Slay v. Marion County Sheriff's Dept.

• Decision Date: 23 November 1992
• Docket Number: No. 41A04-9112-CV-399,41A04-9112-CV-399
• Citation: 603 N.E.2d 877
• Parties: Lucius H. SLAY and Lena M. Slay, Individually and as Administrator and as Administratrix of the Estate of Rodney Harding Slay, Appellants-Plaintiffs, v. The MARION COUNTY SHERIFF'S DEPARTMENT, and John H. Jones, Deputy Sheriff, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 877

603 N.E.2d 877

Lucius H. SLAY and Lena M. Slay, Individually and as Administrator and as Administratrix of the Estate of Rodney Harding Slay, Appellants-Plaintiffs, v. The MARION COUNTY SHERIFF'S DEPARTMENT, and John H. Jones Deputy Sheriff, Appellees-Defendants.

No. 41A04-9112-CV-399.

Court of Appeals of Indiana Fourth District.

Nov. 23, 1992.

Michael K. Sutherlin, Offer Korin, Frank C. Capozza, Indianapolis, Jeffrey M. Linder, Shelbyville, for appellants-plaintiffs.

Andrew P. Wirick, City-County Legal Div., Indianapolis, for appellees-defendants.

CHEZEM, Judge.

Case Summary

Plaintiffs-Appellants, Lucius and Lena Slay ("the Slays"), Individually and as Administrators of the Estate of Rodney Harding Slay ("Rodney"), appeal from the summary judgment granted in favor of the Defendants-Appellees, The Marion County Sheriff's Department ("Sheriff's Department"), and John H. Jones, Deputy Sheriff ("Jones") (sometimes, collectively "Appellees"). We affirm in part (as to summary judgment for the Sheriff's Department), and reverse in part.

Issues

The parties have presented numerous issues for our review, which we restate as follows:

I. Whether this appeal should be dismissed on jurisdictional grounds.

II. Whether there are genuine issues of material fact as to whether Jones violated the Fourth Amendment rights of Rodney.

III. Whether the trial court erred in finding that Jones' use of force in this case complied with substantive due process under the Fourteenth Amendment.

IV. Whether the doctrine of qualified immunity applies in relation to Jones.

V. Whether a civil rights action under 42 U.S.C. Sec. 1983 can be maintained against the Sheriff's Department.

VI. Whether law enforcement immunity applies as to all of the state law claims against Jones and the Sheriff's Department.

Facts and Procedural History

Jones is a black police officer who worked for the Marion County Sheriff's Department. He was off-duty on the evening of May 12, 1982. At approximately 9:50 p.m., his mother-in-law was on the telephone with his wife, Lynn, when she indicated someone was trying to break into her house. Jones grabbed his badge and revolvers, and drove to the scene (which took "anywhere between 45 seconds to one minute," as they lived only 3 blocks away).

Jones pulled into the driveway and left his headlights on. He stepped out of his car and observed a black male sitting on the step right outside the door of his in-law's house pushing his left hand into the screen. Jones noticed the intruder, Rodney, was "reaching in, trying to open the door." At this point, the father-in-law, Jay Smith, came out the front door and pointed at Rodney sitting near the doorway in the porch. Jones told him to call the police and advise them that a deputy needed assistance.

The record shows the basic layout of the area in question to be as follows: (1) the property contains a driveway, garage, screened-in porch, fenced-in yard, and house; (2) the screened-in porch is between the garage and the house; (3) the house is next to, and not behind, the garage; (4) there is a side door to the garage directly across from the screen door to the porch; (5) the side door to the house can be entered through the porch; and (6) there is a narrow walkway between the garage door and the porch door. We also note that part of the fence apparently extended across the gap between the front of the garage and the front of porch or house.

As the large overhead garage door was open, Jones decided to approach Rodney through the garage. Once in the garage, Jones opened the garage's side door and had a clear view of Rodney. At his deposition, Jones stated that he next identified himself as a police officer and told Rodney to leave the property; but he was ignored. Jones then asked Rodney why he was trying to break into the house, and Rodney stated that "[y]ou don't know who the fuck I am." Jones states that he had his revolver in his right hand, "down to my side," at this point.

During this interchange, Jones states that he was standing just to the right of the garage doorway having stepped through it and onto the narrow walkway between the garage and porch. Jones was approximately two and one half (2 1/2) feet from Rodney at this point. Jones states that he identified himself for a third time (as a police officer) and repeatedly instructed Rodney, in a loud voice, to leave the property. Rodney stated "[he] didn't give a fuck," and was "getting in this house." Rodney's tone of voice was loud, his speech was not clear, and his words were slurred.

Up until this point, Rodney remained in a "crouched" position near the porch door. Shortly before, he had switched hands and was now using his right hand on the screen. Jones states he could no longer see the left hand, which was now behind Rodney.

Shortly thereafter, the Smith's dog came from the backyard and ran between Jones and Rodney. Jones states that Rodney kicked the dog, which fell against Jones' right leg and then "bolted" through the open side garage door and out to the driveway. Jones states that Rodney used this distraction to "snatch his hands out and to sw[i]ng at [Jones] with his right hand"; and that it was "a simultaneous swing and lunge." Jones raised his gun and fired a single shot as he stepped backwards to avoid the attack. Jones saw that the bullet had struck Rodney in the right hand, and, as the hand had already passed in front of Rodney's body during the swing, the impact spun Rodney around so that his right hand hit the screen where the hand had been previously. The bullet went through the screen approximately where the hand had been before, and blood and skin were lodged there in the screen.

Jones states that Rodney then looked at his injured hand and stated, "[y]ou think you're bad, mother fucker," along with, "I am going to kill your ass." Rodney then propelled himself off of "where he was leaning" and he "lunged" at Jones. Jones fired "two or three" times, and Rodney then fell through the side door of the garage. Rodney was struck three (3) times in the face: one bullet entered below the right eye next to the nose; another struck his upper lip; and the third entered his mouth. Two spent bullets were later recovered from Rodney's pharynx, and fragments of another were found in the mouth and stomach. Rodney never regained consciousness and died seven (7) days later.

Robert N. Stowers ("Stowers") was visiting his mother-in-law (who lives behind the Smiths) at the time of the incident. He heard loud voices and what sounded like gunshots, as follows:

[T]hen all of a sudden I heard some more noise so I went to the back window ... and heard what sounded like a gunshot. And I said, "[w]hat is this? I'm not going to put up with this all night." Then I heard someone say "Stop. Get away from there." Then I heard three more gunshots ...

* * * * * *

There were I guess three different voices that I heard. One voice was saying, "No. Get away from the door. If you don't get away I'm going to call the police." And another was saying, "Open this door. Open this damn door." Lots of profanity. I was trying to figure out what was going on out there, and my mother-in-law said "[p]robably somebody drunk and trying to get in their house," so we played it off. Then I heard a different voice which said, "Stop. Get away from there." And that's when I heard the three shots together.

Also, Jay Smith testified that he saw Rodney jump over the fence in his backyard. Rodney then proceeded to call Smith "bad language about open that door, blasted, blasted, get me through, I want to get in, I want to get out of here."

Shortly before the incident, the record indicates Rodney had been involved in an automobile accident in the neighborhood. The record also indicates that he was undergoing treatment at the time for an alcohol problem and was taking the drug Antabuse.

The Slays filed their Complaint on May 3, 1983. Nothing was done in the case for four (4) years. In January, 1989, the Slays filed their four (4)-count Amended Complaint for Damages, alleging that: (1) the "shooting was without legal provocation or cause, in the course of discriminatory enforcement of policies and regulations concerning the 'use of force' by policemen of the City of Indianapolis and Marion County Sheriff's Department"; (2) the Slays "have been deprived of [Rodney's] love and affection, and the normal services of a child"; (3) Deputy Jones' actions "directly violated the civil rights of Rodney as guaranteed by the Fourth, Sixth and Fourteenth Amendments of the Constitution of the United States of America; and Article I, Section I, [and] Article I, Section 2, and Article I, Section 15, of the Constitution of the State of Indiana"; and (4) Deputy Jones, "acting under color of state law in his official capacity ... willfully and wantonly shot Rodney without any legal justification depriving him of his life and liberty without due process," in violation of the Fourth, Fifth and Fourteenth Amendments. ¹

On January 31, 1991, the Appellees filed their Motion for Summary Judgment. The trial court held a hearing, and granted the Motion on June 12, 1991. The court's Order states, in part, as follows:

As to Count I, from the evidence properly before the Court having probative value, there is no genuine issue of material fact as to whether the use of deadly force by [Jones] violated [Rodney's] [d]ue [p]rocess [r]ights under the Fifth or Fourteenth Amendments of the United States Constitution. It did not. From the evidence before the Court there is no material fact indicating Jones was attempting to effectuate an arrest or otherwise intentionally gain control over Rodney when firing his weapon. As a result, Fourth Amendment analysis is inapplicable. Furthermore, it is apparent that Jones' use of force complied with substantive due process as set out in Rochin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed. 183] (1952), and its progeny...