Woodcock v. City of Bowling Green

• Decision Date: 23 February 2016
• Docket Number: CIVIL ACTION NO. 1:13-CV-00124-JHM
• Citation: 165 F.Supp.3d 563
• Court: U.S. District Court — Western District of Kentucky
• Parties: Carey Woodcock, as Administratrix of the Estate of Gregory Harrison, deceased, Plaintiff v. City of Bowling Green, Kentucky ; Doug Hawkins, individually; Kevin Wiles, individually; Melanie Watts, individually; Donitaka Kay, individually; and Keith Casada, individually, Defendants

165 F.Supp.3d 563

Carey Woodcock, as Administratrix of the Estate of Gregory Harrison, deceased, Plaintiff

v.City of Bowling Green, Kentucky ; Doug Hawkins, individually; Kevin Wiles, individually; Melanie Watts, individually; Donitaka Kay, individually; and Keith Casada, individually, Defendants

CIVIL ACTION NO. 1:13-CV-00124-JHM

United States District Court, W.D. Kentucky, Bowling Green Division .

Signed February 23, 2016

Filed February 24, 2016

Camille A. Bathurst, Belzley Bathurst Attorneys, Gregory A. Belzley, Prospect, KY, Gary S. Logsdon, Gary S. Logsdon & Associates, PSC, Brownsville, KY, for Plaintiff.

Ashley D. Gerughty, Thomas N. Kerrick, Kerrick Bachert Stivers PSC, H. Eugene Harmon, Bowling Green, KY, for Defendants.

Memorandum Opinion and Order

Joseph H. McKinley, Jr., Chief Judge, United States District Court

This action arises from the tragic shooting of Gregory Harrison by Bowling Green Police Officer Keith Casada. The Court has great respect and admiration for the Bowling Green Police Department and law enforcement generally. It is a difficult and dangerous job we ask them to do and most times, they do it exceedingly well. In this case, there is nothing sinister or evil about Officer Casada. He simply used more force than was reasonable at the time he decided to use force. Case law justifies the use of deadly force when a suspect poses an imminent threat of serious physical harm to officers or others. Most cases justifying the use of deadly force involve rapidly occurring events requiring split second, on the spot, or instantaneous decision-making based on the threatening advances of a suspect. The situation faced that night by the Bowling Green Police Department officers, while tense and potentially dangerous, had not yet reached the point where the use of deadly force was reasonable. Officer Casada simply acted too soon.

This matter is before the Court on Plaintiff's Motion for Partial Summary Judgment on the liability of Defendants Keith Casada and Donitka Kay [DN 60] and on Defendants' Motion for Summary Judgment [DN 61] and Motion for leave to file the sur-reply tendered by Defendants in opposition to Plaintiff's Reply in Support of Plaintiff's Motion for Partial Summary Judgment against Defendants Donitka Kay and Keith Casada [DN 72]. The Court heard oral argument on the motions on November 23, 2015. Fully briefed and argued, this matter is ripe for decision. For the following reasons, Plaintiff's Motion for Partial Summary Judgment [DN 60] is GRANTED in part and DENIED in part and Defendants' Motion for Summary Judgment [DN 61] is GRANTED in part and DENIED in part . Defendants' Motion for Leave to file a Sur-Reply [DN 72] is GRANTED and the Court considered Defendants' Sur-Reply in addressing this matter.

I. Background

This case arises from the fatal shooting of Gregory Harrison by Keith Casada, then an officer of the Bowling Green Police Department, at approximately 2:00 AM on August 12, 2012.

At approximately 1:26 AM, an unidentified caller placed the first of two phone calls from his cell phone to the Bowling Green Police Department (“BGPD”). (Piper Dep. [DN 45-1] 29:2–:19, Mar. 3, 2015.) The first call, which was made to one of BGPD's administrative lines, not 9-1-1, was received by telecommunication officer Danielle Piper. The caller, later identified as Harrison, stated “Yes, I'm on my way to Louisville Bridge, I wanna beat the hell out of my brother, and if they want me, KILL me,” before disconnecting. (Audio of first phone call, Piper Dep. Ex. 1 [DN 46-1] recorded on 12-Aug-2012 at 01.25.58 AM.) Piper entered CAD (computer aided-dispatch) notes into the BGPD system of the “nature and description of what happened during that phone call.” (Piper Dep. [DN 45-1] 13:6–:8; see Piper Dep. Exs. 2–3 [DN 45-1] CAD Report, Aug. 12, 2012.)

Based on Piper's CAD notes, police dispatcher Christy Montgomery dispatched Officer Keith Casada on the call as the primary officer, and Officers Jordan Wilson and Michael Amos, as back-up officers, to try to locate the caller to see what was going on. (Piper Dep. Exs. 1–3 [DN 45-1]; see Piper Dep. [DN 45-1] 14:17–:24, 21:1–:5, 23:15–24:1.) Montgomery advised of possible “unknown trouble” at Louisville Road bridge at East Riverview Drive and that they had a landline call in, male subject, “advised that he was at the Louisville Road bridge and that he wanted to assault his brother and then disconnected.” (Audio of Police Radio, Piper Dep. Ex. 1 [DN 46-1] recorded on 12-Aug-2012 at 01.27.25 AM.) The officers responded to the Louisville Road area but were unsuccessful in locating the caller. (Wilson Dep. [DN 43-1] 11:12–12:14, 13:1–:5.) Piper called the number back to try to verify the caller's location, but the phone's voicemail picked up. (Audio of return call, Piper Dep. Ex. 1 [DN 46-1] recorded on 12-Aug-2012 at 01.31.06 AM.) From the recorded voicemail greeting, she learned that the cell phone owner's first name was Greg. (Id. )

At 1:37 AM, Harrison, who was not yet identified, placed a second call to BGPD, using 9-1-1, instead of one of BGPD's administrative lines. (See Audio of second call, Hanes Dep. Ex. 1 [DN 48] recorded on 12-Aug-2012 at 01.37.19.) In the second call, Harrison spoke with telecommunication officer Holly Hanes:

[Harrison]: “Uh, yes, my emergency [slurred] I'm at the T-Mart, I'm'a kill my family, I've asked for help and I've asked for help, [Hanes: “where are you?”] and they have ignored me. No, no, they have ignored me. You know what? You'll have ignored me.”

[Hanes]: “We sent someone to where you said you were, where are you right now?”

[Harrison]: “You know what? I'm gon' kill my brother, I don't give a fuck, my mother-in-law's had a stroke. You know what, I'm down in the parking lot with a gun, by my”

[Hanes]: “What parking lot?”

[buzzing sound] [dial tone]

(Id. ) The T-mart convenience store referenced by Harrison was at the corner of Adams Street and East 12th Avenue, approximately half-a-block southwest and one block southeast of where the police first encountered Harrison. Defendant Donitka Kay, a sergeant with the BGPD, was the first officer to encounter Harrison.

At approximately 1:39 AM, police dispatch advised Officer Casada of “unknown trouble on 130 West 11th Avenue, one-three-zero West 11th Avenue. This is a subject that we tracked earlier. He called back, reference to assaulting and his brother break. He advised he would be standing by at this location in the parking lot with a gun.” (Audio of Police Radio, Phillips Dep. Ex. 28 [DN 58] recorded on 12-Aug-2012 at 01.38.54 AM, 0:57–1:15.) At 1:42 AM, Sergeant Todd Porter radioed to dispatch asking for the caller's phone number and whether they knew the caller's name. The telecommunication officer responding gave Sergeant Porter the number and advised “Negative. He becomes uncooperative, advising that we're not helping him and that he is going to kill his brother.” (Audio of Police Radio, Phillips Dep. Ex. 28 [DN 58] recorded on 12-Aug-2012 at 01.42.25 AM, 0:39–:48.) Dispatch found Harrison's approximate location by GPS triangulation on Harrison's cell phone. Sergeant Porter called Harrison's cell phone and also received his voicemail and learned his first name was “Greg,” which Porter advised over the radio. (Dash-cam video, Phillips Dep. Ex. 30 [DN 58] 0:32–:37, 1:44:42–:47 AM.)

Because the shooting and the preceding events were recorded by a camera affixed to Sergeant Donitka Kay's police car (the “dash-cam video”), the underlying facts of the case are largely undisputed. The dash-cam footage begins with Sergeant Kay stopping and redirecting traffic on East 11th Avenue.¹ As Kay is getting back into her cruiser, Sergeant Porter is heard advising over the radio that the subject may possibly be named “Greg.” (Dash-cam video; see Kay Dep. Ex. 5 [DN 41-1] Use of Force Report, Sergeant Donitka Kay, at 1 (Aug. 21, 2012).) Sergeant Kay drives her cruiser down East 11th Avenue, panning with the spotlight affixed to the vehicle. Officer Wilson and Casada's police cruisers are seen parked on Clay Street perpendicular to East 11th Avenue. (See Dash-cam video [DN 58].)²

Around 1:47 AM, Sergeant Kay turned left onto Clay Street (heading southwest) from East 11th Avenue and spotted a white male, wearing a white T-shirt and blue jeans walking (northeast) in the direction of 11th Avenue on the railroad tracks that are parallel to the 1100 block of Clay Street (between 11th and 12th Avenues). (Dash-cam video [DN 58] 2:47, 1:46:57 AM.) Kay stopped her car in the right lane of Clay Street, approximately 30 to 50 yards (or 90 to 150 feet), according to Kay and Casada's later estimates, down the railroad tracks from Harrison.³ Kay fixed her cruiser's spotlight on Harrison, alerted dispatch that she was “getting out with suspect on tracks,” got out of her cruiser, and then yelled at Harrison to “put your hands up” and “walk up here to me.” (Id. ) Kay asks “are you Greg?” to which the subject yells “yeah.” (Id. ) Kay is also heard yelling to “get off the tracks” and “come here,” after which Harrison is seen making a small shuffle down the tracks in Kay's direction. Kay continues to repeatedly yell, “show me your hands” and “put your hands up,” and Harrison is seen standing motionless.

Officers Wilson and Casada, who had been on foot nearby searching for Harrison, heard Kay yelling at Harrison to “show me your hands.” Wilson and Casada ran to Kay's location, and stationed themselves on the passenger side of her cruiser, such that the vehicle was between them and Harrison.⁴ All officers present were wearing bulletproof vests. (See Kay Dep. [DN 41-1] 67:7–69:8, June 10, 2014; Casada Dep. [DN 44-1] 32:15–:17, June 11, 2014.) There were five Bowling Green police officers present at the scene (Kay, Casada, Wilson, Steff, and Porter), as well as a Western Kentucky University officer (Brian Kitchens).

During the incident, the police blocked off the road and surrounding area and had the trains stopped. (See Philli...