Dietzmann v. City Of Homer
| Decision Date | 17 November 2010 |
| Docket Number | Case No. 3:09-cv-00019-RJB |
| Parties | CHERRY DIETZMANN, individually; MINOR J.A. II, by and through his mother and guardian, CHERRY DIETZMANN; and MINOR D.A. by and through her mother and guardian, CHERRY DIETZMANN, Plaintiffs, v. CITY OF HOMER, the HOMER POLICE DEPARTMENT; HOMER CHIEF OF POLICE MARK ROBL, individually and as an agent or employee of the Homer Police Department; SERGEANT LAWRENCE KUHNS, individually and as an agent or employee of the Homer Police Department; SERGEANT WILLIAM HUTT, individually and as an agent or employee of the Homer Police Department; SERGEANT DAVID SHEALY, individually and as an agent or employee of the Homer Police Department; OFFICER STACY LUCK, individually and as an agent or employee of the Homer Police Department; UNITED STATES OF AMERICA; UNITED STATES MARSHAL'S SERVICE; KEVIN GUINN, in his official capacity as a United States Deputy Marshal, and in his individual capacity; and JOHN OLSON, JR., in his official capacity as a United States Deputy Marshal, and in his individual capacity, Defendants. |
| Court | U.S. District Court — District of Alaska |
This matter comes before the Court on:
8) City of Homer's Motion for Summary Judgment on State Claims (Dkt. 153), and
9) United States' Motion for Dismissal, Judgment on the Pleadings or Summary Judgment with Respect to Plaintiffs' Federal Tort Claims Act Claims and Any Claims Asserted Against the U.S Marshal's Service or Against Deputy Marshals Olson and Guinn in their Official Capacity (Dkt. 163).
The Court has considered the pleadings filed in favor and in opposition to the motions, the file herein, and heard oral argument on 15 November 2010.
Plaintiffs bring this case alleging they sustained injuries during the attempted arrest of Jason Anderson which resulted in a shootout at the Homer, Alaska Airport. Dkt. 84. Plaintiffs are Cherry Dietzmann, Anderson's girlfriend, and their two children, J.A., age two at the time of these events, and D.A., age six months at the time ("children"). Id. Plaintiffs file claims against the Federal Defendants pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. Dkt. 84. Plaintiffs make claims against the City of Homer Defendants pursuant to 42 U.S.C. § 1983 and Alaska state law. Id.
In 2006, Defendant Deputy U.S. Marshals John Olson and Kevin Guinn were assigned to the Alaska Fugitive Task Force ("AFTF"), which was a combined federal and state effort to arrest federal and state fugitives wanted for crimes of violence and drug trafficking. Dkt. 126-1, at 1-5. A memorandum of understanding governs the AFTF. Id. None of the City of Homer officers were members of the AFTF at the time of the incident. Dkt. 132-3, at 6. Deputy Marshal Olson testified that he requested the Homer Police Department's help in apprehending Jason Anderson, Sr. in the early spring of 2006. Dkt. 190-1, at 2.
Deputy Marshal Olson states that he began his investigation of Jason Anderson on or around February 17, 2006, after receiving a "collateral lead" from the U.S. Marshal's office in Minnesota. Dkt 102, at 20. Deputy Marshal Olson testified that he was aware that there was a federal warrant (for drugs) and a state warrant (for assault) out on Anderson. Dkt. 102, at 13. He states that he had a lead that Anderson was living in the area of Soldotna, Alaska, but eventually came to believe that Anderson was in Homer, Alaska. Dkt. 102, at 20. Deputy Marshal Guinn testified that they made several efforts to find in Anderson, in several towns, over a long period of time. Dkt. 126-8, at 13. Deputy Marshals Olson and Guinn were aware that Anderson was living with Plaintiff Cherry Dietzmann and their two children. Dkt. 102, at 20. The deputy marshals had a U.S. Marshal's "Subject Report" on Anderson which indicated that Anderson had convictions for armed kidnaping, assault, and domestic abuse. Dkt 126-3, at 1-4. The "Subject Report" stated that Anderson was armed and dangerous. Dkt. 126-3, at 1-4.
On or about the 21st of February 2006, Deputy Marshals Olson and Guinn briefed the City of Homer Police Department about Anderson. Dkts. 102, at 6 and 20, and 126-8, at 12-13. Alaska State Troopers were also at the meeting. Dkt. 134-2, at 2. The deputy marshals reported that Anderson was on their top ten or twelve most wanted list. Dkt. 134-2, at 2. City of Homer Sergeant Larry Kuhns states that they were told that Anderson was armed and dangerous, had warrants out for his arrest, and about Anderson's prior convictions. Dkt. 126-11, at 5. Sergeant Kuhns states that they were also told that Anderson was reputed to be a "gang enforcer." Dkt. 132-3, at 5. Sergeant Kuhns testified that they were told that Anderson had threatened to "shoot it out" with police if they tried to apprehend him. Dkt 132-3, at 5. Alaska State Trooper Tom Dunn testified that he was at this meeting, and expressed concerns about not attempting the arrest until they could separate Anderson from his children, his gun, and the dogs. Dkt. 134-2, at 6-7.
The next day, Sergeant Larry Kuhns sent an email to the other Homer officers regarding Anderson. Dkt. 126-4, at 1. Sergeant Kuhns recounted what the deputy marshals had told the people at the meeting the day before, including that Anderson was armed and dangerous. Dkt. 126-4, at 1. Sergeant Kuhns advised that Anderson may be accompanied by Ms. Dietzmann, their two children, and dogs. Dkt. 126-4, at 1.
Deputy Marshal Olson states that he, Deputy Marshal Guinn, and an Alaska State Trooper had to leave the Homer area in the middle of the week and go back to Anchorage. Dkt. 126-9, at 23.
Plaintiff Cherry Dietzmann, who met Anderson in 2003 when she was 16 years old, testified that she had run away from Anderson on a few occasions because he abused her. Dkt. 126-7, at 2. She testified that he'd broken several of her bones, burned her, and repeatedly injured her in other ways. Dkts. 132-5, at 6-7; 132-6, at 1-5. She states that he took her identification so that she could not leave the state of Alaska. Dkt. 132-5, at 2. She gave birth to J.A. in early 2004, and to D.A. in late 2005. Dkt. 132-4, at 5. In late February 2006, she stated she had again escaped Anderson and did not take the children. Dkt. 126-7, at 2. She states that she waited until he was occupied and she ran to the garage and took the car. Dkt. 126-7, at 2. Ms. Dietzmann states that she was in contact with him by phone and told him to turn himself in to authorities because she knew that there was a warrant out for his arrest. Dkt. 126-7, at 3. She told him that she wanted her children. Id. She states that he made various threats, but that she "did not honestly believe he'd kill the kids." Dkt. 126-7, at 3. She testified that he was using marijuana everyday in 2006 and learned later that he was also taking methamphetamine ("meth"). Dkt. 132-4, at 7.
Both deputy marshals interviewed Cherry Dietzman on the 28th of February 2006. Dkts. 102, at 20 and 126-8, at 8. Ms. Dietzmann told them that Anderson had beaten her, and that Anderson had threatened her with a gun. Dkts. 102, at 13 and 126-8, at 8-10. Deputy Marshal Olson testified that Ms Dietzmann told them she'd escaped from Anderson more than once. Dkt. 102, at 13. Deputy Marshal Guinn stated that Ms. Dietzmann told them the last time she had seen Anderson was a few days ago. Dkt. 126-8, at 18. She told them that Anderson held a gun to her head and cocked the hammer. Dkt. 126-8, at 18. Deputy Marshal Guinn testified that Ms. Dietzmann told them that Anderson told her that he would not let her go and that he would kill her and the children before he would let them go. Dkt. 126-8, at 10. Deputy Marshal Guinn testified that Ms. Dietzmann told them that Anderson said that if they tried to arrest him, he would shoot as many police as he could. Dkt. 126-8, at 17. Ms. Dietzmann states that she told the deputy marshals that Dkt. 126-7, at 5. Deputy Marshal Guinn acknowledged that Ms. Dietzmann told them that Anderson was never away from his children, dog, or guns. Dkt. 158-8, at 7. Both deputy marshals testified that Ms. Dietzmann told them that she was afraid that if an attempt to arrest Anderson was made in front of the children, the children would be injured. Dkts. 102, at 13 and 126-8, at 12. The deputy marshals stated that they told Ms. Dietzmann that they were going to make their best effort...
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