Webb v. Raleigh County Sheriff's Dep't

• Decision Date: 28 December 2010
• Docket Number: Civil Action No. 5:09–cv–01253.
• Citation: 761 F.Supp.2d 378
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Mary WEBB, et al., Plaintiff,v.RALEIGH COUNTY SHERIFF'S DEPARTMENT, et al., Defendants.

761 F.Supp.2d 378

Mary WEBB, et al., Plaintiff,

v.RALEIGH COUNTY SHERIFF'S DEPARTMENT, et al., Defendants.

Civil Action No. 5:09–cv–01253.

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

Dec. 28, 2010.

Michael A. Olivio, Travis A. Griffith, Olivio & Griffith, Charleston, WV, for Plaintiff.Kevin J. Robinson, Ashley L. Justice, Chip E. Williams, Wesley V. Queen, Pullin Fowler Flanagan Brown & Poe, Beckley, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

IRENE C. BERGER, District Judge.

The Court has reviewed Defendant John Hajash's Motion for Summary Judgment [Docket 31], Defendant Greg Kade's Motion for Summary Judgment [Docket 37], and the Motion for Summary Judgment of Defendants Danny Moore, Raleigh County Commission, Raleigh County Sheriff's Department and Steve Tanner [Docket 39]. After careful consideration of the supporting memoranda, responses and replies, the Court GRANTS in part and DENIES in part the above motions.

I. FACTUAL BACKGROUND

In addition to being the eve of Independence Day, July 3, 2006, was two days after Robert Webb's birthday. Mr. Webb lived with his wife, Plaintiff Mary Webb, and two daughters at 251 Cabell Heights Road, Beckley, Raleigh County, West Virginia. Late that evening and into the early morning of July 4, 2006, Mr. Webb was playing music loudly and discharging a firearm at no particular target.¹ Plaintiff has testified that it is not uncommon for Mr. Webb and others in the neighborhood to discharge firearms around the Fourth of July. (Webb Dep. 39–40, Sept. 2, 2009). Earlier that evening the Webbs had cooked out, Mr. Webb played and swam with his daughters, and Plaintiff and one of their daughters, Samantha Webb, went inside. (Webb Dep. 26–28). Until about 10:00 p.m. or 11:00 p.m., Mr. Webb was also in the company of his neighbors, Chris Hatfield and Kristi Hatfield (now Kristi Richmond). (Hatfield Dep. 21–22, Nov. 19, 2009). The Webb's other daughter, Amanda Webb, remained outside with her father until around 1:00 a.m. (Webb Dep. 29–30). Although Plaintiff claims that she never saw Mr. Webb consume alcohol or marijuana that night, Mr. Webb's autopsy report shows that he had a blood alcohol level of .22 at the time of his death.² (Webb Dep. 30–31; Autopsy Report 8).

At 12:09 a.m. on July 4, 2006, Amy Smith, a neighbor of the Webbs, called the Raleigh County Sheriff's Department on its administrative line to complain that Mr. Webb was “shooting a gun at his house” with what she assumed was a pistol or a shotgun. (Raleigh Cty. Sheriff's Dep't Commc'n Line Tr. 1, July 4, 2006, 12:09 a.m.). Ms. Smith called the administrative line as opposed to 911 because she wished to remain anonymous to avoid repeated threats to her by Mr. Webb. (Smith Statement 53–54, July 23, 2009).

Deputy John Hajash, who was on duty that night, heard the dispatch of the complained-of conduct and informed the operator by radio that he would be responding to the complaint. He was in the company of Deputy Greg Kade, who was not on duty but working security at a Holiday Inn construction site in full uniform and in possession of his cruiser. (Kade Dep. 26–29, June 19, 2009). Deputy Kade informed the operator by radio that he would accompany Deputy Hajash to the Webb residence on Cabell Heights Road. (Raleigh Cty. Sheriff's Dep't Commc'n Line Tr. 2). Deputy Hajash has testified that he considered this call an emergency call because there was shooting involved. (Hajash Dep. 53, June 19, 2009). The two deputies left in separate cruisers going to Mr. Webb's address, keeping in contact with each other and the operator for directions. They employed the lights and sirens on their cruisers until they got within proximity of the house. (Kade Dep. 39–41). The operator called Mrs. Smith back to get a description of Mr. Webb, confirm he was still outside and confirm the location of his residence. (Raleigh Cty. Sheriff's Dep't Commc'n Line Tr. 3–5). Mrs. Smith informed the operator that Mr. Webb had a wife and two children who were likely inside the house, and that Mr. Webb had a blue Chevy pickup truck parked at the house. (Raleigh Cty. Sheriff's Dep't Commc'n Line Tr. 5).

Deputy Hajash and Deputy Kade parked their vehicles about one quarter mile from Mr. Webb's residence and proceeded to his house on foot down Cabell Heights Road. (Kade Dep. 42). Deputy Kade carried a Remington 870 shotgun at “low ready” position and was wearing a protective vest.³ (Kade Dep. 71). Deputy Hajash carried a pistol and was also wearing a protective vest. (Hajash Dep. 66). On their way, the deputies became aware that there was loud music coming from Mr. Webb's property and that someone was walking around outside his house. (Kade Dep. 50). The deputies first attempted to enter Mr. Webb's property through a gate, but the gate was padlocked. (Kate Dep. 49; Hajash Dep. 74). They turned right on an adjoining street, Primrose Lane, and walked to an area of that street that was in front of the Webb's property and in view of Mr. Webb's pickup truck. (Kade Dep. 55). At that point, Deputy Hajash removed his weapon from its holster. (Hajash Dep. 149). Their view was obstructed by shrubbery at first, but there was a streetlight or utility light illuminating the driveway area. (Kade Dep. 55). As the deputies passed the shrubbery, they observed Mr. Webb walk from his truck to his garage at least once. (Hajash Dep. 75–76). After he returned to the truck, the music, which had been coming from the truck, stopped. The deputies heard Mr. Webb say “What the hell” and they saw him lean inside the cab of the truck. (Kade Dep. 57; Hajash Dep. 77).

At that time, the deputies positioned themselves behind the truck, still standing in the street, between ten (10) and thirty (30) feet away from Mr. Webb. In that position, Deputy Kade was behind and to the left of the truck with a full view of Mr. Webb leaning inside the cab, and Deputy Hajash was to Deputy Kade's right, directly behind the truck with an obstructed view of Mr. Webb. (Hajash Dep. 79–80). Deputy Hajash could see only Mr. Webb's upper torso. (Hajash Dep. 80). Deputy Kade announced “Police, let us” or “let me see your hands” at a high volume that he estimates could have been heard within 20–25 yards. (Kade Dep. 64–65). However, Plaintiff and her neighbors dispute that the deputies announced their presence at all because they claim they would have been able to hear the announcement. From her neighboring home, through open windows, Kristi Richmond could hear the music from Mr. Webb's truck and she could tell he was talking with his daughter at points during the evening, but neither she nor Chris Hatfield, her husband, heard the deputies announce themselves. (Richmond Dep. 31, 32, 59; Hatfield Dep. 31). Plaintiff states that the windows of her house were open but she did not hear the officers announce themselves either. (Webb Dep. 55).

Regardless, both deputies had their weapons pointed at Mr. Webb. (Hajash Dep. 82–83). Upon realizing the deputies' presence, Mr. Webb stepped away from his truck and turned to face the deputies. According to Deputy Kade and Deputy Hajash, Mr. Webb held an AK–47 rifle in both hands in a firing position, pointed in their direction, or being raised to that position.⁴ (Kade Dep. 67–68; Hajash Dep. 84).

Upon seeing Mr. Webb's firearm, Deputy Kade and Deputy Hajash fired their weapons at him either simultaneously or in the close order of Deputy Kade then Deputy Hajash.⁵ (Kade Dep. 71; Hajash Dep. 84–85). Deputy Kade immediately fired one shot and Deputy Hajash fired two. (Kade Dep. 71–72; Hajash Dep. 85). Mr. Webb fell to the ground immediately upon impact of the initial shots. (Kade Dep. 72). On the ground, the deputies observed him roll. Deputy Kade saw that he no longer held his firearm, but Deputy Hajash did not and fired another shot, whereupon Deputy Kade told him to stop firing. ⁶ (Kade Dep. 73). Once Mr. Webb fell, Deputy Kade no longer perceived him as a threat. (Kade 73–74).

Deputy Hajash states that he could only see Mr. Webb's shoulder after he fell to the ground, and “it looked like he was still holding the rifle.” (Hajash Dep. 88). He stated in his deposition,

He fell to the ground after he was shot. I believe my bullet hit him when he was still standing. And he fell to the ground and started rolling and all I could see was his—I think it was his feet or something. I don't remember what it was. But he was rolling to the other side like he was going to start shooting at our feet from under the vehicle and that's when I fired one more shot and then I could see his hands after that shot was fired.⁷

(Hajash Dep. 86).

Deputy Hajash and Deputy Kade immediately radioed a call for medical assistance. (Kade Dep. 74; Hajash Dep. 92). Deputy Hajash approached Mr. Webb's body and observed that he was not breathing, but did not touch it or verify Mr. Webb's death. (Hajash Dep. 92). The AK–47 was on the ground by Mr. Webb's feet below the driver's side door. (Hajash Dep. 101–102). Neither deputy checked or touched the weapon. (Hajash Dep. 103). Deputy Hajash then went into the garage with his gun drawn and flashlight in hand to make sure no one else was there. (Hajash Dep. 99). While they were waiting on the EMS, Plaintiff came out of the house and demanded to know what happened. Deputy Kade asked her to return to her house and Deputy Hajash told her to go back inside and that they would be with her in a moment. (Kade Dep. 81; Hajash Dep. 100). Plaintiff again asked what was going on and Deputy Hajash repeated his order. (Hajash Dep. 101). At that point she looked over and saw her husband's body in her driveway and asked the deputies who shot whom. (Hajash Dep. 101). Plaintiff went back inside and called her neighbor, Kristi Richmond, on the telephone. (Webb Dep. 60). The neighbor told her that Mr. Webb was lying on the ground outside the house. (Webb Dep. 60). Plaintiff then went back outside to ask the deputies if her husband was hurt and one of them...