And the Defense Wins
Published 9-28-16 by DRI

Sally A. Odegard & Jesse M. Showalter Obtain Summary Judgment for a Municipality & Two Police Officers

DRI members Lori V. Berke and Jody C. Corbett of Berke Law Firm, PLLC and Sally A. Odegard and Jesse M. Showalter of Holloway Odegard & Kelly in Phoenix, recently obtained summary judgment in the U.S. District Court for the District of Arizona for a municipality and two police officers in a case involving 42 U.S.C. § 1983 and negligence claims in which the plaintiff alleged excessive use of force stemming from a police shooting that resulted in the death of her adult son.

Police were dispatched to a public park in response to a 911 call where the caller reported that an individual was threatening people at the park, including children, with a baseball bat. The two defendant officers were the first officers to arrive, and they observed the plaintiff’s son, who matched the description that had been broadcast over the radio, holding a baseball bat and arguing with another man, who was the 911 caller. The 911 caller yelled to the officers that the man with the bat threatened the officers. As the officers approached the man with the bat, they drew their service weapons and repeatedly ordered him to “put the bat down” and “get down.” The man with the bat initially dropped the bat, but then immediately picked it back up and advanced toward the officers with the bat raised. The officers continued to give loud commands to stop, get on the ground, and drop the bat, and the officers even back-pedaled to create distance. Both officers believed the man with the bat posed an immediate threat to their safety and that the man intended to use the bat as a deadly weapon against them. As a result, both officers fired their weapons, striking the man with the bat several times, after which he died at the scene.

The officers moved for summary judgment based on qualified immunity, arguing that the force they used was reasonable under the totality of the circumstances and that the law was not clearly established that the use of deadly force in this type of situation would violate an individual's constitutional rights. The municipality sought summary judgment on the plaintiff’s negligence claim (the only claim remaining against it), arguing that the force used by the officers was justified under Arizona law. In opposing summary judgment, the plaintiff argued that based on the testimony of an officer who arrived at the scene just as the shooting took place and observed her son from a distance but did not see a bat in his hands and the audio of the 911 call in which the initial drop of the bat could be heard, her son was not threatening the officers with a baseball bat at the time he was shot. The plaintiff also filed a motion for summary judgment in which she advanced these same arguments. In response, the defendants argued that the inferences the plaintiff was asking the Court to draw from the evidence was speculative and did not create a genuine issue of material fact that would preclude summary judgment in favor of the defendants.

The court found based on the undisputed evidence that the decedent was threatening the defendant officers with a baseball bat and posed an immediate threat to them at the time he was shot, and that the officers did not violate the plaintiff’s son’s constitutional right to be free from excessive force. The court also ruled that the officers were entitled to qualified immunity because they did not violate clearly established law. Finally, the court dismissed the plaintiff’s negligence claim against the municipality on the basis that the negligence claims against the officers were previously dismissed and a master is not vicariously liable unless its servant is found negligent and on the basis that the officers’ conduct was justified under Arizona law. The court also denied the plaintiff’s Motion for Summary Judgment on the merits.

A longtime DRI leader, Ms. Berke has served on the Board of Directors, and as chair of the Governmental Liability Committee, Arizona State Representative, and chair of the 2013 Annual Meeting. Ms. Corbett is the co-vice chair of the 2017 DRI Civil Rights and Governmental Liability Seminar. Ms. Odegard has been a DRI member since 1991. Mr. Showalter first joined DRI in 2011.

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