Ernestine Wingate Representative Russell v. Byrd

• Decision Date: 19 August 2016
• Docket Number: Civil Action No. 4:13-cv-03343-BHH-KDW
• Court: U.S. District Court — District of South Carolina
• Parties: Ernestine Wingate as the Personal Representative of the Estate of Ernest Russell, Plaintiff, v. Wayne Byrd, both individually and in his Official capacity as the Sheriff of Darlington County; Darlington County Sheriff's Office; The County of Darlington; The City of Darlington Police Department; The City of Darlington; Ben Weatherford; Clyde M Shepherd; and John Does 1-10 Defendants.

Ernestine Wingate as the Personal Representative ofthe Estate of Ernest Russell, Plaintiff, v. Wayne Byrd, both individually and in his Official capacity asthe Sheriff of Darlington County; Darlington County Sheriff's Office;The County of Darlington; The City of Darlington Police Department;The City of Darlington; Ben Weatherford;Clyde M Shepherd; and John Does 1-10 Defendants.

Civil Action No. 4:13-cv-03343-BHH-KDW

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

August 19, 2016

REPORT AND RECOMMENDATION

(Defendants City of Darlington, Darlington Police Department, and Clyde M. Sheppard, ECF No. 63)

Plaintiff, as personal representative of the Estate of Ernest Russell ("Russell"), filed this 42 U.S.C. § 1983 action alleging that Defendants violated Russell's Fourth and Fourteenth Amendment rights during the execution of a search warrant that resulted in Russell's death. Plaintiff also brought South Carolina state law claims against Defendants. Presently before the court is Defendant Weatherford's Motion for Summary Judgment filed on January 12, 2016. ECF No. 59. Additionally, Summary Judgment Motions by Defendants City of Darlington, Darlington Police Department, and Clyde M. Sheppard,¹ ECF No. 63, and Defendants Wayne Byrd, Darlington County Sheriff's Office, and the County of Darlington, ECF No. 64, are pending before the court. This Report and Recommendation ("R&R") addresses only Defendants City of Darlington, Darlington Police Department, and Clyde M. Sheppard. ECF No. 63.Plaintiff collectively responded to the pending Motions on February 16, 2016. ECF No. 76.² Defendant Weatherford was the only Defendant to submit a Reply on February 25, 2016. ECF No. 80. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) and (f) (D.S.C.). Because these Motions are potentially dispositive of Plaintiff's claims, this Report and Recommendation is entered for review by the district judge.

I. Background

Plaintiff brought this lawsuit after Russell was shot and killed by Darlington law enforcement officers during the execution of a search warrant for gambling paraphernalia on October 21, 2011. ECF No. 1-1. Defendant Sheppard obtained the search warrant on October 19, 2011, and the warrant indicated that officers were in search of the following: "DCDEU monies, large amounts of U.S. currency, gaming machines, books records, receipts, notes, ledgers, electronic devices and other papers relating to illegal gaming and gaming equipment." ECF No. 60-1 at 3. The warrant indicated that officers intended to search a white building on 1312 S. Main Street in Darlington, SC. Id. at 3. In the "reason for affiant's belief that the property sought is on the subject premises," Defendant Sheppard indicated the following:

Agents of the Darlington County Drug Unit has (sic) been conducting an investigation on a gambling house located at 1312 S. Main Street in the City of Darlington. Several complaints have been received about this location due to illegal gambling. With the use of a confidential informant agents were able to observe through audio and video recording illegal betting and gambleing (sic) on sports games.

Id.

The execution of the warrant was recorded by a chest camera ("chest-cam") worn by Officer Specht. The parties have submitted video footage from this chest-cam in support of their arguments. The undersigned has reviewed this video evidence, and, based on that review, the following is a description of what can be seen during the execution of the search warrant for the property located at 1312 South Main Street, Darlington, South Carolina on October 21, 2011,³ ECF Nos. 67, 76-18:

During daylight hours, officers exited a vehicle and approached the side of a white building with two doors. The first door (the right-side door) had a glass or plastic storm door covering a wooden door. Officers opened the first door, and one officer (now known to be Defendant Weatherford) attempted to twist the inside wooden door's knob but finds it is locked. This officer then walks toward the other side door (the left-side door). At this point in the video, Officer Specht is behind two officers, and the first in line is wearing a vest with "SHERIFF" written across the back. One officer, the second officer (now known to be Officer McIntye), hits the locked wooden door with a battering ram, but the door does not open. This officer has "POLICE" written across the back of his vest. The second officer runs to the left-side door where the first officer is approaching. Based on the count-down clock on the video, this initial entry—the time officers exited the police vehicle to the time the first and second officers entered the left-side door—took approximately 20 seconds.

The first officer (Defendant Weatherford) enters, without knocking, through the left-side door. The video does not depict images from inside the house in the moments immediatelyfollowing the first officer's entry. Next, the two officers (Officers McIntyre and Specht) following the first officer also enter the location through this door. Loud shouting is heard as the second officer enters into the location, and the third officer is immediately behind him. The video depicts a woman (the confidential informant) standing towards the front of the room, and the officers pass her during their entry. More yelling is heard, and several shots are fired. It is unclear from the video who fired the shots or the circumstances leading to the firing of the shots. One officer, with "SHERIFF" written on the front and back of his vest,⁴ looked at the camera and said, "he pointed a gun at me." Based on the countdown clock on the video, 46 seconds elapsed between time of both officers' entry until the declaration by the officer (Defendant Weatherford).

After the shooting, the officers re-enter the location, and one officer says, "where's the gun now?" Russell is seen sitting or slumped behind a counter, and there is black gun lying on the counter to the left of where Russell's body is resting. One of the officers then goes outside and re-enters with a camera. Officer Specht then surveys the room and takes several photographs. Five video poker machines are seen lining one of the walls of the room.

In this action, Plaintiff maintains that the officers' search was objectively unreasonable because officers failed to knock and announce their presence prior to their entry into the premises. ECF No. 1-1 at 9-11. Specifically, in the Complaint, Plaintiff alleges that four officers—Defendants Weatherford, McIntyre, Sheppard, and Specht—"arrived at the premises and without warning or notice made a brief attempt to break down the rear door of the premises with a battering ram." Id. at 9; ¶ 19. Additionally, Plaintiff alleges that "[a]pproximately one'strike' or 'blow to the rear door was made when Defendants Weatherford and [Officer] McIntyre ran to the front door, pulled it open and ran through the front door wearing blue jeans, white t-shirts and brown 'bullet-proof' vests." Id. ¶ 20. Plaintiff represents that Defendant Weatherford ran through the front entry of the premises with his gun drawn and without knocking and that Officer McIntyre ran through the front entry immediately behind Defendant Weatherford. Id. ¶ 21-23. Moreover, Plaintiff alleges: "In less than five and a half (5.5) seconds from the time Defendant Weatherford came running in through the front door unannounced and wearing 'street clothes', Defendants Weatherford and McIntyre fired approximately nine (9) 'point blank' shots at Ernest Russell hitting striking him in the face, neck, and torso and killing him." Id. ¶ 24.

Based on the execution of the warrant, Plaintiff maintains that Defendants' failure to knock and announce did not "give the Decedent Ernest Russell a reasonable amount of time to come to the door and comply with a law enforcement request." Id. ¶ 28. Additionally, Plaintiff maintains that the officers' use of force was objectively unreasonable. Id. ¶ 29. Further, Plaintiff maintains that "[Officer] Specht and [Defendant] Sheppard were integral and active participants in this improper search and seizure [and] both were aware of this improper search and subsequent seizure, they had the ability to stop it and they both failed to do so." Id. ¶¶ 30-31.

Plaintiff represents that Defendant Weatherford gave the following sworn and typed statement to SLED:

I then headed to the front door. I opened the screen door and checked the other door. It was open. As I opened the door I yelled "Sheriff's office search warrant." As I entered, I pulled out my weapon I yelled again "Sheriff's office" I looked at the CI walking away from the counter to my right. The CI had her hands in the air saying something but I don't remember what. I told her to get her hands up and then I went on past her. I then saw a subject bending over behind the counter. I yelled several times "let me see your hands, Sheriff's office, search warrant". I continued to yell "let me see your hands", but he would not show me his hands.

He then looked up at me. I looked him in the eye and yelled "Sheriff's office put your hands up." That's when I saw a gun in his right hand. It was a silver/rusty color revolver. He then laid the revolver down on the counter and looked at me but never took his hand off of it. I started yelling "put the gun down sheriff's office". He then picked it up and he was leaning on his right elbow with the gun pointing towards me. I yelled several more times, "drop the gun, drop the gun." He then looked right at me and raised the gun towards me. I could see down the barrel I could see every hole in the cylinder. Feeling that my life was in jeopardy, that is when I shot.

Id. ¶ 38. Plaintiff alleges Defendant Weatherford's statement was false and was made in an attempt to cover up the unlawful killing. Id. ¶ 39. Plaintiff alleges that Defendant...