Gordon v. Kidd, 91-2514

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Citation: 971 F.2d 1087
• Docket Number: No. 91-2514,91-2514
• Parties: Elise Elizabeth GORDON, individually and as Administratrix of the Estate of Clarence Gordon, Deceased, Plaintiff-Appellee, v. C.W. KIDD, Julius Lloyd, Elaine Gravitt, Todd Lockamy, R.E. Ramsey, Deputy Sheriff, John W. Smith, Deputy Sheriff, City of Charlotte, B.G. Simmons, Officer, R.S. Barker, Officer, C.G. Lyman, Officer, Defendants-Appellants. and Roy Rivers, Sergeant, Benjamin Cooper, Robert Bynum, Defendants.
• Decision Date: 07 July 1992

Page 1087

971 F.2d 1087 Elise Elizabeth GORDON, individually and as Administratrix
of the Estate of Clarence Gordon, Deceased,
Plaintiff-Appellee,
v.
C.W. KIDD, Julius Lloyd, Elaine Gravitt, Todd Lockamy, R.E.
Ramsey, Deputy Sheriff, John W. Smith, Deputy Sheriff, City
of Charlotte, B.G. Simmons, Officer, R.S. Barker, Officer,
C.G. Lyman, Officer, Defendants-Appellants.
and
Roy Rivers, Sergeant, Benjamin Cooper, Robert Bynum, Defendants. No. 91-2514. United States Court of Appeals,
Fourth Circuit. Argued Dec. 6, 1991.
Decided July 1, 1992.
As Amended July 7, 1992.

Page 1089

Lawrence P. Egerton, Womble, Carlyle, Sandridge & Rice, Winston-Salem, N.C., Frank B. Aycock, III, Charlotte, N.C., argued (Tyrus V. Dahl, Jr., Womble, Carlyle, Sandridge & Rice, Winston-Salem, N.C., James O. Cobb, Ruff, Bond, Cobb, Wade & McNair, Kenneth H. Boyer, Jones, Hewson & Woolard, Charlotte, N.C., Louis L. Lesesne, Jr., Lesesne & Connette, Charlotte, N.C., on brief), for defendants-appellants.

William D. McNaull, Jr., Charlotte, N.C., argued (Patricia E. King, on brief), for plaintiff-appellee.

Before SPROUSE and LUTTIG, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

BUTZNER, Senior Circuit Judge:

This appeal concerns the suicide of Clarence Gordon while he was detained in the Mecklenburg County jail. Appellants, defendants below, are the city of Charlotte, employees of the city, and employees of Mecklenburg County. The appellants assign error to the denial of their motion for summary judgment in an action under 42 U.S.C. § 1983 brought by Elise Elizabeth Gordon, individually and as administratrix of the estate of Clarence Gordon deceased. Because the appellants raised the defense of qualified immunity, we review the district court's denial of summary judgment as a "final order" within the meaning of 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). We affirm the district court's denial of summary judgment to John W. Smith and remand the complaint against him for trial. However, because Mrs. Gordon's evidence does not create triable issues of fact with respect to the other defendants, we reverse the judgment as it pertains to them and remand for the entry of summary judgment in their favor. Mrs. Gordon voluntarily dismissed defendants Roy Rivers, Benjamin Cooper, and Robert Bynum.

I

Shortly after 4 a.m. on June 17, 1988, two Mecklenburg County officers found Clarence Gordon, a pretrial detainee who had been arrested the previous night, hanging by his sweater from the top bars of a holding cell on the first floor of the county jail. Gordon, a 39 year-old forklift operator with a history of alcohol abuse, mental illness, and depression, had committed suicide.

Late the evening before, Gordon's wife looked into the kitchen from the living room of their house and saw her husband standing with a four-inch steak knife pressed against his chest near his heart. Mrs. Gordon later said that the expression on his face convinced her that he wanted to stab himself with the knife and kill himself. After asking him to stop, Mrs. Gordon called the 911 emergency numbers and told the dispatcher that "[m]y husband needs help." Emergency service records show that her call was logged at 10:22 p.m. The dispatcher asked whether Gordon needed "a police officer or a medic." Mrs. Gordon responded, "I don't know. He was standing there trying, like he was gonna stab himself, he's been drinking a lot." In response to a question, she added that her husband was "[t]hreatening to kill himself with a knife stuck to his chest, but he put it down, but see I'm not going through this the rest of the night." She also told the

Page 1090

dispatcher that Gordon was "sloppy drunk."

The dispatcher then issued a call on the Charlotte Police Department radio frequency. Having contacted a nearby unit, the dispatcher issued a code meaning "domestic disturbance" and said, "See Alice Gordon reference to her husband is there threatening to kill himself with a knife." Officer B.G. Simmons responded to the call and arrived at the Gordon residence between 10:25 and 10:30 p.m. At the door to the house, Simmons met Mrs. Gordon, who "said that her husband was inside, that he was drunk, that he was looking for a knife to kill himself with." Officer Simmons entered the house and saw Gordon, who was walking from the living room into the kitchen. Simmons observed that Gordon appeared intoxicated. Simmons attempted to question Gordon, but Gordon did not reply. Using a hand-held radio, Simmons then requested the dispatcher to "step the backup up." Simmons told the dispatcher that the subject was "10-73," a code meaning "mental subject."

Simmons asked Mrs. Gordon whether she planned to have her husband involuntarily committed to a mental hospital. She responded "that he was on the wine and that when he was drinking he was violent and he was, her words, is that she was, he was threatening to kill himself." Mrs. Gordon asked whether Simmons could take her husband to a detoxification center, but Simmons replied that this was not possible because "it was not against the law to be drunk in your own home." Simmons later noted that detox centers will not accept patients who are violent. Simmons told her that "if she wanted to have him committed, she could go down to the magistrate and take out the papers." Simmons then tried to leave the house, but she "insisted that I stay." A few minutes later, Officer Robert S. Barker arrived. He found Gordon still in the kitchen and Officer Simmons in conversation with Mrs. Gordon. A few seconds after Barker's arrival, Gordon got a steak knife from a kitchen drawer. Holding it in front of him, he advanced slowly toward the two police officers. They drew their guns and ordered him to drop the knife. Simmons told him "I'd kill him if he took another step, and he stopped." Gordon put the knife on the floor. At the officers' orders, he began to lie on the floor but then grabbed the knife again and attempted to run away through the kitchen door. He slipped in the kitchen, fell to the floor, and lost the knife. The officers seized him, placed him in handcuffs, and arrested him on a charge of assaulting an officer.

After his arrest, the officers later stated, Gordon calmed down but still seemed confused. The officers asked Mrs. Gordon whether she would seek to have her husband committed. She replied that she would telephone his mother before deciding what to do about commitment.

The officers left at about 10:42 p.m. Mrs. Gordon called Gordon's mother long distance to seek her advice about how to handle the situation. The two spoke for about 96 minutes. During the first few minutes of the conversation, Officer Barker returned to retrieve the knife Gordon had been holding when he allegedly assaulted the officers. Mrs. Gordon recalled asking whether her husband could be put in a safe place to sleep off the alcohol, and she stated that Barker agreed that "we could do that." Several times during her conversation with her mother-in-law, Mrs. Gordon heard the beep tone indicating an incoming call on her call waiting service. Concluding that the caller was probably her husband, she ignored the signal. At about 12:40 a.m., shortly before finishing her conversation, she again heard a beep and spoke with her husband, who asked her to come get him out of jail. She told him she would not. She said she intended to tell him to sleep off the alcohol and that she would come get him the next morning to seek help for his drinking. But "before I could get into detail as to why ... somebody took the phone from him and ... told me that he'll call me back in a few minutes." After this, Mrs. Gordon hung up and waited by the phone until approximately 1 a.m. At that time, she took her phone off the hook, meaning that a caller would encounter a busy signal, and went down

Page 1091

the street to talk to a neighbor who had been drinking with her husband earlier in the evening. She spent two and a half hours speaking with this neighbor and his wife, then returned home and replaced the receiver on the cradle. She never heard from her husband again.

After arresting Gordon, Simmons placed him in his car and took him to the Mecklenburg County Jail. Simmons later said that he decided not to seek commitment of Gordon on his own authority because

my impression, in my dealings with Mr. Gordon, did not give me any indication that he was a mental patient or suicidal. Mr. Gordon stood there with a knife in his hand and made no attempt to injure himself. He came at me with the knife. When I told Mr. Gordon that I would kill him if he took another step, Mr. Gordon stopped. When he was told to put the knife down, he put the knife down. That does not indicate to me a person who was suicidal. In other words, I had no reason to believe that Mr. Gordon was suicidal.

J.A. 296-97. He discounted Mrs. Gordon's statements that Gordon was suicidal because "Mrs. Gordon was not willing to go down and have Mr. Gordon committed."

Arriving at the county jail at about 10:49 p.m., Simmons placed Gordon in a holding cell in the booking area. When Barker arrived, the two officers met Officer Gordon Lyman. At their request, Lyman agreed to fill out a police report on their arrest of Gordon. Officers Simmons and Barker did not wish to fill out the report themselves because Officer Simmons' duty shift ended at 11 p.m. and because officers customarily do not fill out the arrest form when they themselves are to be listed as victims of an alleged assault. After conversation with the two arresting officers, Lyman filled out an "Offense Report" describing the incident and stating, "The suspect's wife said the suspect was going to kill himself." Officer Barker, meanwhile, filled out a "Supplement Report" that narrated Gordon's behavior toward the officers but omitted any mention of his potentially suicidal behavior.

Lyman then took the police...