Krause v. Cnty. of Mohave

• Decision Date: 18 May 2020
• Docket Number: No. CV-17-08185-PCT-SMB,CV-17-08185-PCT-SMB
• Parties: Ryan Andrew Krause, et al., Plaintiffs, v. County of Mohave, et al., Defendants.
• Court: U.S. District Court — District of Arizona

Ryan Andrew Krause, et al., Plaintiffs, v. County of Mohave, et al., Defendants.

No. CV-17-08185-PCT-SMB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

May 18, 2020

ORDER

Pending before the Court are the parties' cross-motions for summary judgment. Plaintiff Ryan Andrew Krause, on behalf of Decedent Drey Krause, moved for partial summary judgment, (Doc. 121, "MPSJ"), on their excessive force claim on December 6, 2019. Defendants later moved for summary judgment as to all claims, (Doc. 139, "DMSJ"), on December 20, 2019. Responses and replies followed both motions.¹ Neither party requested oral argument. Considering the parties' motions, well-developed factual record, and relevant case law, the Court enters the following Order:

I. BACKGROUND

a. Procedural Background

On October 10, 2018, Ryan Andrew Krause, individually and on behalf of all statutory beneficiaries of Decedent, Drey Gerald Krause, filed a Second AmendedComplaint² against the County of Mohave; Mohave County Sheriff Douglass Lee Schuster and his wife, Cynthia Schuster, Jordan Selmanson and his wife, Ashley Link Selmanson, and Richard Schiller and his wife, Kathleen Ann Schiller. (Doc. 49, "SAC".) The SAC alleges the following: (1) use of excessive and deadly force in violation of the Fourth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 against Selmanson; (2) failure to provide medical care in violation of the Fourth, Eighth, and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 against Selmanson and Schiller; (3) failure to train under 42 U.S.C. § 1983 against Schuster and Mohave County; (4) Monell violations under 42 U.S.C. § 1983; (5) wrongful death and negligence against Selmanson; and (6) wrongful death and battery against Selmanson. (Id.)

b. Factual Background

i. Arrival on Scene

The Court sets forth the material facts below. Unless otherwise indicated, the following facts are uncontroverted.

At approximately 7:14 p.m. on February 13, 2017, two Mohave County Sherriff's Office ("MCSO") Deputies responded to the 911 call of Ms. Shanna Farris. Earlier that evening, while outside her trailer in Topock, Arizona, Farris heard a male voice coming from the direction of the neighboring Krause residence. (PSOF ¶ 4 ; DSOF ¶ 2; PCSOF ¶ 2.) Shortly thereafter, what Farris believed to be a gunshot fired from the same location, impacted the gravel driveway not far behind her. (PSOF ¶ ; DSOF ¶ 5.) Farris called 911 from a neighbor's house across the street. (DSOF ¶ 7.) Approximately twenty-six minutes after that call, MCSO deputies Jordan Selmanson, and Richard Schiller arrived at the scene separately. (DSOF ¶ 8.) Having reviewed the contents of Farris' 911 call prior to arrival, Selmanson stopped to take Farris' report. (DSOF ¶ 10.) Schiller continued onward, parking his patrol car in front of the Krause residence. (Id.)

ii. The Deputies' Approach

After taking the reports of nearby residents, Selmanson joined Schiller outside theKrause property. (DSOF ¶ 12.) The deputies approached the Krause residence, a trailer with a detached garage and covered carport, together. (DSOF ¶13.) They walked up a driveway that ran alongside Krause's trailer, underneath the covered carport that extended from the trailer itself and terminated in a garage. (See PSOF ¶ 8; DSOF ¶ 13.) Inside the trailer, but unbeknownst to the deputies, was Drey Krause and his mother. (Doc. 127-1 at 36:3-14.) The deputies approached the trailer together then separated, taking different positions near the entryway. (DSOF ¶¶ 12-14.) Selmanson approached the main door. (DSOF ¶¶ 12-13.) Schiller passed that door to investigate a sliding glass door located farther south along the trailer's exterior wall. (DSOF ¶ 14.) At the main door, Selmanson knocked and announced: "Sherriff's office." (DSOF ¶ 15.) There was no answer. (Id.) He knocked and announced a second time, backing away from the door immediately thereafter. (DSOF ¶ 16.) Above the door, the porch light lit up. (DSOF ¶ 17.) Staring at the now well-lit closed door, Selmanson heard what sounded like someone "fiddling" with the lock. (DSOF ¶ 17.)

iii. "Shots Fired, Send Medical"

What happened next, happened quickly. (See PSOF ¶ 9.) The door began to open. (DSOF ¶ 18.) A shotgun barrel protruded from the doorway. (Id.) The open door revealed a man, Drey Krause, standing in the doorway. He held a shotgun on his right side, his right hand gripping the receiver. Seeing the shotgun, Selmanson, at least twice, ordered Krause to "drop the gun" or "put the gun down" as he continued is backward retreat. (Id. ¶ 24.) The commands were loud and clear—Schiller, Ms. Farris, and nearby neighbors all heard them. (Id. ¶¶ 25-26.) The parties dispute how the next moments unfolded.³ According to Selmanson, Krause stepped through the doorway and, with shotgun in hand, reached across his body with his left hand and grabbed the foregrip of the shotgun. (Id. ¶ 21.) Now holding the shotgun with both hands, Krause approached Selmanson. (Id. ¶ 22.) As he continued retreating backward, Selmanson repeated his earlier orders. (Id. ¶ 27.) "Dropthe gun." (Id. ¶ 24.) Krause did not respond, but instead continued his advance towards Selmanson and began to raise the shotgun barrel to ninety degrees. With the shotgun barrel pointed at him, Selmanson reacted. (Id. ¶ 27.) He quickly fired three shots. (PSOF ¶ 20; DSOF ¶ 27.) Two found their mark and Krause collapsed to the ground, dropping his shotgun. (DSOF ¶ 29.) The third bullet missed and lodged itself about five feet, three inches above the ground in the north-facing wall of the garage. (Doc. 127-2 at 8.) From the moment the porch light flicked on, "mere seconds" had passed. (PSOF ¶ 9; Doc. 127-1, Ex. 5 at 135:11-136:10; Doc. 136, Ex. 2 at 62:7-63:16.)

iv. The Aftermath and Medical Treatment

The deputies handcuffed the fallen Krause and Selmanson radioed, "shots fired[,] send medical" at 7:19 p.m., roughly one minute after the incident. (DSOF ¶¶ 35-36.) The deputies later testified that they observed no visible injuries, bleeding, or markings on Krause's shirt, but, hesitant to aggravate any injuries, they decided to wait for medical assistance rather than attempt emergency care. (DSOF ¶¶ 38-39; PCSOF ¶¶ 38-39.) Receiving a radio call informing Selmanson to contact his supervisor, Selmanson left Krause with Schiller, walked down the driveway, and called his Sergeant, Larry Matthews. Selmanson ended the call as Golden Shores Fire Department arrived on scene at 7:28 p.m., approximately eight minutes after the shooting. (DSOF ¶ 41.) The medical personnel transported Krause to Valley View Medical Center where he was pronounced dead shortly after arrival. (DSOF ¶ 42.)

v. The Crime Scene, Bullet Trajectories and Autopsy

The medical examiner's report indicated that two bullets wounded Krause. Setting aside the sequence in which the shots were fired, one of Selmanson's bullets travelled from the barrel of his service pistol on a slightly downward trajectory, entered Krause's penis and exited through his scrotum.⁴ The bullet then entered Krause's right thigh, "but[,] then passing through his thigh, it went upward." (Mosely Depo. at 58:9-10.) The bullet thusexited Krause's right thigh approximately ¼ inch higher than where it entered. (See Doc. 122-1, Ex. K, "Krause Autopsy" at 80, (measuring the entrance wound on the "anteromedial aspect of [the] proximal portion of the right thigh . . . is centered 38-1/2 inches below the top of the head" and finding the bullet "exits the body on the lateral aspect of the upper portion of the right thigh . . . situated 38-1/4 inches below the top of the head".) The second bullet penetrated the left side of Krause's abdomen but, terminating "in the right psoas muscle," did not exit. (DSOF ¶43; Krause Autopsy at 84.) The 5'8" Krause weighed one-hundred-sixty-eight pounds and had a blood alcohol content (BAC) of 0.271. (PSOF ¶ 22; DSOF ¶ 44.)

vi. The Deputies' Training and Shooting Investigations

Although the incident marked the first occasion Selmanson had fired his service weapon in the field, (DSOF ¶ 52), Selmanson was trained. He received initial firearms training from Western Arizona Law Enforcement and additional firearms instruction from the MCSO. (DSOF ¶ 49.) The deputies were also certified by Arizona's Peace Officer Standards and Training ("POST"), (DSOF ¶50), and were familiar with operative MCSO policies regarding use of lethal force and rendering of medical aid.⁵ (DSOF ¶¶ 45-48.) Following the incident, the MCSO conducted a full use of force investigation that eventually cleared Selmanson, finding he used lethal force in self-defense. (DSOF ¶¶ 53-54.) Selmanson and Schiller were each interviewed at least twice—first by Detective Cindy Slack of the Lake Havasu City Police Department a few days after the incident, and later in depositions for the instant civil proceedings.

II. LEGAL STANDARD

Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A material fact is any factual issue that might affect the outcome of the case underthe governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record" or by "showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A), (B). The court need only consider the cited materials, but it may also consider any other materials in the record. Id. 56(c)(3). Summary judgment may also be entered "against a party who fails to make a showing sufficient...