Mullins ex rel. Mullins v. Cyranek

Decision Date21 July 2014
Docket NumberCASE NO.: 1:12CV384
PartiesLEONA MULLINS, INDIVIDUALLY AND ON BEHALF OF DAVON MULLINS, Plaintiffs, v. OSCAR CYRANEK, Defendant.
CourtU.S. District Court — Southern District of Ohio

Judge Michael R. Barrett

OPINION AND ORDER

This matter is before the Court on the Motion for Summary Judgment of Defendant Oscar Cyranek. (Doc. 28). Plaintiff Leona Mullins has filed a memorandum in opposition. (Doc. 34).1 Defendant Oscar Cyranek has filed a reply. (Doc. 41). This matter is now ripe for review.

I. FACTUAL OVERVIEW

This case concerns the death of sixteen-year-old Davon Mullins in downtown Cincinnati on August 20, 2011.2 Mullins died after Cincinnati Police Officer Oscar Cyranek discharged his firearm at Mullins. Officer Cyranek has been a police officer with the Cincinnati Police Department since 2006 and he received police training in Cincinnati. (Doc. 27-1, pp. 146, 148).3

On the day of the shooting, Officer Cyranek was working in uniform for the Cincinnati Police Department. (Id. at 149). Officer Cyranek and three other officers had been assigned to provide security outside the Black Family Reunion at Sawyer Point. (Id.). While on duty, the officers were informed that an off-duty police officer had reported that some young, African American males were throwing guns over the fence to men who already were inside the event. (Id. at 150). Cincinnati Police Officers providing inner security at the event had identified the group of approximately twenty individuals and started moving them towards the gate from inside. (Id.). Officer Cyranek and three other officers responded to the gate and attempted to identify those individuals who may have had weapons. (Id.). As those individuals exited the gate, however, they ran away towards the downtown city area. (Id.). At that time, Officer Cyranek and the others were unable to see any weapons on the individuals, even though they believed one or more of them to be in possession of the weapons. (Id. at 151-52). At some point, the officers received reports over the radio that gang signs were being thrown by young people in the area. (Id. at 189).

Due to the suspicions of weapons, Officer Cyranek and two other officers got into the police car and went to provide extra security at Government Square and Fountain Square. (Doc. 27-1, p. 152). Officer Cyranek first saw Mullins on Government Square walking from Fountain Square. (Id. at 153). Although Officer Cyranek did not recognize Mullins, he recognized the two other individuals with Mullins from Sawyer Point. (Id.). Officer Cyranek observed Mullins holding his right side. (Id.). While it is not unusual to see young African American males wearing oversize pants without a belt clutching the pants from one side to hold them up, Officer Cyranek testified that he suspected that Mullins had a weapon on him. (Doc. 27-1, p. 153; Doc.34-1, p. 306). Yet, Officer Cyranek did not stop Mullins or say anything to Mullins at that time. (Id. at 154).

After Mullins walked past Officer Cyranek, Mullins turned around and went back towards Fountain Square, jaywalking across Walnut Street where a few Cincinnati Police Officers were located. (Id.). When the light changed, Officer Cyranek crossed the street and continued to observe Mullins. (Id. at 154-55). Officer Cyranek believed that Mullins saw Officer Cyranek observing him from the street. (Id. at 155). According to Officer Cyranek, each time Mullins saw Officer Cyranek he would move the right side of his body away from Officer Cyranek. (Id.). Officer Cyranek testified that the movement of Mullins made him even more suspicious that Mullins had a weapon on him. (Id.). While Mullins continued to walk North on Walnut Street, Officer Cyranek walked towards Fountain Square and then north on Fountain Square. (Id. at 155). Although the Firearms Discharge Board's review of the shooting indicates that notifying the Emergency Communications Center ("ECC") when investigating suspicious activities is important, it notes that Officer Cyranek did not alert any other officers or radio in any reports of his concerns. (Doc. 34-1, p. 334).

Officer Cyranek and Mullins met again in the breezeway near Fountain Square, as Officer Cyranek turned into the breezeway from Fountain Square and Mullins entered the breezeway walking towards Fountain Square. (Doc. 27-1, p. 156). At that time, Mullins was with Recardo Sims. (Doc. 34-2, p. 341). Officer Cyranek testified that he was surprised to see Mullins because most people who have illegal items on them or who did something illegal take off when they see a police officer. (Doc. 27-1, p. 156). It was then that Officer Cyranek approached Mullins and told him to stop, a command with which Mullins complied. (Doc. 27-1, p. 157; Doc. 34-2, p. 341). Upon approaching Mullins, Officer Cyranek grabbed Mullins' wrists.(Doc. 27-1, p. 157-58).4 Officer Cyranek testified that he did so because he suspected Mullins was armed and he did not want Mullins to pull out a gun, fight him, or run away. (Id at 158-59).

According to Officer Cyranek, Mullins resisted when Officer Cyranek grabbed his wrists. (Doc. 27-1, p. 159). Officer Cyranek testified that when Mullins resisted, it indicated to Officer Cyranek that Mullins wanted to fight him. (Id. at 160). Officer Cyranek then pushed Mullins into an L-shaped corner in the breezeway "to make sure that whatever happens that we're all safe, most people are safe." (Id.). While still holding onto Mullins, Officer Cyranek moved Mullins to the ground where he ended up behind Mullins' back. (Id. at 160-61; Doc. 34-2, p. 341). With Mullins on the ground, Officer Cyranek tried to control his arms while Mullins was saying something along the lines of "I didn't do anything." (Doc. 27-1, pp. 160-61; Doc. 34-2, p. 342). Officer Cyranek, however, did not see Mullins' gun at that time. (Doc. 27-1, p. 161). Officer Cyranek was able to search one side of Mullins' cargo pants, but was unable to find a weapon. (Id. at 162). Officer Cyranek does not recall much of the conversation that occurred between Mullins and himself during the incident. (Id. at 162). Officer Cyranek testified that he had a taser on him, but he did not use it because he thought he had good control of Mullins. (Id. at 179); see also (Doc. 34-2, p. 342) (Sims avers that Officer Cyranek had control over Mullins).

While Officer Cyranek held Mullins on the ground, Sims approached Mullins and they started talking to each other. (Doc. 27-1, p. 163; Doc. 34-2, pp. 341-42). Sims was about two to three feet away from Officer Cyranek. (Doc. 27-1, p. 163). Sims did not pull out a weapon and Officer Cyranek does not recall Sims saying anything to him. (Id. at 162-63). Sims claims, however, that he asked Officer Cyranek what was going on and what Mullins did. (Doc. 34-2, p.342). It was when Officer Cyranek told Sims to back away that Officer Cyranek claims he first noticed a weapon in Mullins' right hand and that Mullins had his finger on the trigger. (Doc. 27-1, pp. 163, 198).

Officer Cyranek testified that he had his right hand on Mullins' right bicep after Mullins retrieved the gun and he was telling Mullins to drop the gun. (Id. at 163-64).5 According to Officer Cyranek, Mullins did not say anything back. (Id.). Officer Cyranek testified that he lost control of Mullins' right arm because Mullins was pushing and pulling and there was sweat on Mullins' arms and Officer Cyranek's palms. (Id. at 164). Officer Cyranek testified that when he lost control of Mullins' arm he feared Mullins would shoot him, as Mullins turned his left side of his body towards Officer Cyranek. (Id. at 164-66, 168).6 Although Officer Cyranek did not see whether the gun was pointed towards him at the time, Officer Cyranek drew his firearm and, as he was in the process of standing up, fired two shots towards Mullins' back. (Id. at 164-67, 183). Officer Cyranek testified that firing two shots was in accordance with his training and that he used his firearm rather than his taser because it became a deadly force situation. (Id. at 169, 179). According to Officer Cyranek, Mullins threw the gun that he was holding after Officer Cyranek fired those two shots. (Id. at 167).

Plaintiff's interpretation of what occurred once Mullins retrieved the gun differs in several respects. Plaintiff contends that the video footage shows Mullins learning to the right rather than turning towards the left. (Doc. 34, p. 282). Plaintiff further points to the swornstatement of Sims where Sims avers that Officer Cyranek always had control over Mullins,7 that Mullins threw the gun immediately after Officer Cyranek told him to drop it, and that it was not until after Mullins threw the gun that Officer Cyranek shot Mullins. (Doc. 34-2, p. 342).8 When the shots were fired, Sims ran away from the scene. (Doc. 27-1, p. 169). J. Scott Spicer also avers that officers are taught to shoot to stop the aggressive actions towards them or others. (Doc. 34-1, p. 308). He states that the correct procedure is to fire, reassess the threat, and then fire again if necessary. (Id.). He further avers that two shots are appropriate only in a body armor take-down situation, which was not the situation in this case. (Id.).

After firing the two shots, Officer Cyranek stood up and retrieved the gun that Mullins had thrown. (Doc. 27-1, p. 168). Officer Cyranek then placed the gun near Mullins' feet. (Id.; Doc. 23-1, p. 79; Doc. 34-2, p. 342). Officer Cyranek claims to have done so to secure the weapon so that no one else could pick it up and to keep the weapon in plain sight. (Doc. 27-1, p. 168). He admits that by doing so he changed the scene of the shooting. (Id. at 170). Captain Doug Weismann and Sergeant Doug Snider both testified that it was important to immediately secure the gun lying on the ground because as long as the gun was lying on the ground it posed an unsafe situation due to the number of people on and around Fountain Square. (Doc. 24-1, pp. 97-99,...

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