Schwartz v. Gwinnett Cnty.

• Decision Date: 15 February 2013
• Docket Number: Nos. 1:11–cv–2727–WSD, 1:11–cv–2728–WSD.,s. 1:11–cv–2727–WSD, 1:11–cv–2728–WSD.
• Citation: Schwartz v. Gwinnett Cnty., 924 F.Supp.2d 1362 (N.D. Ga. 2013)
• Parties: Derrick SCHWARTZ, individually and Jody Ahlfinger, as the Court Appointed Personal Administrator of the Estate of Penny Schwartz, Plaintiffs, v. GWINNETT COUNTY, GEORGIA, Charles Walters, Lyndsey Perry, Phil Raines, Lenora Taylor, Angela Conley, Tonya Holter, Neomi Sanchez, R.E. Long, D.A. Brown, and John Does (1–10), Defendants. Jody Ahlfinger and Michael Schwartz, individually and Jody Ahlfinger, as the Court Appointed Personal Administrator of the Estate of Barbara Baker, Plaintiffs, v. Gwinnett County, Georgia, Charles Walters, Lyndsey Perry, Phil Raines, Lenora Taylor, Angela Conley, Tonya Holter, Neomi Sanchez, R.E. Long, D.A. Brown, and John Does (1–10), Defendants.
• Court: U.S. District Court — Northern District of Georgia

924 F.Supp.2d 1362

Derrick SCHWARTZ, individually and Jody Ahlfinger, as the Court Appointed Personal Administrator of the Estate of Penny Schwartz, Plaintiffs,

v.GWINNETT COUNTY, GEORGIA, Charles Walters, Lyndsey Perry, Phil Raines, Lenora Taylor, Angela Conley, Tonya Holter, Neomi Sanchez, R.E. Long, D.A. Brown, and John Does (1–10), Defendants.

Jody Ahlfinger and Michael Schwartz, individually and Jody Ahlfinger, as the Court Appointed Personal Administrator of the Estate of Barbara Baker, Plaintiffs,

v.Gwinnett County, Georgia, Charles Walters, Lyndsey Perry, Phil Raines, Lenora Taylor, Angela Conley, Tonya Holter, Neomi Sanchez, R.E. Long, D.A. Brown, and John Does (1–10), Defendants.

Nos. 1:11–cv–2727–WSD, 1:11–cv–2728–WSD.

United States District Court,

N.D. Georgia,

Atlanta Division.

Feb. 15, 2013.

Hezekiah Sistrunk, Jr., Shean DeCarlos Williams, Cochran, Cherry, Givens, Smith, Sistrunk & Sams, PC, M. Gino Brogdon, Sr., Law Office of M. Gino Brogdon, Sr., Atlanta, GA, for Plaintiffs.

Donald Andrew Cronin, Jr., Michael Allen O'Quinn, O'Quinn & Cronin, McDonough, GA, Gary Kevin Morris, Terry Eugene Williams, Williams, Morris & Waymire, LLC, Buford, GA, for Defendants.

OPINION AND ORDER

WILLIAM S. DUFFEY, District Judge.

This matter ¹ is before the Court on D.A. Brown (“Brown”) and Lyndsey Perry's (“Perry,” collectively the “Police Officer Defendants”) Motions for Summary Judgment [Ahlfinger Action Dkt. 64, Schwartz Action Dkt. 43]; Gwinnett County, Charles Walters, Phil Raines, Lenora Taylor, Angela Conley, Tonya Holter, and Neomi Sanchez (collectively the “911 Defendants”) Motions for Summary Judgment [Ahlfinger Action Dkt. 58, Schwartz Action Dkt. 39], and Plaintiffs' Request for Oral Hearing on the 911 Defendants' Motions for Summary Judgment [Ahlfinger Action Dkt. 88; Schwartz Action Dkt. 52.2]. ²

I. BACKGROUNDA. Factual history

At 8:44 p.m. on July 22, 2009, Barbara Baker (“Baker”) called Gwinnett County's 911 communications center to report that “I've got a daughter here that's totally out of control threatening to shoot herself. She needs some help, somebody to get her to somewhere.” (Ex. A to Police Officer Defs.' Mot. for Summ. J. at Track 1–1, 00:00–02:45). Phil Raines (“Raines”), a 911 operator, asked Baker if her daughter, Penny Schwartz (“Schwartz”), had a gun and Baker replied “I think she does, I don't know.” ( Id.). Baker also told Raines that there were no guns in the house that she knew of. ( Id.). Baker told Raines that Schwartz was in a rage and “threatening to kill herself.” ( Id.).

In response to Raines' questions about whether Schwartz was taking any medication, Baker replied that “I'm afraid she's been on some kind of illegal junk, I don't know. But she is on some other kind of medication for something they gave her at the doctors the day before yesterday.” ( Id.). Baker further reported to Raines that Schwartz had previously attempted suicide using drugs. ( Id.). Raines told Baker that police officers were on the way and ended the call. ( Id.).

Raines entered the information provided by Baker into the 911 computer system during his call and transmitted it to the 911 Dispatcher, Neomi Sanchez (“Sanchez”). (Dep. of Phil Raines at 89–90, 94–95). Sanchez was being trained at the time by Tonya Holter (“Holter”). (Dep. of Neomi Sanchez at 11–12, 17; Dep. of Tonya Holter at 55). Instead of typing into the computer system that there were no guns in the house that Baker knew of, Raines' entry stated that Baker said there were no weapons in the house. (Ex. 2 to Dep. of Phil Raines; Dep. of Tonya Holter at 106).

Around 8:45 p.m., Sanchez reviewed the information in the computer system and commented to Holter that the statement by Baker that Schwartz was threatening to shoot herself while concurrently reporting that there were no weapons in the residence did not make sense. (Dep. of Neomi Sanchez at 18–19, 32–33, 72). Holter sought clarification from Raines, who was across the room in the 911 communications center, and was told by him that the computer system accurately reflected that Baker stated there were no weapons in the residence. (Dep. of Tonya Holter at 64–65). Holter told Sanchez that there was no additional information regarding whether a weapon was present and to communicate the information from the computer system to the officer that would be dispatched to the scene. (Dep. of Neomi Sanchez at 34–35, 37, 74; Dep. of Tonya Holter at 71–72, 74–75, 79, 84–85).

Based on Officer Lyndsey Perry's (“Perry”) geographic proximity to Baker's residence, the 911 computer system recommended to Sanchez that Perry be dispatched to the scene. (Dep. of Tonya Holter at 47). When an officer is dispatched to the scene of an incident, Gwinnett County's 911 computer system transmits the information entered by the 911 operator to that officer's vehicle computer. (Dep. of Lyndsey Perry at 31–34).

At 8:46 pm, Sanchez contacted Perry by radio to dispatch her to the Baker residence to address the situation. (Ex. B to 911 Defs.' Mot. for Summ. J. at 00:15; Ex. 2 to Dep. of Phil Raines at Bates 2447). Sanchez told Perry that Schwartz was threatening suicide by pill. ( Id.).

Perry read the information Raines entered into the 911 computer system on the computer in her vehicle and noted that it indicated Schwartz was threatening to shoot herself. (Dep. of Lyndsey Perry at 33–34). Perry questioned Sanchez regarding whether Schwartz was threatening to commit suicide by shooting herself or by taking pills. ( Id.). Sanchez told Perry that Baker stated that Schwartz was threatening to shoot herself and that there were no weapons in the residence. (Ex. B to 911 Defs.' Mot. for Summ. J. at 01:25–01:58; Dep. of Lyndsey Perry at 35–38, 66–69).

At around 8:55 pm, Perry arrived at Baker's residence. (Ex. 2 to Dep. of Phil Raines at Bates 2447). Perry is the only person to testify about the events that occurred at the Baker residence.³ Perry testified that upon arriving at the Baker residence, Perry “walked up the driveway and at least one flight of stairs to a landing outside” of the house. (Dep. of Lyndsey Perry at 69, 74).⁴ When she arrived, someone could be seen standing in the kitchen, beyond the foyer area, who motioned Perry to enter the residence. ( Id.). Perry opened the door and stepped inside, where she was met in the foyer by the woman who had been standing in the kitchen. ( Id. at 70, 74). At this time, Perry was two to three feet inside of the residence. ( Id.). The woman who met her was Baker, who said “she's going to shoot you, she's got a gun, she's going to shoot you to get you to shoot her.” ( Id. at 71–72, 74).

At 8:56 p.m., after speaking with Baker about her Schwartz's possession of a gun, Perry reported to the 911 dispatcher that Schwartz was armed. (Dep. of Lyndsey Perry at 72–73; Ex. B to 911 Defs.' Mot. for Summ. J. at 10:49–10:55; Ex. 2 to Dep. of Phil Raines at Bates 2447).

After reporting to the 911 dispatcher that Schwartz was armed, Perry asked Baker where her daughter was located in the residence. (Dep. of Lyndsey Perry at 74). During this questioning, Perry heard a door open upstairs and heard someone stomping through the hallway in Perry's direction. ( Id.). Perry removed her weapon from the holster and held it in the “ready-low” position. ( Id. at 92–93). As Schwartz came down the upstairs hall, she screamed: “are they hear, are they f–––ing here yet.” ( Id. at 155). Stomping down the hall, Schwartz got to the stairs and started down the stairs to the foyer with a gun pointed at Perry. ( Id. at 75, 88, 155).

The time between Perry hearing the upstairs door open until Schwartz began coming down the stairs with a weapon was a matter of seconds. ( Id. at 88). When Schwartz rounded the upstairs corner and began down the stairs with her gun pointed at Perry, Perry shot at Schwartz. ( Id. at 93). She fired two rounds, stopped to assess the threat, and, still seeing the gun in Schwartz's hand and Schwartz still moving toward her, fired three more rounds. ( Id. at 93–95). Schwartz dropped her gun and fell to the floor. ( Id. at 105–06).

Just before the shots were fired, Perry saw Baker standing off to the side in front of her with a view of the stairs. ( Id. at 74). When Schwartz began down the stairs with the gun pointed toward Perry, she was not aware of Baker's location. ( Id. at 81–82). She did see some movement out of the corner of her eye, but does not know if it was Baker moving. ( Id. at 82). One of the shots fired by Perry struck and killed Baker. ( Id. at 159–60).

When Perry was dispatched to respond to the 911 call from Baker, her supervisor was Sergeant D.A. Brown (“Brown,” collectively with Perry, the “Police Officer Defendants”). (Dep. of D.A. Brown at 23). Brown was not at the scene of the incident and did not know until after the shooting that Perry had been dispatched to the Baker residence because he was in the bathroom when the 911 call came in. ( Id. at 37, 40–41, 45–47). After being dispatched to the Baker residence, Perry did not contact Brown for direction. (Dep. of Lyndsey Perry at 57–58, 62–66).

Brown and Perry were trained and certified law-enforcement officers on July 22, 2009. (Exs. E and F to Police Officer Defs.' Mot. for Summ. J.). There is no evidence that the 911 operators in this action were other than properly trained to handle emergency calls from citizens. (Ex. A to the 911 Defs.' Mot. for Summ. J.).

B. Procedural history

The Complaints in these actions were filed in the State Court of Gwinnett County on July 19, and 20, 2011. (Schwartz Compl. at 1; Ahlfinger Compl. at 1). Both Complaints assert four identical claims against the Police Officer and 911 Defendants. (Schwartz Compl. ¶¶ 67–83; Ahlfinger Compl. ¶¶ 62–78). Claim One asserts a 42 U.S.C. § 1983 cause of action claiming that Baker and Schwartz's Fourth and Fifth Amendment rights were violated by Defendants' use of force.⁵ Claim Two asserts a state wrongful death claim against Defendants....