Searcy v. City of Dayton, s. 93-4013

Decision Date26 October 1994
Docket NumberNos. 93-4013,93-4092,s. 93-4013
Citation38 F.3d 282
PartiesVickey SEARCY, Executrix of the Estate of Lawrence Eugene Hileman, and Jerry L. Smith, Plaintiffs-Appellants, Cross-Appellees, v. CITY OF DAYTON and James E. Newby, Defendants-Appellees, Cross-Appellants, Roger W. Waller and Dennis Michael, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Terry L. Lewis (argued and briefed), Dayton, OH, for Vickey Searcy.

Carol J. Holm (argued and briefed), Dayton, OH, for Jerry L. Smith.

Neil Freund, Lisa A. Messe (argued and briefed), Freund, Freeze & Arnold, Dayton, OH, for City of Dayton and James E. Newby.

Roger W. Waller, pro se.

Dennis R. Michael, pro se.

Before: MILBURN and DAUGHTREY, Circuit Judges; and WEIS, Circuit Judge. *

MILBURN, Circuit Judge.

Plaintiffs appeal the district court's grant of summary judgment to defendants City of Dayton and its police chief, James E. Newby in this 42 U.S.C. Sec. 1983 action brought to recover damages for the death of one individual and for injuries to another individual inflicted by an off-duty police officer, defendant Roger W. Waller, and his friend, defendant Dennis Michael. Defendants cross-appeal the district court's denial of summary judgment on plaintiffs' state law negligence claim. On appeal, the issues are (1) whether there is a genuine issue of material fact as to whether the off-duty police officer was acting under color of state law when he shot and killed one man and injured another, and if so (2) whether the City of Dayton and its chief of police may be held liable for the injury inflicted, and (3) whether the district court properly denied summary judgment to the police chief on plaintiffs' state law negligence claim. For the reasons that follow, we affirm in part and reverse in part.

I.

In September 1988 Roger W. Waller was a police officer for the City of Dayton, Ohio. His full-time assignment was to coordinate the department's Drug Hotline Volunteer Program. The duties of this assignment included scheduling volunteers to answer telephones, training volunteers, answering telephones, and distributing program reports. Generally, citizens would call the hotline to report suspicious drug-related events, such as suspected drug houses. The volunteers would fill out a report and give the report to Officer Waller. Officer Waller would make sure the information on the report was complete, and sometimes he would seek to verify the information by travelling to the location of the reported drug house and checking the address or observing the house to see if there were any indications of drug trafficking. However, on these verification trips, Officer Waller would never do anything other than observe for a short period of time. He would not talk to anyone, and he would not attempt to buy drugs from the houses. A sergeant within the police department asked him to make these verification trips. If a citizen complaint appeared valid, Officer Waller would submit his report to officers who could initiate further investigations and warrants if needed. Officer Waller had no other duties. His responsibilities were administrative, and he was not a patrol officer or detective. Other than short verification investigations, Officer Waller was not authorized to conduct any drug enforcement activities, such as controlled purchases, investigations, or raids.

September 15, 1988 was Officer Waller's scheduled day off. He was at home with his friend Dennis Michael and was having a furnace installed. After finding out what Waller's job was, the man installing the furnace complained about a house in his neighborhood that he suspected of being a drug house. When Waller said he would investigate, Michael reminded Waller that he had told Waller about a drug house in his old neighborhood where his daughter had been stuck by a dirty needle. Waller told Michael that he could point the house out to him, and together they could investigate.

When Waller and Michael began their investigation, Waller was not on duty, and the police department did not authorize or know about the investigation. Waller was not wearing his uniform, but he was carrying his badge and identification in his pocket and his service 9 mm pistol and radio in his belt. Waller was also carrying a Mac-11 machine gun under his jacket in a shoulder holster. Michael, who was not a police officer, was carrying a shotgun. The Dayton Police Department's firearms policy allowed, but did not require, police officers to carry their 9 mm pistols while off duty. However, the firearms policy prohibited off-duty officers from carrying any other firearms.

After finding no activity at the house mentioned by the furnace installer, Waller and Michael went to Michael's old neighborhood. Michael showed Waller the suspected drug house, and the two walked past the house. They watched the house for approximately 10 to 30 minutes. Observing nothing, Waller "decided to go down and try to make a buy at the door." J.A. 340. As he was walking toward the house, a girl walked out on the porch. Waller identified himself as a police officer by displaying his badge and identification card and told the girl to go away because he "was going to bust the house." J.A. 341.

Waller then walked to the screen door and addressed the two persons sitting in the house, Lawrence Eugene Hileman and Jerry L. Smith. Waller told them he wanted to buy some crack cocaine, but Hileman and Smith started laughing and stated they did not sell crack cocaine. Hileman then motioned for Waller to enter the house, which Waller did. Upon entering, Waller identified himself as "drug enforcement" and asked Hileman and Smith for some identification. Michael also entered the house. Waller asked where the drugs were and stated, "You know, somebody is going to go to jail here if we don't find out where the drugs are." J.A. 353-54. Waller then turned toward Hileman, and the Mac-11 machine gun Waller was carrying discharged, hitting Hileman. Waller left the house, and Michael shot Smith twice with the shotgun. As a result of these shootings, Hileman died and Smith was seriously injured.

Waller pleaded guilty to murder and felonious assault. Michael pleaded guilty to involuntary manslaughter and felonious assault.

Between 1981 and 1983, there had been several reports that Officer Waller was participating in drug trafficking. Plaintiffs contend that the police department failed to investigate these allegations. Defendants contend, however, that these allegations were investigated and found to be baseless.

In 1985, Officer Waller obtained the Mac-11 machine gun used to kill Hileman, and was told by the Bureau of Alcohol, Tobacco and Firearms that his application to possess that weapon must be submitted to the local chief of police for signature. The former chief of police for the City of Dayton refused to sign the application unless Waller rendered the machine gun nonfireable and only used it for display. However, when James E. Newby became chief of police for the City of Dayton, Waller presented the application to Newby, and he signed it.

In July 1990, Smith and the executrix for Hileman's estate filed this 42 U.S.C. Sec. 1983 action against Waller, Michael, the City of Dayton, and Chief Newby. Plaintiffs' complaint also alleged state law negligence and intentional tort claims based on Waller and Michael's actions on September 15, 1988, and on Chief Newby's signing of the application allowing Waller to possess the machine gun that was used by Waller to kill Hileman on September 15, 1988.

On August 17, 1993, the district court granted summary judgment to defendants Dayton and Newby on plaintiffs' 42 U.S.C. Sec. 1983 claims, holding that Waller was not acting under color of state law, and therefore plaintiffs did not have a viable Sec. 1983 claim against defendants City of Dayton and Newby. The district court also held that even if Waller had been acting under color of state law, plaintiffs would still not have viable Sec. 1983 claims against the City or Newby because (1) there was no evidence that the City had a custom or policy which was the moving force behind the shooting of Hileman and Smith, and (2) there was no evidence tending to show that Newby encouraged or participated in the shooting of Hileman and Smith. As to plaintiffs' state law claims, the district court held that the City of Dayton was immune from liability under Ohio Revised Code Annotated Sec. 2744. However, as to defendant Newby, the district court held that there was a genuine issue of material fact as to whether his actions in signing the application that allowed Waller to possess the machine gun were reckless or wanton, which would have negated his immunity defense. Therefore, after the district court's ruling, the only remaining claims were the one state law claim against Newby and the claims against Waller and Michael.

Pursuant to Federal Rule of Civil Procedure 54(b), the district court determined that there was no just reason for delay and directed that final judgment be entered in favor of the City, dismissing with prejudice all of plaintiffs' claims against the City. The district court also directed that final judgment be entered in favor of defendant Newby, dismissing with prejudice the Sec. 1983 claim and the state claim predicated on the actions of Michael and Waller, but not the state claim predicated on Newby's act of signing the machine gun application. Plaintiffs filed a timely notice of appeal, and 15 days later defendants City of Dayton and Newby filed a cross-appeal.

II.
A.

Plaintiffs challenge the district court's grant of summary judgment to the City of Dayton and Chief Newby on the Sec. 1983 claim. This court reviews a district court's grant of summary judgment de novo. Brooks v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.1991). Summary judgment is appropriate where there is no genuine issue of material fact and the...

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