Elkins v. McKenzie, No. 2002-IA-00845-SCT

Decision Date30 October 2003
Docket Number No. 2002-IA-00845-SCT, No. 2002-CA-00853-SCT.
PartiesGreg ELKINS v. Modener McKENZIE, Wife and Next Friend of Eddie McKenzie, Deceased. Modener McKenzie, Wife and Next Friend of Eddie McKenzie, Deceased v. City of Columbia, Mississippi, Jerry Howie, and Officer Pearlie Hendricks.
CourtMississippi Supreme Court

Lawrence Elder Hahn, Thomas D. McNeese, William C. Callender, Columbia, attorneys for appellant in No. 2002-IA-00845-SCT and appellees in No. 2002-CA-00853-SCT.

David Glen Galyon, John M. Colette, Jackson, attorneys for appellee in No. 2002-IA-00845-SCT and appellant in No. 2002-CA-00853-SCT.


EASLEY, Justice, for the Court.


¶ 1. This civil rights and tort case arises from the April 15, 1997, death of Eddie McKenzie (Eddie) who was shot by Gregory Elkins (Elkins), a City of Columbia police officer. Modener McKenzie (Modener), the wife of Eddie, filed suit on July 14, 1998, against the City of Columbia, Mississippi (the City), police chief Jerry Howie (Howie), and two officers, Elkins and Pearlie Mae Hendricks (Hendricks). The complaint asserted jurisdiction and venue pursuant to 42 U.S.C. § 1983. Modener asserted causes of action pursuant to the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. As to Elkins and Hendricks, the amended complaint alleged unreasonable use of deadly force in violation of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.

¶ 2. By order dated December 14, 2001, the circuit judge allowed Modener to amend her complaint. The amended complaint was to provide greater detail of Modener's basis of recovery and to clarify whether the claims were pursuant to 42 U.S.C. § 1983, the Mississippi Torts Claims Act (MTCA) or both. Modener's amended complaint alleged that Elkins maliciously, intentionally, or through gross negligence fired his weapon resulting in the death of Eddie. The complaint also alleged that deadly force was used without a claim of self defense which violated the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments, as well as, aggravated assault and battery, intentional infliction of emotional distress, and loss of consortium. Modener claimed that Howie and the City were vicariously liable for the actions of their officers and there was inadequate or improper supervision and training of the officers. The complaint also alleged negligence and gross negligence for failure to use reasonable care, the conduct amounted to negligent infliction of emotional distress and invasion of privacy, intentional torts of assault, assault and battery, maiming, false imprisonment, trespass, and intentional infliction of emotional distress.

¶ 3. Following discovery, all defendants moved for summary judgment. On May 13, 2002, the Circuit Court of Marion County, the Honorable Michael R. Eubanks, presiding, granted in part and denied in part the summary judgment motion. The trial court granted summary judgment in favor of the City, Howie, and Hendricks. As to Elkins, however, the trial court denied the motion for summary judgment. The trial court stated:

The Court finds Modena [sic] has failed to make out a case against the City of Columbia under § 1983 for policies or customs which violated Eddie's Constitutional rights. They are, therefore dismissed. The Court finds that there is no recovery allowed in a § 1983 action on a respondeat superior theory, therefore Chief Jerry Howie is dismissed. The Court finds that Modena [sic] has not made out a case against Hendricks for violating Eddie's Constitutional rights, and therefore, she is dismissed.
The Court finds that Modena [sic] has sufficiently rebutted Elkins' claim of qualified immunity. The Court finds his decision to enter the house and use deadly force against a retreating suspect for the purposes of preventing him from taking a defensive position and not because of an immediate threat was objectively unreasonable. Furthermore, the Court finds that the law on the use of deadly force is well founded, clearly established and is a right of which a reasonable person would have been aware.

As to any allegations for non § 1983 claims the trial court stated that:

Defendants in this case have raised several Mississippi Tort Claims Act defenses, but as Modena [sic] did not bring suit under the MTCA, these defenses are wholly irrelevant, and consequently dismissed. Also dismissed are any and all of Modena's [sic] state law, negligent based tort claims, as these do not rise to the level of a constitutional tort.

Accordingly, the trial court ruled:

Plaintiff's claims for negligence, gross negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, invasion of privacy, trespass, maiming, false imprisonment, assault and assault and battery are hereby DISMISSED, where they do not merge into the § 1983 claim, as they are state law based claims and do not rise to the level of constitutional tort. Modena [sic] can recover for herself and Eddie's heirs damages for his wrongful death if the jury determines Elkins violated Eddie's constitutional rights and is liable for Eddie's death.

In a final judgment the trial court subsequently dismissed with prejudice the claims against the City, Howie, and Hendricks. From these rulings, Modener filed a direct appeal, and we granted Elkins permission to bring an interlocutory appeal, see M.R.A.P. 5.

¶ 4. Upon review of this case, we affirm the trial court's summary judgment in favor of the City, Howie, and Hendricks. We reverse and render the trial court's denial of summary judgment for Elkins and finding that Modener sufficiently rebutted Elkins' claim of qualified immunity pursuant to 42 U.S.C. § 1983. Also, the trial court's ruling that Modener failed to bring suit pursuant to the Mississippi Tort Claims Act ("MTCA") is without merit and is reversed and remanded. The state law claims are remanded to the trial court for a finding to determine whether a dismissal is proper pursuant to the MTCA or otherwise.


¶ 5. Prior to the shooting that claimed Eddie's life, Hendricks with the assistance of Officer C.N. Brumfield investigated a parked car playing loud music. Myjellious McKenzie (Myjellious), Eddie's son and the owner of the car, was at his friend's home sitting on some steps with the friend. Myjellious ran to the car and turned down the music before Hendricks exited her vehicle. After some discussion with Myjellious, the officers left without giving him a ticket.

¶ 6. Later Hendricks responded to a call that an officer needed assistance with stopping a vehicle. Myjellious was driving the vehicle. When Hendricks arrived at Myjellious's home, she saw him in handcuffs. Elkins and other officers were already at the house. Initially, Hendricks saw Eddie at the edge of his carport and outside of his house. The officers were taking a camcorder from Myjellious's car, and Eddie seemed upset. Hendricks asked another officer to explain to Eddie why they were taking the camcorder. They explained that they needed it for investigation, and Eddie told them that it belonged to his wife. Eddie then went inside the house to tell his wife about the camcorder.

¶ 7. Later, Eddie stood in his doorway and motioned for Hendricks to approach him. Hendricks walked toward Eddie but did not come all the way to the door to speak to Eddie. Eddie complained to Hendricks about the police. While they were speaking, Elkins walked over to them and spoke to Eddie. Shortly thereafter, Brumfield also walked over to them. Then Eddie stepped back in the house, and the storm door closed.

¶ 8. Hendricks saw Eddie pick up a silver gun from the counter next to the door and point the gun at the officers. At this point Hendricks stated that she "was standing in the line of it." She yelled "He has a gun." All three officers present, Hendricks, Elkins and Brumfield, drew their weapons. Elkins gave Eddie a "direct command" to put his weapon down. Officers Hendricks and Elkins moved toward the door, and Eddie was ordered to put the gun down. Eddie began to back away from the door.

¶ 9. Hendricks paused in her advance, and Elkins continued towards the door. Elkins opened the door and entered the house, and Eddie backed up toward the kitchen. Elkins continued to ask Eddie to put his gun down. Hendricks was outside at the threshold of the door at this time and saw Eddie shoot his gun from the kitchen bar. When Eddie fired the gun, Hendricks saw the flash of the barrel and Elkins flinch. She thought that Elkins had been hit by the bullet and entered the house.

¶ 10. Elkins returned fire toward Eddie. Eddie backed up toward the hallway and a bedroom while Elkins continued to move toward Eddie. Hendricks was unsure how many bullets Elkins fired from his weapon and stated "I can't—I don't recall. It was just an exchange of gunfire between the two of them." Officer Tim Single (Single) came into the house and told Hendricks to leave the house. Hendricks entered the house a second time only to bring Elkins a flashlight. By this time it was evening, the hallway of the house was dark, and Elkins needed the flashlight to see down the hallway.

¶ 11. Elkins stated in his deposition that he noticed Eddie motioning for Hendricks to come toward him. Hendricks actually stepped backwards, and these actions caught his attention. Elkins went toward Hendricks and Eddie. The police were going to tow Myjellious's car, but Eddie expressed his dissatisfaction to Elkins. Then, Elkins turned to walk back to the car. Hendricks then hollered "He's got a gun." As Elkins turned, he unholstered his gun. When asked when was the first time that he felt in imminent danger or bodily harm, Elkins stated "as soon as I turned around and saw the gun pointed at me." He and Hendricks dropped back behind the fender of the car. Meanwhile, Eddie pointed the gun through the closed glass door...

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    ...must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Elkins v. McKenzie, 865 So.2d 1065, 1077 (Miss.2003), quoting Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). The defendant's acts are held t......
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2 books & journal articles
  • Experts
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    • James Publishing Practical Law Books Preparing for Trial in Federal Court
    • May 4, 2010
    ...claim, Graham explained, is that of ‘a reasonable officer on the scene’ and ‘at the moment’ force was employed”); Elkins v. McKenzie , 865 So.2d 1065, 1083 (Miss. 2003) (“As to excessive force, the ‘inquiry is confined to whether the [officer] was in danger at the moment of the threat that ......
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