Mills v. Owsley Cnty. Ky.

• Decision Date: 02 September 2020
• Docket Number: No. 6:18-CV-88-REW-HAI,6:18-CV-88-REW-HAI
• Parties: Donna MILLS, Administratrix of the Estate of Charles Harris, et al., Plaintiffs, v. OWSLEY COUNTY KENTUCKY, et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

483 F.Supp.3d 435

Donna MILLS, Administratrix of the Estate of Charles Harris, et al., Plaintiffs,

v.OWSLEY COUNTY KENTUCKY, et al., Defendants.

No. 6:18-CV-88-REW-HAI

United States District Court, E.D. Kentucky, Southern Division. London.

Signed September 2, 2020

Benjamin T.D. Pugh, Christopher D. Roach, Pugh & Roach, Attorneys at Law, Michael J. O'Hara, O'Hara, Taylor, Sloan & Cassidy, Covington, KY, for Plaintiffs.

Jeffrey C. Mando, Adams, Stepner, Woltermann & Dusing, PLLC, Covington, KY, for Defendants.

OPINION & ORDER

Robert E. Wier, United States District Judge

The Court confronts Defendants’ summary judgment motion as to all counts (DE #64), Plaintiffs’ partial dispositive motion as to Counts IV and V (DE #69), and Defendants’ motion to exclude certain expert testimony (DE #62). For the reasons that follow, the Court denies, largely, the motion to exclude. The Court denies in part and grants in part the cross-motions for summary judgment.

The Owsley County Sheriff and his directly supervised deputy created a needlessly violent confrontation on March 22, 2017. A jury must decide several contested aspects of the case and the claims presented. However, the Constitution extends to Booneville. Sheriff Shouse and Deputy Havicus, in several concerning respects, showed little regard for the limits on police power enshrined in the Bill of Rights. The avoidable interaction between them and the Harris family, at Charles Harris's home, cost Harris his life and surely marked forever the lives of his minor children. The Court finds a dispositive ruling proper on parts of the case, but the core must go before a federal jury.

I. BACKGROUND

Several discordant voices tell the chaotic tale of Charles Harris's last night and final moments. Though the parties agree on the general factual progression of the night in question, key details are in dispute. The relevant events began on the evening of March 22, 2017 when, per the testimony of Harris's former girlfriend, Janice Alexander, Harris became verbally and physically aggressive with her in Alexander's apartment.¹ DE #66 (Alexander Dep.) at 9–10.² She testified that it was the second time in a matter of weeks that Harris had become violent toward her. Id. at 9. Alexander had been caring for her infant grandson (the son of her daughter, Tisha McIntosh) at the time of the March 22 incident. Id. Immediately following the altercation, Alexander left her apartment and went to the nearby apartment of her daughter, McIntosh; on the way, Alexander phoned Harris's sister, Vickie Hacker—the manager of Alexander's and Harris's apartment complex—to warn Hacker that Harris was, per Alexander, "at it again." Id. at 10, 14; DE #71 (Hacker Dep.) at 54.³ The phone call woke Hacker, who had been in bed sleeping, sick. DE #71 at 53–54. Per Hacker, Alexander threatened to call police on Harris, and Hacker advised her to "[g]o ahead and call [the law]." Id. at 63.

By the time Alexander reached McIntosh's home, McIntosh understood that some altercation had occurred between her mother and Harris.⁴ DE #66 at 10. Motivated in part by concern surrounding her son's presence during the altercation, McIntosh resolved to call police and phoned Owsley Deputy Havicus. DE #68 (McIntosh Dep.) at 5. After McIntosh called, Havicus came to McIntosh's residence to talk with Alexander. DE #66 at 10; DE #68 at 6. Alexander summarized the night's events for Havicus, told him she would like to pursue a restraining order against Harris, and warned him that Harris might be dangerous. DE #66 at 10 (Alexander testifying that she told Havicus not to go to the apartment himself because Harris had said that "if the law came over there, they would kill him, or he would kill them"); DE #68 at 6 (McIntosh recalling that Alexander warned Havicus that there might be a gun in her apartment and told him not to go to the Booneville Homes alone); DE #59 (Havicus Dep.) at 169 ("And then she said, don't go alone, that he's threatening saying he would gut the police if they came to arrest him."); id. at 187 (Havicus testifying that Alexander told him there was a gun at her apartment and that Harris would be armed with knives). During his interaction with Alexander, Havicus observed no visible injuries on her person. DE #59 at 169. The physical interaction involved a thrown remote and Harris shoving Alexander onto the couch.

Immediately after leaving McIntosh's residence, Havicus called Owsley Sheriff Shouse for assistance. Id. ; DE #60 (Shouse Dep.) at 130 ("At some point he told me that she had told him not to go by himself ... [S]he said that he had two knives and possibly a gun."); id. ("[Harris] said if law enforcement come, ... that he was going to gut them."). Havicus then picked up Shouse at Shouse's residence, and the pair proceeded to the Booneville apartments. DE #59 at 184–85. They first visited Alexander's apartment and, upon determining that Harris was no longer there, decided to approach Harris's apartment to question him. Id. at 187. At Harris's, the officers could hear sounds inside that indicated people were present in the apartment, but no one answered the door when Havicus knocked and announced that it was the Sheriff's Office outside. Id. at 192. Per Harris's daughter, Alexis, this took place at approximately 11:03 p.m. DE #65 (Alexis Dep.) at 19⁵ ("I heard banging on the door and people were like, trying to say, ‘Charlie, open the door. We just want to talk.’ That's when I looked over at my alarm clock and it said 11:03."). Unable to convince Harris to answer the door, Havicus called Hacker for assistance. DE #71 at 65. Havicus and Shouse were already back at Harris's door when Hacker arrived at the apartment. Id. at 67–68. Hacker simply understood that the officers wanted to "talk to [Harris] and ask him a few questions," but did not fully understand the reason for their visit. Id. at 68.

Hacker also attempted to knock on the door and persuade Harris to answer it. DE #65 at 19 (Alexis observing that "[m]aybe one or two minutes" elapsed between the first knocks on the door and those accompanied by Hacker's voice: "Vickie was out there saying, ‘Charlie, open up. They just want to talk.’ "). Harris eventually opened the door "a few inches" to talk to Hacker. DE #71 at 76–77. Hacker said: "These boys want to talk to you. They just want to ask you some questions." Id. at 77. Per Hacker and Alexis, Harris responded by refusing to come outside and also refusing the officers entry to his apartment. Id. (Hacker testifying that she "heard Michael ask him to step outside. And [Harris] said, ‘I'm not.’ And [Harris] said, ‘You're not coming in here.’ That's when Kelly laughed and says, ‘He told me I couldn't come in his house. Well, I'm going in anyway."); DE #65 at 19 (Alexis testifying that Harris "went, stood by the door, looked out the peephole. I guess he could only see Vickie or something, because he opened the door. He opened his black knife, his blue and black knife, and he put it in his back pocket while it was open. He cracked the door, and [Shouse and Havicus] pushed their way in through Vickie.").⁶ Hacker followed the officers into the apartment. Id.

With everyone inside the apartment, Harris was insisting that he had done nothing wrong and ordering the officers to leave. Id. Per Hacker, Defendants had their weapons drawn upon entering the unit. DE #71 at 82–83. Harris began to back away and went down the hall toward the bedroom, eventually entering the room and closing the door. Id. at 88. Hacker testified that Havicus was, at the time, threatening to shoot Harris. Id. The events unfolded quickly once Harris reached the bedroom. Havicus followed, kicked in the door, and—he says—was greeted by a knife-wielding and uncooperative Harris. DE #59 at 207–210 (Havicus testifying that he kicked the bedroom door off the hinge "[a]nd when I go into the bedroom, he's standing there with a knife in his hand, in his right hand, with it up in the air. And at that time, that's when I draw my weapon and start telling him to drop the knife, to drop the knife. And he keeps progressing forward to us."). Havicus testified that Harris, knife in hand, "back[ed] [the officers] all the way up into the living room." Id. at 208.

In the living room, per Havicus, the group had no room left to retreat, and Havicus was backed against the front door of the apartment. Id. He recalls multiple people telling Harris to drop the knife and cooperate. Id. In the moments that followed, Havicus says that he perceived Harris lunging toward him with the knife: "[Harrris] said, I'm not afraid to die, and that's when he ... kind of lunged toward me with that [knife], and that's when I fired one round hitting him in the torso area." Id. at 210; see id. (Havicus testifying that, after firing the shot, he went "up to ... Harris, where he's laying there, and the knife is on the right side with his right hand" and Havicus "pick[ed] up the knife and ... [threw] it into the kitchen area"). Per Hacker, Shouse, who had veered into the kitchen of the apartment, was directing Havicus to shoot. DE #71 at 102 ("And I hear Shouse hollering, ‘Shoot him.’ ").

The parties sharply disagree on whether Harris was in fact holding a knife during these events. Alexis agrees with Havicus that Harris was holding a knife in his hand after leaving the bedroom. DE #65 at 20 ("Dad had come back with his knife down at his side. He was holding it in his right hand."); id. (recalling that people were telling Harris to drop the knife); id. at 24 (testifying that Harris had a knife when he exited the bedroom); id. at 24–25 (noting that Alexis and Hacker told Harris to drop the knife).⁷ Shouse too remembers a knife. DE #60 at 208 ("The door come off and Charlie had a knife right there in the doorway, right in front of us."); id. at 216 ("I was begging him to drop the knife."); id. at 218 (testifying that Harris "[r]aised the knife up ... toward him, started toward him, right towards Michael")....