Hulstedt v. City of Scottsdale

• Decision Date: 06 August 2012
• Docket Number: No. CV–09–1258–PHX–GMS.,CV–09–1258–PHX–GMS.
• Citation: 884 F.Supp.2d 972
• Parties: W. Eric HULSTEDT, permanent guardian and permanent conservator of David Hulstedt, an adult, et al., Plaintiffs, v. CITY OF SCOTTSDALE, et al., Defendants.
• Court: U.S. District Court — District of Arizona

884 F.Supp.2d 972

W. Eric HULSTEDT, permanent guardian and permanent conservator of David Hulstedt, an adult, et al., Plaintiffs,

v.CITY OF SCOTTSDALE, et al., Defendants.

No. CV–09–1258–PHX–GMS.

United States District Court, D. Arizona.

Aug. 6, 2012.

Alan M. Simpson, Sean Robert Forrester, Alan M. Simpson PC, Carefree, AZ, E. Thomas Barham, Jr., Barham & Ostrow, Los Alamitos, CA, for Plaintiffs.

John Lloyd Belatti, Lori Simpson Davis, Robert Bruce Washburn, Scottsdale City Attorneys Office, Scottsdale, AZ, Charles Michael Callahan, Jesse Morgan Showalter, Holloway Odegard & Kelly PC, Phoenix, AZ, for Defendants.

ORDER

G. MURRAY SNOW, District Judge.

Pending before the Court are Plaintiffs' Motion for Partial Summary Judgment (Doc. 265), Defendants' Motion for Partial Summary Judgment (Doc. 271), Plaintiffs' Motion for Reconsideration (Doc. 333), and Plaintiffs' Motion for Certification of Issue for Interlocutory Appeal. (Doc. 334). For the reasons stated below, each motion for summary judgment is granted in part and denied in part, and both other motions are denied.

BACKGROUND

On November 7, 2008, at approximately 12:20 pm, David Hulstedt (“David”) called 9–1–1. Operator Christina Trott of the Scottsdale Police Department (“SPD”) answered. David told Operator Trott that he had “an emergency here” and that “I need to have Janet Napolitano come to my house.” (Doc. 313–1, Ex. B at 1). In the background, Trott could hear David's two-year-old daughter, D.H., crying. Trott asked David the nature of his emergency, whether he was armed, and whether he was hurting the child, but David refused to answer and instead hung up the phone. Trott issued a call for an “unknown problem” at David's address. ( Id. at 2). She designated the call as level one out of nine levels used by SPD. Level one, the highest designation available to SPD operators, is usually reserved for bank robberies or rapes, and is a higher priority, for example, than a home invasion in progress. (Doc. 272–1, Ex. C). After notifying dispatch of the issue, Trott telephoned the number back. David's father, Walter Hulstedt (“Walt”), answered, but spoke only briefly before David came on the line and once again asked for the Governor to be sent to his house. David's mother, Janice Hulstedt (“Janice”) then came on the line. Apparently unaware that David had called 9–1–1, Janice seemed surprised that the police had called her house. As Trott spoke with Janice, D.H. could be heard crying in the background, and at least one of the men could be heard shouting. Janice stated that the baby was crying because they “[p]robably need [ ] to change the diaper ... and we've been screaming.” (Doc. 313–1, Ex. B at 4).

After being questioned further by Trott, Janice explained that the family had just returned from the doctor, that they were having a family “indifference,” and that David was having “a nervous breakdown.” ( Id. at 4–6). Janice spoke calmly but with a slightly nervous tone. Although Janice answered all of Trott's questions, Trott suggested that she was being evasive and was not providing accurate information. For example, after Janice mentioned her son David, Trott stated that Janice “said there was nobody there but you and your husband,” although Janice had in fact made no such statement. ( Id. at 5). Janice confirmed that the baby was safe, and acknowledged that David's behavior was abnormal. ( Id. at 7–8). David took the phone back, stated that he was holding the baby, and asked that the Attorney General be sent to his house. He then hung up the phone. ( Id.).

Multiple police officers, including Sergeant Jason Stumpf, Officer Wendy Field, and Officer Michael Hertko, began to respond to the call. The transcripts of conversations between officers over SPD radio frequencies demonstrate that those officers had been told that someone was asking for the Governor, a baby was screaming in the background, and that “[n]obody's answering the call taker's questions as far as what's going on there.” (Doc. 313–1, Ex. B at 9). Officer Field was the first to arrive on the scene; by the time she was there, Trott had called the house again and reached Walter. Walter sounded anxious, stated that David was holding the baby, and that he needed “to take a pill so I can-don't have a heart attack.” ( Id. at 13). Trott instructed Walt and Janice to leave the house and speak to the officers. Walt and Janice obeyed her instruction, leaving D.H. alone inside with David. They were in contact with officers outside the house by approximately 12:32 pm. ( Id. at 16).

Officer Hertko entered the covered garage area of the home. David opened the door leading from the house to the garage; he was holding D.H. as he did so. (Doc. 272–1, Ex. B at 19–21). As described by Officer Hertko, David was cradling D.H. against his chest. (Doc. 266–1, Ex. A–3, Ex. 186–87). According to Hertko, the child was moving around while David held her and did not appear to be in distress. (Doc. 266–4, Ex. N at 9). David again asked for public officials to come to his house, and, when officers attempted to engage him, he reentered the home in a manner described alternately as “running” or “hurriedly retreating.” (Doc. 272–1, Ex. B at 27). He opened the door and shouted at Officer Hertko a number of times, at least once without D.H. present. (Doc. 266–4, Ex. N at 6).

At 12:34, Officer Hertko stated over the radio that it “looks like we're going to have a barricade situation.” (Doc. 313–1, Ex. B at 16). During this period, Janice and Walt had been speaking to officers on the scene. Walt had informed Officer Field that a firearm was hidden in the house, but that David did not know where, and that there was no ammunition in the house. (Doc. 272–1, Ex. D). Walt further told Officer Field that David had earlier threatened to throw D.H. out a window if Walt did not come over to him. (Doc. 272–1, Ex. D at 57). At 12:36, Officer Hertko transmitted over SPD radio that, “prior to our arrival, he threatened to drop the child out of a window.... In dialogue with the police on the scene, he's merely stated that he wants the Attorney General ... and made no threats towards us or the child, although he is still holding the child and inside the residence somewhere.” (Doc. 313–1, Ex. B at 18).

Other officers continued to arrive on the scene, including Lieutenant Francis O'Halloran, who served as incident commander and who had established control by 1:07 pm. (Doc. 313–1, Ex. B at 16). One group of officers, led by Sergeant James Dorer, established an inner perimeter, in which officers were up against the wall of the house, including Officer Field and at least two others. (Doc. 267–3, Ex. BB at 9). Officer Field was equipped with a Taser and the other officers were equipped with “breaching” equipment sufficient to take down a door. (Doc. 267, Ex. S at 10). The inner perimeter, alternately referred to as the “crisis team,” was prepared, “if we got any indication that he was hurting the child,” to “force entry and go to do a crisis rescue.” ( Id. at 19). An outer perimeter was established and led by Sergeant Stumpf. (Doc. 267–3, Ex. BB at 9).

During this period, David's brother, Plaintiff W. Eric Hulstedt, also arrived on the scene. Sergeant Stumpf contacted David's psychiatrist, Dr. Koelsch, who informed him that David had been treated for anxiety and paranoid schizophrenia. (Doc. 270–2, Ex. JJJ at 72). Family members and Sergeant Stumpf spoke to Lt. O'Halloran, informing him that David had been advised by his minister the day before to go to the hospital, and had seen his doctor that morning. (Doc. 267–3, Ex. BB at 6). According to Lt. O'Halloran, although various information was being transmitted over the radio, including David's requests for the Governor and his alleged threat earlier in the day to throw D.H. out the window if his father did not approach, “none of that made sense with what was going on,” and it was not clear to Lt. O'Halloran who had been the source for what information. (Doc. 267–3, Ex. BB at 14). On more than one occasion, David exited or partially exited the house and spoke to the officers. On these occasions, he asked either for the Governor or the Attorney General, as before, or for family members. Sergeant Dorer stated over the radio that David had stated “he wants to talk to his dad, wants to talk to the Attorney General, et cetera.” (Doc. 313–1, Ex. B at 34).

Officer Daniel Antrim and Officer William Hathaway, who served as hostage negotiators, made contact with David over the phone at approximately 1:25 pm. (Doc. 313–2, Ex. L–2). The negotiators were supervised by Sergeant Larry Marmie. Officer Antrim spoke directly to David, while Officer Hathaway spoke to Officer Antrim, and occasionally reported on the negotiation's progress over the police radio system. (Doc. 313–2, Ex. L–2). David frequently hung up on Officer Antrim, who continued to call him back. At five minutes into one of their conversations, David stated that he was not going to answer the phone unless his brother Eric was sent into the house. (Doc. 313–2, Ex. L–2 at 2). ¹ While the negotiators were talking with David, his family members, including his parents, his brother Eric, and Eric's wife Sara Hulstedt, were also in contact with David by telephone. (Doc. 313–1, Ex. B at 47). David stated that he believed the police were not interested in his safety, were only present to protect D.H., and were planning to shoot him. ( Id.).

At some point before 1:37 pm, David told Officer Antrim that he would “pile-drive” his daughter into the ground if his brother Eric was not sent into the house. (Doc. 313–2, Ex. L–2 at 4). Officer Antrim whispered “pile-drive” to Officer Hathaway, who broadcast “Subject made a comment about pile driving the child,” over the radio at 1:37 pm. (Doc. 313–1, Ex. L–2 at 4; Doc. 313–1, Ex. B at 47). Three minutes later, Lt. O'Halloran radioed the inner perimeter, as follows: “He said that if his brother doesn't...