Guyton v. Phillips

• Decision Date: 18 December 1981
• Docket Number: No. C-74-0357 MHP.,C-74-0357 MHP.
• Citation: 532 F. Supp. 1154
• Court: U.S. District Court — Northern District of California
• Parties: Tyrone GUYTON, etc., Plaintiff, v. Dale PHILLIPS, et al., Defendants.

532 F. Supp. 1154

Tyrone GUYTON, etc., Plaintiff, v. Dale PHILLIPS, et al., Defendants.

No. C-74-0357 MHP.

United States District Court, N. D. California.

December 18, 1981.

COPYRIGHT MATERIAL OMITTED

Lew Warden, San Leandro, Cal., Richard J. Simons, Furtado, Jaspovice & Simons, Hayward, Cal., for plaintiff.

Patrick J. Becherer, Crosby, Heafey, Roach & May, Oakland, Cal., Peter Langley, James A. Pezzaglia, Gordon, Waltz & Defraga, Martinez, Cal., for defendants.

OPINION

PATEL, District Judge.

This action is brought on behalf of the deceased minor by his mother as the Administratrix of the Estate. Tyrone Guyton was a black male who, at the time of his death, was fourteen years of age, five feet seven inches tall, and weighed 125 pounds. His death was caused by gunshot wounds inflicted by two officers of the Emeryville Police Department. The shooting occurred at approximately 10:30 p. m. on November 1, 1973. Guyton died at approximately 10:40 that same evening. Although the interval between the shooting and death was brief and the events leading up to it occurred over a short period of time, they are complicated and the subject of sharply conflicting testimony.

Tyrone Guyton was first observed on the evening of November 1, 1973 by Officers Dale Phillips and Thomas Mierkey. He and another black male were standing near a parked vehicle in an area referred to by the police as a high-crime area. In certain locations within that area police made frequent arrests for narcotics, firearms, and other offenses. The area is also a low-income residential area. Officers Phillips and Mierkey were in plain clothes patrolling in an unmarked vehicle. At approximately 10:00 or 10:15 p. m. they observed two black males they could not identify standing near a parked car. As the officers approached, they heard a "metallic sound" as if, in the words of Officer Mierkey, "a tire iron" hit the ground. Neither officer saw the object, nor did they see the suspects actually in contact with the vehicle. It should be noted that in the statements made by these officers immediately after the incident, neither mentioned hearing a metallic sound. In their testimony at trial both officers referred to such a sound and described it similarly. During their first observation of the two males, neither officer saw them in possession of any firearms or weapons.

The officers concluded that the suspects were "either dirty or going to rip the car off." They based that conclusion on the observation just recounted, the suspects' proximity to the car, the suspects' moving away from it upon observation of the officers, and the high-crime character of the neighborhood (Officer Phillips candidly acknowledged that in his opinion everyone was a suspect in that area.)

The officers decided that they would park at the end of the block and "let them come to us," reasoning that they lacked sufficient evidence to detain or arrest and that the suspects would be easier to contain inside the vehicle.

Shortly afterwards, the car came down the block with one occupant in it and without headlights. As it proceeded, the officers pulled behind it and activated their red light and siren. The vehicle accelerated; so did the officers. They then radioed that they were in pursuit, giving the vehicle's description and license number. There ensued a chase which lasted for approximately ten minutes and ended when the officers decided to crash into the pursued vehicle.¹ The officers purposely rammed their vehicle into the other car hoping to disable it. As a result of that impact, the unmarked police vehicle came to rest upon the sidewalk next to a school on the opposite side of the street. Guyton's vehicle apparently careened off a telephone pole, spun around in the street onto which it had commenced its turn, and ended up facing eastbound, the opposite direction. It ultimately came to rest on the sidewalk and lawn of a house at the intersection, resulting in an impact with the house. It is what intervened between the car coming to its first eastbound position and its final place of rest that is critical. It is also that interval that is the subject of much conflicting evidence.

Officer Mierkey testified that after the vehicle came to that first position he heard two shots very close together coming from the direction of the vehicle. Officer Phillips said he heard two reports of light gunfire from the victim's direction. Officer William Matthews, who had by then arrived on the scene in a marked patrol unit, claims that he saw a flash and a pop coming from the inside or near the driver's door of Guyton's car. Matthews had joined the chase and arrived close enough to the scene to observe the unmarked vehicle hit Guyton's. Another witness claims to have seen a flash in that area at or about the time of the shooting.

The two plainclothes officers Mierkey and Phillips, got out of their vehicle immediately. Phillips, in more colorful language than is necessary to repeat here, called to Mierkey that they were being shot at, and Mierkey immediately started firing as they pursued Guyton to a vacant lot at the corner. One officer says he saw Guyton standing near the back of the car he had exited (could see him over the "turtleback"), and the other officer says Guyton got out of the car, started to run, stopped, turned slightly facing the officers, and then the two shots were heard. Phillips testified that he heard the shots after he had got out of the car. Mierkey said he heard them while he was getting out. Officer Matthews said that when he arrived on the scene he saw Guyton standing near the left front door of the car Guyton had been driving. Its door was open. He rammed the rear of the vehicle, expecting to spin the car and hit Guyton with it. He says at the moment of impact Guyton started to run. The other officers were confused as to exactly when Matthews arrived and whether they ran past his car, Guyton's, or some other car in their pursuit of Guyton. Matthews then joined the foot chase. However, he somehow managed to get ahead of Mierkey and Phillips because Matthews was having the dirt kicked up under or near his feet by the shooting from Mierkey's weapon.

While all three officers claim to have heard reports of gunfire from the direction of Guyton, there are other facts upon which they also agree that are important. At no time did any of the officers see any weapon in Guyton's possession. At no time after Guyton turned around and started running and the officers began their pursuit did he turn back toward them. At no time did Guyton make any verbal threats or gestures other than the gunshots the officers claim to have heard. At no time at the beginning or during the pursuit did any of the officers call to Guyton to freeze or in any way attempt to stop him other than by firing their weapons.

In testifying about the frame of time in which he believed Guyton was firing on the other officers, Matthews says he saw the victim's arm outstretched and it appeared to be pointing toward the other police officers. This court finds that testimony unbelievable. Nowhere in his two statements immediately after the incident did Officer Matthews make mention of this fact. In other parts of his testimony, he states that upon arriving at the scene he did not see the other officers. That period of time coincides with the period of time that he claims he saw Guyton's arm outstretched and pointing at the other officers. It is impossible to see how he could have known Guyton was pointing in their direction if he had not yet seen them. Finally, if he could see the outstretched arm pointing toward the other officers, it is more likely than not he would have also seen a weapon. Yet he admits never having seen a weapon in Guyton's hand.

Phillips at trial claimed he could see Guyton's hand. In his statements taken shortly after the incident he says that he could not see Guyton's hands. Mierkey at all times has admitted that he never saw Guyton's hands or arms at the time of the firing.

In the course of the pursuit that followed, Mierkey fired approximately eight rounds. Eight casings attributed to his weapon were found at the scene. Phillips fired at least two times. One casing from his weapon was found at the scene. Another bullet from Phillips' gun entered the victim. Mierkey acknowledged that he may have fired two rounds into the side of Guyton's vehicle. The objective evidence is consistent with this conclusion. When these shots were fired cannot be determined from the evidence. However, it would appear that they were the first two shots fired by Mierkey.

The plaintiff has posited the theory that those were the two low-caliber sounding shots heard by several witnesses before the volley of shots. One police officer witness within audio range but not visual range referred to them at trial as "muffled," theorizing that their impact with the car might have dulled the sound. The defendants contend that these two lighter shots were fired by the victim. They suggest that they may have come from a .22-caliber firearm. There is insufficient evidence for the court to conclude whether either of these theories is more likely to account for the two lighter sounding shots.

Before concluding from all the evidence whether Guyton had a weapon, it is appropriate to return to the pursuit. One of the shots fired by Officer Phillips hit the victim in the buttocks. Guyton then began to buckle and proceed in a staggered run. He got to a sidewalk area and finally fell down in a driveway at the opposite side of a house facing on the vacant lot through which he had been pursued. Mierkey and Matthews went around the house. Mierkey apparently reached the victim first and was bending forward to hold Guyton and handcuff him when he heard a shot to the immediate left of his face. The shot was fired by Officer Matthews into the victim at a point slightly below the neck and six inches above the middle of the back.

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