel 41 news helicopter captured the incident on video.
At some point, Al–Hakim attempted to stand or adjust his seating position but fell backwards. As he pulled himself up to a seated position, Defendants allege that he pointed his gun in firing position at Officer McLaughlan and the other officers above him. Defendants also allege that Sergeant Ballard, Officer Westrich, Officer McLaughlan, and Sergeant Jones believed the officers above Al–Hakim were in danger of serious bodily injury or death. Officer McLaughlan specifically testified that he felt an immediate threat to his life and the lives of the other officers.
Within seconds of Al–Hakim allegedly pointing his gun at the officers, Officer McLaughlan discharged his rifle at Al–Hakim one time. Officers Morales, Pansing, Westrich, Green, Ballard, and Babbit also fired their weapons at him. The shots fatally wounded Al–Hakim. The sound of the officers firing their weapons was recorded on Officer Morales' patrol car video/audio. The sound lasted approximately four seconds. The KCPD SWAT team and negotiators were on their way to the scene when Al–Hakim was shot and killed.
Officers Pettey, Shultz, and Stammler, Sergeants Smith and Jones, and Detective Aaron, did not discharge their weapons. Defendants allege that these individuals did not fire for various reasons, including: (1) they were not able to see Al–Hakim raise his gun from where they were standing; (2) they did not have their weapons in a firing position; 13 and (3) they would have been shooting in the direction of other officers.
The Riverside Police Department's policy on force, including lethal or deadly force, is found in Riverside, Missouri Departmentof Public Safety PROCEDURAL INSTRUCTION No. 10–01 “USE OF FORCE,” and provides in pertinent part:
“B. Guidelines for LETHAL (DEADLY) FORCE:
A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force...
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...to be able to tell the difference between a handgun and a pellet gun that appears to be a handgun. See Aipperspach v. McInerney, 963 F. Supp. 2d 901, 904-05, 908 (W.D. Mo. 2013) (on summaryjudgment, holding that officers' use of deadly force was objectively reasonable where individual held ......
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