Lee v. City of Richmond
| Decision Date | 18 March 2015 |
| Docket Number | Civil Action No. 3:12cv471. |
| Citation | 100 F.Supp.3d 514 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Jotaynun LEE, as Administrator of the Estate of Jataynun Trayvon Fleming, Deceased, as Next Friend of J.F., K.F., N.T., N.K., and J.W., Minor Children of Jataynun Trayvon Fleming, Deceased, and Individually, Plaintiff, v. CITY OF RICHMOND, VIRGINIA, et al., Defendants. |
John B. Mann, John B. Mann PC, Richmond, VA, for Plaintiff.
Kenechukwu Chudi Okoli, Law Offices of K.C. Okoli PC, New York, NY, Pro Hac Vice.
Antoinette Morgan Walker, Donald Cameron Beck, Jr., Morris & Morris PC, Richmond, VA, for Defendants.
This matter is before the Court on DEFENDANT WESLEY E. MOORE'S RENEWED MOTION FOR SUMMARY JUDGMENT (Docket No. 178). For the reasons set forth below, the motion will be granted.
On July 14, 2010, officers of the Richmond Police Department (“RPD”) arrived at a private residence located at 304 Beaufont Hill Drive in Richmond, Virginia, to arrest Jataynun Trayvon Fleming (“Fleming”) on a warrant for robbery accomplished by use of a firearm and for his involvement in a homicide that had been committed earlier that morning. Tovar Declaration at ¶¶ 3–9, Docket No. 181–2; Fleming Wanted Poster, Docket No. 181–2. When police entered the residence, Fleming, who was lawfully inside, retreated to an upstairs bathroom and barricaded himself there. Tovar Declaration at ¶ 3, Docket No. 181–2. During this initial interaction, Fleming threatened to shoot any police officer or dog entering the bathroom. Prendergast Transcribed Internal Affairs Interview (Attached to Prendergast Declaration) at 4:1–6:2, 9:20–11:5, Docket No. 181–1.
After that initial interaction, the RPD officers called the RPD SWAT team, who responded to the residence. Tovar Declaration at 2–4, Docket No. 181–2. In addition to having been told about the threats that Fleming had communicated directly to the police officers who had attempted to arrest Fleming, the SWAT team was aware that the RPD had received information indicating that Fleming would “not go quietly” when confronted by police and that he was considered armed and dangerous. Wanted Poster, Docket No. 181–2; Tovar Declaration at ¶¶ 5–6, Docket No. 181–2. However, Fleming's father, the plaintiff Jotayun Lee (“Lee”), was present at the residence and informed the officers that Fleming did not have a firearm. Lee Declaration at ¶ 13, Docket No 186–2.
Officer Wesley E. Moore (“Moore”) and Detective Todd James Bevington (“Bevington”) responded to the residence on Beaufont Hills Drive on July 14, 2012 as members of the RPD SWAT team. Bevington Dep. at 54:11–25; 55:1–17, Docket No. 181–3. Moore had been advised by his supervisors that Fleming was wanted on robbery and firearm charges; that he was a suspect in an unrelated homicide that had occurred earlier that morning; and that he was considered armed and dangerous. Id. In addition, Moore was told that Fleming had made statements indicating his unwillingness to be quietly arrested and that he had threatened the police officers who had arrived to serve the arrest warrant. Id. After this briefing, Moore and the other members of the SWAT unit were directed to position themselves and to stage for making the arrest.
While Moore and other SWAT team members were waiting in the spare bedroom, Fleming remained barricaded inside the bathroom that was located off the master bedroom, which was across the hall from the SWAT team staging area. Declaration of Matthew Noedel, Exhibits A and B, Docket No. 179–9. Bevington repeatedly instructed Fleming on how to peacefully surrender, telling him to come out of the bathroom with his hands up. Bevington Dep. at 66:7–67:10, Docket No. 181–3. While barricaded, Fleming occasionally communicated with police negotiators and members of the SWAT team; he repeated his claims that he was armed and again threatened police officers. Bevington Dep. at 83:6–19, Docket No. 181–3. Fleming asked the police negotiator what the officers would do if he exited the master bathroom with his “junk.”1 Tovar Declaration at ¶ 12, Docket No 181–2. This statement was passed along to members of the SWAT team inside the house. Bevington Dep. at 79:3–8, Docket No. 181–3; Moore Dep. at 44:6–45:2, Docket No 181–5; Tovar Declaration at ¶ 12, Docket No 181–2. Soon afterwards, Fleming repeated the question, asking Bevington Dep. at 79:6–80:15, Docket No. 181–3. Moore heard Fleming posit that question. Moore Dep. at 44:6–45:2, Docket No. 179–2.
During the course of negotiations, the negotiation team deployed a “throw phone”, which was capable of providing video surveillance of Fleming inside the bathroom.2 Tovar Declaration at 511, Docket No 181–2; Bevington Dep. at 75:8–24, Docket No. 181–3; Moore Dep. at 103:17–104:3, Docket No. 181–5. The negotiation team informed Lt. Tovar, who was the SWAT commanding officer, that, based on the surveillance through the throw phone, they believed that Fleming had a gun tucked into his waistband. Tovar Declaration at All, Docket No. 181–2; Bevington Dep. at 81:14–17, Docket No. 181–3; Moore Dep. at 47:22–48:2, Docket No. 181–5.3 This information was relayed to Moore and other SWAT team members who were inside the residence. Id.
The negotiations continued for several hours, after which supervisors determined that Fleming's behavior indicated that he was preparing to exit the bathroom in a violent manner. Tovar Declaration at ¶¶ 13–14, Docket No 181–2. To prevent that from happening, SWAT officers decided to fire tear gas into the master bathroom to force Fleming to exit and surrender. Id. Bevington and the other SWAT team members were informed of this decision and the reasons for it. Moore Dep. at 55:24–56:6, Docket No 181–5; Bevington Dep. at 83:16–25, Docket No. 181–3. The team members then put on gear and gas masks to protect themselves from the tear gas. Bevington Dep. at 91:12–15, Docket No. 181–3; Moore Dep. at 55:24–56:6, Docket No. 181–5.
At this point, Moore was stationed as the first officer in the team. Moore Dep. at 55:24–56:6, Docket No. 179–1. Moore, as the first officer in line, was positioned in the doorway of the spare bedroom in a squatting position, holding a ballistic shield with one hand and a pistol in the other. Moore Dep. at 38:16–24, Docket No 181–5. Bevington, as the second officer, was leaning over the top of Moore and was holding a rifle. Bevington Dep. at 92:18–93:10, Docket No. 181–3. The other SWAT team members, who were to follow the first two officers, were also carrying M–4 rifles and their service pistols. Moore Dep. at 39:1–24, Docket No. 181–5; Bevington Dep. at 86:21–87:14, Docket No. 181–3.
Two tear gas canisters were deployed into the master bathroom where Fleming was barricaded. Bevington Dep. at 91:12–92:4, Docket No. 181–3; Moore Dep. at 63:1–7, Docket No 181–5. Moore heard Fleming cough. Moore Dep. at 76:24– 68:17, Docket No 181–5. Thereafter, Fleming exited the master bathroom into the master bedroom. It is undisputed that Fleming advanced toward the officers who were waiting approximately 13 feet away in the spare bedroom across the hall.4 Bevington Dep. at 93:11–21, Docket No. 181–3; Moore Dep. at 68:11–17, 71:3–17, Docket No. 181–5.
Moore and Bevington both testified that, when Fleming exited the master bathroom and ran toward the SWAT team, he was pointing his hands at the SWAT team as if he was holding a gun. Moore Dep. at 71:3–17, Docket No. 181–5; Bevington Dep. at 96:1–5, Docket No. 181–3. Moore and Bevington have testified that Fleming's hands were wrapped in cloth and that there was a black cylindrical object pointing from the end of the cloth that, to them, looked like the muzzle of a gun. Moore Dep. at 72:6–73:5, Docket No. 181–5; Bevington Dep. at 94:18–22, Docket No. 181–3. Bevington believed it to be the 9 mm handgun that Fleming had been reported to have been carrying. Bevington Dep. at 95:23–96:2, Docket No. 181–3. In reality, what Moore and Bevington thought was a gun was a black women's high heeled shoe wrapped in a t-shirt.5 Bevington Dep. at 96:10–11, Docket No. 181–3.
Moore and Bevington's testimony is supported by the internal affairs interview given by Sargent McQuail, who was also a member of the RPD SWAT team that responded to Fleming's residence. McQuail Declaration at ¶ 2, Docket No 188–15. McQuail stated that one of Fleming's arms was rolled up in a shirt or a towel and that, after the encounter, McQuail saw a black shoe laying on the floor in the master bedroom. McQuail Interview at 12–14, Docket No. 188–15. That shoe and the bloodstained t-shirt appear in photographs of the scene. Docket No. 179–9, 11–13.
Sergeant Hayes and Officer Musselwhite were assigned to the “arrest team” at the time of the shooting and were tasked with securing the suspect and removing him from the scene. Musselwhite Dep. at 5: 12–24, Docket No. 189–6; Hayes Dep. at 32:25–33:5, Docket No 189–7. Hayes testified that, when he was securing the suspect and removing him from the house, he did not see any “cloth-like” material near Fleming, nor did he see any shoe in Fleming's vicinity. Hayes Dep. at 69:18–71:23, Docket No. 189–7. However, Hayes also testified that he was “more worried about getting [Fleming] handcuffed, picking him up, and getting him downstairs to get him to the hospital”, than surveying the scene for evidence. Id. at 71:14–17. Musselwhite, on the other hand, recalls seeing a “white towel or light colored towel ... on the ground next to the suspect”6 when he entered the room, but does not recall seeing a shoe in Fleming's vicinity. Musselwhite Dep. at 16:12–14, Docket No. 189–6.
As Fleming charged the officers, Moore, who was crouched and holding a ballistics shield, fired a single shot from his service...
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