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Harris v. Tolen

United States District Court, N.D. Georgia, Gainesville Division

March 12, 2019

JENNIFER HARRIS, et al., Plaintiffs,
SGT. PATRICK TOLEN, et al., Defendants.


          Richard W. Story United States District Judge

         This case comes before the Court on Defendants' Motion for Summary Judgment [53]. After reviewing the record, the Court enters the following Order.


         On the night of June 15, 2017, Jennifer Harris, along with her six-year-old son, Kenleigh Harris, and cousin, Justin Castillo, were fleeing their home after a break-in when they were shot in their car by law enforcement officers.

         Defendants Brown and Tolan are sergeants with the Hall County Sheriff's Department. Around midnight on June 15, they and three deputies responded to a 911 call of a home invasion in progress. (Defs.' Statement of Material Facts (“Defs.' SOF”), Dkt. [53-2] ¶ 1.) The call came from Stewart McIntosh. According to Mr. McIntosh he was in his yard at the time and personally witnessed the subject incident. (McIntosh Decl., Dkt. [57-3] at 1-2.) Thus, there are three perspectives from the night of June 15: (1) Defendants'; (2) Mr. McIntosh's; and (3) Plaintiffs'.[1]

         I. Defendants' Perspective

         Around midnight, Defendants learned of a possible home invasion in progress. (Defs.' SOF, Dkt. [53-2] ¶ 1.) Dispatch informed them that two masked men forced their way into a house on Campbell Road in Gainesville, Georgia and that both suspects were armed-one with an AK-47 assault rifle and the other with a pistol. (Id. ¶¶ 2-4.)

         Defendants arrived at the scene, accompanied by three deputies. (Id. ¶¶ 7, 9.) They were all wearing Sheriff's Department uniforms. (Id. ¶ 20.) Approximately 300 yards from the house they stopped and split into two groups. (Id. ¶¶ 9-10.) One group-with two deputies-approached the house from the back and attempted to make contact with the caller, while the other-which included both Defendants and the remaining deputy-continued making its way toward the house. (Id. ¶¶ 10-12.) According to Defendants, Sgt. Brown approached from right side of the road and the deputy from the left, while Sgt. Tolan approached in the middle of the road. (Id. ¶¶ 27-28.)

         After several yards, Defendants saw a vehicle's taillight at the residence, and as they continued moving forward, it pulled out of the driveway and began moving slowly down the road, toward the deputies. (Id. ¶¶ 14-15, 21.) The vehicle's headlights were on, and Defendants were unable to see inside because the “headlights were bright.” (Id. ¶¶ 16, 18.)

         However, “[b]ased on communications from dispatch, the deputies believed that the vehicle could be the suspects trying to get away.” (Id. ¶ 24.) And so they decided that it needed to be stopped. (Id. ¶ 25.) According to Defendants, “they turned on their flashlights and walked out into the roadway in an attempt to stop the vehicle.” (Id. ¶ 26.) They yelled, “Sheriff's Office! Stop!” But the car did not stop. (Id. ¶¶ 30-31.) Instead, it turned toward Sgt. Brown. (Id. ¶ 34.) And Sgt. Tolan thought it was going to run Brown over. (Id. ¶ 37.) He therefore shot at the vehicle with his rifle to try to stop it. (Id. ¶ 38.)

         At that point, the vehicle changed direction and started moving toward Sgt. Tolan. (Id. ¶ 39.) Fearful then that he would be run over, Sgt. Tolan fired several more rounds into the hood of the car. (Id. ¶¶ 40-41.)

         The car moved past Sgt. Tolan, into a ditch. (Id. ¶ 43.) It then went back onto the road and rolled a bit farther before coming to a stop. (Id. ¶¶ 44, 52.) Unbeknownst to Defendants, it was Plaintiff Jennifer Harris-trying to escape from the suspects with her son and cousin-who was actually driving the vehicle. (Id. ¶¶ 22-23, 42.) Fortunately, they all survived. (Id. ¶¶ 54-55.)

         II. Mr. McIntosh's Perspective[2]

         Mr. McIntosh is Jennifer Harris's fiancé. (Harris Dep., Dkt. [55-1] at 8.)[3] On June 15, he was able to escape the house with two children. (Id. at 77.) Mr. McIntosh then stood in the yard of Plaintiffs' house and called 911 to report the break-in. Still on the call, he saw a gray Audi leaving the house. He informed the operator that it was Plaintiffs' car. After reaching the road, the car turned north. It moved “slowly” and, after about 20 feet, came to a “rolling stop.” Mr. McIntosh then saw three officers approaching the front of the vehicle from the grass to the side of the road. More precisely, Mr. McIntosh saw the officers' flashlights and deduced they were law enforcement because the 911 operator said they were at the scene. According to Mr. Mcintosh, “The car's headlight [sic] were on low beam and did not shine on the officers.”

         Two of the officers then crossed to the opposite side of the road. Those officers continued to approach the vehicle, “straddling the grass.” Then one of them started shooting at the vehicle, and the third officer (who had not crossed the road) “also fired a shot at the driver side.” According to Mr. McIntosh, the vehicle did not make any movement-toward the officers or otherwise-before the shots were fired. But after the vehicle was shot, the driver “appeared to have lost control.” The car went off the side of the road, then back onto it. After that, the car moved another 50 yards down the road until coming to a stop.

         III. Plaintiffs' Perspective

         Nearing midnight, Plaintiff Jennifer Harris and her family were at home getting ready for bed when they heard a loud knock on the door. (Harris Dep., Dkt. [55-1] at 73-74.) Ms. Harris's cousin went to see who it was, and a masked man armed with a rifle forced his way into the house. (Id. at 75, 78-79, 82; Castillo Dep., Dkt. [55-2] at 60.) The robber pointed his gun at Ms. Harris and grabbed her cell phone. (Harris Dep., Dkt. [55-1] at 78.) Then he started demanding, “Give me what you got, ” while a second man-also masked and armed with a pistol-stood at the doorway. (Id. at 79-80.) About two minutes later, they left. (Id. at 81.)

         Ms. Harris checked to see if everyone was okay, and after about 30 minutes decided to go to a relative's house, down the street. (Id. at 84-85, 89, 92-93.) She packed everyone into her car-a gray Audi-backed out of the driveway, and started driving slowly (about 5 miles per hour) down the road. (Id. at 93, 98.) She saw three figures moving “directly towards [her] car” who were holding flashlights that were “blinding” her. (Id. at 99.) Two of the figures then crossed the road in front of the car, and as they did Ms. Harris heard, “Stop.” (Id. at 100.) She saw the barrel of a gun. (Id. at 102.) Then, from the backseat, Kenleigh Harris yelled, “Mom that's them.” (Id.)

         Ms. Harris went “to put [the] brakes on, ” and there was a gunshot. (Id. at 102, 104.) The first shot hit her head. (Id. at 104.) And from that point, she ...

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