Marion v. City of Corydon, Indiana

• Decision Date: 23 March 2009
• Docket Number: No. 08-2592.,08-2592.
• Citation: 559 F.3d 700
• Parties: Trent MARION, Plaintiff-Appellant, v. The CITY OF CORYDON, INDIANA and John Doe #1, Unknown Police Officers of the City of Corydon, The County of Harrison, Indiana and John Doe #2, Unknown Police Officers of the County of Harrison, Roy Wiseman, Bruce Lahue, Kevin Taylor, James Sadler, Todd Stinson, The City of Louisville, Kentucky and John Doe #3, Unknown Police Officers of the Louisville Metropolitan Police Department, The City of New Albany, Indiana and John Doe #4, Unknown Police Officers of the City of New Albany, John Doe #5, Unknown Police Officers of the Indiana State Police, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

559 F.3d 700

Trent MARION, Plaintiff-Appellant, v. The CITY OF CORYDON, INDIANA and John Doe #1, Unknown Police Officers of the City of Corydon, The County of Harrison, Indiana and John Doe #2, Unknown Police Officers of the County of Harrison, Roy Wiseman, Bruce Lahue, Kevin Taylor, James Sadler, Todd Stinson, The City of Louisville, Kentucky and John Doe #3, Unknown Police Officers of the Louisville Metropolitan Police Department, The City of New Albany, Indiana and John Doe #4, Unknown Police Officers of the City of New Albany, John Doe #5, Unknown Police Officers of the Indiana State Police, Defendants-Appellees.

No. 08-2592.

United States Court of Appeals, Seventh Circuit.

Argued February 19, 2009.

Decided March 23, 2009.

William K. Burnham, Robert G. Sheffer (argued), Ronald G. Sheffer, Sheffer Law Firm, Louisville, KY, for Plaintiff-Appellant.

Matthew L. Hinkle, Attorney (argued), Coots, Henke & Wheeler, Carmel, IN, R. Jeffrey Lowe, Attorney (argued), Kightlinger & Gray, New Albany, IN, Jeffrey L. Freeman, Jefferson County Attorney, Louisville, KY, D. Timothy Born, Attorney (argued), Terrell Baugh Salmon & Born LLP, Evansville, IN, Frances Barrow, Attorney, Office of the Attorney General, Indianapolis, IN, for Defendants-Appellees.

Before FLAUM and WILLIAMS, Circuit Judges, and KAPALA, District Judge.¹

FLAUM, Circuit Judge.

Plaintiff Trent Marion brought this action under 42 U.S.C. § 1983 against the City of Louisville, the City of Corydon, the City of New Albany, the County of Harrison, and several officers from those jurisdictions and from the Indiana State Police. He alleged that the law enforcement officers and government entities violated his Fourth Amendment rights by using excessive force against him in connection with a police pursuit and subsequent shooting. All defendants, except the City of Louisville and its unknown officers, filed motions for summary judgment. Defendants supported their motions with affidavits and with video and audio recordings. Marion offered no counter-affidavit and pointed to no evidence that would call into question defendants' submissions. Finding no triable issue of fact, the district court granted summary judgment for all named defendants. Marion appealed, and we now affirm the district court's grant of summary judgment.

I. Background

A. Facts

The facts presented here are taken from the affidavits of law enforcement officers and other witnesses to the police chase, as well as from video and audio evidence of the chase.

On January 20, 2006, police officers approached Marion on suspicion of shoplifting as he was leaving a Kroger grocery in Louisville, Kentucky. When approached, Marion admitted that he had hidden grocery items in and around a baby in an infant seat that Marion had placed in the grocery cart he was pushing. As officers escorted Marion to the store's loss prevention office, he grabbed the infant seat pushed one officer aside, and bolted out of the store.

The police officers and store personnel followed Marion outside to the parking lot, where Marion ran to a red 1993 Ford Explorer. After tossing the baby seat, with the baby in it, into the front seat on the passenger side, Marion attempted to enter and start the vehicle. A scuffle ensued between Marion and the Louisville police officers on the scene. During the scuffle, a Kroger employee managed to grab the baby seat and remove the baby from the vehicle.

Louisville Police Officer Michael Alvey attempted to use his taser to subdue Marion, but Marion reached out and twisted the taser cartridge so that it would not fire. He backed his vehicle out of the parking space with a door open, collided with another vehicle, and fled. As Marion fled the parking lot, Alvey pursued immediately in his police car. Marion led Alvey and other Louisville police units on a high speed chase through the streets of Louisville to Interstate 64.

Marion continued on I-64 into Indiana. As he entered Indiana, Louisville dispatchers alerted law enforcement agencies in Indiana to the chase. New Albany, Indiana Police Captain Rick Denny received a radio dispatch alert that Louisville police were pursuing an armed robbery suspect westbound on I-64. Denny pulled into a turn-around area in the median near mile marker 120. Almost immediately, he observed Marion in his Ford Explorer traveling west in excess of 80 miles per hour. He observed several Louisville police cars in pursuit with emergency lights and sirens activated. Denny joined the chase. Because he was the first Indiana officer to join, Denny eventually took over the lead car position in the pursuit. Other officers from Corydon and Harrison County joined in the pursuit, and the Louisville officers dropped back. The video taken with a camera mounted on the dashboard of Denny's police cruiser shows Marion's reckless driving at high speed. As the miles ticked by, Marion's vehicle started to emit smoke.

At approximately mile marker 113, a Harrison County Sheriff's deputy in the highway median deployed "stop sticks" in an effort to deflate the tires on Marion's Explorer. Marion swerved to try to avoid them. The stop sticks damaged and deflated three tires, but Marion continued to drive. He slowed from approximately 80 miles per hour to about 40 miles per hour and swerved from one side of the highway to the other, eventually returning to the left lane. Debris from the shredding tires and from the Explorer began falling in the path of the pursuing police units. Different police cars pulled to the side of Marion to observe him and, in at least one instance, to signal him to pull over. The police maneuvered to block Marion from taking any exit he passed.

As the pursuit approached mile marker 105 and the Corydon exit, officers attempted to deflate the one rear tire that had survived the first set of stop sticks. Several law enforcement vehicles were parked in the median with officers outside their cars, weapons drawn and stop sticks deployed. As Marion approached the stop sticks, he swerved and drove toward several of the officers in the median area and then back into the left lane, avoiding the stop sticks. Soon thereafter, Louisville police officers pulled completely out of the chase and headed back to Kentucky.

Denny, who still was the lead pursuing officer, then coordinated over the radio a rolling roadblock on Marion. One police vehicle pulled ahead of Marion (driven by Officer James Sadler) and another pulled alongside him in the other lane (driven by Captain Brad Shepard) in an attempt to "box in" the Explorer and gradually force it off the road. For a minute or so, Marion attempted numerous maneuvers to avoid the rolling roadblock. He tried to pass between the police vehicles and swung his Explorer back toward Denny, making some contact. Eventually, he tried to pull around Sadler on the shoulder to Sadler's left. Sadler stuck his rifle out the driver's window of his vehicle and fired four shots at Marion's vehicle in a further effort to disable it.

Near mile marker 103, Marion slowed and then suddenly turned hard to the left into the grass median toward the eastbound lanes of the interstate, where traffic was slowing or stopped. The highway median was wet and muddy, but Marion continued to drive his Explorer toward the eastbound lanes. The Explorer slowed as he tried to cross. Officers moved on foot to surround the Explorer, and they fired their initial shots at Marion. Just as the muddy median and initial shots seemed to be bringing Marion's vehicle to a halt, he put the Explorer into reverse and revved the engine, causing the tires to spray mud, and the Explorer moved back several feet. This maneuver scattered the officers who were approaching the Explorer from the rear. Officer Kevin Taylor, a Harrison County Sheriff's Deputy, was behind the Explorer. He and other officers yelled for Marion to stop. When Marion did not stop, Taylor fired six rounds at the Explorer as it backed toward him. As more officers approached and demanded that Marion stop and raise his hands, Marion shifted back into a forward gear and continued revving the engine to move forward. Lieutenant Roy Wiseman of the Harrison County Sheriff's Department and other officers were positioned directly in front of the Explorer. They began firing at it when it moved toward them and toward the eastbound lanes of the interstate.

All affidavits from officers who fired their weapons when Marion was in the median testified that they did so in fear of lethal danger to themselves or to others. All testified that at no point did they see any sign that Marion was trying to surrender or was stopping his attempts to flee. All of the officer and civilian affidavits indicated that it appeared that Marion intended to drive his vehicle through the median and into the eastbound lanes of the highway.

After Marion stopped revving the engine and the shooting stopped, he was pulled from the vehicle and given medical attention. He had suffered significant gunshot wounds. As a result of his wounds, Marion lost his right eyeball, resulting in permanent vision loss on the right side, and he suffered severe damage to his left hand. The officers discovered that Marion was not actually armed. The law enforcement officers who submitted affidavits have all stated that they believed Marion was armed, based on radio transmissions and, in some instances, from the manner in which he was reaching around in his vehicle while driving, as though attempting to locate a firearm.

B. District Court Proceedings

Marion filed suit under § 1983 on January 5, 2007. He claimed that defendants violated his Fourth Amendment rights and that the officials were not entitled to qualified immunity. He sued for $21.5 million in total damages, including requests for compensatory and punitive damages. On May 11, 2007, the district court entered a case management plan which set out certain deadlines, including discovery and dispositive motions. On...