Otero v. Wood

• Decision Date: 07 May 2004
• Docket Number: No. 2:02-CV-478.,2:02-CV-478.
• Citation: 316 F.Supp.2d 612
• Parties: Jennifer OTERO, Plaintiff, v. David R. WOOD, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

316 F.Supp.2d 612

Jennifer OTERO, Plaintiff, v. David R. WOOD, et al., Defendants.

No. 2:02-CV-478.

United States District Court, S.D. Ohio, Eastern Division.

May 7, 2004.

COPYRIGHT MATERIAL OMITTED

Charles Herman Bendig, III, Wilcox, Schlosser & Bendig Co., Columbus, OH, for Plaintiff.

Timothy Joseph Mangan, Columbus City Attorney's Office, Columbus, OH, for Defendants.

OPINION AND ORDER

MARBLEY, District Judge.

I. INTRODUCTION

This matter is before the Court on Defendants' Motion for Summary Judgment¹ and on Plaintiff Jennifer Otero's Motion for Partial Summary Judgment. Defendants, the City of Columbus (the "City") and 26 individual members of the Columbus Division of Police (the "CDP"), seek summary judgment in their favor as to the entirety of Plaintiff's claims. Plaintiff seeks summary judgment as to liability only. For the following reasons, Plaintiff's Motion is DENIED and Defendants' Motion is GRANTED in part and DENIED in part.

II. BACKGROUND

On the evening of April 29, 2001, during the course of an alleged public disturbance in the vicinity of The Ohio State University ("OSU"), Plaintiff, Jennifer Otero, was apparently shot in the forehead with a wooden baton round fired out of a 37 millimeter riot gun.² At the time, Plaintiff and her friend Denisse Mbomyo were standing in a grassy area beside a sidewalk on Waldeck Avenue in Columbus. They were south of Norwich Avenue, approximately 42 feet from the intersection of Waldeck and Norwich Avenues, and were watching police formations in the intersection as the police were preparing to disperse the crowd of partygoers that had gathered at parties along Norwich Avenue.

The parties on Norwich Avenue had resulted in a complete blocking of the public street. The CDP had received reports of fights, rocks and bottles being thrown, and an attempt to flip over a car. Some officers were sent to the area but were unable to initiate enforcement action due to the size and volatility of the crowd. Meanwhile, a similar situation, fueled by excessive alcohol consumption, was developing a few streets south, on 13th Avenue. The CDP has extensive experience with riots and other disturbances near OSU. Excessive alcohol consumption of alcohol has been a common factor in most of these disturbances, and conduct has included destruction of property, setting of fires, overturning of cars, and throwing of rocks, bottles, and other projectiles at police. On April 20 and 21, 2001, just one week prior to the incident at issue, there had been disturbances in the vicinity of Chittenden Avenue, northeast of campus.

On April 29, 2001, based on intelligence gathered about the likelihood of a disturbance, Commander Suzanne Curmode ensured that she would be present as on site incident commander to coordinate any police response to a potential disturbance. As the situation on Norwich Avenue deteriorated, Curmode made the decision to clear Norwich Avenue and disperse the crowd. From a staging area at a church lot on Norwich Avenue, two Special Weapons and Tactics ("SWAT") units, followed by the mounted unit and a field force of 40 to 50 officers, proceeded west on Norwich Avenue toward the crowd. According to police witnesses, the officers almost immediately met with resistance in the form of thrown rocks, bottles, and other items.

Curmode testified at deposition that warnings to disperse were given from the SWAT loudspeaker. Curmode also testified that she had been ordered by the Deputy Chief of the CDP to "discourage" the SWAT unit's use of tear gas (CS grenades). According to police witnesses, the police began deploying ordnance, including "less-lethal" munitions such as wooden baton rounds, only after being met with thrown projectiles. According to student witnesses, though there was some rowdy behavior, there was no aggressive behavior toward any of the police officers until after the police began to fire. In a police video taken of the north side of Norwich Avenue, the only audible warning is after the SWAT unit moves out, about 25 seconds before the first round is fired. The warning heard is, "Clear the area at this time; the party is over." On the video, 11 rounds may be heard being fired within 60 seconds of the warning. Mbomyo testified at deposition that, from where she and Otero were standing, she did not hear any warnings of any kind.

Mbomyo states that she saw police officers in black uniforms (i.e., SWAT officers) in the intersection of Norwich and Waldeck Avenues when she heard two shots, then saw Otero fall to the ground. There were four gas guns (two for each of the two SWAT units) being operated by four separate officers that night. The officer who was responsible for the sector of fire where Otero was standing was Officer W.J. Brintlinger.³ The officer directly responsible for supervising Brintlinger was Sgt. Daniel E. Zoretic. Zoretic was inside a formation of seven other SWAT officers, where he had direct and personal control and supervision over the firing of gas gun projectiles by both gasmen in his unit — Officers Brintlinger and Rich. Zoretic admits that he could and did see the rounds fired by both officers. Directly behind the eight person formation, Lt. David Wood was providing supervision over all four gasmen. Curmode was providing general supervision from the south side of Norwich, the side of the street Plaintiff and her friend were standing on.

The wooden baton rounds fired from the four gas guns are known as "knee knockers." Each time they are fired, the gas guns discharge a group of five projectiles simultaneously. According to the manufacturer's specifications, the knee knockers have a muzzle velocity of approximately 280 feet per second (190 miles per hour). They are designed to be "skip fired," or fired at the ground, rather than fired directly toward targets. When properly skip fired, the rounds tumble, and never rise above waist level. Brintlinger, at deposition, confirmed that when firing knee knocker rounds at the test range, the rounds travel underneath the paper targets — i.e., they stay below three feet above ground level. Plaintiff is five feet, three inches tall and at the time of her injury was standing in a grassy area seven inches above the street. All police witnesses, however, deny either direct firing knee knockers or seeing anyone else do so on the evening of April 29.

As demonstrated by a CDP test, wooden baton rounds skip fired off of concrete or a similar hard surface display a distinctive scuffing pattern. Even rounds fired off of dirt or grass generally display scuffing or chipping from the force of the impact with the ground. After Otero was shot, one of her friends picked up a knee knocker round lying in the vicinity of where she had fallen. This round displays no scuffing, splitting, or any other indication that it struck any solid surface before striking Plaintiff. The City's expert concedes that this particular round was not skip fired off of concrete. Furthermore, both a medical expert, David Powell, M.D., and a law enforcement expert, Louis Mayo, Ph.D., retained by Plaintiff opine, to a reasonable degree of certainty, that Plaintiff's injury was the result of a wooden baton round that struck Plaintiff in a trajectory fashion. Plaintiff points to various testimony to establish that direct firing a baton round at her on April 29, 2001, would constitute an unreasonable use of force.

After Otero was shot, she fell to the ground, unconscious. Mbomyo sought help from a passing SWAT officer who refused to provide any assistance. Two other friends arrived to help Plaintiff. One of them, Edwin Salazar, requested assistance from a group of mounted officers and from a group of officers in a paddy wagon. The mounted officers, using profanity, told Salazar he and his friends should not have been there. The officers in the paddy wagon told him, "You shouldn't have been here, you shouldn't have been here, it's your guys' fault." No officers provided any assistance; all Defendants deny having seen Otero lying on the ground or Mbomyo screaming for help. Eventually, Otero's friends carried her a few blocks away to another friend's house, where they got a car to drive her to the hospital.

As a result of the incident, Plaintiff received a depressed frontal sinus fracture. She has had to undergo reconstructive surgery. She suffered some brain damage, she lost her scholarship and is no longer able to function as a student at OSU, and she suffers from severe headaches. After Plaintiff recovered from the immediate medical effects of her injury, she and her father attempted to file a complaint with the CDP. The officer to whom they complained, Officer B.A. Bernhardt, merely filled out a "miscellaneous incident report" in which he included language favorable to the police. The police investigation was closed without any officer having been disciplined in any way.

On April 12, 2002, Plaintiff filed suit against the City and 26 named members of the CDP in the Franklin County Court of Common Pleas. The case was removed to this Court on May 17, 2002. In the Complaint, Plaintiff seeks compensatory damages, punitive damages, and attorney's fees pursuant to 42 U.S.C. § 1983 and the common law of assault and battery.

On September 30, 2003, Defendants filed a Motion for Summary Judgment. Plaintiff, in her Memorandum Contra Defendants' Motion, asks only that Defendants' Motion be overruled as to Defendants Brintlinger, Zoretic, Wood, Curmode, and the City. Also on September 30, 2003, Plaintiff filed a Motion for Summary Judgment on Liability as to Defendants Brintlinger, Rich, Zoretic, Wood, Curmode, and the City. This Motion is based on the doctrine of spoliation of evidence. Specifically, Plaintiff alleges that the police video taken of the south side of Norwich Avenue, a video that would have provided valuable footage of her being shot, was destroyed and that she therefore is entitled to summary judgment. This matter is before the...