Montgomery Ward v. County Of Cuyahoga

• Decision Date: 29 June 2010
• Docket Number: Case No. 1:09 CV 415.
• Citation: 721 F.Supp.2d 677
• Parties: Montgomery WARD, et al., Plaintiffs, v. COUNTY OF CUYAHOGA, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

721 F.Supp.2d 677

Montgomery WARD, et al., Plaintiffs,

v.COUNTY OF CUYAHOGA, et al., Defendants.

Case No. 1:09 CV 415.

United States District Court,

N.D. Ohio,

Eastern Division.

June 29, 2010.

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Gordon S. Friedman, Terry H. Gilbert, Friedman & Gilbert, Cleveland, OH, for Plaintiffs.

Paul J. Cristallo, Sara E. Decaro, Office of the Prosecuting Attorney, Cleveland, OH, for Defendants.

Memorandum of Opinion and Order

PATRICIA A. GAUGHAN, District Judge.

INTRODUCTION

This matter is before the Court upon defendant Cuyahoga County's Motion for Summary Judgment (Doc. 25) and defendant Michael Sparks's Motion for Summary Judgment (Doc. 26). This is a civil rights dispute. For the following reasons, defendant Cuyahoga County's motion is GRANTED and defendant Sparks's motion is GRANTED in part and DENIED in part.

FACTS

Plaintiffs, Montgomery Ward, Jamie Sutton, and Jamie Sutton as next friend of minor Daisy Ward, bring this action against defendants, Cuyahoga County and Sergeant Michael Sparks, alleging that defendants violated plaintiff Ward's civil rights through the use of excessive force in connection with the execution of a search warrant at his apartment on February 5, 2008. Plaintiffs also allege that defendant Cuyahoga County failed to properly train and supervise its SWAT team members.

A high-risk search warrant was issued for plaintiffs' residence on February 1, 2008, for items used in the violation of Ohio's drug laws. (O'Connor Depo. 20:21-24.) According to Detective Timothy O'Connor, a narcotics detective in the Cuyahoga County Sheriff's Office, the warrant was designated as “high risk” because plaintiff Ward was believed to be trafficking large quantities of marijuana and to possess several guns, along with having a criminal history involving drug trafficking. ( Id. at 38:20-40:5.) The SWAT team assembled to execute the warrant early in the morning on February 5.

Lieutenant Donald Michalosky, the senior officer in charge of the SWAT team, testified as to the training and qualifications of SWAT team members. (Michalosky Depo. 5:5-7.) Members of the Cuyahoga County Sheriff's Department who apply to be on the SWAT team are required to pass a physical fitness test and a firearms qualification test, and undergo an oral interview. ( Id. at 21:8-11.) While no specialized training is required prior to joining the SWAT team, once a member joins the team the member is familiarized with policies and procedures, receives additional training on SWAT weapons and equipment, and attends basic SWAT school at the first available opportunity. ( Id. at 22:10-22.) SWAT team members receive additional ongoing training. The target goal for such training is 16 hours per month, but team members generally receive about eight hours of training each month. ( Id. at 23:2-15; Sparks Depo. 142:21-143:5; Engelhart Depo. 15:3-5.) The training includes a variety of topics and “encompasses every manner of confrontation between a deputy and a suspect [.] And tries to encompass every manner of scenario where the use of deadly force decision has to be made.” (Michalosky Depo. 62:10-14.) Training on encountering suspects during entries is routinely done. ( Id. at 62:19-25.)

Prior to executing the warrant, the SWAT team held an Operational Plan Meeting, during which the team was informed of plaintiff Ward's prior criminal history, including drug trafficking, carrying a concealed weapon, domestic violence, and aggravated burglary. The team was also informed that Ward may have guns at his house. ( Id. at 36:1-38:6; Sparks Depo. 53:4-54:22.)

The SWAT team arrived at Ward's house at approximately 6:39 a.m. on February 5. It was dark and raining. (Defendants' Ex. G.) The SWAT team members were dressed in Kevlar helmets and vests and armed with their sidearms, and some team members had additional weapons. (Engelhart Depo. 21:17-22:2; 37:2-6; defendants' Exhibit G.) Several of the SWAT team members assembled on the small porch. The porch is approximately five to six feet wide from the front door of the house to the back of the porch, with the porch entrance at a right angle to the front door. (Sparks Depo. 70:22-24; Defendant's Ex. E.) Defendant Sparks, the team leader, was positioned on the porch with his back against either a post or the handrail of the porch. (Sparks Depo. 70:19-21.) He stood with a Colt AR15 rifle aimed at the door and the safety off, though he testified that his finger was not on the trigger. ( Id. at 68:4-22; Defendants' Ex. G.) The rifle was on a strap around his shoulder. (Sparks Depo. 79:8-11.) Deputy Perpar, the secondary breacher, was in front of the door. (Perpar Depo. 15:10-18:17.) Deputy Miller, the primary breacher, was positioned in front of Perpar off to the side of the door. (Miller Depo. 24:20-21.) Deputy Engelhart, the first entry person and cover person, was just off the porch to the right of the door, and may have had one foot on the porch deck. (Engelhart Depo. 44:10-24.) He was armed with an MP5 submachine gun. (Cox Depo. 33:16-20.) Deputy Bottone, the second entry person, testified that he was behind Deputy Engelhart at the edge of the porch. Bottone was assigned to deploy a flash-bang distraction device once the door to the house was breached. (Bottone Depo. 20:24-25; 24:1.) He was also armed with an MP5 submachine gun. (Cox Depo. 34:2-3.) Deputy Cox was off of the porch, positioned at its corner, behind Deputy Smith. Cox was armed with a bean bag shotgun. ( Id. at 19:5-14; 36:11-17.)

Perpar testified that as a secondary breacher he carried a haligan tool, which is a tool with a spike at one end and a hammer claw at the other end designed for prying open security doors that open outward. (Perpar Depo. 14:8-24.) In this instance, however, Perpar testified that the security door, which opened to the left, was unlocked so he simply opened it and held it open with his leg, standing to the left of the front door. He pounded on the door several times and simultaneously announced “police” and “search warrant.” ( Id. at 15:10-18:12; Sparks Depo. 69:11-15.) He then moved out of the way so that Miller, the primary breacher, could position himself to breach the door with a battering ram. (Perpar Depo. 18:16-17.) Approximately eight to fifteen seconds after Perpar knocked and announced the police presence, defendant Sparks ordered Miller to breach the door. ( Id. at 18:18-21; Sparks Depo. 70:8-9; 123:19-124:19.) Perpar testified that Miller hit the door twice because it didn't open all the way the first time. (Perpar Depo. 19:22-20:9.) Perpar waited for the flash-bang device to be deployed. He was looking at the door. ( Id. at 20:25-21:1.) With his peripheral vision, he saw Ward coming towards the door “at a good clip,” then he turned where he could not see Ward anymore. He then heard a pop and saw Engelhart laying Ward on the porch. ( Id. at 21:6-10; 22:19-24.) Perpar further testified that he did not remember anyone saying anything prior to the pop sound. ( Id. at 29:5-8.)

Miller testified that he hit the door once with the ram and it opened approximately 45 degrees. He nudged it again with the ram and opened it to almost 90 degrees. (Miller Depo. 26:8-13.) He could see inside the house but did not see anyone. ( Id. at 27:18-21.) He backed out of the way and turned around to put the ram down, and heard a pop. ( Id. at 27:23-24.) When he turned back around to grab his gun so that he could enter the house, he saw Engelhart laying Ward down on the porch. ( Id. at 28:6-8.)

Bottone testified that when preparing to use a flash-bang distraction device, protocol requires that the person deploying the device look inside the house to make sure that it is safe to deploy the device. (Bottone Depo. 26:22-27:1.) The device is not designed to be used in an area with flammable liquids or children, or where it could hit a person. ( Id. at 33:6-13.) To make sure the area is safe, the person responsible for deploying the device employs a technique known as a “quick peek” where the person uses the side of the house for protection as he quickly looks in, without placing his body in the door opening where he is more likely to be shot if an armed suspect is present in the home. ( Id. at 27:2-15.) He testified that as he was standing behind Engelhart, he heard someone knock at the door but did not know who it was, nor did he see who breached the door, as he had to “sling” the MP5 rifle that he was carrying and prepare the distraction device for deployment. ( Id. at 28:11-13.) He heard the door being breached and broke the ring safety seal on the distraction device by a quarter of a turn. He looked quickly at the door, saw that it was open, and saw that it started to close again. Bottone then looked back down at the distraction device “for a second” to make sure the ring was free. Bottone then testified that he focused on the door and someone pushed it open again, not all of the way, but enough that he could see inside. ( Id. at 28:13-23.) He was “peeking” around Engelhart who was still in front of him. ( Id. at 28:5-6.) He testified that as he was looking inside, he saw a silhouette moving rapidly towards the door, and in a “split second” determined that it was not safe to deploy the distraction device. ( Id. at 28:25-29:6). He immediately turned away from the door, “tucked in behind Engelhart,” and protected his weapon and the distraction device. ( Id. at 29:14-17.) He testified that as he was turning away, he could see out of his peripheral view an individual coming through the doorway and just breaking the threshold, and then when he turned back around, someone was laying on the porch. He testified that it happened very quickly. ( Id. at 29:21-25.) He believes he heard a gunshot during this event, after he turned away from the door to take cover behind Engelhart. ( Id. at 30:11-14.)

Defendant Sparks testified that once Perpar and...