Downing v. Petry
| Decision Date | 13 August 2021 |
| Docket Number | Civil Action 5:20-187-DCR |
| Parties | PAUL E. DOWNING, Plaintiff, v. JOSH PETRY, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
This matter is pending for consideration of Defendants Brian Eaves and Josh Petry's motions for summary judgment and to exclude the testimony of Roger A. Clark, Plaintiff Paul Downing's proposed expert witness. [Record Nos. 54, 57] The motion for summary judgment will be granted because the plaintiff's claims against Eaves are untimely, Petry is entitled to qualified immunity, and Downing has otherwise failed to raise any genuine issues of material fact regarding his claims against Petry. The defendants' motion to exclude Clark's testimony will be granted because his opinions are not relevant to the facts at issue in this case.
On May 7, 2019, officers from the Madison County Sheriff's Office (“MCSO”) responded to a residence at 101 Masters Court in Richmond, Kentucky, where Plaintiff Paul Downing (“Downing”) lived with his mother Shirley. Patty May, a nurse with Wellcare, had just called 9-1-1 reporting that Downing had a gun and was going to shoot himself. May advised the 9-1-1 operator that Downing had “just reloaded” and that he had “done this before.” May, who was speaking with Downing on another line, asked him if he had been drinking. However, she did not receive an audible response and her call with Downing disconnected. The 9-1-1 operator advised May that officers were on their way to Downing's residence.
An audio recording of radio traffic indicates that at least two of the responding officers were familiar with Downing and that MCSO had been called recently when Downing shot himself in the foot. [Record No. 54-6] MCSO Deputies Todd Chitwood Josh Petry, Brian Eaves, and David Thurman arrived at the residence between 3:48 and 3:49 p.m. Upon their arrival, they observed Shirley mowing the lawn. Officers told Shirley why there were there and asked her where Downing was located. Shirley advised that she was unsure. [Record No. 54-8, p. 8] Sergeant Petry instructed her to get off of the mower and “go across the street and stay out of the way.” [Record No. 54-10, p. 6]
As the senior officer on the scene, Petry was responsible for positioning and handling the scene and officer safety. Id. He and Chitwood walked around the left side of the house toward the rear, while Deputies Eaves and Thurman covered the front of the home. Petry explained that, since the officers did not know where Downing was located, they were “covering the whole perimeter of the residence.” Id. p. 7.
Petry and Chitwood observed two closed garage doors on the left side of the residence, as well as a pickup truck backed in front of the right garage door. The two officers proceeded through a gate connected to a chain link fence when they observed an entry door into the garage that was partially opened. Id. p. 8. Petry or Chitwood pushed the door open and Petry repeatedly announced the officers' presence and directed Downing to come out. Id. [Record No. 54-8, pp. 8-9] As this was happening, the officers heard a noise coming from the screened-in deck that was just around the corner at the rear of the residence. According to the officers' testimony, Downing had emerged from the back of the house and was standing on the deck with a blank stare, holding a rifle.[1]
Petry recalled that Downing was initially holding the rifle at waist-level. He explained, “if you [were] walking straight out of the house, he would've been pointing it straight ahead of him and then when I said ‘drop the gun' to him, he started to turn toward our location.” [Record No. 54-10, p. 8] Chitwood recalled that when the officers turned and looked at Downing, he raised the rifle at them. [Record No. 54-8, p. 9]
At that point, Petry called out “long gun, ” and he and Chitwood retreated back around the house and took cover beside the truck parked in front of the garage. Id. pp. 9, 11. Petry first went to the passenger side of the truck but could not “get a full visual of the garage doors, ” so he and Chitwood moved around to the driver's side. He then moved to grassy area beside the driver's side of the truck so that he could “get a clear picture of the garage doors and the rear corner of the house.” Id. p. 12. The left garage door started coming up and Petry yelled out “contact contact” to let everyone know there was movement. Id. at p. 14.
Once the door was raised, Petry could see Downing standing just inside the garage, holding the long rifle in a “low ready position, ” or “kind of behind his right hip with the barrel extended.” Id. at pp. 12 15. Petry claims that he gave several commands for Downing to drop the weapon at which point Downing raised the rifle in Petry's direction. Id. at p. 14. Petry reports that he hit the ground on his stomach and “heard a shot go off.” Petry jumped back to his feet and saw Downing still pointing the rifle in his direction. Petry reports that he fired at Downing at that time. Id.
Deputy Eaves and Thurman's deposition testimony is consistent with this version of events. They reported that, while they were standing in front of the house, Petry and Chitwood hurriedly came back through the gate and Petry advised that Downing had a long gun. [Record No. 54-9, p. 6] Eaves holstered his pistol and ran to his cruiser to retrieve his patrol rifle. He came back toward the front left corner of the house “to watch and see if [Downing] was actually going to come around the back side of the house the way that Sergeant Petry and Deputy Chitwood did as well.” Shortly thereafter, the garage door started to raise and Eaves could see “the barrel of a large gauge-weapon, which appeared to be a shotgun.” Id. at p. 7. While Thurman was still standing at the back of his Tahoe, he saw the garage door going up and Downing “standing in the doorway and what appeared to be a long-gun in his hands.” [Record No. 54-18, p. 9]
Thurman testified that, while this was happening, Petry and Chitwood were continually yelling for Downing to put the gun down at which time Downing “made a motion to raise it.” Id. p. 10. Eaves testified that he heard Petry yell either “drop it, Paul” or “put it down, Paul, ” to which Downing responded, “shoot me mother f---s.” [Record No. 54-9, p. 8] According to Eaves, he took a step to the side and could see that Downing was pointing his weapon in Petry and Chitwood's direction. Eaves fired at Downing, aiming at his forearm, which was the only part of his body he could see. Id. at p. 8.[2] According to Petry and Eaves, Downing, still holding the rifle, said “shoot me again, mother f---s.” Petry then fired several shots and Downing fell.
Kentucky State Police Sergeant Gabe Welch interviewed Shirley Downing on May 7, 2019. [Record No. 54-19] Shirley advised Welch that she was mowing the yard when she saw blue lights approaching earlier that day. Id. p. 15. She observed uniformed officers emerge from the sheriff's cruisers, and she easily recognized them as police officers. She heard yelling, which included the officers telling Downing to “get out of there” and “to drop the gun.” Id. at p. 19. She also heard Downing holler “shoot again.” Id. p. 18. Shirley advised Welch that Downing was an alcoholic who was “always drinking.” She knew he had been drinking that day because she had taken him to the liquor store to get beer. Id. p. 25. During her deposition taken on May 26, 2021, Shirley did not recall making these statements. However, she testified that she “tr[ies] very honestly to tell the truth, ” and she had been telling the truth to KSP officers on May 7, 2019. [Record No. 54-20, pp. 2-3]
Downing's version of events differs somewhat.[3] He testified that, on May 7, 2019, he returned a call to a nurse from his insurance company. [Record No. 54-12, p. 2] After that, he was working on an old, inoperable rifle in the basement of his residence. Downing acknowledged that he had walked onto his deck while holding the rifle before going into the garage, but maintains he did not see or hear any police officers. Id. at p. 7. He reported that he opened the garage door so that he could go out and get some wood blocks that were laying near the truck. He walked outside the garage door about three or four feet, holding the rifle pointed downward in his left hand. At that point, he realized that his mother was not mowing the lawn and he looked around to see where she was located.
According to Downing, a police officer suddenly popped his head up over the driver's side of the truck and pointed a rifle at him. Id. at pp. 3-4. Another officer appeared in front of the truck and the first officer disappeared. Then, the second officer disappeared and a third officer was “standing there right out in the open between the bumper of [the] truck and the garage door.” Downing testified that as soon as he looked at the officer, he “got hit in the arm” and fell back inside the basement floor.
Downing was transported to the University of Kentucky Medical Center Emergency Department where he was treated for gunshot injuries to his arm. He was initially charged with a single count of attempted murder. However, on July 11, 2019, was indicted for the lesser charges of two counts of first-degree wanton endangerment based on the events of May 7, 2019. Those charges remain pending in Madison Circuit Court. See Commonwealth v. Downing, Case No. 19-CR-603.
Downing filed a Complaint in this Court on May 5, 2020, asserting a host of claims against Petry, Chitwood, the Madison County Sheriff's Office, and various unnamed law enforcement defendants. Specifically, he alleged that Petry and Chitwood used excessive force against him in...
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