Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Herring v. City of Colorado Springs

February 2, 2006

THE ESTATE OF GREGORY L. HERRING, BY AND THROUGH DAVID BURFORD, ESQ., GREGORY L. HERRING, JR., A MINOR CHILD, BY AND THOUGH HIS GUARDIAN AD LITEM, DAVID BURFORD, ESQ., SUMMER HERRING, A MINOR CHILD, BY AND THROUGH HER GUARDIAN AD LITEM, DAVID BURFORD, ESQ., AND, GREGORY Q. HERRING., A MINOR CHILD, BY AND THROUGH HIS GUARDIAN AD LITEM, DAVID BURFORD, ESQ., PLAINTIFF(S),
v.
THE CITY OF COLORADO SPRINGS, A MUNICIPAL ENTITY, GARY DARRESS, INDIVIDUALLY AND IN HIS CAPACITY AS A COLORADO SPRINGS POLICE OFFICER, RORY CARROLL, INDIVIDUALLY AND IN HIS CAPACITY AS A COLORADO SPRINGS POLICE OFFICER, AND, BRENT AMBUEHL, INDIVIDUALLY AND IN HIS CAPACITY AS A COLORADO SPRINGS POLICE OFFICER, DEFENDANT(S).



The opinion of the court was delivered by: Patricia A. Coan, United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

This is a §1983 action brought by the Estate of Gregory Herring ("the Estate"). Mr. Herring was an adult male who died tragically after an altercation with Colorado Springs police officers in Mr. Herring's apartment. Mr. Herring's minor children, through their guardian ad litem, are also plaintiffs in this action. All parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. §636(c). In the Second Amended Complaint, filed May 2, 2005, the Estate asserts §1983 claims of excessive force, unlawful warrantless entry, and deprivation of substantive due process against the three police officers who were at the scene immediately prior to Mr. Herring's death.*fn1 The Estate also sues the City for inadequately training its police officers. The minor plaintiffs assert a claim against the defendants for deprivation of their constitutional right of familial association. Plaintiffs seek compensatory and punitive damages.

The matter before the court is Defendants' Motion for Summary Judgment [filed August 1, 2005]. The motion is fully briefed. I heard argument from the parties on November 15, 2005.

I.

The following facts are not disputed, unless otherwise noted. During the afternoon of May 2, 2003, Scott Elder, a resident at the Winfield Apartments in Colorado Springs observed Mr. Herring, an acquaintance who lived in an apartment building across the parking lot from Elder, banging on apartment doors in Mr. Elder's building. (Affidavit of Scott Elder, attached to MSJ, ¶¶1-4) Mr. Herring then began banging violently on Mr. Elder's apartment door. (Id. at ¶5) Mr. Elder feared for his safety because Mr. Herring was six feet, two inches tall, and weighed approximately 240 pounds. (Id. at ¶¶6-7) Mr. Elder went to his balcony and called 911 to report Mr. Herring's behavior. (Id.) While Mr. Elder was on the phone with the 911 operator, he heard a loud crash, looked out his window again, and observed Mr. Herring's three children running from Mr. Herring's apartment screaming. (Id. at ¶8) Mr. Elder then heard another crash and saw Mr. Herring, who had returned to his own apartment, throw a chair out his window. (Id.) Mr. Elder reported these events to the 911 operator and ended the call. (Id. at ¶9)

Mr. Herring called 911 again a few minutes later to report that Mr. Herring was breaking the windows in his apartment, was throwing items out the windows, was nude, and that his arms were slashed and bleeding and his abdomen cut. (Id. at ¶¶10-12) When police officers arrived in the parking lot shortly thereafter, Elder directed them to Herring's apartment. (Id. at ¶¶14-15)

Defendant Colorado Springs police officer Gary Darress was the first police officer to respond. Mr. Darress was advised of the information Mr. Elder relayed to the 911 operator while he was en route to the scene. (Affidavit of Officer Gary Darress, attached to Defendants' MSJ, at ¶¶2-3) Darress was also advised that Herring did not have a weapon. (Deposition of Gary Darress, attached to Plaintiffs' Response, at 71)

Mr. Elder directed Officer Darress to Herring's ground level apartment and told Darress that the children had already left the apartment. (Darress deposition, at 80) Darress approached the front of Mr. Herring's apartment and observed a broken window and numerous household items lying on the ground, including several children's items. (Darress Affidavit, ¶6) Darress then looked inside the broken window and saw items thrown all over the apartment and blood on the walls. (Id. at ¶7) Darress heard a grunting or moaning noise coming from someone inside the apartment. (Id. at ¶9) Darress did not know at that time whether anyone else was in the apartment with Mr. Herring. (Id. at ¶8) Darress then walked around the exterior of the apartment and noticed that every window was broken out and that there was blood throughout the other rooms. (Id. at ¶11) When he reached the back of the apartment, he observed Mr. Herring, naked and leaning out the window with his abdomen pressed against the lower broken window frame. (Id. at ¶12) Darress also saw cuts on Herring's arms and abdomen. (Id. at ¶¶12, 14) Darress suspected that the cuts had been caused by broken glass. (Id. at ¶12) Darress introduced himself to Herring as a police officer. (Id. at ¶13) Herring continued to throw items out the window. (Id.) Herring did not throw any objects at Darress. (Darress Deposition, at 95) Herring also "mumbled or muttered something about war" and expressed concern that Darress was a police officer who might be there to hurt him. (Id. at 94) Darress' assessment of the situation was that Mr. Herring might be having a "mental breakdown," was intentionally injuring himself, and was possibly attempting to commit suicide. (Darress Affidavit, ¶14; Darress Deposition, at 87)

Defendant Colorado Springs police officers Carroll and Ambuehl then arrived at the scene separately. (Darress Affidavit, ¶15) Both had been advised that Herring was creating a disturbance and did not have a weapon. (Affidavit of Officer Rory Carroll, attached to MSJ, ¶3; Affidavit of Officer Brent Ambuehl, attached to MSJ, ¶3; Deposition of Rory Carroll, attached to Plaintiffs' Response, at 111) Carroll observed blood on one or two other apartment doors before responding to Mr. Herring's apartment. (Carroll Affidavit, at ¶5) At Herring's apartment, Carroll and Ambuehl saw officer Darress outside one of several broken apartment windows, telling Mr. Herring to calm down, while Herring threw objects out the window. (Carroll Affidavit, ¶6; Ambuehl Affidavit, ¶7) Carroll observed that Herring had blood on him, but could not determine whether Herring was bleeding, or whether the blood was from someone else. (Carroll Deposition, at 147-148) Although Carroll had been advised by the dispatcher that Herring's children had left the apartment, he was concerned that someone else might be inside with Herring who needed medical attention because of all the blood he observed on Herring and on the doors of other apartments. (Carroll Affidavit, ¶¶31-32) Ambuehl could see that Herring was naked from the waist up, was bleeding, and had blood all over his body. (Ambuehl Affidavit, ¶8) The dispatcher told Ambuehl that children were living with Mr. Herring, but the defendant did not know if any children who might need help immediately were present in the apartment with Herring at that time. (Ambuehl Affidavit, ¶¶3, 9, 34, 35)

Darress, who was the higher ranking officer, determined that officers Carroll and Ambuehl should enter Herring's apartment while Darress distracted Herring at the broken window. (Darress Affidavit, ¶15; Carroll Deposition, at 141) Darress hoped that the other officers could subdue Herring to prevent Herring from continuing to hurt himself and to get him some medical attention, and also to prevent Herring from jumping out the window and injuring himself further or injuring someone else. (Id.) Darress did not believe that there were any children in the apartment based on Elder's and Herring's statements to Darress that the children had left, but he was concerned that someone else, injured and hidden from view, might be inside. (Darress Affidavit, ¶14; Darress Deposition, at 96-97)

Darress instructed Carroll and Ambuehl to kick in the front door after they told him that the door was locked. (Darress Affidavit, ¶16; Carroll Affidavit, ¶7; Ambuehl Affidavit, ¶10) At that time, Carroll and Ambuehl had been present at the scene less than five minutes. (Carroll Deposition, at 123) Carroll walked through the apartment to the bedroom where Herring was standing naked, with blood all over his arm and abdomen. (Carroll Affidavit, ¶10) Carroll also observed blood on the apartment walls. (Id.) Officer Ambuehl checked the apartment to see if anyone else was inside, but did not find anyone. (Ambuehl Affidavit, ¶13)

When Herring saw Carroll, he "threw a broken shelf and bottle at [him], which missed. (Carroll Affidavit, ¶11; Carroll Deposition, at 150) The officers' accounts about what happened next are somewhat inconsistent. Carroll stated in his affidavit in support of the summary judgment motion that he sprayed Herring in the face with a single burst of O.C. spray (mace) after Herring began to approach Carroll and ignored Carroll's order to stop. (Carroll Affidavit, ¶11) Carroll testified in his deposition, however, that Herring did not approach him until after Carroll sprayed him with a one-second burst of mace. (Carroll Deposition, at 155-56, 159) Officer Ambuehl testified in his deposition that when he and Carroll entered the apartment, Herring was throwing objects all over the place, and that Carroll sprayed Herring with a one-second burst of O.C. spray at a distance of three to four feet after Herring threw a few objects in Officer's Carroll's direction and took a step towards Carroll. (Deposition of Brent Ambuehl, at 96-98) Ambuehl stated in his affidavit that Carroll sprayed Herring after Herring ignored Carroll's directive to "calm down and step back." (Ambuehl Affidavit, ¶15)

After Carroll sprayed Herring with the O.C. spray, Herring hesitated for a second, wiped the mace from his face, stated "we are all going to die," and charged at officer Carroll, initiating physical contact. (Carroll Affidavit, ¶12; Darress Affidavit, ¶18; Ambuehl Affidavit, ¶15) Herring grabbed Carroll's left shoulder and pushed him back on to the bathroom floor. (Carroll Affidavit, ¶14) Herring then squeezed Carroll's testicles, causing Carroll to scream in pain. (Id. at ¶15) Carroll hit Herring with his fist once in the middle of Herring's back while ordering Herring to let go of him, and struck Herring again after Herring refused to comply. (Id.) Herring then released Carroll and again said "we are all going to die." (Id.) Ambuehl came into the bathroom, grabbed Herring's feet, and ordered him to stop resisting. (Ambuehl Affidavit, ¶18) Herring was fighting so hard that he was throwing Ambuehl and Carroll around the bathroom. (Id. at ¶19)

In the meantime, Officer Darress entered the apartment and grabbed a blanket with which to subdue Herring and to protect the officers from Herring's blood and other bodily fluids. (Darress Affidavit, ¶19) Darress found officers Carroll and Ambuehl on the floor inside a small bathroom, attempting to gain control of Herring. (Id. at ¶20) There was water and blood all over the bathroom floor. (Id. at ¶21; Ambuehl Affidavit, ¶17) Herring was face down on the floor with Carroll on his left side in the area of Herring's head and shoulders, and Ambuehl was at Herring's feet. (Darress Affidavit, ¶22; Carroll Affidavit, ¶16; Ambuehl Affidavit, ¶22) Darress attempted to wrap the blanket around Herring, but Herring was struggling too much, and the blanket landed in the bathtub. (Darress Affidavit, ¶23) Carroll struck Herring on the shoulder with his fist in an effort to restrain him. (Carroll Affidavit, ¶17)

Officer Darress positioned himself on Herring's right side as Herring lay face down, took out his handcuffs and handed them to officer Carroll who was able to get one cuff around Herring's left wrist; however, Carroll could not get the other cuff on because Herring was struggling so hard that he was physically lifting Officers Darress and Carroll off the floor. (Darress Affidavit, ¶24; Carroll Affidavit, ¶17; Darress Deposition, at 105)

Herring then grabbed Darress' testicles and squeezed hard causing Darress to scream out in pain. (Darress Affidavit, ¶25) Darress hit Herring on the head with the soft side of his fist approximately five or six times before Herring finally let go of him. (Id.) Herring then bit officer Carroll's hand. (Id. at ¶26; Carroll Affidavit, ¶21) Carroll struck Herring in the side of the face in an effort to get Herring to let go of his hand. (Carroll Affidavit, ¶22; Darress Affidavit, ¶26) While Herring was biting Carroll's hand, Herring also grabbed Darress' baton and pulled it out of its holder. (Darress Affidavit, ¶27) Darress fought Herring to get the baton back. (Id.) After Darress secured his baton, Herring continued to fight and Darress struck Herring three or four times on the head using a flat chop (a technique where the officer holds the baton by the short handle and the long extended portion of the baton is parallel to the forearm). (Id.) Darress continued to yell at Herring to calm down, but Herring kept fighting. (Id. at ¶28) Darress surmised that Herring was high on a mind altering drug. (Id.) Herring then bit Darress on his right knee at which time Darress struck Herring in the head with his fist several times, while yelling at Herring to stop biting him. (Id. at ¶29)

While the struggle was going on, Officer Carroll thought that Herring was going after his gun because Herring grabbed his firearm holster twice. (Carroll Affidavit, ¶¶18, 24) Carroll tried to pull Herring's left arm behind his back, but Herring pulled Carroll forward. (Id. at ¶19) Carroll struck Herring with his fist on Herring's shoulder. (Id.) In another attempt to control Herring's arms, Carroll and Ambuehl attempted to place Carroll's baton under Herring's armpit and tried to pull his arm back to restrain him, but that effort failed. (Id. at ¶20; Ambuehl Affidavit, ¶23) Carroll then gave his baton to Ambuehl to use under Herring's legs as a compliance maneuver; when that failed as well, Ambuehl put the baton next to the sink. (Id.)

Approximately three minutes after the officers kicked in the door to Herring's apartment, Darress radioed for medical personnel to come in and assist because the police officers had been unable to restrain Herring. (Darress Affidavit, ¶30; Ambuehl Affidavit, ¶¶24-25; Carroll Deposition, at 163) Herring continued to fight and physically lifted Officer Carroll and Darress off the floor. (Darress Affidavit, ¶31) At some point, Darress pressed his thumb into a pressure point on the side of Herring's neck to get him to comply with his commands to calm down, but the maneuver appeared to have no effect. (Id.)

Darress was eventually able to handcuff Herring's right wrist, but Herring continued to fight and was able to push himself up, while Darress was on his back, so that Herring was on his forearms with his upper body propped up off the floor. (Darress Affidavit, ¶¶32, 34) Darress felt that if Herring got to his feet, the officers would not be able to contain him, so Darress pushed down on Herring with his arms and upper body in a jumping motion, lying on Herring's back, in an effort to get Herring to lie down on the ground. (Id. at ¶35) Carroll also struck Herring in the back twice with his fist and ordered Herring to get down. (Carroll Affidavit, ¶23) Darress again called for medical personnel to come in and assist. (Darress Affidavit, ¶33)

When fire department personnel and the paramedics entered the apartment and proceeded to the bathroom, they observed that Herring was fighting the officers so hard that they could not control him. (Affidavit of Firefighter/Paramedic Clark Gaddie, attached to MSJ, ¶9; Affidavit of Firefighter Lerry Armstead, attached to MSJ, ¶¶6-8). One of the paramedics gave Herring a shot of Haldol in his buttock which appeared to have no effect. (Gaddie Affidavit, ¶¶12-13; Armstead Affidavit, ¶9; Darress Affidavit, ¶36; Carroll Affidavit, ¶25; Ambuehl Affidavit, ¶27) A second shot, this time of Valium, was administered, and Herring slowly began to calm down. (Gaddie Affidavit, ¶14; Armstead Affidavit, ¶10; Darress Affidavit, ¶36; Carroll Affidavit, ¶26; Ambuehl Affidavit, ¶¶28-29) Darress then confirmed to the paramedic that Herring was breathing. (Gaddie Affidavit, ¶16; Darress Affidavit, ¶37) Because Herring had calmed down, the officers left the bathroom and went outside. (Darress Affidavit, ¶38; Carroll Affidavit, ¶27; Ambuehl Affidavit, ¶30) A few minutes later, Herring stopped breathing, but still had a strong carotid pulse. (Gaddie Affidavit, ¶19) After Herring was placed in the ambulance he no longer had a pulse. (Id.) He received CPR en route to the hospital where he was pronounced dead. (Id.)

The record reflects that the paramedic's administration of one injection of 5 mg of Haldol, followed by an injection of 5 mg of Valium, complied with medical procedure and was one half of the medically authorized dose of each medication. (Deposition of Clark Gadde, attached to Plaintiffs' Response, at 50-54)

The only evidence about the cause of Mr. Herring's death is the report of plaintiffs' expert pathologist who opines that Officer Darress' action in pressing his thumb into the front of Herring's neck caused Herring's trachea to collapse, thereby effectively blocking his airway. (Opinion Letter of Linda E. Norton, M.D, attached to Plaintiffs' Response as Ex. G, and accompanying Affidavit, filed November 18, 2005*fn2 ) Dr. Norton determined that Herring went into respiratory arrest before the drugs had an opportunity to reach his bloodstream. (Id.) Dr. Norton's opinion also is based on the fact that Herring did not have a pulse when he was placed into the ambulance and that the cardiac monitor in the ambulance showed "profound bradycardia*fn3 which became asystole*fn4 during transport." (Id.)

The physical altercation between Herring and the defendant police officers lasted less than thirteen minutes. (Carroll Deposition, at 163-65; Plaintiffs' Ex. E)

II.

The purpose of summary judgment is to determine whether trial is necessary. White v. York Int'l. Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary judgment is appropriate under Fed.R.Civ.P. 56(c) when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The movant bears the initial burden to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992). If this burden is met, the non-movant must "come forward with specific facts showing that there is a genuine issue for trial as to elements essential to [the non-movant's claim]."

Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir. 1993)(internal citations omitted). The non-movant has the burden to show that there are genuine issues of material fact to be determined. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court views the evidence of record and draws all reasonable inferences in the light most favorable to the non-movant. Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir. 1995). To defeat a properly supported motion for summary judgment, "there must be evidence upon which the jury could reasonably find for the plaintiff."Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). I proceed with caution because only the police officers, who are obviously "interested persons," can testify as to what occurred on that tragic day, while the decedent cannot.

III.

Officers Darress, Carroll and Ambuehl assert the qualified immunity defense in response to plaintiffs' claims against them in their personal capacities Qualified immunity shields public officials from civil damages liability if their actions did not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When a public official raises the defense of qualified immunity, the plaintiff first must establish that the complained of conduct constitutes a violation of a constitutional or statutory right. See Smith v. Cochran, 339 F.3d 1205, 1211 (10th Cir. 2003)(internal citation omitted).

If the plaintiff points to sufficient evidence to show that the defendant has violated his constitutional right, the defendant is nonetheless entitled to qualified immunity if his actions were reasonable in light of clearly established law. "A law is "clearly established" for purposes of qualified immunity if there is a Supreme Court or Tenth Circuit decision on point, or if "the clearly established weight of authority from other circuits [has] found the law to be as the plaintiff maintains."Johnson v. Martin, 195 F.3d 1208, 1216 (10th Cir. 1999)(quoting Murrell v. School Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1251 (10th Cir. 1999))(internal citation omitted). To satisfy the clearly established law requirement, the plaintiff need not identify a case presenting the exact factual situation at hand; instead, the inquiry focuses on whether the public official reasonably should have known, in light of existing law, that his conduct was unlawful. Johnson, 195 F.3d at 1216; accord Anderson v. Creighton, 483 U.S. 635, 640 (1987)("The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right"); Saucier v. Katz, 533 U.S. 194, 202 (2001) (stating that for the law to be clearly established, it must "be clear to a reasonable officer that his conduct was unlawful in the situation he confronted"); Hope v. Pelzer, 536 U.S. 730, 741 (2002)("the salient question . . . is whether the state of the law [at the relevant time] gave [defendants] fair warning that their alleged [conduct] was unconstitutional").

If the plaintiff fails to satisfy either part of the bipartite inquiry, the court must grant the defendant qualified immunity. Smith, 339 F.3d at 1211. If the plaintiff establishes that defendant's conduct violated a clearly established right, the burden shifts to the defendant to prove that "there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law." Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) (internal quotation omitted).

A. Warrantless Entry

Plaintiff Estate claims that the defendant police officers' warrantless and non consensual entry of Herring's home violated the Fourth Amendment because the officers did not have probable cause to believe that exigent circumstances existed to justify the entry.

A warrantless entry of an individual's home is presumptively unconstitutional unless the government establishes that an exception to the warrant requirement existed at the time of the entry. See United States v. Anderson, 154 F.3d 1225, 1233 (10th Cir. 1998). Emergency circumstances may, in appropriate cases, make a warrantless entry constitutional. Id. "[A]bsent consent or exigent circumstances, police may not enter a citizen's residence without a warrant." United States v. Scroger, 98 F.3d 1256, 1259 (10th Cir.1997). Police officers may make a warrantless entry if they have a reasonable belief that their own lives or the lives of others are in danger. Mincey v. Arizona, 437 U.S. 385, 393 (1978)("[T]he Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid.")

The basic elements of the "exigent circumstances" exception are: (1) that law enforcement officers had reasonable grounds to believe that there was an immediate need to protect their lives or others or their property or that of others; (2) the entry was not motivated by an intent to arrest and seize evidence; and, (3) there was a reasonable basis, approaching probable cause, to associate an emergency with the area or place entered. United States v. Wicks, 995 F.2d 964, 970 (10th Cir. 1992)(citing United States v. Smith, 797 F.2d 836, 840 (10th Cir. 1986)).

The government bears the burden of proving exigency. Wicks, 995 F.2d at 970. The government's burden is "particularly heavy where the police seek to enter a suspect's home." Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1240 (10th Cir. 2003)(quoting United States v. Anderson, 981 F.2d 1560, 1567 (other internal quotation and citation omitted)).

In evaluating whether an exigency existed at the time defendants entered Herring's apartment, I examine the circumstances "as they would have appeared to prudent, cautious, and trained officers." Anderson, 154 at 1233 (internal citations omitted).

The record shows that Darress, the first officer to arrive at the scene, was told by the dispatcher that Herring initially had been running around banging on apartment doors; that after Herring returned to his own apartment, he began throwing objects through a broken window; that Herring was nude and his arm and abdomen were cut and bleeding; and that Herring's children had run out of the apartment. Darress was also told that no one had seen Herring with a weapon. When Darress arrived at Herring's apartment, he walked around the perimeter and observed that every window was broken, that objects had been thrown all over the apartment, and that there was blood throughout the inside of the apartment. When Darress reached the room where Herring was standing throwing objects out the window, he did not see Herring with a weapon. Darress did not believe that there were any children remaining in the apartment based on statements made by Elder, the reporting witness, and by Herring, but he did not know whether anyone else was in the apartment. Darress did not see anyone else in the apartment. Darress also believed that Herring was trying to injure himself and might need immediate medical aid. Based on his concerns, Darress instructed officers Carroll and Ambuehl to kick in the door and enter the apartment. Officers Carroll and Ambuehl were concerned that someone else, including more children, might be in the apartment because of all the blood they saw on Herring, the sidewalk and other apartment doors, along with all of the broken windows.

Under the first element of the exigency analysis, I find that the defendants did not have reasonable grounds to believe that their own lives were in danger before they entered Mr. Herring's apartment. The officers had not received any information that Herring had a weapon, nor did they see Herring with a weapon. Further, although Herring was throwing objects out the window while talking to Officer Darress, he did not throw anything directly at Darress, nor did he threaten Darress or the other officers. Indeed, Darress' confidence in his own safety is evidenced by his deposition testimony that he stood only five feet away from the window during his attempted conversation with Herring. (Darress Deposition, at 92) Accordingly, the warrantless entry was lawful only if defendants had a reasonable belief that someone inside the apartment, including Herring, was in need of immediate aid.*fn5 Defendants maintain that they had a reasonable basis to believe that Mr. Herring needed immediate medical attention because of the blood they observed on Herring's body and around the apartment, as well as outside the apartment.

Defendants also contend that they had a reasonable belief that someone else (possibly the children's mother), might be inside the apartment who needed aid, because of the blood, the destruction inside the apartment, and the fact that the children ran out of the apartment.

Plaintiff Estate emphasizes that the officers did not have any specific information that Herring had a weapon, that anyone else was inside the apartment, or that Herring had harmed anyone. Plaintiff also argues that it was unreasonable for officers to believe that Herring was seriously injured because he was standing at the window while Officer Darress attempted to converse with him.

Plaintiff Estate maintains that the report of its police policy expert, W. Ken Katsaris, demonstrates the existence of a material factual issue about the legality of defendants' actions. The expert opines:

The breakdown on proper police procedures began when Darress did not assess that this was a mental health issue and that because there was no threat to Herring or others, that a perimeter be established and communication begun to calm Herring. There was no recognition that time was on the side of the police for a resolution without injury to the officers or Herring. The almost immediate entry, when Herring already voiced fear of the officers, escalated the need for force. Furthermore, Darress did not even think to contact his supervisor for assistance with an assessment. Entry in this incident was improper and exacerbated and accelerated a contact before any of the recognized procedures were implemented. It is well recognized that absent a direct and imminent threat, officers should keep their distance and not be threatening with an emotionally disturbed person.*fn6

The substance of those procedures have not been provided to the court. Defendant Ambuehl testified in his deposition that during an academy training session prior to May 2003, he received some general written guidelines about interacting with emotionally disturbed persons. (Ambuehl Deposition at 42) The guidelines, as discussed in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.