Tserkis v. Baltimore County, Civil Action ELH-19-202

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtEllen L. Hollander United States District Judge
PartiesSHARON CARROLL TSERKIS, Individually, and as Personal Representative of the Estate of Jeffrey Gene Evans, et. al., Plaintiffs, v. BALTIMORE COUNTY, et. al., Defendants.
Decision Date23 July 2021
Docket NumberCivil Action ELH-19-202

SHARON CARROLL TSERKIS, Individually, and as Personal Representative of the Estate of Jeffrey Gene Evans, et. al., Plaintiffs,
v.

BALTIMORE COUNTY, et.
al., Defendants.

Civil Action No. ELH-19-202

United States District Court, D. Maryland

July 23, 2021


MEMORANDUM OPINION

Ellen L. Hollander United States District Judge

This civil rights case arises from the fatal shooting of fifty-two-year-old Jeffrey Evans ("Evans" or "Decedent") on December 14, 2015, at the hands of Baltimore County police officers. They arrived at the home of Evans's girlfriend, Jennifer Wild, after she informed a 911 operator that Evans had consumed numerous pills of prescription painkillers and was acting suicidal. In the ensuing interaction between Evans and the officers, Evans was tased three times and then fatally shot.

Plaintiffs Sharon Carroll Tserkis, individually and as Personal Representative of the Estate of Evans; Jacqueline Williams; Valerie Jernigan; and Amanda Cooper-Spaulding, as "Mother, Guardian, and Next Friend" of K.E., a minor, filed suit in the Circuit Court for Baltimore County. ECF 1-4 (the "Complaint"). Tserkis, Williams, and Jernigan are sisters of the Decedent, and K.E. is the granddaughter of the Decedent. Id. ¶¶ 5, 6, 7, 8.[1] They sued Baltimore County (the "County") as well as Baltimore County Police Department ("BCPD") officers Michael Pfadenhauer, Chad Canup, Michael Spahn, Adam Heavner, and Michaela Moore (collectively, the "Officers" or "Officer Defendants"), alleging violations of federal and Maryland law.[2] Defendants removed the case to federal court on the basis of federal question jurisdiction, pursuant to 28 U.S.C. § 1331. ECF 1 ("Notice of Removal").

At its core, the suit is premised on the theory that, in tasing and then shooting Evans, the Officers used excessive force, which resulted in an unconstitutional seizure. The Complaint contains eleven counts. Counts I through V, along with Count XI, assert State law claims, as follows, ECF 1-4, ¶¶ 36-61, 119-125:

• Count I (all plaintiffs against all defendants) - "Wrongful Death," pursuant to Md. Code (2020 Repl Vol.), § 3-904(a) of the Courts and Judicial Proceedings Article ("C.J.")
• Count II (Tserkis, in her representative capacity against all defendants) - "Survival Action," pursuant to the Maryland "Survival Act Statute";[3]
• Count III (all plaintiffs against all defendants) - violation of the Decedent's rights under Article 24 of the Maryland Declaration of Rights "to be free from unreasonable seizures without due process of law, and ... to be free from excessive force"
• Count IV (all plaintiffs against all defendants) - "Bystander Liability," in violation of Evans's right under an unspecified provision of the Maryland Constitution "to be free from an unreasonable seizure without due process of law";
• Count V (all plaintiffs against the Officers) - violation of Mr. Evans's rights under Article 24 of the Maryland Declaration of Rights "to be free from an unreasonable seizure without due process of law . . . .";
• Count XI (Tserkis, in her representative capacity, against the Officers) - "Battery." Counts VI through X are founded on 42 U.S.C. § 1983, id. ¶¶ 62-118:
• Count VI (Tserkis, in her representative capacity, against all defendants) - violation of Evans's rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the Constitution;
• Count VII (Tserkis, in her representative capacity, against the Officers) - "Peace Officer Liability," on the basis of a violation of Evans's rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the Constitution;
• Count VIII (Tserkis, in her representative capacity, against all defendants) - "Bystander Liability," in violation of the "right to be free from an unreasonable search and seizure without due process of law . . . ."
• Count IX (Tserkis, in her representative capacity, against all defendants) - "Municipal Liability," on the basis of an alleged pattern and practice of failure to train and supervise, pursuant to Monell v. Dep 't of Soc. Servs. of the City o/N.Y., 436 U.S. 658 (1978);
• Count X (all plaintiffs against all defendants) - "Excessive Force in Violation of the Fourth and Fourteenth Amendments."

By Memorandum (ECF 21) and Order (ECF 22) of October 4, 2019, the Court bifurcated the Monell claim (Count IX). In addition, Monell discovery was stayed, pending resolution of the claims against the Officers.

The Officers have filed a post-discovery motion for summary judgment. ECF 77.[4] The motion is supported by a memorandum (ECF 77-1) (collectively, the "Motion") and numerous exhibits. ECF 77-3 to ECF 77-39. The Officers argue that they are entitled to qualified immunity, and that all plaintiffs, other than Tserkis in her representative capacity, lack standing to sue under Maryland's wrongful death statute, C.J. § 3-904. Plaintiffs oppose the motion. ECF 83; ECF 85. Their submissions are supported by exhibits. The Officers replied. ECF 87.

In addition, the Officers have moved to bifurcate the trial as to damages. ECF 74 (the "Bifurcation Motion"). Plaintiffs oppose the Bifurcation Motion. ECF 80. The Officers replied. ECF 82.

No hearing is necessary to resolve the pending motions. See Local Rule 105.6. For the reasons that follow, I shall grant the summary judgment motion in part and deny it in part. And, I shall deny the Bifurcation Motion.

I. Factual Background[5]

A.

The Officers are the only eyewitnesses to the tasing and shooting of Evans. Their statements to the BCPD and their deposition testimony provide most of the facts. However, plaintiffs submitted, among other things, a video that shows the critical portion of the incident at issue.[6]

The video appears to have been recorded by a camera in, or affixed to, Spahn's taser. See ECF 77-11 (Spahn's Stmnt.) at 2. Although the Officers submitted still images that apparently were extracted from the video (ECF 77-14 to ECF 77-34), they do not acknowledge the video footage, which is decidedly more revealing than the series of still photographs.

The Supreme Court has instructed that, when '"opposing parties tell two different stories, one of which is blatantly contradicted' by video evidence contained in the record ... a court should "view[ ] the facts in the light depicted by the videotape, '" rather than rely on '"visible fiction' propounded by the party whose account is contradicted by the video evidence. Sawyer v. Asbury, 537 Fed.Appx. 283, 291 (4th Cir. 2013) (quoting Scott v. Harris, 550 U.S. 372, 380-81 (2007)), abrogated in part on other grounds, as recognized in Brooks v. Johnson, 924 F.3d 104, 114 n.4 (4th Cir. 2019). On the other hand, "the principle articulated in Scott does not license a court to reject one side's account as a matter of law if the 'documentary evidence, such as a video,' merely 'offers some support for [the other side's] version of events.'" Sawyer, 537 Fed.Appx. at 291 (emphasis in original) (quoting Witt v. W.Va. State Police, 633 F.3d 272, 276 (4th Cir. 2011)).

Nevertheless, a video "whose accuracy is unchallenged" should be considered at summary judgment. Sawyer, 537 Fed.Appx. at 291 (quoting Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007)). And where, as here, the uncontested "video footage does not clearly support" the defendants' "account," the video is viewed in the light more favorable to the plaintiff at summary judgment. Brooks, 924 F.3d at 108, 115 (considering video footage in the context of an Eighth Amendment excessive force claim).

In the Discussion, I shall reference expert evidence submitted by plaintiffs. Plaintiffs retained Tyrone Powers, Ph.D., a former Maryland State Trooper and former agent with the Federal Bureau of Investigation, to opine on the Officers' use of force. Dr. Powers generated a report (ECF 83-21), although the exhibit containing the report appears to be cut off before the conclusions are set forth. See Id. at 16.[7] Plaintiffs have also submitted excerpts of Dr. Powers's deposition testimony. ECF 83-10. In addition, plaintiffs have filed portions of the deposition testimony of Charles J. Key (ECF 83-14). According to plaintiffs, Key was retained by defendants as an expert. See, e.g., ECF 83 at 6. Curiously, defendants have not submitted any of Key's evidence. Nor do they acknowledge plaintiffs use of his deposition in their reply.

B.

On the morning of December 14, 2015, Wild returned to her townhome in Middle River, located in Baltimore County, Maryland, after having spent the previous night at her mother's home. ECF 77-4 (Wild Dep.) at 4 (Tr. at 37); ECF 77-5 (Moore Dep.) at 4 (Tr. at 19). Evans was present at the home. Id. (Tr. at 35-36).[8] A verbal altercation ensued between Wild and Evans. Id. at 4-5 (Tr. at 37-39). Evans repeatedly accused Wild of being unfaithful. Id. To Wild, it seemed that Evans was speaking in a "kind of. . . mumble jumble," and "it was kind of like he was giving up on life." Id. at 5 (Tr. at 39).

At some point during the altercation, Evans retrieved various prescription medications. Id. at 5 (Tr. at 38).[9] Wild saw Evans consume the contents of "at least three . . . massive bottles" of pills. ECF 77-4 (Wild Dep.) at 5 (Tr. at 40). She estimated that he swallowed "about 300 pills." Id. at 5 (Tr. at 40). Wild began "begging" Evans to "throw up." Id. (Tr. at 41). Although previously agitated, Evans became "calm" and told Wild that he did not want to go to a hospital. Id. at 6 (Tr. at 43). Nevertheless, fearing for Evans's safety, Wild called 911. Id.[10]

In a statement dated December 16, 2015 (ECF 77-6, "Moore's Stmnt"), Moore recalled that she was dispatched to Wild's home, and arrived there at around 9:30 A.M. Id. at 2. Wild met Moore outside, and informed Moore that Evans had consumed numerous pills and "was attempting to kill himself." Id. Moore...

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