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Tillis v. Consolidated Government of Columbus

United States District Court, M.D. Georgia, Columbus Division

December 13, 2019

HUNTER TILLIS, NANCY SORRELLS, as grandmother, legal custodian, and administratrix of the Estate of Christian Redwine, and HANNAH WUENSCHEL, Plaintiffs,
v.
CONSOLIDATED GOVERNMENT OF COLUMBUS, GEORGIA, et al., Defendants.

          ORDER

          CLAY D. LAND CHIEF U.S. DISTRICT COURT JUDGE.

         Christian Redwine led Columbus police officers on a highspeed chase after his grandfather reported that Redwine and two friends stole his Pontiac. Redwine crashed the Pontiac. As former Columbus police officer Allan H. Brown, Jr. approached the Pontiac just after the crash, the Pontiac began reversing. Brown fired eleven shots into the Pontiac. The Pontiac rolled backwards across the street, and Brown reloaded his gun and fired ten more shots into the Pontiac. All three occupants of the Pontiac sustained gunshot wounds. Redwine died on the scene, and passengers Hunter Tillis and Hannah Wuenschel were injured. Plaintiffs brought claims against Brown, the Consolidated Government of Columbus, Georgia (“CCG”), and Columbus Police Chief Ricky Boren.[1] Defendants filed a motion for summary judgment (ECF No. 26), asserting that they are entitled to summary judgment on all of Plaintiffs' claims. As discussed in more detail below, all Defendants are entitled to summary judgment on all claims based on the pursuit of the Pontiac and the first round of eleven shots; Boren is entitled to summary judgment on all claims against him in his individual capacity; and CCG is entitled to summary judgment on all state law claims against it. Brown is not entitled to summary judgment on any of the individual capacity claims under 42 U.S.C. § 1983 or state law based on the second round of ten shots, and CCG is not entitled to summary judgment on the § 1983 claims based on the second round of ten shots.

         SUMMARY JUDGMENT STANDARD

         Summary judgment may be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In determining whether a genuine dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id.

         FACTUAL BACKGROUND

         Viewed in the light most favorable to Plaintiffs, the record reveals the following facts. The present record includes audio and video recordings of the incident. In determining whether there is a genuine fact dispute, the Court must view “the facts in the light depicted by the” recordings and may not adopt a version of the facts that is “utterly discredited” by the recordings. Scott v. Harris, 550 U.S. 372, 380-81 (2007). “But where the recording does not clearly depict an event or action, and there is evidence going both ways on it, ” the Court must take the Plaintiffs' version of what happened. Shaw v. City of Selma, 884 F.3d 1093, 1097 n.1 (11th Cir. 2018).

         I. The 911 Call

         Christian Redwine lived with his grandmother, Nancy Sorrells, and her friend Fred Levins. Levins considered Redwine to be his grandson. Levins kept vehicles for his car business at the house, including a 2006 Pontiac G6. On November 5, 2016, Redwine spent most of the day at home with his cousin Hunter Tillis. Hannah Wuenschel joined them in the late afternoon. Levins went to bed around 11:00 p.m. When he woke up around 1:00 a.m. on November 6, 2016, he realized that Redwine, Tillis, and Wuenschel were gone; so was the Pontiac.

         At 3:34 a.m., Levins called 911 to report the Pontiac stolen. See generally Pls.' Notice of Manual Filing Ex. B, Audio Recording of Levins Call to 911, ECF No. 48. Columbus 911 called Levins back at 3:38 a.m., and Levins reported that his seventeen-year-old grandson Christian, Christian's cousin Hunter, and a girl named Hannah took the car. Pls.' Notice of Manual Filing Ex. C, Audio Recording of Call from 911 to Levins 00:53-1:13, ECF No. 48. Levins stated, “I want ‘em in jail.” Id. at 1:14-1:16. Levins also told Columbus 911 that he wanted police “to check them before they pull back in the drive.” Id. at 1:32-1:35.

         At 3:40 a.m., Columbus 911 dispatched two police officers to follow up with Levins regarding his 2006 Pontiac G6 “with a paper tag that was taken by family members.” Pls.' Notice of Manual Filing Ex. D Part 1, 034051 Radio Recording 00:30-00:37, ECF No. 48. Shortly after that, Columbus 911 redirected the officers to another call. Pls.' Notice of Manual Filing Ex. D Part 2, 034251 Radio Recording 00:20-00:23, ECF No. 48. At 3:53 a.m., Columbus 911 dispatched another officer to follow up with Levins. Pls.' Notice of Manual Filing Ex. D Part 3, 035321 Radio Recording 00:23-00:42, ECF No. 48. Officer Matthew Fuller responded, and Levins reported that Redwine, whom Levins described as his grandson, took the Pontiac with Tillis and Wuenschel. Fuller called his supervisor, Sergeant Wendy Thornton, and communicated this information to her.

         II. The Pursuit

         Redwine drove the Pontiac. Wuenschel sat in the front passenger seat, and Tillis sat in the back seat behind Redwine. They rode around for a while, and they ended up in the parking lot of a shopping center on Milgen Road in Columbus. Around 4:23 a.m., Captain William Turner, who was in an unmarked vehicle, called dispatch asking for a marked patrol car to stop and check a Pontiac G6. Pls.' Notice of Manual Filing Ex. D Part 9, 042314 Radio Recording 00:26-00:38, ECF No. 48. Turner wanted to check the Pontiac because there had been burglaries in the area and he observed the Pontiac enter the shopping center parking lot even though all the stores were closed, pull in by a bush, turn off the lights, sit for a minute or so, turn on the lights, and pull out of the parking lot. Turner Dep. 73:17-74:15, ECF No. 37.

         The Pontiac turned left onto University Avenue, then right onto College Drive and stopped at the entrance to an apartment complex. Turner pulled behind the Pontiac. He could see that there were at least two people inside, although he did not share that information with anyone. Turner Dep. 80:19-82:3. Turner reported over the radio, “I turned my blue lights on and he's running. He don't have a tag.” Pls.' Notice of Manual Filing Ex. C Part 10, 042506 Radio Recording 00:30-00:34, ECF No. 48; accord Defs.' Notice of Manual Filing Attach. 2, 911 Audio Recording Track l.wma 2:13-2:16, ECF No. 42 (“911 Audio Recording”). The Pontiac drove away at a high rate of speed. Wuenschel Dep. 89:9-19, ECF No. 39. With his siren and blue lights activated, Turner pursued the Pontiac, and other police officers joined the pursuit. Thornton asked dispatch if the Pontiac Turner was pursuing was the stolen Pontiac. 911 Audio Recording 2:21-2:24. About a minute later, Thornton reported to Turner, “we have a [stolen] vehicle that's just been reported, with a paper tag.” Id. at 3:43-3:47. Another minute later, after Turner had followed the Pontiac from College Drive to Camille Drive to Hilton Avenue to Warm Springs Road to Talbotton Road, Thornton reported, “be advised that is our [stolen] vehicle.” Id. at 5:04-5:06.

         According to Tillis, Redwine was driving “at a high rate of speed [and] had to lock the brakes up every time he came to an intersection just to turn.” Tillis Dep. 119:21-24, ECF No. 35. Tillis also stated that Redwine “was driving crazy, pulling up on the e-brake, making the car slide all over the place, it was crazy.” Tillis Dep. Ex. 1, Officer Report 2016111409270 at CCG 01625, ECF No. 35-1 at 2; accord Tills Dep. 120:18-19, ECF No. 35 (“He was driving so crazy, I was ready to get out of the car.”).[2] In addition, Turner observed the Pontiac run at least two stop signs. Turner Dep. Ex. 1, Turner OPS Interview 3, ECF No. 37-1 at 3.

         After pursuing the Pontiac for two more minutes from Talbotton Road to Veterans Parkway to 39th Street, the police lost sight of the Pontiac. 911 Audio Recording 5:08-7:07 (describing the Pontiac's movements). Redwine pulled over to the side of the road near the Ashley Station Apartments area off of 12th Avenue and told Tillis and Wuenschel that if they were “going to get out, that [they] needed to get out now.” Tillis Dep. 121:14-18. But then the police officers turned onto the street where Redwine was parked, and Redwine “hit the gas again.” Id. at 122:1-3. Officers pursued the Pontiac from the Rose Hill neighborhood toward downtown Columbus via Linwood Avenue and 6th Avenue. The Pontiac turned right onto 11th Street, heading the wrong way down a one-way street. The Pontiac turned right onto Veterans Parkway and then left onto 13th Street, heading west toward Phenix City, Alabama.

         Around 4:30 a.m., Brown was at the Columbus Police headquarters. Although Brown was assigned to the Sector B squad and the Sector A squad was pursuing the Pontiac, Brown heard about the pursuit and decided to join it. Brown joined the pursuit and activated his dash camera at 4:33 a.m. As the Pontiac crossed the 13th Street bridge into Alabama, Brown took over as lead police vehicle. Brown chased the Pontiac through Phenix City at high rates of speed, and the Pontiac ultimately went north on Highway 280, then turned right onto Highway 80, heading eastbound toward Columbus.[3] Based on the Court's review of the available dash camera footage, the roads appear almost abandoned except for the Pontiac and the police cars chasing it.

         Brown asked if the vehicle was stolen, and Turner confirmed that it was a stolen “G6 with a paper tag.” Pls.' Notice of Manual Filing Ex. G Part 1, CPD-595Nov.06.201604.33.30 Dash Cam Video of Allan Brown 6:30-6:41, ECF No. 48 (“Brown Dash Cam Video”). Brown did not ask for details about the Pontiac, who was in it, or the circumstances of the theft. And, no officers provided any details. As the chase neared the Riverchase exit, Brown reported high speeds and zero traffic. Id. at 6:43-6:49. Instead of going over the bridge back into Georgia, the Pontiac took the Riverchase exit and turned right. Shortly after that, the Pontiac crashed into some bushes. Brown reported that the Pontiac had “wrecked out” and was “spinning, ” and he asked dispatch to “start rescue.” Id. at 7:49-7:56.

         III. The Shooting

         Brown stopped his police car a few feet from the rear of the Pontiac's passenger side. Id. at 7:59. He was not directly behind the Pontiac, so if the Pontiac reversed straight back neither Brown nor his police car were in its path. Brown exited his vehicle. Brown did not give any verbal commands that are audible on the dash cam video.[4] The Pontiac's reverse lights came on, and the car started backing up. As soon as the Pontiac started backing up, Brown began firing at it with his service revolver. Id. at 8:02-8:07. He fired eleven shots into the vehicle as it reversed past him. After the first round of shots, Wuenschel screamed, “No! Stop! Please! I got shot! Please, please, please!” Id. at 8:07-8:12. The Pontiac rolled straight backwards across the street and came to a “gentle stop.” Tillis Dep. 137:22-138:3. Brown reloaded and fired ten more shots into the Pontiac. Id. at 8:12-8:16. After the second round of shots, Tillis and Wuenschel got out of the car. Brown ordered them to get on the ground, and he held them at gunpoint until other officers arrived. Emergency medical personnel arrived by 4:49 a.m. and provided assistance to Tillis and Wuenschel. Redwine was pronounced dead.

         A. Brown's Position During the First Round of Shots

         The video does not show much of the shooting. The Pontiac is only visible for the first seven or so shots, and the video only shows the first two shots hitting the rear windshield. Brown is not visible in the video, so the video does not show where he was standing at any point during the shooting. Brown says that he was directly behind the Pontiac when it began reversing and that he believed it was trying to run over him, so he began firing as he moved back toward his patrol car.[5] Brown Dep. Vol. I 190:4-14, ECF No. 28. As the Pontiac passed him, Brown was concerned that the driver might still quickly jerk the wheel and hit him. Id. at 228:5-9.

         Plaintiffs pointed to evidence to dispute Brown's testimony regarding his position during the first eleven shots, which the Court also refers to as the first round of shots. First, Tillis stated that Brown was not in the path of the Pontiac when Brown started shooting. Tillis Dep. 219:6-220:2. Rather, Tillis testified that he “could see the police officer standing between his car and his door. And from that time till the time the gunshots -- when that first shot hit, he was still standing between his car and his door.” Id. at 137:7-11. Tillis had no concerns that Redwine would run over Brown because Brown “wasn't directly behind the car. He was off to the side of the car.” Id. at 140:21-141:2. Tillis further testified in his deposition that when the Pontiac reversed, it went “straight backwards” and did not curve before it came to a “gentle stop” across the street. Id. at 137:22-138:3.

         Second, Plaintiffs pointed to the opinion of their expert witness, William Harmening. According to Harmening, “Brown was never in danger of being hit by the [Pontiac].” Harmening Dep. Ex. 8, Harmening Report 13, ECF No. 41-8. The first five shots “entered through the passenger side of the rear window in a right-to-left trajectory toward the driver.” Id. at 8. Based on the trajectory, Harmening opines that Brown “was to the rear and to the right of the vehicle” when he fired those shots, not directly behind it. Harmening Dep. 142:18-21, ECF No. 41. Harmening also opines based on the location of the casings and other factors that Brown was “very close” to the Pontiac when he shot through the rear windshield. Id. at 144:3-7. Harmening further opines that Brown continued shooting as the Pontiac rolled past him; shots six and seven “entered through the rear passenger-side window in a right-to-left trajectory, ” and shots eight through eleven “entered through the front passenger-side window straight on and perpendicular to the movement of the vehicle.” Harmening Report 8.

         B. Brown's Position During the Second Round of Shots

         After the first round of shots, the Pontiac was still rolling in reverse as Brown reloaded his weapon. He was about fifteen feet away from the Pontiac, “moving forward to effect an arrest.” Brown Dep. vol. I 253:16-18. Brown testified that as he moved toward the Pontiac, he heard the Pontiac's engine rev loudly and thought the driver “was going to try to run [him] over again.” Id. at 253:1-7. Brown fired ten more shots toward the Pontiac. The Court refers to these ten shots as the second round of shots.

         It is undisputed that the Pontiac was still reversing as Brown reloaded his weapon; the Pontiac's gear shifter was still in reverse when investigators arrived on the scene. There is no evidence that the Pontiac moved forward toward Brown before the second round of shots. And, although Brown's dash camera and body microphone captured audio of many things during the six seconds between the first round of shots and the second round of shots-including Wuenshel's screaming, the low hum of Brown's patrol car engine, some noises that sound like metal hitting pavement, and sirens of approaching emergency vehicles-no loud revving of the Pontiac is discernible during that timeframe. Brown Dash Cam Video 8:06-8:12. Defendants' experts concede that there is no revving sound on the recording. They offer several explanations for why Brown claims to have heard a revving sound, but they also concede that it is possible there was no revving sound and that Brown made it up. Jury Dep. 120:6-17, ECF No. 69.

         C. Plaintiffs' Gunshot Wounds

         Redwine was shot eleven times. The parties agree that the present record does not establish when Redwine died. Plaintiffs assert that the present record also does not establish which shots were fatal. But in their statement of material facts, Defendants pointed to evidence that an Alabama State Bureau of Investigations special agent who attended the autopsy reported, “The fatal wounds were identified as two (2) gunshot wounds that were located in the upper back area of the right shoulder that penetrated the lungs and aorta.” Harmening Dep. Ex. D10, Investigative Summary, ECF No. 41-10. And, Plaintiffs' expert testified that two of the first five shots caused the wounds that the pathologist described as the fatal wounds. Harmening Dep. 274:2-12. Plaintiffs did not point to evidence to dispute this evidence that two of the first five shots struck Redwine and were the fatal shots.

         It is undisputed that Tillis was shot once during the second round of shots; the bullet entered his nose and exited his mouth. Wuenschel was shot once during the first round of shots; the bullet entered her left shoulder and exited through her elbow. See Pls.' Resp. to Defs.' Statement of Material Facts ¶ 118 (admitting that “Wuenschel was shot by one of the bullets fired from the first magazine”); accord Brown Dash Cam Video 8:07-8:12 (audio of Wuenschel yelling “I got shot” after the first round of shots). At the hearing on the summary judgment motion, Wuenschel's counsel suggested that there is a fact question on when Wuenschel was shot. But Wuenschel did not point to any evidence to create a fact question on this issue.

         IV. Plaintiffs' Claims

         Plaintiffs brought individual capacity claims against Brown under § 1983, asserting that Brown violated their constitutional rights by improperly pursuing the Pontiac and by subjecting them to excessive force and unreasonable seizure.[6] Tillis also asserts that Brown was deliberately indifferent to his serious medical needs. Plaintiffs brought supervisory liability claims against Columbus Police Chief Ricky Boren in his individual capacity, alleging that Boren is liable under ยง 1983 based on his hiring, training, supervision, and retention of Brown. Plaintiffs also brought claims against CCG, claiming that CCG's ...


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