Rought v. Porter
Decision Date | 26 December 1996 |
Docket Number | No. 1:96 CV 195.,1:96 CV 195. |
Citation | 965 F.Supp. 989 |
Parties | Rodney ROUGHT and Gabrielle Rought, Plaintiffs, v. Michigan State Police Officer William PORTER, in his individual capacity, Defendant. |
Court | U.S. District Court — Western District of Michigan |
Nancy Caine Harbour, Miller, Cohen, Martens, Ice and Geary, P.C., Southfield, MI, for Plaintiffs.
Lawrence P. Schneider, Knaggs, Harter, King & Brake, Lansing, MI, for Defendant.
This matter is before the Court on Defendant William Porter's motion for summary judgment. For the reasons which follow, the motion is granted in part and denied in part.
This case involves claims for personal injury and loss of consortium by plaintiffs Rodney and Gabrielle Rought (a narcotics detective employed by the Kalamazoo County Sheriff's Department and his wife) caused during a drug raid conducted by the Southwest Enforcement Team ("SWET") on July 29, 1994, in Van Buren County, Michigan. Prior to that raid, defendant William Porter had been a marksmanship instructor with the Michigan State Police. As such, he taught Michigan State Police trainees both marksmanship and State Police policy regarding use of deadly force. Such policy requires that an officer determine, before using deadly force, that an assailant is armed (i.e. that the assailant has the ability to shoot), that the assailant is in firing range of the officer (i.e. that the assailant has the opportunity to shoot), and that the officer is "in jeopardy" of being shot by the assailant (i.e. there is some likelihood that the assailant will shoot the officer).
In February 1994, Porter was given a probationary promotion to the position of Lieutenant and assigned to the position of team leader of SWET. The SWET officers he supervised consisted of officers from local sheriff's departments in Southwestern Michigan. These officers made some complaints about Porter's lack of training in narcotics and undercover enforcement as well as their treatment generally.
In July of 1994, SWET intercepted a large load of marijuana that was to be shipped by the United Parcel Service to a wooded property in Columbia Township in Van Buren County, Michigan. SWET then obtained a search warrant for the residence and planned to make a controlled delivery of the marijuana to the residence with Porter posing as a U.P.S. driver. Officer Rought was positioned in army fatigues in the woods adjoining the residence. Porter delivered the marijuana and met with other officers waiting to execute the warrant. While this was happening, the occupants left the home and started firing into the woods. Rought radioed Porter that shots were being fired and he needed assistance. He described the assailants as wearing a red shirt and white shirt, respectively.
Rought's call brought the immediate attention of seven other SWET officers who assembled in the driveway. They called over a loud speaker to the assailants and ordered them to surrender. During this time, Porter took aim in the direction of the woods. Rought called SWET members over his radio and told them he was crawling out of the woods. A Van Buren sheriff's deputy then activated his siren to create a diversion for Rought. As Rought began to crawl out some officers ordered him to put his hands up. Rought responded over the radio by saying that it was he Rought who was crawling out. Officer Vaughn of Kalamazoo then yelled at all of the other officers (including Porter) that Rought was coming out of the woods — which message they acknowledged. The Van Buren deputy then activated his siren a second time and Rought crawled out. Porter, who was not then listening to radio transmissions, fired four shots in quick succession at Rought — three of which struck Rought.
Officer Picketts of the Calhoun County Sheriff's Department described Porter's reaction as follows:
Rod came out into a clearing, and he stopped and looked up at me, and he was looking at me and that's when he got shot.... I have seen about everything you can see but I'll tell you what, this has been like a nightmare. Rod crawled out of there, he stopped, he looked at me, I looked at him right in the face and next thing I heard was a shot.
I was probably between 20 to 30 feet away from where Rod came out, and Rod looked up at me and I could tell it was Rod. He didn't have no mask over his face, he wasn't carrying a long gun, he wasn't wearing a white shirt or white shorts like the description was with the guy with the gun. And Bill Porter wasn't any further away from him than I was.
Picketts' Dep. at 70-71, 76-77.
Following this incident, William Porter was charged with the misdemeanor of discharge of a firearm causing injury without malice under Michigan Compiled Laws Section 750.235. He pled no contest to this offense on February 16, 1995, before Van Buren Circuit Court Judge William Buhl. Rought sustained serious gun shot injuries to his arm, back and hip which prevented him from returning to work until May 1996 when he was assigned work as a uniformed traffic and patrol officer. During his recovery, plaintiff Gabrielle Rought quit work in order to care for her husband at home.
This motion requests summary judgment pursuant to Federal Rule of Civil Procedure 56. According to the Rule, summary judgment is proper only if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. City Management Corp. v. U.S. Chemical Co., Inc., 43 F.3d 244, 250 (6th Cir.1994).
Accordingly, a party seeking summary judgment bears the initial burdens of specifying the basis upon which it contends judgment should be granted and of identifying that portion of the record which, in its opinion, demonstrates the absence of a genuine issue of material fact. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir.1994). Once this initial burden is met, the non-moving party has the burden to come forward with specific facts, supported by the evidence in the record, upon which a reasonable jury could find there to be a genuine fact issue for trial. Bill Call Ford, Inc. v. Ford Motor Co., 48 F.3d 201, 205 (6th Cir.1995); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Summary judgment against the non-movant is appropriate where the non-movant, after adequate time for discovery on material matters at issue, fails to make a showing sufficient to establish the existence of a material disputed fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). However, the Court is not to make credibility determinations, nor weigh evidence, nor draw jury inferences. Rather, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in the non-movant's favor. Id.
Defendant Porter has made several arguments in support of summary judgment including that claims under 42 United States Code Section 1983 should be dismissed because of qualified immunity; that proof of gross negligence in the context of a Fourth Amendment seizure does not support a claim under 42 U.S.C. Section 1983; that case law defining a Bivens-type action under the Michigan Constitution precludes recovery where there is no proof of action pursuant to a governmental custom or policy; that all state and federal claims against Porter are precluded by the Fireman's Rule; that plaintiffs are precluded from suing Porter by the exclusivity provisions of the Michigan Worker's Disability Compensation Act; and, that state law claims for ordinary negligence are precluded by governmental immunity under state law. The Court will address each of these arguments — though not in the order in which they were made.
Both parties agree that the federal excessive force claim under 42 U.S.C. Section 1983 is premised on the Fourth Amendment as stated in Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 1870-71, 104 L.Ed.2d 443 (1989). They also agree that the standard for violation of the Fourth Amendment by use of excessive force is the objectively reasonable test stated in Graham v. Connor, supra. According to the Supreme Court in Graham,
"[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application," ..., however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.
Id. at 396, 109 S.Ct. at 1872 (citations omitted). Of course, the officer's subjective motives-whether good or ill — are not relevant to the question of whether the use of force was justified. Id.
Graham, supra at 396-97, 109 S.Ct. at 1871-73. Defendant thus argues that the use of force was "objectively reasonable" in the same way that a mistaken arrest might be under the above dicta.
Defendant further relies...
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Lego v. Liss
...To the extent that the Court of Appeals majority opinion relied on the federal district court decision in Rought v. Porter, 965 F.Supp. 989, 994 (W.D.Mich., 1996), we agree with Court of Appeals Judge Jansen in her partial dissent that it is not binding. Lego, unpub. op. at 2 ( Jansen, P.J.......