Sova v. City of Mt. Pleasant
| Decision Date | 21 November 1996 |
| Docket Number | No. 95-CV-10385-BC.,95-CV-10385-BC. |
| Parties | Victoria SOVA, and Gary Sova, as Personal Representative of the Estate of Thomas Sova, Plaintiffs, v. The CITY OF MT. PLEASANT, a Municipal Corporation; Mt. Pleasant Department of Public Safety, Police Division; Director of Public Safety/Police Chief Martin Trombley, individually and in his Official Capacity; Sergeant Douglas LaLone, Officer Jeffrey Shell, and Officer Daniel Gaffka, individually and in their official capacities, jointly and severally, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Richard A. Dietz, Detroit, MI, for Plaintiffs.
Patrick A. Aseltyne, Lansing, MI, for Defendants.
This matter is before the court on defendants' Motion to Dismiss and/or for Summary Judgment, filed September 4, 1996. Plaintiff has responded. The court held oral argument on October 30, 1996, and the motion is ripe for determination.
Plaintiffs in this matter are Victoria Sova and Gary Sova, parents of Thomas Sova, who died after being shot by one of the defendant police officers. Defendants are the City of Mt. Pleasant, the Mt. Pleasant Department of Public Safety, Police Department, Police Chief Martin Trombley, Sergeant Douglas LaLone, Officer Jeffrey Shell, and Officer Daniel Gaffka. Each of the individual defendants is sued in both their individual and official capacities. The defendants will be referred to collectively as "defendants".
At approximately 9:00 p.m. on April 21, 1994, plaintiffs received a telephone call from the mother of their son's former girlfriend which caused plaintiffs to be concerned for their son's safety.1 Plaintiffs separately attempted to find their son in town. Gary Sova returned home at approximately 9:20 p.m. He approached the kitchen door located within a screened-in porch ("breezeway") and saw blood all over the kitchen. The kitchen door was locked. Gary Sova then ran to his neighbor Richard Bellinger's house and asked him to call 911. Gary Sova told Bellinger that he thought "Tommy's done something to himself." (Def.Br., Exh. 2, G. Sova Dep. at 31.) Bellinger called 911 at 9:27 p.m. Central Dispatch dispatched both an ambulance and a police unit to plaintiffs' home on Fancher Street in Mt. Pleasant.
Gary Sova returned to his house after asking Bellinger to call 911 and attempted to enter the kitchen again. He saw his son enter the kitchen wearing jeans. Tom Sova was bare chested and had blood covering his arms and chest from slash marks. Tom Sova had a butcher knife in each hand and told his father to leave or he would kill himself. (Def.Br., Exh. 2, G. Sova Dep. at 31.) Gary Sova walked from the breezeway, and his son followed with knives raised above his head, saying something to the effect that "I bet you won't call me your little girl again." (Def.Br., Exh. 2, G. Sova Dep. at 32.)
At that point Bellinger approached Gary Sova. Tom Sova yelled at Bellinger and walked out of the house. Both Gary Sova and Bellinger walked toward Chippewa Street. Gary Sova and Bellinger claim that they were not threatened by Tom Sova. (Pl. Br., Exh. 2, G. Sova Dep. at 41-42; Exh. 3, Bellinger Dep. at 20.) Tom Sova went back into the house. (Def.Br., Exh. 2, G. Sova Dep. at 32; Exh. 4, Bellinger Dep. at 15.)
After Tom Sova reentered the house, Jeff Prout, a volunteer firefighter, arrived. The time was approximately 9:31 p.m. Prout contacted 911 Central Dispatch; Central Dispatch sent out a call for all city units to report to the scene.
At 9:32 p.m., an ambulance arrived. During the next two minutes, officers Jeffrey Shell and Daniel Gaffka of the Mt. Pleasant Police Department ("MPPD") arrived separately. When they arrived, Tom Sova was on the second floor of the house, breaking out the glass of a window with the knives. He stood on the window ledge straddling the sash, yelling at the people in the yard that he was going to kill himself, that he had a gun, and that he was going to shoot people. (Def.Br., Exh. 5, Prosecutor's Report; Exh. 6, Shell Dep. at 173; Exh. 8, Gaffka Dep. at 21-22.) Vickie Sova testified that she did not hear Tom Sova say that he had a gun or that he would use one. (Pl.Br., Exh. 7, V. Sova Dep. at 81.) Other bystanders also heard Tom Sova threaten to get a gun. (Def.Br., Exh. 9, Abrogast Dep at 13-14; Exh. 12, Stokes Dep. at 27, 28, 69; Exh. 14, Shively Dep. at 33.) Abrogast hid behind a telephone pole for protection. (Def.Br., Exh. 9, Abrogast Dep at 13-14.) Witnesses Stevens and Funnell testified that they never heard mention of a gun, but they also testified that they did not hear everything that had been said that evening. (Def.Br., Exh. 27, Funnell Dep. at 15-18; Exh. 28, Stevens Dep. at 11-12, 15-16.)
Defendants allege that defendant Shell asked Gary Sova if there were guns in the house and that Mr. Sova told him there were. (Def.Br., Exh. 6, Shell Dep. at 176). Plaintiffs dispute this. Gary Sova did not recall whether any officer asked him if there were guns in the house. (Pl.Br., Exh. 2, G. Sova Br. at 87.) Paramedic Myers testified that Gary Sova did tell defendant Shell that there were guns in the house. (Def.Br., Exh. 11, at 24, 26.)
Vickie Sova returned to the house while Tom Sova was in the window. Tom Sova began yelling that he was going to kill her. Tom Sova was also calling her a "bitch". (Def.Br., Exh. 6, Shell Dep. at 176.) Vickie Sova asked everyone to leave him alone and that he would be okay. (Pl.Br., Exh. 7, V. Sova Dep. at 64-65.) Vickie Sova spoke to defendant LaLone, who said that the police were in charge of the scene because Tom Sova was attempting to commit suicide and that the attempt was a crime. (Pl.Br., Exh. 7, V. Sova Dep. at 65, 93.) Neither defendants nor any of the other officers at the scene set up a perimeter around the Sova house or tried to move bystanders out of the area. (Pl.Br., Exh. 6, Stevens Dep. at 34; Exh. 8, Ros Dep. at 15; Exh. 10, Shinaver Dep. at 17; Exh. 5, Stokes Dep. at 28; Exh. 12, Myers Dep. at 31-32; Exh. 13, LaLone Dep. at 160-61.)
At 9:36 p.m., defendant LaLone and Officer Sarah Cuthbertson arrived. Tom Sova continued to yell out the window, threatening to kill himself. (Def.Br., Exh. 13, Cuthbertson Report.) Tom Sova then disappeared from the window. Less than a minute later, Tom Sova came outside through the breezeway. Defendants claim that Tom Sova had both knives in his hands. (Def.Br., Exh. 14, Shively Dep. at 33-36.) Plaintiffs claim that he had a knife in his hand but that he never threatened anyone and he never held it above his head, rather, he was asking the police to go away. (Pl.Br., Exh. 6, Stevens Dep. at 19, 21.) He walked approximately twenty-five to thirty feet in the direction of his mother, who was standing with defendant LaLone and defendant Shell. He began to threaten her, saying something like "I'm going to kill you bitch." (Def.Br., Exh. 6, Shell Dep. at 205-07; Exh. 14, Shively Dep. at 36-40.) Vickie Sova tried to grab him, and in the process got blood on her clothes. (Pl.Br., Exh. 7, V. Sova Dep. at 69-70; Exh. 6, Stevens Dep. at 19-20.) He also threatened the officers. As Tom Sova approached, defendant LaLone told the officers to get out their "Freeze & P" (a chemical spray product designed to immobilize a person temporarily) and told Tom Sova to put down the knives. Someone moved Vickie Sova out of the way. (Def.Br., Exh. 7, LaLone Dep. at 158-59; Exh. 14, Shively Dep. at 41.)
Tom Sova went back to the breezeway; defendants LaLone, Shell and Gaffka followed. Tom Sova went into the kitchen through the door located in the breezeway. He shut the wooden kitchen door and broke out a glass window, yelling something to the effect that he wanted to "kill the fuckin' cops." (Def.Br., Exh. 7, LaLone Dep. at 188-90; Exh. 13, Cuthbertson Report.) Sova also yelled at the police that he wanted them to leave. (Pl.Br., Exh. 6, Stevens Dep. at 24.)
Defendant LaLone testified that he entered the breezeway in order to prevent Tom Sova from entering the house to obtain guns and that he remained on the breezeway after Tom Sova entered the house in order to see if Tom Sova obtained a gun and to maintain verbal contact in order to control and calm the situation. (Def.Br., Exh. 7, LaLone Dep. at 171-72.) (See also Def.Br., Exh. 6, Shell Dep. at 163; Exh. 15, Borkovich Dep. at 71-72.) When Officer Cuthbertson approached the breezeway, Tom Sova yelled at her. Defendant LaLone told her to get a canister of Clear Out (also a chemical spray) which is used in buildings to prevent barricade situations. (Def.Br., Exh. 14, Shively Dep. at 50.) This took place at approximately 9:38 or 9:39 p.m.
Defendant LaLone continued to talk to Tom Sova to tell him that they did not intend to arrest him and that an ambulance was on its way. He also told Sova that Sova would have to drop the knives before he came out. (Def.Br., Exh. 7, LaLone Dep. at 171, 181, 183; Exh. 6, Shell Dep. at 231-33; Exh. 12, Stokes Dep. at 63; Exh. 15, Borkovich Dep. at 46.) Some of the bystanders have testified that they did not hear the police offer to seek assistance for Tom Sova. (Pl.Br., Exh. 6, Stevens Dep. at 38-39, 73; Exh. 9, Funnell Dep. at 39; Exh. 16, Abrogast Dep. at 85-86; Exh. 10 Shinaver Dep. at 27-28.) Officer Shively stood outside the breezeway with his Freeze & P. Defendant Gaffka stood on one side of the kitchen door with his Freeze & P. Defendant Shell went outside to a kitchen window to station himself there with his Freeze & P, but returned to the breezeway when he found the kitchen window did not allow him a clear line. (Def.Br., Exh. 6, Shell Dep. at 224-25.)
Officer Borkovich summoned the Michigan State Police Emergency Support Team at 9:41 p.m. The dispatch reads: "We have a deranged subject here with a knife, harming himself here, and we have a real problem here unless we get...
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