Russell v. Wright

• Decision Date: 04 January 2013
• Docket Number: Civil Action No. 3:11–cv–00075.
• Citation: 916 F.Supp.2d 629
• Parties: Anita RUSSELL, Personal Representative for the Estate of Daniel Russell, Plaintiff, v. Denney WRIGHT, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

916 F.Supp.2d 629

Anita RUSSELL, Personal Representative for the Estate of Daniel Russell, Plaintiff,

v.Denney WRIGHT, et al., Defendants.

Civil Action No. 3:11–cv–00075.

United States District Court,

W.D. Virginia,

Charlottesville Division.

Jan. 4, 2013.

Peter Andrew Miller, Jeffrey Alan Travers, Timothy Andrew Litzenburg, The Miller Firm, LLC, Orange, VA, for Plaintiff.

Jeremy Ethridge Carroll, Glenn, Feldmann, Darby & Goodlatte, Roanoke, VA, Isaiah Fields, Michael Allen Brave, Pamela Beth Petersen, Taser International Inc., Scottsdale, AZ, for Defendants.

MEMORANDUM OPINION

GLEN E. CONRAD, Chief Judge.

This case involves claims brought by Anita Russell, the representative of Daniel Russell, against Deputy Denney Wright and TASER International, Inc. The claims against Wright are for the use of excessive force in violation of the United States Constitution, state law claims for gross negligence and assault and battery, and a claim seeking punitive damages. The claims against TASER are for breach of the implied warranties of merchantability and fitness for a particular purpose, failure to warn, a general negligence claim, and a claim for punitive damages. For the reasons that follow, Deputy Wright's motion for summary judgment will be granted in full, and TASER's motion for summary judgment will be granted in part and denied in part.

CLAIMS AGAINST DENNEY WRIGHT

I. Factual Background

A. The Incident

Late in the evening on October 30, 2010, Appomattox County Sheriff's Deputy Denney Wright was speaking with Deputy John Mattox in the Appomattox High School parking lot. At 11:41 p.m., Mattox and Sergeant Christopher Samms were dispatched to a call at 7724 Red House Lane, Appomattox County. They were responding to a 911 call received from Andrew Russell (Daniel Russell's 16 year old son), reporting injuries to his younger brother sustained in a fight with the decedent. Andrew reported that his brother had been kicked in the ribs, and that the injury “looked bad.” Since Wright was with Mattox, he radioed in that he would respond to the call as well. Wright and Mattox proceeded to the residence in their marked vehicles, and before arriving were told that Daniel Russell was leaving the house in his Chevy pickup and that he had been drinking. Dispatch asked Andrew if his father had any weapons on him and Andrew reported that he did not, but this information was never conveyed to the officers.

Accompanying defendant TASER's motion for summary judgment is an “aligned” video of the incident that was prepared by Grant Fredericks, an expert in video analysis. The video shows footage from three sources: Mattox's and Wright's dashboard cameras, and a camera inserted into the TASER-manufactured X26 device. Mr. Fredericks synchronized the footage from the three cameras so that they can be viewed simultaneously.

As Wright and Mattox approached the Russell residence, they saw Russell pull out of the driveway in his truck and head in the opposite direction. Both officers immediately activated their lights and sirens and proceeded to follow Russell. They pursued him for roughly .6 or .7 miles. (Mattox Dep. at 59.) Mattox reported that they were going about 60 miles an hour, and that Russell passed numerous driveways and areas where he could have safely pulled off the road. ( Id. at 58.) The plaintiff asserts that Russell pulled over in the first safe location, an empty parking lot on the left side of the road. Wright testified that he did not know whether Russell was exceeding the posted speed limit. (Wright Dep. at 232.) The video shows that from the moment the officers activated their lights to the moment Russell began applying his brakes to pull over, roughly 50 had seconds elapsed.

Mattox pulled into the parking area behind Russell, who immediately exited his truck and started walking toward the officers. Wright and Mattox both testified that this was unusual for a driver who is pulled over in Appomattox County, although they acknowledged it is not illegal. (Wright Dec. ¶ 6; Mattox Dec. ¶ 4.) As Russell walked toward Mattox, he held his hands above his head, palms facing out. Russell was wearing a t-shirt underneath an unbuttoned and untucked over-shirt. The officers testified that they could not tell whether Russell was armed because they could not see his waistband or the small of his back. (Wright Dep. at 160; Mattox Dep. at 68.)

By that point, Wright had exited his vehicle as well.¹ Mattox drew his firearm and aimed it at Russell. Wright approached Russell from the side with his taser trained on Russell's chest. The laser dot from the device can be seen on Russell's chest in the video. Mattox shouted at Russell to “get down—get down on the ground,” a number of times. Mattox testified that because his car's siren was still activated, he shouted his commands to be sure they could be heard. (Mattox Dep. at 62.) The commands are clearly audible in the video. Wright and Mattox both testified that they believed Russell could hear his commands, although they acknowledge it was loud and that they could not hear everything Russell said. (Wright Dep. at 160; Mattox Dep. at 67–68). Russell remained standing as Mattox repeatedly shouted for him to get down on the ground. After a couple of seconds, Russell dropped his hands to his sides.

The video then captures Mattox telling Wright to “tase him.” The video also shows Russell saying something to the officers, although exactly what was said is disputed by the parties. Wright and Mattox testified that Russell said, “go ahead and shoot me.” (Wright Dep. at 123; Mattox Dep. at 71.) Grant Fredericks, TASER's video expert, opined that Russell said, “why don't you just tase me?” (Fredericks Dec. at 14.) The plaintiff's expert, Geoffrey Alpert, Ph.D.,² testified that Russell may have been asking the officers “are you going to tase me?” but that he could not tell what was actually said. (Alpert Dep. at 34.)

Dr. Alpert also testified that he did not think Russell was acting in an aggressive or threatening manner, and that in his view Russell was simply trying to communicate to the officers, a communication that likely failed due to the noise from Mattox's siren. ( Id. at 34–35.)

Deputy Wright testified that immediately before he deployed the taser, Russell took a step toward them and was getting ready to take another step. (Wright Dep. at 157–59.) Wright then triggered his device using a single five second cycle, striking Russell directly in the chest. Wright testified that he was roughly fifteen feet from Russell when he tased him. ( Id. at 102–03.) Approximately 17 seconds elapsed from the time Russell exited his truck until Wright deployed the taser.

Upon being struck, Russell's body stiffened and he fell to the ground. The deputies approached and handcuffed him and performed a pat down. Russell appears to struggle somewhat while being handcuffed, and is heard making loud, guttural breathing sounds for at least the next 48 seconds. The officers then noticed that Russell had become nonresponsive, and they began yelling “hey buddy, hey buddy” at him in an attempt to revive him. Mattox requested that the rescue squad that was en route to Russell's residence be diverted to the scene. The officers administered a sternum rub and utilized an AED, which indicated that CPR was necessary. They continued CPR until the rescue squad arrived. At some point, Russell went into cardiac arrest. The rescue workers managed to restart his heart, but Russell had gone without oxygen for over eight minutes, causing severe brain damage. He fell into a coma and died six months later. Prior to the incident, Russell had a history of heart trouble, as well as alcohol and drug use. (Hardison Dep. at 95.) Russell had suffered two heart attacks, one in 2008, and another in 2009, and was under doctors' orders to stop using drugs and alcohol, both of which increased his risk of sudden cardiac arrest. (Russell Dep. at 42–43.) Toxicology reports taken in the emergency room on the night of the incident indicated that Russell had a BAC of 0.17 and had marijuana in his system. (Hardison Dep. at 93.)

B. Wright's Background and Training

From 2005 to early 2009, Wright worked at the Appomattox County Jail. As part of his training for that position, he learned defensive tactics, including holds and takedowns. (Wright Dep. at 16–19.) When Wright went to work for the Appomattox County Sheriff's Office (“ACSO”) as a deputy in 2009, he received an additional six months of training at the Central Virginia Criminal Justice Academy. ( Id. at 29–30.) Wright also received training on the Use of Force Policy (the “Policy”) adopted by the Sheriff's Office. The Policy states that:

Except for deadly force, the application of any degree of force is justified only when the officer believes it is reasonably necessary: ... Officers may resort to more severe methods of force to overcome ... increasing resistance.

...

The escalation in the use of force typically follows a pattern: verbal control, compliance techniques (control holds), chemical weapons, defensive tactics (including impact weapons such [batons] ), and finally deadly force. Officers must understand how to recognize increasing or decreasing levels of threat and respond appropriately.

...

When applying deadly force, the officer's objective shall be to stop or incapacitate the suspect. The objective use of any force is to overcome the suspect's resistance to an officer's lawful purpose: officers shall avoid unnecessary or excessive applications of force.

(Pl's Ex. M.)

The Policy has specific instructions on the use of tasers:

It is the policy of the Appomattox County Sheriff's Office to authorize the Taser as a use of force option. The Taser is considered a non-lethal use of force.

Definitions:

Passive Resistance: A person who exhibits no resistive movements in response to verbal or other directions by the officer.

Active Resistance; A person who exhibits resistive movements to...