Toon v. Zerkle

• Decision Date: 26 October 2022
• Docket Number: Civil Action 2:21-cv-00421,2:21-cv-00427
• Parties: TAYLOR QUINN, Plaintiff, v. LT. CHRISTOPHER K. ZERKLE, et al., Defendants. MARK TOON, et. al., Plaintiffs, v. LT. CHRISTOPHER K. ZERKLE, et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

TAYLOR QUINN, Plaintiff,
v.
LT. CHRISTOPHER K. ZERKLE, et al., Defendants.

MARK TOON, et. al., Plaintiffs,
v.
LT. CHRISTOPHER K. ZERKLE, et al., Defendants.

Civil Action Nos. 2:21-cv-00421, 2:21-cv-00427

United States District Court, S.D. West Virginia, Charleston Division

October 26, 2022

MEMORANDUM OPINION AND ORDER

IRENE C. BERGER UNITED STATES DISTRICT JUDGE

The Court has reviewed Defendants Sgt. Paxton Lively, Sgt. Rick Keglor, Deputy Brandon Kay and Deputy Jamie Miller's Motion for Summary Judgment (Document 95), Defendants Sgt. Paxton Lively, Sgt. Rick Keglor, Deputy Brandon Kay and Deputy Jamie Miller's Memorandum of Law in Support of Their Motion for Summary Judgment (Document 96), the Plaintiffs' Response in Opposition to Defendants Sgt. Paxton Lively, Sgt. Rick Keglor, Deputy Brandon Kay, and Deputy Jamie Miller's Motion for Summary Judgment (Document 102), Defendants Sgt. Paxton Lively, Sgt. Rick Keglor, Deputy Brandon Kay and Deputy Jamie Miller's Reply to Plaintiffs' Response in Opposition to Their Motion for Summary Judgment (Document 103), as well as all exhibits.

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The Court has also reviewed Defendant Lt. Christopher K. Zerkle's Motion for Summary Judgment (Document 97), the Memorandum in Support of Defendant Lt. Christopher K. Zerkle's Motion for Summary Judgment (Document 98), the Plaintiffs' Response in Opposition to Defendant Lt. Christopher Zerkle's Motion for Summary Judgment (Document 101), Defendant Lt. Christopher K. Zerkle's Reply to Plaintiff's Response to Defendant Lt. Christopher K. Zerkle's Motion for Summary Judgment (Document 104), as well as all exhibits.

For the reasons stated herein, the Court finds that both motions for summary judgment should be granted.

FACTS

The Plaintiffs in this consolidated case are Taylor Quinn and Mark Toon, as personal representative of the Estate of Eric Toon (hereinafter, “Mr. Toon” refers to both Eric Toon and the Estate). The Defendants are Lt. Christopher K. Zerkle, Sgt. Paxton Lively, Sgt. Rick Keglor, Deputy Brandon Kay, and Deputy Jamie Miller. The Defendants were all law enforcement officers involved in a pursuit of Mr. Toon, entry into the residence he shared with Ms. Quinn, and/or the shooting death of Mr. Toon and shooting injury of Ms. Quinn that occurred on August 1, 2019. Lt. Zerkle is a Lieutenant with the West Virginia State Police. Defendants Lively, Keglor, Kay, and Miller (collectively, the Kanawha Deputies) are employed by the Kanawha County Sheriff's Department. Plaintiff Toon alleges the following claims: Count I: 42 U.S.C. § 1983 - Retaliation and Use of Excessive Force in Violation of the 1st Amendment of the United States Constitution, as to Defendant Zerkle; Count II: 42 U.S.C. §1983 - Violation of the 4th Amendment of the United States Constitution: Warrantless Entry and Excessive Force, as to Defendants Kay, Keglor, Lively, Miller, and Zerkle (dismissed as to Defendant Zerkle); Count III:

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42 U.S.C. § 1983 - Failure to Intervene in Violation of the 4th Amendment of the United States Constitution, as to Defendants Kay, Keglor, Lively, Miller, and Zerkle; and Count IV: 42 U.S.C. § 1983 - Violation of the 4th Amendment of the United States Constitution: Excessive Force, as to Defendant Zerkle. Plaintiff Quinn alleges the following claims: Count I: 42 U.S.C. §1983 -Violation of the 4th Amendment of the United States Constitution: Excessive Force, as to Defendant Zerkle; Count II: 42 U.S.C. § 1983 - Violation of the 4th Amendment of the United States Constitution: Warrantless Entry, as to Defendants Lively, Keglor, Kay, and Miller; Count III: Battery, as to Defendant Zerkle; Count IV: Trespass, as to Defendants Lively, Keglor, Kay, and Miller; and Count V: Extreme and Outrageous Conduct; Emotional Distress, as to Defendants Lively, Keglor, Kay, and Miller (dismissed).^[1]

This incident began when Lt. Zerkle responded to a report of a domestic violence incident near Falcon Drive and Lotus Drive in Sissonville, West Virginia, in the morning hours on August 1, 2019. He had observed Eric Toon and a passenger, Noah Sutherland, on a motorcycle in a private lot as he approached the location of the reported domestic violence, although he was unaware of their identities at the time. He noted that Mr. Sutherland was not wearing a helmet, but the motorcycle was parked, so there was no violation. While speaking with the individuals involved in the reported domestic altercation, Lt. Zerkle saw the same motorcycle approach. Mr. Sutherland still was not wearing a helmet. Lt. Zerkle contends that Mr. Toon lost control and the motorcycle lightly hit the wheel and fender of his cruiser. In a call to dispatch, he indicated that

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the motorcycle “about” hit his cruiser, and the other individuals present state that the motorcycle did not hit the cruiser.^[2] (Audio from Zerkle call, Document 101-5.)

Mr. Toon, with Mr. Sutherland on the back of the motorcycle wearing no helmet and no shirt, fled when Lt. Zerkle attempted to initiate a traffic stop. In place of a valid license plate, the motorcycle had a fake plate with the words “Run This” and an extended middle finger, which a dispatcher ran and confirmed to be invalid. Mr. Toon led Lt. Zerkle on a high-speed chase toward Charleston, across the Patrick Street Bridge, and onto the interstate. His speed exceeded 100 miles per hour at times, perhaps exceeding 120 miles per hour based on estimates from officers who observed him. In his initial statement on August 1, 2019, Mr. Sutherland reported being terrified, hanging on to Mr. Toon with his eyes closed for much of the pursuit.

A state police dispatcher, Amber Childers, generated a West Virginia State Police Telecommunicator Pursuit Checklist based on communications with Lt. Zerkle during the pursuit, noting that the pursuit began at 8:54 a.m. on August 1, 2019, and terminated at 8:59 a.m. near the Oakwood Bridge, when Lt. Zerkle indicated he had lost sight of the motorcycle and was terminating due to traffic conditions. (Pursuit Checklist) (Document 101-5.) Based on his statements, she noted that the pursuit was part of a domestic call and the suspect almost hit the cruiser. Ms. Childers also put out a BOLO (be on the lookout) to alert other troopers, and information was relayed to Metro 911 at the same time.

The Metro 911 call notes reflect the radio traffic that officers in agencies outside the state police, including the Charleston Police Department and the Kanawha County Sheriff's

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Department, could access. The Metro call log begins at 8:57 a.m. and indicates that the suspect “is part of domestic; he tried to hit the officer with th[e] car on scene.” (Metro Call No. 538) (Document 101-7.) At 9:00:18, the Metro radio traffic indicated that the state police were backing off-then about two minutes later, note that Lt. Zerkle was behind the suspect again near the Westmoreland exit. At 9:08:08, an entry states that Lt. Zerkle “has suspect in sight, not detained.” (Id.) The next entries note that the area is being canvassed, the bike is blocked in, and that K-9s are on the scene. At 9:14:02, the address is provided. The Metro log does not indicate, at any point, that the pursuit had been terminated.

Lt. Zerkle testified that he terminated the pursuit when he lost sight of the motorcycle, but soon caught up to the motorcycle in an area with roadwork that slowed traffic. He followed and observed the motorcycle going in the direction of the area where he had first encountered it, so he returned to that area without keeping the motorcycle in sight. Department of Highways workers motioned him in the right direction at a nearby intersection, and the couple involved in the earlier domestic call told him which house Mr. Toon lived in (without identifying him by name) and that Mr. Toon and Mr. Sutherland had just entered the house.

Security camera footage from the front porch of Mr. Toon and Ms. Quinn's residence shows Mr. Toon and Mr. Sutherland go past on the motorcycle, then run into the house at 9:13:15 a.m.^[3] (Porch video, Def.'s Ex. 4.) The state police vehicle enters the frame at 9:14:30, immediately followed by another police vehicle. Officers from the state police, Kanawha County Sheriff's Department, and Charleston Police Department converged on the scene. Lt. Zerkle and Corporal Charles Whittington of the Charleston Police Department went onto the porch of the

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residence and knocked on the door. Receiving no response and finding that the door was secured, they returned to searching the area. Some officers arriving suggested that the suspect was likely Eric Toon, based on the location and their previous experience with him.

Corporal Jamie Miller of the Kanawha County Sheriff's Office and his K-9 located the motorcycle and helmet and began a track, with assistance from other officers. That was briefly interrupted when an officer yelled that he saw someone going into the woods, but they were able to return to the track after that proved to be a false alarm. The K-9 track led toward the front porch and eventually up a ramp to the entrance to the house. Sgt. Keglor and Sgt. Lively went to the front door to knock and announce.

Meanwhile, inside the residence, Ms. Quinn had been asleep when Mr. Toon and Mr. Sutherland returned. When she awoke, Mr. Toon had an AR-15, which she testified she was not aware he possessed.^[4] He told her that police had followed them home. She suggested they pray. They gathered in the bedroom and watched the surveillance footage of officers arriving outside the trailer and knocking on the door. Ms. Quinn indicated that she and Mr. Sutherland were following Mr. Toon's directions and his lead in determining not to open the door or speak to the officers. At Mr. Toon's direction, Mr. Sutherland checked that the door was locked, prior to officers stepping onto the porch. Mr. Toon told them that they would escape on his motorcycle, promising not to...