Lawrence v. Las Vegas Metro. Police Dep't, Case No. 2:16-cv-03039-RFB-NJK (

Decision Date31 March 2020
Docket NumberCase No. 2:16-cv-03039-RFB-NJK (,C/w Case No. 2:18-cv-02314-RFB-CWH)
Citation451 F.Supp.3d 1154
Parties Jacqueline LAWRENCE, et al., Plaintiff(s), v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT et al., Defendant(s).
CourtU.S. Court of Appeals — Third Circuit

Dale K. Galipo, Pro Hac Vice, Law Offices of Dale K. Galipo, Woodland Hills, CA, Peter Goldstein, Law Offices of Peter Goldstein, Las Vegas, NV, for Plaintiffs.

Craig R. Anderson, Marquis & Aurbach, Las Vegas, NV, for Defendants.

ORDER

RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Before the Court are Defendant Brian Montana's Motion to Dismiss, Defendants Robert Bohanon, Las Vegas Metropolitan Police Department ("LVMPD"), James Ledogar, and Blake Walford's Motion for Summary Judgment, Defendant Brian Montana's Motion for Summary Judgment, and Consol Defendant United States's Motion for Summary Judgment. ECF Nos. 83, 86, 87, and 88.

II. PROCEDURAL BACKGROUND

Plaintiffs filed their complaint on December 30, 2016. The complaint asserts Fourth Amendment excessive force and denial of medical care claims via 42 U.S.C. § 1983, substantive due process claims, battery, negligence, wrongful death via the Federal Tort Claims Act ("FTCA") ( 28 U.S.C. § 1346(b) ), Monell,1 and Bivens claims for supervisory liability, excessive force, and substantive due process violations. Id.

On July 17, 2017, Defendants the United States Department of Justice ("US DOJ") and United States Marshal Service filed a motion to dismiss on the basis that the Court did not have subject matter jurisdiction over them because Plaintiffs had not exhausted their administrative remedies under the FTCA. ECF No. 20. Plaintiffs filed their first amended complaint adding Defendant Brian Montana. ECF No. 21.

DOJ then filed a motion to dismiss the first amended complaint on July 31, 2017. ECF No. 24.

On November 9, 2017, the Court dismissed the First Amended Complaint's Ninth and Tenth claims for relief without prejudice. On April 9, 2018, Plaintiffs filed a stipulation to file amended pleadings. The operative second amended complaint was filed on April 9, 2018. On June 12, 2018, Defendants US DOJ and US Marshals moved to dismiss the second amended complaint. On November 15, 2018, the Court dismissed US DOJ and the US Marshals Service without prejudice. ECF No. 77. LVMPD answered on April 23, 2018. ECF No. 63. Defendants United States DOJ Marshals service and DOJ moved to dismiss on June 12, 2018. ECF No. 65.

The Court granted Defendants' Motion to Dismiss without prejudice as to the United States Department of Justice and United States Marshals Service. ECF No. 77. On December 5, 2018 Plaintiffs filed a complaint against Defendants United States and Brian Montana, asserting a wrongful death claim under the False Claims Tort Act, and Bivens Fourth Amendment excessive force and Fifth Amendment substantive due process claims in the case 18-cv-2314.

On January 8, 2019, case 18-cv-2314 was consolidated under 16-cv-03039. ECF Nos. 78, 79. Defendant United States filed its answer to the Second Amended Complaint on April 22, 2019. ECF No. 82. Defendant Brian Montana moved to dismiss on April 22, 2019. A response and reply were filed. ECF Nos. 84, 85. Defendants Robert Bohanon, LVMPD, James Ledogar and Blake Walford moved for summary judgment on June 5, 2019. ECF No. 86. A response and reply were filed. ECF Nos. 90, 98. Defendant Brian Montana moved for summary judgment on June 5, 2019. ECF No. 87. A response and reply were filed. ECF Nos. 99, 100. Defendant United States moved for summary judgment on June 5, 2019. ECF No. 88. A response and reply were filed. ECF Nos. 94, 99.

III. FACTUAL BACKGROUND

The Court makes the following findings of undisputed and disputed fact.

a. Undisputed Facts
i. Background

Keith Childress, Jr was arrested and charged with armed robbery, kidnapping, aggravated assault, and theft based on a home invasion in Arizona in 2013 along with three other co-defendants. The criminal trial lasted from October 26, 2015 through December 17, 2015. Childress attended the trial.

However, on the date the guilty verdict was read, Childress left Arizona and a warrant was issued for his arrest. Childress was listed in the National Crime Information Center (NCIC) as "armed and dangerous with violent tendencies." On December 29, 2015, the Las Vegas Field Office for the U.S. Marshall Service received notice from the Maricopa County Arizona U.S. Marshall Service about the possibility that Childress might be in Las Vegas with his uncle, Vincent Matlock. One of the Deputy United States Marshals assigned to the case was Defendant Brian Montana.

On December 30, 2015, the task force conducted surveillance for several hours at Matlock's apartment, which was located in the Monaco apartment complex near Desert Inn Road and Durango Drive.

ii. Chase of Childress Preceding the Shooting

On December 31, 2015, at approximately 1:55 pm, the marshals saw Childress and Matlock leave Matlock's apartment and walk toward Matlock's car, a black Hyundai.

The marshals activated lights and sirens on at least one of their cars and Childress ran. Defendant Brian Montana along with nonparty deputy marshal Desiree Sida, proceeded to chase after Childress. The U.S. Marshals attempted to stop Childress from leaving in Matlock's vehicle. One marshal recovered a gun from the vehicle registered and belonging to Vincent Matlock.

Upon realizing that Childress was going to successfully escape the complex, nonparty Deputy Marshal Kozisek radioed LVMPD for assistance in setting up a perimeter. Childress ignored all of the U.S. Marshall's commands to surrender. At approximately 2:02 pm, LVMPD dispatch broadcast that a foot pursuit was occurring and that there was a need to set up a perimeter.

The dispatcher relayed that Childress was hopping walls, running through yards, and climbing on rooftops. LVMPD Sergeant Bohanon was at his house eating lunch when he heard the dispatch call. Bohanon requested additional information, and Deputy U.S. Marshal Brian Montana radioed that Childress was an "attempt 420 (homicide) suspect. LVMPD Dispatch then asked whether the suspect was armed. Montana broadcast an answer of "unknown." Bohanon assigned himself to the call, activated his body worn camera, and began driving to Childress's last known location. During the drive, Bohanon learned that a firearm was found inside Matlock's vehicle.

iii. The Shooting

As Bohanon was driving to the call, LVMPD Officer Walford2 arrived on the scene and took up a perimeter spot at Golden Cypress Court and Maple Valley Street. Neither Bohanon nor Walford ever received any information that the suspect had harmed anyone, had other prior acts of violence, or that he was under the influence of drugs or alcohol. Bohanon and Walford did not have any information that Childress had any criminal record, other than the false information that Childress was wanted for attempted homicide.

Walford received information from LVMPD's Air Unit that Childress was climbing over residential walls and running along roof tops of residential homes. As Walford approached the street of Gilded Crown Court, Bohanon's patrol vehicle drove past him. After turning onto Gilded Crown Court, Bohanon encountered Childress walking on the right side of the road towards the dead-end portion of the cul-de-sac. Bohanon was in a marked black and white police SUV with its overhead lights activated.

Childress began to cross the street. Bohanon could see Childress's left arm and body, but not his right hand or side. As Bohanon slowed down, Walford joined him and began walking alongside his SUV. Bohanon stopped, exited his vehicle, pointed his firearm directly at Childress, and ordered him to "get on the ground" two times. Childress looked directly at Bohanon but continued to walk away. Bohanon could see the full right side of Childress's body. But Bohanon could see a black object in Childress's right hand that Bohanon believed Childress was "indexing" as if it were a firearm.

Video of Bohanon's bodyworn camera that captured the incident never shows Childress holding a black object in either hand. Bohanon considered that the black object he saw could be a cellphone. Bohanon did not see anything in Childress's left hand.

Bohanon unsuccessfully ordered Childress to "get on the ground" two more times. As Childress continued to walk toward the houses, Childress began to steer his vehicle toward Childress and broadcast, "he's got something in his hand." Childress continued to ignore Bohanon's commands and walked up a driveway. Bohanon again stopped his car, pointed his firearm at Childress, and issued orders to "show me your hands" and "let me see your hands."

Walford joined Bohanon and the officers took position behind a red Pontiac vehicle. Walford says he saw Childress walking across the street with a black object in his hand but Walford never specifically identified the object as a gun.

Bohanon was also wearing a Level 3A bulletproof vest and had TASER X26, OC spray, and baton. Immediately after reaching the red vehicle, Bohanon told Walford, "he's got a 413 (gun)" and unsuccessfully ordered Childress to "get your hands up" two more times. Bohanon admitted he had yet to identify anything on Childress as a gun at that point. Walford also issued commands for Childress to get on the ground. Bohanon warned Childress that he was "going to be surrounded" because a K-9 unit was on its way. Bohanon next ordered Childress to "let me see our hands, drop the gun." Bohanon continued to instruct Childress to "drop the gun" and "to surrender." Childress never said a word and never made any attempt to communicate that the object was not, in fact, a gun. According to Bohanon, the totality of Childress's actions led him to believe the object was a gun. Eventually, Defendant Brian Montana and nonparty Deputy Marshal Desiree Sida, joined Bohanon and Walford at the Pontiac. Bohanon informed them that Childress "has a gun...

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