Murphy v. Bitsoih

• Decision Date: 01 June 2004
• Docket Number: No. CIV. 02-1185 MV/RHS.,CIV. 02-1185 MV/RHS.
• Parties: Louise MURPHY, Personal Representative of the Estate of Benson Murphy, and Louise Murphy, individually, Benjamin Murphy, Sarah Murphy, Tyrone Murphy and Valencia Zah, Plaintiffs, v. Lawrence BITSOIH, Eugene Etheredge, Jeffrey McDonald, and Gerald Galvin, individually and in their official capacities, and the City of Albuquerque, Defendants.
• Court: U.S. District Court — District of New Mexico

320 F.Supp.2d 1174

Louise MURPHY, Personal Representative of the Estate of Benson Murphy, and Louise Murphy, individually, Benjamin Murphy, Sarah Murphy, Tyrone Murphy and Valencia Zah, Plaintiffs, v. Lawrence BITSOIH, Eugene Etheredge, Jeffrey McDonald, and Gerald Galvin, individually and in their official capacities, and the City of Albuquerque, Defendants.

No. CIV. 02-1185 MV/RHS.

United States District Court, D. New Mexico.

June 1, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas J. Clear, III, Clear & Clear, Albuquerque, NM, for Louise Murphy, individually est Benson Murphy, Benjamin Murphy, Sarah Murphy, Tyrone Murphy, Valencia Zah, plaintiffs.

Kathryn Levy, Albuquerque City Attorney's Office, Albuquerque, NM, for Lawrence Bitsoih, Eugene Etheredge, Jeffrey McDonald, Gerald Galvin, individually and in their official capacities, Albuquerque, City of, defendants.

MEMORANDUM OPINION AND ORDER

VAZQUEZ, Chief Judge.

THIS MATTER comes before the Court on Defendants Lawrence Bitsoih, Eugene Etheredge, Jeffrey McDonald, Gerald Galvin, and the City of Albuquerque's Motion for Summary Judgment Requesting Dismissal of Plaintiffs' Complaint, filed October 10, 2003 [Doc. No. 33]. The Court, having considered the motion, briefs, and relevant law and being otherwise fully informed, finds that the motion is well taken in part and will be GRANTED IN PART.

BACKGROUND

I. The Alleged Use of Excessive Force.

On or around July 9, 2002, at approximately 3:30 a.m., Plaintiff Valencia Zah telephoned 911 to notify the police that her boyfriend decedent Benson Murphy was threatening suicide. The Albuquerque Police Department dispatched Defendant Officer Lawrence Bitsoih, Defendant Officer Eugene Etheredge, and Officer Stewart Vigil to the home Ms. Zah shared with Mr. Murphy. Defendant Jeffrey McDonald, a sergeant, also responded to the call. Sergeant McDonald was the highest-ranking officer on the scene and therefore was in charge. Dispatch informed the officers over the radio that Mr. Murphy was armed with a knife and wanted to "commit suicide by cop."

The majority of the remaining facts relevant to Defendants' motion were elicited from the officers responding to Plaintiff Zah's emergency call. The Court therefore first will set forth the facts described by the officers, including any contradictory testimony among the officers. The Court then will describe the facts disputed by Plaintiffs.¹

According to Defendants, the officers agreed to meet in a parking lot some distance south of, and across the street from, Mr. Murphy's apartment to discuss their plan of action. Defendant Etheredge and Officer Vigil arrived first, followed by Defendants Bitsoih and McDonald. Upon arrival, Sergeant McDonald armed himself with a beanbag gun and a large can of mace. Sergeant McDonald instructed Defendant Etheredge to take possession of a second beanbag gun and Defendant Bitsoih to take his Colt AR-15 urban rifle. Defendant Bitsoih slung the assault rifle over his shoulder and also armed himself with two additional lethal weapons-a semi-automatic .45 Kimber and a .380 Walther. Although not the officer in charge, Defendant Bitsoih admits that he "instructed" Defendant Etheredge to arm himself with a sidearm in addition to the beanbag gun and to bring rubber gloves in case Mr. Murphy already had cut himself. He also admits that he "instructed" the others, including his superior Sergeant McDonald, to turn on their belt tape recorders.

Before approaching Mr. Murphy's residence, Officer Vigil informed all of the officers that he had been dispatched to Mr. Murphy's residence earlier that week to respond to a call involving the "same type of an incident." Because of Officer Vigil's prior contact with Mr. Murphy and his experience as a crisis intervention officer, Sergeant McDonald designated Officer Vigil as the individual in charge of initiating and maintaining verbal contact with Mr. Murphy.

After establishing their plan of action, the officers crossed the parking lot and began heading north on foot down the street toward Mr. Murphy's residence. Before the officers saw Mr. Murphy, they heard him shouting comments such as, "Kill me, shoot me, I don't care." As the officers continued their approach toward Mr. Murphy's residence, they saw him standing near his apartment behind a retaining wall. Defendant Etheredge instructed Mr. Murphy to step out from behind the wall, and Mr. Murphy complied. Defendants Etheredge and McDonald allege that after Mr. Murphy stepped out from behind the wall, they noticed he was holding a butcher's knife approximately twelve inches long in his right hand.

Officer Vigil established verbal contact with Mr. Murphy and asked him to put down the knife. Mr. Murphy did not comply but rather continued to demand that the officers shoot him. Defendant Etheredge indicated that Mr. Murphy then began walking east, away from the police. He later turned back around toward the officers and stood in place. At this point, the officers contradict one another. Defendants Bitsoih and Etheredge maintain that Mr. Murphy began walking in an aggressive manner, briskly toward them, flailing his arms, and holding the knife out at his side. Sergeant McDonald, however, does not characterize Mr. Murphy's approach as aggressive, angry, or violent. He also does not state that Mr. Murphy was approaching in a brisk or fast walk. Instead, he alleges that Mr. Murphy was "taking steps" toward, "approaching," or "clos[ing] the distance on" the officers. In none of the evidence submitted on summary judgment does Sergeant McDonald indicate that he felt threatened by or scared of decedent Murphy. Sergeant McDonald did not retreat or take cover. His fellow officers also did not retreat or take cover. During this final approach, Defendant Bitsoih maintains that Mr. Murphy was holding the knife at his side with the blade up in a threatening manner. Defendant Etheredge, however, indicated in his deposition that Mr. Murphy was holding the knife "blade pointed down and flailing around ... in an aggressive manner," although he later changed his testimony after some prompting from counsel. Defendant McDonald does not specify the manner in which decedent Murphy allegedly held the knife.

Defendant McDonald indicated that Mr. Murphy was approximately fifteen feet away from him when Defendant McDonald fired a beanbag round, which hit Mr. Murphy in the stomach. Mr. Murphy "ben[t] down just a little bit," and then stood back up and continued "taking steps" toward the officers. Defendant McDonald then fired a second beanbag round, which struck Mr. Murphy on the chest. The round did not have an effect.

Thereafter, Defendant Bitsoih, who already had his urban assault rifle slung over his shoulder, began firing at Mr. Murphy. Defendant Bitsoih maintains that he waited to see Mr. Murphy take "one more step" after being shot with the second beanbag round before he fired his first shot from his assault rifle. It is unclear whether the step was aggressive or nonthreatening in nature.

After the shooting started, Defendant Etheredge, using his sidearm, also aimed at Mr. Murphy's center mass and discharged his weapon. Defendant Bitsoih stated that Officer Etheredge began firing "immediately after" his own shots. Defendant Etheredge maintains that after his first shot, Mr. Murphy was still standing and approaching, so he fired two additional shots. Defendant Etheredge fired a total of three shots and Defendant Bitsoih fired two or three shots. Neither Defendant Bitsoih nor Defendant Etheredge gave any warning prior to firing their weapons. After Mr. Murphy fell to the ground, Defendant Bitsoih removed the knife Mr. Murphy allegedly was still holding in his hand, and Defendant Etheredge placed him in handcuffs.

Plaintiffs dispute Defendants' contention that Mr. Murphy was armed with a knife. Plaintiff Zah maintains that Mr. Murphy did not have a knife five minutes prior to the officers' arrival, and that the police planted the knife after they shot Mr. Murphy. Plaintiff Zah, who overheard — but did not visually observe — the entire encounter between Mr. Murphy and the police through a neighbor's apartment window, maintains that she heard her and Mr. Murphy's kitchen screen door open and close after Mr. Murphy was shot and disabled by the police. Furthermore, immediately after the shooting, Plaintiff Zah noticed that the knives from her kitchen knife block were scattered in the sink. Plaintiff Zah contends that decedent Murphy, who lived in the home and was familiar with the knives, would not have scattered the knives in the sink in order to select one. Based upon this evidence, Plaintiff Zah surmises that one of the police officers entered her home to obtain a knife to plant on Mr. Murphy. Plaintiffs also question Defendants' contention that Mr. Murphy was lying on the ground still holding onto the knife after being shot twice from a beanbag gun and four times from two separate lethal weapons. Although the transcript of Plaintiff Zah's 911 call indicates that the emergency operator questioned the caller about a knife, the transcript is unclear because it also indicates that neither Plaintiff Zah nor an unidentified male who picked up the line informed the operator that Mr. Murphy was in possession of a knife or even mentioned a knife at all.² The parties did not submit any additional forensic or other evidence regarding the knife allegedly found on decedent's person.

Plaintiffs further contend that if Mr. Murphy were holding a knife, he was doing so in a nonthreatening manner with the blade facing down. They also maintain that he was not aiming the knife at anyone. In addition, they contend that Mr. Murphy was intoxicated and that he did not take any aggressive action towards the officers. Plaintiff Zah, in addition to hearing Mr. Murphy demand to be shot, also heard the other officers yelling...