Waterman v. Batton, CIV. CCB-02-1725.

• Decision Date: 11 December 2003
• Docket Number: No. CIV. CCB-02-1725.,CIV. CCB-02-1725.
• Citation: 294 F.Supp.2d 709
• Parties: Michael WATERMAN, et al. v. Michael BATTON, et al.
• Court: U.S. District Court — District of Maryland

294 F.Supp.2d 709

Michael WATERMAN, et al. v. Michael BATTON, et al.

No. CIV. CCB-02-1725.

United States District Court, D. Maryland.

December 11, 2003.

COPYRIGHT MATERIAL OMITTED

William J. Murphy, Murphy and Shaffer, Baltimore, MD, for Plaintiff.

Karen J. Kruger, Office of the Attorney General, Maryland Transportation Authority, J. Joseph Curran, Jr., Michael D Berman, State of Maryland Office of the Attorney General, Baltimore, MD, for Defendant.

Peter Saar, Baltimore Police Department, Baltimore, MD, for Movant.

MEMORANDUM

BLAKE, District Judge.

The defendants, Michael Batton, Christopher Heisey, Kenneth Keel, and the state of Maryland, have moved for summary judgment against the plaintiffs, Michael Waterman, Roland Waterman, and Ruth Waterman. The issues in this motion have been fully briefed and no hearing is necessary. Local Rule 105.6. For the reasons stated below, the motion for summary judgment will be denied.

BACKGROUND

On the afternoon of Tuesday, November 28, 2000, three police officers employed by the Maryland Transportation Authority ("MdTA") fired nine rounds of ammunition at an automobile occupied by Josh Waterman ("Waterman"). Waterman sustained five gunshot wounds, and died shortly thereafter as a result of his injuries. Plaintiff Michael Waterman is the brother of Josh Waterman, and the personal representative of his estate. Plaintiffs Roland and Ruth Waterman are the parents of Josh Waterman, and his sole primary beneficiaries under Maryland state law. Defendants Michael Batton, Christopher Heisey, and Kenneth Keel are the three MdTA police officers who fired the nine rounds. While the parties agree on these basic facts, they offer conflicting versions of the events leading up to and culminating in Josh Waterman's death. Because these factual disputes are critical to the resolution of the defendants' motion for summary judgment, all of the relevant factual evidence is set forth in some detail below. On this motion for summary judgment, the court must consider these facts in the light most favorable to the plaintiffs. See Jones v. Buchanan, 325 F.3d 520, 523 (4th Cir. 2003).

I.

Josh Waterman was a 42-year old man with a history of bipolar disorder, a mental illness characterized by mood swings, including episodes of mania and delusional thinking. (Defs.' Mem. at Ex. 1, Lion Rep., at 1-3.) Waterman had been hospitalized on at least seven occasions since the age of 29 as a result of his bipolar disorder. (Id. at 1.) He had been treated with several different psychotropic medications, as well as with outpatient care. (Id. at 1-2.) Waterman had a history of conflicts with family members, other personal contacts, and the police, which appear to have occurred during his manic episodes.¹ (Id.; id. at Ex. 2, Juneau Dep., at 12-13, 15-18; id. at Ex. 3, Ruth Waterman Dep., at 68-69, 82.) In addition, there is evidence that Waterman had experienced delusional thinking in the past, for example believing that he had special powers. (Id. at Ex. 1, Lion Rep., at 2.)

In November 2000, Waterman was living in Raleigh, North Carolina with his brother, Michael Waterman, and Michael Waterman's two children, who were age 12 and 14 at the time. On Sunday, November 26 and Monday, November 27, several family members thought that Waterman might be experiencing some symptoms of mania, and on that Monday Waterman reported to a family member that he had stopped taking his prescribed medication. (Pls.' Opp. Mem. at Ex. 1, M. Waterman Dep., at 16-17; id. at Ex. 2, Walters Dep., at 8-10, 25-27.) On Monday evening Staci Walters, Michael Waterman's ex-wife, offered to take Josh Waterman to a medical clinic the next morning, and Waterman agreed that he would go with her. (Defs.' Mem. at Ex. 5, Walters Dep., at 10-11, 13.) At some point after that conversation with Walters, Waterman apparently left Raleigh in his car and drove north on Interstate 95, ending up in the Baltimore area on the afternoon of Tuesday, November 28. (Id. at 13, 19-20; Pls.' Opp. Mem. at Ex. 1, M. Waterman Dep., at 17-18.) Waterman was driving a gold 1992 Mazda Protege.

Although this background may help to explain the events of November 28, it is important to note that neither of the parties have presented any evidence that any of the police officers who encountered Josh Waterman on that day were aware of his mental health history or his current mental state.²

II.

The shooting incident in this case started with a police pursuit. On November 28 around 3:11 p.m., Josh Waterman was driving his vehicle in the terminal area of Baltimore Washington International (BWI) Airport. MdTA Officer Eric Farrow, using a radar device, recorded Waterman traveling at 51 m.p.h. in a 25 m.p.h. speed zone in the airport terminal area. (Pls.' Opp. Mem. at Ex. 3, Farrow Dep., at 22-24). Farrow got into his police vehicle, activated his emergency sirens and lights, and began to follow Waterman.³ (Id. at 28.) Farrow followed Waterman onto Interstate 195 North and then onto Interstate 95 north.⁴ (Id. at 40-41.) Shortly after Farrow and Waterman exited onto I-95 north, MdTA Officer Adam Watkowski joined in the pursuit in a second police vehicle, also with his emergency sirens and lights activated.⁵ (Id. at 41, 81; Defs.' Mem. at Ex. 12, Videotape: BWI 9; id. at Ex. 16, Videotape: BWI 6.) Both Farrow and Watkowski continued to follow Waterman on 1-95 North, through the Fort McHenry Tunnel to the toll plaza on the other side, where the shooting occurred. (Defs.' Mem. at Ex. 12, Videotape: BWI 9; id. at Ex. 16, Videotape: BWI 6.)

A transcript of the police radio communications between Farrow, Watkowski, and MdTA officers at the Fort McHenry Tunnel toll plaza provides a contemporaneous record of the events leading up to the shooting. At approximately 3:16 p.m., Watkowski radioed Communications at the Tunnel that he was involved in a "10-80" (chase in progress) heading northbound on I-95 toward the Tunnel. (Id. at Ex. 11, Tr. 11/28/00 Chs. 1 & 6, at 1.) A communications officer at the Tunnel relayed this message to all units, identifying the subject vehicle as a gold Mazda with North Carolina license plate number MZL-1595. (Id. at 2.) Officers Batton, Heisey, and Keel all heard the 10-80 announcement over the police radio. (Id. at Ex. 19, Heisey Stmt., at 1; id. at Ex. 24, Keel Stmt., at 1; id. at Ex. 26, Batton Stmt., at 2.) MdTA officers at the toll plaza area just north of the Tunnel radioed that they had permission to get involved and were standing by. (Id. at Ex. 11, Tr. 11/28/00 Chs. 1 & 6, at 2.) One officer received permission to prepare "stop sticks" in the northbound lanes on the north side of the toll plaza (id. at 3), and someone subsequently radioed that stop sticks were being set up (id. at 4).⁶

At approximately 3:17 p.m., Officer Watkowski radioed to Communications at the Tunnel: "just tried to run me off the road ... he's trying to take us off the road." (Id. at 2.) Whether or not Watkowski's description was accurate,⁷ Officers Batton, Heisey, and Keel have stated that they heard this transmission over the police radio. (Id. at Ex. 18, Batton Dep., at 27-28; id. at Ex. 19, Heisey Stmt., at 3; id. at Ex. 20, Keel Dep., at 23.) At approximately 3:21 p.m., right after the vehicles entered the Fort McHenry Tunnel, Watkowski radioed to communications "he reached under the seat have all units 10-0." (Id. at Ex. 11, Tr. 11/28/00 Chs. 1 & 6, at 4.) Officer Heisey stated that he heard the 10-0 ("use caution") warning.⁸ (Id. at Ex. 19, Heisey Stmt., at 3.)

The videotape evidence depicts the events that happened next. Waterman exited the Tunnel and proceeded to lane 12 at the toll plaza, on the far-left or western side of the twelve northbound lanes of traffic.⁹ (Id. at Ex. 16, Videotape: BWI 6.) At this point, the police pursuit had lasted more than ten minutes.¹⁰ (Id. at Ex. 12, Videotape: BWI 9.) As Waterman's vehicle emerged from the Tunnel, five uniformed MdTA officers — the three defendant officers, as well as Officer Sean Hames and Officer Lance Bellman — approached the vehicle on foot with their guns drawn. (Id. at Ex. 16, Videotape: BWI 6.) The videotape shows the officers emerging from the general area of a concrete island located between lanes 11 and 12, approaching from the front and right side of Waterman's vehicle. (Id.)

The videotape shows that the brake lights on Waterman's vehicle light up as he drives out of the tunnel and in the direction of the toll plaza, and his vehicle appears to slow down. (Id.; see also id. at Ex. 21, Packer Eng'g Rep.) Several of the officers testified that they saw Waterman's vehicle slow down (and perhaps stop) as he approached the toll plaza. (Id. at Ex. 17, Hames Dep., at 54, 59, 61; id. at Ex. 18, Batton Dep., at 29, 31-32; Pls.' Opp. Mem. at Ex. 5, Keel Dep., at 44.) The brake lights on Waterman's vehicle then go off, and his vehicle appears to coast for about one second. (Defs.' Mem. at Ex. 16, Videotape: BWI 6; see also id. at Ex. 21, Packer Eng'g Rep.) Then the brake lights go off on the car directly in front of Waterman's vehicle in the toll lane, and that car begins to move forward. (Id. at Ex. 16, Videotape: BWI 6.) At that moment, the back of Waterman's vehicle dips down slightly and then rises back up, and his vehicle accelerates in the general direction of the toll plaza ahead. (Id.) Officers Batton, Bellman, and Keel described the acceleration of Waterman's vehicle as "lunging" or "lurching" forward. (Id. at Ex. 18, Batton Dep., at 33; id. at Ex. 23, Bellman Stmt., at 2; Pls.' Opp. Mem. at Ex. 5, Keel Dep., at 48.)

Following the moment of acceleration, the videotape shows the officers aiming their weapons at the vehicle. (Defs.' Mem. at Ex. 16, Videotape: BWI 6.) Officers Batton, Hames, and Keel all testified that the first shot was fired when Waterman's vehicle started to accelerate forward.¹¹ (Id. at Ex. 20, Keel Dep., at 47-49; Pls.' Opp. Mem. at Ex. 6, Batton Dep., at 34; id. at Ex. 8, Hames...