Jordan v. FIVE UNNAMED POLICE OFFICERS, ETC., Civ. A. No. 80-1945.

• Decision Date: 10 December 1981
• Docket Number: Civ. A. No. 80-1945.
• Citation: 528 F. Supp. 507
• Parties: Rebecca JORDAN, etc., et al. v. FIVE UNNAMED POLICE OFFICERS AND AGENTS, etc., et al.
• Court: U.S. District Court — Eastern District of Louisiana

528 F. Supp. 507

Rebecca JORDAN, etc., et al. v. FIVE UNNAMED POLICE OFFICERS AND AGENTS, etc., et al.

Civ. A. No. 80-1945.

United States District Court, E. D. Louisiana.

December 10, 1981.

COPYRIGHT MATERIAL OMITTED

Matthew B. Collins, Jr., New Orleans, La., for plaintiffs.

John W. Anthony, Bogalusa, La., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BEER, District Judge.

To the extent any of the following findings of fact constitute conclusions of law, they are adopted as such. To the extent any conclusions of law constitute findings of fact, they are so adopted.

Findings of Fact

1. Plaintiff in this action is Rebecca Jordan, who seeks to proceed individually and on behalf of her minor children, Lisa Jordan, Boswell Jordan, Tanya Lynette and Sara Sherial Jordan. Mrs. Jordan is the mother of decedent, Charles Jordan, and, thus, has a clear right to proceed herein even though her right to proceed also in behalf of the minor children is in doubt. Such issue, however, is rendered moot by these findings.

2. Defendants in this action are Earl Glenn Penton, in his capacity as Chief of Police for the City of Bogalusa, Louisiana, and the City of Bogalusa. Mayor C. P. Verger appeared at trial as a representative of the City of Bogalusa.

3. On May 26, 1979, at approximately 6:55 p. m., the radio operator and dispatcher for the Bogalusa Police Department transmitted a call to the effect that a disturbance was in progress at or near 731 May Avenue in Bogalusa. Patrolman Mike Edwards signaled that he was responding to the call, and proceeded to the location. He was alone in his police car. Aware that Ptn. Edwards was alone in his car, Captain Reuben Sumrall and Sergeant (now Lieutenant) Wayne Kemp followed the department's standard procedure by also proceeding to that location in their respective patrol cars.

4. As Ptn. Edwards neared the designated address, the only person he saw was a black male, later identified as Charles Jordan, standing outside near the house and also near an automobile parked adjacent to the house. He was holding a shotgun by his side, muzzle down. As Ptn. Edwards drove closer to investigate, Jordan raised his shotgun and pointed it in Edwards' direction. At the same moment that Ptn. Edwards signaled for assistance on his radio, Jordan fired the shotgun, but did not hit Edwards. Ptn. Edwards, hunched down to hood height, drove his car in reverse a short distance back down the street. As that was taking place, Jordan fired a second shot but, again, did not hit Edwards.

5. Ptn. Edwards then got out of his car with his pistol drawn and called upon Jordan to put down the shotgun. Jordan tacitly refused by proceeding to reload his gun.

6. Ptn. Edwards' call for assistance, as well as the sound of the first shotgun shot, were heard by both Capt. Sumrall and Sgt. Kemp over their radios as they headed for the scene. As Sgt. Kemp turned onto May Avenue, he actually saw and heard Jordan fire the second shot. By this time, Captain (now Assistant Chief) Aubrey McMillan and his passenger, Auxiliary Policeman Robert DeWayne Ladner, had also arrived — in their patrol car — at the scene to assist Edwards, their arrival having also been precipitated by the radio exchanges above noted.

7. Each of the four assisting police officers got out of their patrol cars which had been pulled up on either side of and behind Edwards' patrol car. Mamie Tillman, who lived about one half block from where Jordan was standing (and who was called as a witness by the plaintiff), had come out of her house and saw Jordan holding his gun by his side. Before running back to her house, she had also heard Capt. McMillan, who was armed with a shotgun, instructing Jordan, at least two times, to put down his gun. Specifically, she recalled the words: "Put the gun down, son. Just put the gun down, son."

8. Instead, Jordan continued to reload his shotgun, and shouted words to the effect that the gun would have to be taken from him by someone who was willing to also take what was in it. Jordan then took a step backward and, thereupon, moved a step or two forward, raising his shotgun to a firing position aimed threateningly at the officers and specifically in the direction of Capt. McMillan.

9. In immediate response, Capt. McMillan fired his shotgun at Jordan. This firing was followed almost instantaneously by a rapid succession of gun shots: a single shot from Ptn. Edwards' pistol, two shots from Sgt. Kemp's pistol and two shots from Capt. Sumrall's pistol. Sgt. Kemp and Capt. Sumrall each fired their second shot immediately after their first shot and before Jordan was felled.

10. Jordan fell to the ground, still holding his shotgun. Ptn. Edwards came forward and removed the gun from Jordan's hand and unloaded two unfired shells. Capt. Sumrall called for an ambulance. Recognizing (correctly, in my view) that the severity of the wounds to Jordan's throat and chest precluded any sort of effective first aid treatment, and fearing a delay in ambulance response, the officers put Jordan on the back seat of Ptn. Edwards' car, and Jordan was driven by Edwards to Bogalusa's Charity Hospital. Sgt. Kemp followed directly behind him. Jordan was pronounced dead upon arrival or shortly thereafter at approximately 7:05 p. m.

11. Nathaniel Jackson, Cynthia Taylor, Joe King and Curtis McGee, who were in the neighborhood at the time of the shooting, essentially confirmed that a pattern of two shots, one soon after the other, followed by a longer pause and then a rapid succession of several shots had taken place.

12. Nathaniel Jackson further testified under direct examination that when he actually came upon the scene of these events after hearing the series of shots, he saw no gun in Jordan's hand. In light of Jackson's statements that "approximately two to three minutes" passed from the cessation of the shooting until he actually reached the scene, I conclude that Jackson saw no gun in Jordan's hand because the gun had already been removed by Ptn. Edwards.

13. Before taking Jordan to the hospital, Ptn. Edwards retrieved two spent shotgun shells from the ground near where Jordan had been standing. At the hospital, Capt. Sumrall and the attending physician removed a total of four additional unfired shotgun shells from Jordan's pockets. Capt. Sumrall also removed from one of Jordan's pants pockets an envelope with the following words written on it: "I'm going. Born to lose. Charles J. Jordan. I love everybody."

14. At the time of the incident, each of the regular officers at the scene had been working with the Bogalusa Police Department for a number of years: Ptn. Edwards, 5 years; Sgt. Kemp, approximately 7 years; Capt. McMillan, approximately 15 years; and Capt. Sumrall, 22 years. Auxiliary Policeman Ladner had been a volunteer auxiliary officer with the Bogalusa Police Department for approximately 8 years.

15. Ladner did not fire at all and was essentially uninvolved with the events hereinabove discussed except that he was at the scene, having arrived with Capt. McMillan and remained throughout.

16. Each of the four officers who fired at Jordan had undergone varying levels of active police training during his time with the force. This training included classroom and/or field experience with first aid, armed suspects, firearms and self-defense. Specifically, Ptn. Edwards, as a newly appointed Bogalusa police officer, attended the Louisiana State University Basic Law Enforcement Academy for six weeks in 1974. Sgt. Kemp attended the L.S.U. Basic Academy for six weeks in 1972, and the L.S.U. Advanced Law Enforcement Institute for three months in 1973. Capt. McMillan, in addition to his basic training and among other advanced training courses, attended a retrainer course at L.S.U. in 1967, the L.S.U. Law Enforcement Institute for three months in 1972, and the Civil Disturbance Orientation Course at Fort Gordon, Georgia, in 1974. Capt. Sumrall, in addition to his basic training at L.S.U. in 1957 and other advanced courses, attended a retrainer course at L.S.U. in or around 1960, two weeks of F.B.I. firearms training in 1965, a three-month Juvenile Officers School at L.S.U. in 1974, and a two-day F.B.I. firearms training school in 1974. In addition to the training each officer received, all of the officers were familiar with the policy of the Bogalusa Police Department with respect to the use of deadly force. They understood and accepted the condition that deadly force was not to be used unless the threat of death or great bodily harm became manifest.

17. All...