Swann v. City of Richmond

• Decision Date: 03 August 2007
• Docket Number: Civil Action No. 3:06CV069.
• Parties: Dwayne SWANN, Plaintiff, v. CITY OF RICHMOND, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

498 F.Supp.2d 847

Dwayne SWANN, Plaintiff, v. CITY OF RICHMOND, et al., Defendants.

Civil Action No. 3:06CV069.

United States District Court, E.D. Virginia, Richmond Division.

August 3, 2007.

COPYRIGHT MATERIAL OMITTED

Steven David Benjamin, Betty Layne Desportes, Benjamin and Desportes, Richmond,

VA, Carmen Louise Christopher, Gina Lee Paik, John E. Hall, Joshua David Wolson, Covington & Burling, Washington, DC, for Plaintiff.

David John Freedman, Susan Lee Parrish, William Joe Hoppe, Office of the City Attorney, Richmond, VA, for Defendants.

MEMORANDUM OPINION

PAYNE, Senior District Judge.

This matter is before the Court on Defendant Kevin Paul Hathaway's Motion for Summary Judgment (Docket No. 84), Defendant James Earl Wilson's Motion for Summary Judgment (Docket No. 86), and Defendant Michael Sean Mocello's Motion for Summary Judgment (Docket No. 88). For the reasons set forth below, the motions are granted.

I.

On February 2, 2006, Dwayne Swann ("Swann" or "Plaintiff") filed this action against the City of Richmond, Officer Kevin Paul Hathaway ("Hathaway"), Officer James Earl Wilson ("Wilson"), and Officer Michael Sean Mocello ("Mocello"). On July 26, 2006, Senior United States District Judge Richard L. Williams granted the defendants' Motion to Bifurcate (Docket No. 21), and the case was segmented so that it would proceed first against the individual officers and, if they were liable, then against the City. These motions for summary judgment address only the claims against the officers, individually.

Swann alleges that each of the three defendant officers violated his constitutional and common law rights. His complaint consists of the same five counts against each officer. Count I alleges common law assault; Count II alleges common law battery; Count III alleges gross negligence; Count IV alleges intentional infliction of emotional distress; and Count V alleges a claim under 42 U.S.C. § 1983 for arbitrary, excessive, and unreasonable use of force in violation of the Fourth and Fourteenth Amendments to the United States Constitution.

The three officers have filed motions for summary judgment on each of the five claims, pursuant to Fed.R.Civ.P. 56. They each allege that they did not violate Swann's constitutional or common law rights and that they are entitled to qualified immunity. Discovery is concluded, the issues are fully briefed and have been argued orally.

II.

The facts must be considered in the light most favorable to the Plaintiff, according him the benefit of all reasonable inferences and resolving factual disputes in his favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The record facts are thusly presented below.

On the night of February 3 and early morning hours of February 4, 2004, members of the City of Richmond Police Department's Robbery Task Force were charged with locating two violent robbery suspects — David White and Quan Tillery — who were reportedly in Hillside Court, a high-crime area in the City of Richmond. The Robbery Task Force is a plain-clothes unit charged with solving robberies and other violent crimes. All three defendants, Hathaway, Mocello, and Wilson, were members of the task force.

That night, the officers drove through Hillside Court in unmarked cars. Although the officers wore plain clothes, they were also wearing black vests over their clothing that had large fluorescent lettering that said "RICHMOND POLICE" and a picture of a large police badge. The officers had no set plan other than for two teams to enter the area from different directions and drive through the neighborhood to see if the suspects could be located and arrested. One team, led by Sergeant Pence, entered Hillside Court from Harwood Street; the other, led by Sergeant Shapiro, entered from Bruce Street. The idea was to travel in separate groups so that, if a suspect ran from one group, the other group could cut off the fleeing suspect. The weather that night was extremely cold, with snow and ice on the ground.

As the officers entered Hillside Court, Sergeant Pence radioed that there were three or four individuals standing in a "cut" between two buildings. One of those individuals was later identified as Swann. Pence also broadcast that an individual was reaching toward his waistband and making a throwing motion. Hathaway heard Pence's transmission and observed the individuals mentioned. He also observed the individual later identified as Swann making a throwing motion. Hathaway decided to exit his vehicle and approach the individuals. As he approached, the individuals dispersed, and began to walk away quickly. Swann then took off running. Hathaway gave chase on foot. Wilson joined in the chase. Mocello, still in his vehicle, observed police officers running through the apartment complex chasing Swann. He turned and followed Swann in his vehicle.

The chase ended when Swann jumped into the rear passenger seat of a 1994 Nissan Altima ("Nissan") parked on the side of Bruce Street. Another individual, Taiquan Byrd, was already in the front passenger seat et the Nissan. Officers arrived on foot and in vehicles immediately thereafter. Several officers, including the defendants, surrounded the vehicle, shouting commands like, "Police," "Let us see your hands" and "Get out of the car." Neither Swann nor Byrd complied with these commands. Swann notes, however, that he could not hear most of those commands because Edwards, another officer at the scene, was banging on a window of the car with a flashlight.

At this point, Hathaway was standing in front of the car, near its center. Wilson also was standing in front of the car, but to Hathaway's left, and was closer to the curb. There was a van parked behind the two of them, slightly less than a car length away. Mocello was standing at the rear of the car, toward the driver's side. Pence's car was parked directly alongside the Nissan, leaving a small gap between the Nissan and the van.

The testimony of some officers in attendance suggests that, when Swann initially got into the car, he laid down across the rear seat, but then began to move around.¹ See, e.g., (Wilson Dep. 71:3-13, 94:8-15, Aug. 21, 2006; Mocello Dep. 153:17-1.54:11, Aug. 22, 2006; Pence Dep. 191:18-192:2, October 5, 2006.) Mocello, for instance, notes that Swann "continued to move back and forth between his waist and the floor of the car, keeping his hands hidden from view." (Mocello Dep. 153:17-154:11, 167:13-168:20.) Pence testified that he saw Swann "moving upwards and backwards" and that, if he had been standing where the other officers were, he would have drawn his weapon and aimed it at Swann because of the nature of Swann's movements. (Pence Dep. 191:18-192:2.) Hathaway noted that he saw Swann "bent down with his hands at his waist, making movements toward the floorboard and his waist." (Hathaway Dep. 112:20-25, Aug. 23, 2006.)

Shortly after the officers arrived at the Nissan, Byrd was observed moving from the passenger seat of the Nissan to the driver's seat. As a result of this action, Hathaway drew his weapon, aimed it at Byrd, and gave him commands to "stop," "don't move," and "don't do it." Byrd did not comply with these commands. Instead, he put the Nissan in gear and hit the accelerator. The Nissan accelerated forward, away from the curb, and toward the street. As the car moved out from the curb, it hit Wilson, striking his left leg and knocking him to the `ground, inflicting what later were determined to be minor injuries.

As the Nissan accelerated, all three defendant officers began firing into the car. Hathaway fired the first shot. He fired a total of three shots. His first bullet went through the windshield and into the driver's side door. His second bullet was recovered from Byrd's right calf. His third bullet was recovered in the passenger side door post of the Nissan. The first two bullets indisputably did not hit Swann. As discussed below, the parties dispute whether Hathaway's third bullet could have hit Swann.

Mocello heard gunshots and shattering glass at the same instant he saw the Nissan strike Wilson. Mocello responded by firing his gun four times. He fired the first shot at Byrd, and the three remaining shots at Swann. Two of Officer Mocello's four bullets hit Swann and were later removed from his body.

After being struck by the car, Wilson fired his weapon twice, as the car was passing him or just after it had passed him. One of those bullets was recovered from under the front passenger seat of the Nissan. The trajectory of the other bullet is unclear, though it may have traveled through a tire.

In the aftermath of the shooting, Byrd crashed the Nissan into a parked tractortrailer truck across the street. Swann was removed from the Nissan by officers McQuail, Mocello, and Shapiro. Hathaway and Wilson do not appear to have had any physical contact with Swann in the aftermath of the shooting. Although he had been shot and was obviously in pain, Swann's arms were forced behind him and he was handcuffed.

Swann eventually was taken to a local hospital and treated for five bullet wounds. One bullet went through his front shoulder; one went through his lower back; one lodged in his buttocks; one lodged in his right leg; and one went through his right leg. One of these shots caused a fracture to his right proximal fibula. While at the hospital, Swann also tested positive for opiates and cocaine. He was hospitalized for four days, suffering at least one seizure during that time. Wilson was also taken to the hospital. He was diagnosed with a bruise to his leg and given Motrin.

After his hospitalization, Swann developed infections in his leg from the bullet wounds and has had multiple surgeries, including one to remove the bullets that were still in his body. Bullet fragments remain embedded in every place he was shot. He now walks with a limp and has to use a cane on occasions....