White v. City of Topeka, Case No. 18-4050-DDC-JPO

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Writing for the CourtDaniel D. Crabtree, United States District Judge
Citation489 F.Supp.3d 1209
Parties Kelly WHITE, individually, as Co-Administrator of the Estate of Dominique T. White, deceased, and as Next Friend of minor grandchildren TUW, JSW, JKW, NCW, and Mary Theresa Wynne, as Co-Administrator of the Estate of Dominique T. White, Plaintiffs, v. CITY OF TOPEKA, Michael Cruse, Justin Mackey, and John Doe Officers #1-5, Defendants.
Docket NumberCase No. 18-4050-DDC-JPO
Decision Date28 September 2020

489 F.Supp.3d 1209

Kelly WHITE, individually, as Co-Administrator of the Estate of Dominique T. White, deceased, and as Next Friend of minor grandchildren TUW, JSW, JKW, NCW, and Mary Theresa Wynne, as Co-Administrator of the Estate of Dominique T. White, Plaintiffs,
v.
CITY OF TOPEKA, Michael Cruse, Justin Mackey, and John Doe Officers #1-5, Defendants.

Case No. 18-4050-DDC-JPO

United States District Court, D. Kansas.

Signed September 28, 2020


489 F.Supp.3d 1211

Andrew M. Stroth, Pro Hac Vice, Carlton Odim, Pro Hac Vice, Action Injury Law Group, LLC, Chicago, IL, Rick E. Bailey, Conlee Schmidt & Emerson, LLP, Wichita, KS, for Plaintiff Kelly White.

Rick E. Bailey, Conlee Schmidt & Emerson, LLP, Wichita, KS, for Plaintiff Mary Theresa Wynne.

Mary R. Starr, City of Topeka, Kansas, Nicholas H. Jefferson, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge

489 F.Supp.3d 1212

This is a particularly difficult case. It stems from a police encounter with an armed individual that ended in a tragic way. On September 28, 2017, Topeka (Kansas) Police Officers shot and killed Dominique T. White. Shortly before the shooting, two Topeka police officers responded to a call reporting several gunshots in the area near Ripley Park in Topeka. When the officers arrived at the park, they encountered Mr. White walking away from the park. During a brief discussion with Mr. White, one officer saw that Mr. White had a firearm in his left pocket. He ordered Mr. White to lie down and stop. Mr. White ignored these orders. Instead, he resisted as the officers attempted to grab his arms and secure the firearm. Then, Mr. White broke free from the officers’ grip and began to run away. Immediately as Mr. White broke free, the officers drew their guns and began firing at Mr. White as he fled. Their bullets hit Mr. White, and he died from the gunshots.

It's not hard to imagine other ways this police encounter might have ended. But that's not the narrow task assigned to the court. Instead, the court is duty-bound to apply the controlling legal principles established by the Supreme Court and Tenth Circuit. Specifically, the two officers’ Motion for Summary Judgment invokes the doctrine of qualified immunity. They assert that the doctrine protects them from plaintiffs’ claims, which rely on 42 U.S.C. § 1983. Plaintiffs claim that the two officers used excessive force and thereby denied Mr. White recognized constitutional rights.

"The doctrine of qualified immunity shields officials from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Mullenix v. Luna , 577 U.S. 7, 136 S. Ct. 305, 308, 193 L.Ed.2d 255 (2015) (citations and internal quotation marks omitted). The Supreme Court has described the qualified immunity doctrine as protecting " ‘all but the plainly incompetent or those who knowingly violate the law.’ " Ziglar v. Abbasi , –– U.S. ––––, 137 S. Ct. 1843, 1867, 198 L.Ed.2d 290 (2017) (quoting Malley v. Briggs , 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ). And, our Circuit has explained, federal courts apply this doctrine "in order that officers might not be unduly ‘inhibit[ed] ... in performing their official duties.’ " Wilson v. City of Lafayette , 510 F. App'x 775, 780 (10th Cir. 2013) (quoting Medina v. Cram , 252 F.3d 1124, 1127 (10th Cir. 2001) ).

In recent years, many judicial officers have criticized qualified immunity. For example, Justice Thomas repeatedly has expressed his "strong doubts about [the Supreme Court's] § 1983 qualified immunity doctrine." Baxter v. Bracey , ––– U.S. ––––, 140 S. Ct. 1862, 1865, 207 L.Ed.2d 1069 (2020) (Thomas, J., dissenting from denial of certiorari); see also id. at 1862, 1864 (recognizing that "[t]he text of § 1983 makes no mention of defenses or immunities[,]" and finding "no basis for the objective inquiry into clearly established law that our modern cases prescribe" (citation, internal quotations, and alternations omitted)); Ziglar , 137 S. Ct. at 1870, 1872 (Thomas, J., concurring in part and concurring in the judgment) (noting a "growing

489 F.Supp.3d 1213

concern with [the Supreme Court's] qualified immunity jurisprudence," criticizing the Court for "continu[ing] to substitute [its] own policy preferences for the mandates of Congress," and urging the Court to "reconsider [its] qualified immunity jurisprudence" "[i]n an appropriate case").

Recently, several federal district court judges have levied strong criticism of the qualified immunity doctrine because of the way it immunizes police officers for their actions. See Jamison v. McClendon , 476 F. Supp. 3d 386, 391, No. 3:16-CV-595-CWR-LRA, (S.D. Miss. Aug. 4, 2020) (describing qualified immunity as an "invented ... legal doctrine to protect law enforcement officers from having to face any consequences for wrongdoing" and provide "a shield for these officers, protecting them from accountability"); see also id. at 423, (describing qualified immunity doctrine as "extraordinary and unsustainable" and urging the Supreme Court to "eliminate the doctrine"); Peterson v. Martinez , No. 3:19-cv-01447-WHO, 2020 WL 4673953, at *5 n.5 (N.D. Cal. Aug. 12, 2020) (referring to the Jamison opinion as an "excellent opinion ... describing the unhappy development of qualified immunity jurisprudence"). And, just this month, another district court judge embraced Justice Thomas's view and opined that "qualified immunity jurisprudence is due for a major overhaul." Briscoe v. City of Seattle , No. C18-262 TSZ, 483 F.Supp.3d 999, 1008, (W.D. Wash. Sept. 1, 2020).

This dialogue, however, can't displace the court's current job in this case. The court "is required to apply the law" governing qualified immunity "as stated by the Supreme Court." Jamison , 476 F.Supp.3d at 392, ; see also Rodriguez de Quijas v. Shearson/Am. Express, Inc. , 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (holding that Courts of Appeal must follow "directly control[ing]" Supreme Court precedent because only the Supreme Court has "the prerogative of overruling its own decisions"). So, within these strictures imposed by the qualified immunity doctrine, the court must determine whether the two officers violated Mr. White's clearly established constitutional right against use of excessive force.

This summary judgment order reaches two primary conclusions.

First , based on the summary judgment facts, the court holds that a reasonable jury could conclude that the totality of the circumstances do not support probable cause to believe Mr. White committed severe crimes or that he posed a threat of serious physical harm to the officers or others. And so, under these facts, a genuine issue exists whether the officers’ use of force was unjustified.1

Second , and again applying the summary judgment facts, the court nonetheless holds that qualified immunity applies. It reaches this conclusion because plaintiffs have failed to identify a "clearly established right" that the officers violated. In other words, plaintiffs have identified no clearly established Supreme Court or Tenth Circuit case that prohibited use of deadly force against an individual who was carrying a firearm in his pocket, had ignored officers’ commands to lie down and

489 F.Supp.3d 1214

stop, had resisted officers’ attempts to secure his firearm, and then fled from officers with the gun still in his possession. Likewise, the court's independent research has located no such case. This second conclusion requires the court to grant summary judgment on plaintiffs’ claim against the two officers.

Finally, a procedural explanation about an important phrase used repeatedly throughout this Order—"the summary judgment facts." This phrase recognizes that the court—at this stage of the case—must view conflicts in the evidence in the light most favorable to plaintiffs. To say it differently, when deciding the current motion, the court can't weigh the evidence or decide the truth of the matter. Instead, the court simply must review the evidence submitted by the parties and determine whether it presents a genuine factual conflict. When it does so, the court must accept plaintiffs’ version of the evidence.

Below, after briefly describing the case's procedural background, the court identifies the controlling summary judgment facts. The Order then presents the court's analysis and explains the reasons for its two conclusions.

I. Background

The two co-administrators of the Estate of Dominique T. White filed this lawsuit. Mr. White's father, plaintiff Kelly White, brings this action individually as a co-administrator of the Estate of Dominique T. White, and as Next Friend for his minor grandchildren. Doc. 43 at 7 (First Am. Compl. ¶ 41). Also, plaintiff Mary Theresa Wynne brings this action as co-administrator of the Estate of Dominique T. White. Id. The court refers to Kelly White and Mary Theresa Wynne collectively as "plaintiffs."2

Plaintiffs have sued the City of Topeka and Topeka Police Officers Michael Cruse, Justin Mackey, and five John Does under 42 U.S.C. § 1983. Plaintiffs assert two...

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4 practice notes
  • Mitchell v. City of Decatur, Case No. 18-CV-2179
    • United States
    • United States District Courts. 7th Circuit. United States District Courts. 7th Circuit. Central District of Illinois
    • March 23, 2021
    ...belief that Smith might be armed with a second weapon was unreasonable. Smith , 410 F.Supp.3d at 1073.In White v. City of Topeka , 489 F.Supp.3d 1209 (D. Kan. 2020), two police officers, after responding to a call reporting several gunshots in the area, encountered the decedent White. Durin......
  • Estate of Eason v. Lanier, 18 C 5362
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • September 29, 2021
    ...that “suspect could have turned and produced a gun in a flash given all the facts and circumstances”); accord White v. City of Topeka, 489 F.Supp.3d 1209, 1240 (D. Kan. 2020) (identifying cases where use of deadly force by officer who believed suspect had a gun and suspect was resisting or ......
  • Taylor v. Armor Corr. Health Servs., Civil Action 20-cv-01406-WJM-NYW
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • July 21, 2021
    ...no allegations explaining the training, or lack of training, provided or explaining why such training was insufficient. See Erickson, 489 F.Supp.3d at 1209 (finding that the plaintiff had failed to state a municipal liability claim where he failed to “set forth any facts concerning how the ......
  • Chadwell v. United States, 6:20-1372-JWB-KGG
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • July 29, 2022
    ...Plaintiff's status as the sole heir precludes him from bringing claims on behalf of the estate, relying on White v. City of Topeka, 489 F.Supp.3d 1209, 1221 (D. Kan. 2020) (“[A] survival action must be maintained by the personal representative of the decedent, and cannot be brought by the d......
4 cases
  • Mitchell v. City of Decatur, Case No. 18-CV-2179
    • United States
    • United States District Courts. 7th Circuit. United States District Courts. 7th Circuit. Central District of Illinois
    • March 23, 2021
    ...belief that Smith might be armed with a second weapon was unreasonable. Smith , 410 F.Supp.3d at 1073.In White v. City of Topeka , 489 F.Supp.3d 1209 (D. Kan. 2020), two police officers, after responding to a call reporting several gunshots in the area, encountered the decedent White. Durin......
  • Estate of Eason v. Lanier, 18 C 5362
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • September 29, 2021
    ...that “suspect could have turned and produced a gun in a flash given all the facts and circumstances”); accord White v. City of Topeka, 489 F.Supp.3d 1209, 1240 (D. Kan. 2020) (identifying cases where use of deadly force by officer who believed suspect had a gun and suspect was resisting or ......
  • Taylor v. Armor Corr. Health Servs., Civil Action 20-cv-01406-WJM-NYW
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • July 21, 2021
    ...no allegations explaining the training, or lack of training, provided or explaining why such training was insufficient. See Erickson, 489 F.Supp.3d at 1209 (finding that the plaintiff had failed to state a municipal liability claim where he failed to “set forth any facts concerning how the ......
  • Chadwell v. United States, 6:20-1372-JWB-KGG
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • July 29, 2022
    ...Plaintiff's status as the sole heir precludes him from bringing claims on behalf of the estate, relying on White v. City of Topeka, 489 F.Supp.3d 1209, 1221 (D. Kan. 2020) (“[A] survival action must be maintained by the personal representative of the decedent, and cannot be brought by the d......

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