Whitaker v. Pima County

• Decision Date: 17 February 2009
• Docket Number: No. CIV 07-264-TUC-CKJ.,CIV 07-264-TUC-CKJ.
• Parties: Christy WHITAKER, Plaintiff, v. PIMA COUNTY, et al., Defendant.
• Court: U.S. District Court — District of Arizona

640 F.Supp.2d 1095

Christy WHITAKER, Plaintiff, v. PIMA COUNTY, et al., Defendant.

No. CIV 07-264-TUC-CKJ.

United States District Court, D. Arizona.

February 17, 2009.

COPYRIGHT MATERIAL OMITTED

Anthony Payson, II, Paul Joseph Gattone, Payson & Gattone, Tucson, AZ, for Plaintiff.

Thomas E. Dugal, Tucson, AZ, for Defendant.

ORDER

CINDY K. JORGENSON, District Judge.

Pending before the Court is Defendants' Motion for Summary Judgment [Doc. # 43]. Plaintiff has filed a response and Defendants have filed a reply. Oral argument was presented to the Court on November 10, 2008.

Factual and Procedural Background¹

On December 27, 2006, Plaintiff Christy Whitaker's ("Plaintiff") son, Eric Whitaker ("Whitaker"), became a suspect in connection with the alleged theft of a vehicle in Tucson, Arizona. Officers received a Lojack² signal from the allegedly stolen vehicle.

Defendants assert that Defendant Pima County Deputy Sheriffs Paul Petropoulos ("Petropoulos") and Erick Maldonado ("Maldonado") located the source of the Lojack signal, a large Dodge pickup trick, in the dirt parking lot behind some apartments. Defendants assert that an individual later identified as Whitaker was in the pickup. Defendants assert that Maldonado and Whitaker made visual contact with each other; Maldonado thought Whitaker looked surprised and scared, as if he had just been caught.

When the deputies entered the lot, the pickup accelerated out of the far east corner of the lot traveling westbound. Defendants assert that Petropoulos parked his vehicle at the mouth of the alleyway going into the lot and proceeded into the lot on foot; Maldonado slowly drove his marked SUV into the lot. The pickup made a u-turn around the area where Petropoulos was standing and then made another u-turn.³ Defendants assert that the pickup truck accelerated at a high rate of speed, the tires spinning in the dirt and gravel, as the subject drove directly in front of Maldonado's vehicle, narrowly missing it.

Defendants assert that Petropoulos yelled at Whitaker to stop the vehicle, but Whitaker did not comply. Defendants further assert that Whitaker drove at a high rate of speed, made a complete circle, then rammed the rear end of Maldonado's vehicle. Defendants assert the impact knocked Maldonado's vehicle forward about 25 to 30 feet.

Defendants assert that it appeared to Petropoulos that Whitaker was acting intentionally and that Whitaker was attempting to injure Maldonado or disable his vehicle. Plaintiff, in her supplemental Statement of Facts, disputes that Whitaker intentionally hit Maldonado's vehicle.⁴ Plaintiff asserts that Whitaker's vehicle hit Maldonado's vehicle after Whitaker's pickup truck hit a small tree and bounced off of that tree. Plaintiff relies on police reports to support this assertion.⁵

Defendants assert that it appeared to Petropoulos that the pickup truck was coming back around to run him down or to strike Maldonado's vehicle again. Defendants assert Petropoulos was out in the open without any concealment and he was unaware of whether Maldonado was injured or would be able to protect himself.

The pickup exited the lot, drove to the west, and collided with a fence. The deputies, with guns drawn, approached the pickup that was stuck on the fence and unable to move.⁶ After the collision, Petropoulos observed the tires on the pickup truck spinning. Petropoulos fired four rounds from his pistol at the vehicle after Whitaker's collision with Maldonado's vehicle. Petropoulos and Maldonado yelled at Whitaker to show his hands.⁷ Petropoulos saw one of Whitaker's arms come out of the driver side window and leave a bloody hand print on the roof of the vehicle. Petropoulos made no attempt to approach the vehicle when he saw the raised arm and made no effort to communicate this information to Maldonado. At no point did Petropoulos see or have any indication that Whitaker had a weapon. Defendants assert that this does not lead to a conclusion that Whitaker was not dangerous because a vehicle can be a deadly weapon. Maldonado discharged his weapon five to six times. When Maldonado fired his weapon at the pickup truck, the pickup truck was not moving despite the fact that the wheels of the pickup truck were spinning. Maldonado fired his weapon after the pickup truck was in the adjacent lot.

Defendants assert that Maldonado could hear Petropoulos yelling at Whitaker to show his hands as Maldonado walked over to the adjacent lot with his pistol drawn; he observed the truck stopped, with its engine on. Defendants assert that, as Maldonado came into the adjacent lot, he saw the tires of the pickup truck spinning, heard the engine being revved loudly; it appeared to Maldonado that Whitaker was attempting to back out, but the pickup truck was not moving—Maldonado did not know to what degree the pickup truck was immobilized. Defendants assert that it appeared to Maldonado that if the pickup truck gained some traction, it could run over Petropoulos and other officers in the area.⁸ Defendants assert that Maldonado knew that, for Whitaker to escape, he would encounter law enforcement officers between him and the exit points of the lot. Defendants further assert that, based on Whitaker's actions of being in possession of a stolen vehicle, attempting to flee, his reckless driving, his ramming the rear of Maldonado's vehicle, his refusal to surrender, his ongoing attempt to flee by revving his engine and spinning his tires in reverse to free the pickup truck, and Maldonado's uncertainty as to the degree to which the pickup truck was immobilized and his perception that the driver posed a threat to civilians if Whitaker made it to the roadway, along with the facts the pickup truck was not penned in and the close proximity to other officers, Maldonado made a decision to use deadly force. Defendants assert that, right after Petropoulos was yelling commands at Whitaker to get out of the pickup truck, to which Whitaker did not comply, and as the wheels of the pickup truck continued to spin in reverse, Maldonado, standing on the driver's side of the truck, fired his pistol at Whitaker.

Law enforcement vehicles were parked behind the pickup truck. Interviews with at least two officers indicate that, with the law enforcement vehicles in the back of the pickup truck and a tree and trash dumpster in front of the pickup trick, the pickup truck was trapped with no route of escape.⁹

After the shooting, Whitaker was removed from the pickup truck. Whitaker exhibited no signs of life.

Officer reports conflict as to whether Whitaker was attempting to back the pickup truck up as at least one officer indicated that the pickup truck was in first gear, and not reverse, following the subsequent shooting.¹⁰

Defendants assert that expert witness of police practices Ken Katsaris ("Katsaris") has stated that it is his opinion, based on his experience and the materials he reviewed, that the use of deadly force by Petropoulos and Maldonado was reasonable and justified.¹¹

On June 6, 2007, Plaintiff filed a Civil Rights Complaint against Pima County, Pima County Sheriff's Department, Maldonado, and Petropoulos. The complaint alleges that Defendants deprived Plaintiff of her civil rights, privileges and immunities as guaranteed under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment of the United States Constitution. Plaintiff asserted that Maldonado and Petropoulos violated her civil rights under color of state law and claims damages under 42 U.S.C. § 1983. Plaintiff also claims damages under 42 U.S.C. § 1983 against Pima County and the Pima County Sheriff's Department for developing, implementing, and maintaining policies or customs which exhibit deliberate indifference to the constitutional rights of persons who are arrested in Pima County and for allowing the use of excessive and unnecessary force against members of the public. Plaintiff also alleged claims against Defendants under the Constitution and laws of the State of Arizona including wrongful death, negligent infliction of emotional distress, and intentional infliction of emotional distress.¹²

On June 16, 2008, Defendants filed a Motion for Summary Judgment. Plaintiff has filed a response and Defendants have filed a reply and a reply to Plaintiff's Statements of Facts.

Summary Judgment Legal Standard

Summary judgment may be granted if the movant shows "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c), Federal Rules of Civil Procedure. The disputed facts must be material. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Therefore, the nonmoving party must demonstrate a dispute "over facts that might affect the outcome of the suit under the governing law" to preclude entry of summary judgment. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

The dispute over material facts must also be genuine. Id. A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. A party opposing a properly supported summary judgment motion must set forth specific facts demonstrating a genuine issue for trial. Id. Mere allegation and speculation are not sufficient to create a factual dispute for purposes of summary judgment. Witherow v. Paff, 52 F.3d 264, 266 (9th Cir.1995) (per curiam); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (the non-moving party "`must do more than simply show that there is some metaphysical doubt as to the material facts'"). "If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511. However, the evidence of the nonmoving party is to be believed and all justifiable inferences are to...