Brown v. Newton Cnty. Sheriff's Office, CIVIL ACTION NO. 1:16–CV–1399–AT

273 F.Supp.3d 1142

Kenneth Steed BROWN, Sr., Individually and as Surviving Spouse of Shirley Joyce Brown, deceased, and Kenneth Steed Brown, Sr., as Administrator of the estate of Shirley Joyce Brown, deceased, Plaintiff,

v.NEWTON COUNTY SHERIFF'S OFFICE, et al., Defendants.

CIVIL ACTION NO. 1:16–CV–1399–AT

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

August 7, 2017

James E. Carter, Carter Cromwell Law Group, for Plaintiff.

Emory Banks Craig, William Thomas Craig, Office of William Thomas Craig, William T. Mitchell, Karen Eleice Woodward, Cruser & Mitchell, LLP, for Defendant.

ORDER

Amy Totenberg, United States District Judge

Shirley Joyce Brown was shot and killed by the police outside her home after she called 911 indicating she was suicidal and wanted the 911 operator to "send someone out to help her die." (Compl., Doc. 1–1 ¶ 21.) Her husband, Plaintiff Kenneth Brown, has sued Defendants for wrongful death under Georgia law and for the violation of Ms. Brown's Fourth Amendment rights under 42 U.S.C. § 1983. This case is now before the Court on Defendants' Motion for Judgment on the Pleadings [Doc. 28], which Mr. Brown opposes. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion.

I. BACKGROUND

The following factual summary is taken from Mr. Brown's Complaint (Compl., Doc. 1–1 at 1–18) and the documents attached to it (Exhibits 1–8, Doc. 1–1 at 19–84).¹ The Court construes this summary in Mr. Brown's favor, and it is not intended to represent actual findings of fact. See Hill v. White , 321 F.3d 1334, 1335 (11th Cir. 2003).

Mr. Brown attached the following documents as numbered exhibits to his Complaint:

• Exhibit 1: Various documents generated by the Georgia Bureau of Investigation ("GBI") during its investigation of the shooting of Ms. Brown, which include a review of a police officer's personnel file, interviews with police officers, and statements and sketches provided by police officers regarding the shooting;

• Exhibit 2: The GBI's official report on the autopsy conducted on Ms. Brown;

• Exhibit 3: The "CAD Master Call Table," which is the report generated by the 911 operator from Ms. Brown's 911 call;

• Exhibit 4: The GBI's investigative report compiled on March 31, 2014—the day of the shooting—which includes detailed notes by special agents, a sketch of the scene of the incident, and a legend explaining the sketch;

• Exhibit 5: The incident report generated by the Newton County Sheriff's Office;

• Exhibit 6: The GBI's official report on the forensics analysis of the guns and ammunition located at the scene of the incident;

• Exhibit 7: The District Attorney's letter to the GBI Special Agent in Charge detailing her conclusions and recommendations regarding the investigation; and

• Exhibit 8: A letter from Mr. Brown's counsel to Defendants providing notice of Mr. Brown's claims against them.

(Compl., Doc 1–1 at 19–84.) Defendants also reference several of these documents in support of their motion. While Mr. Brown relies on some information within these documents, he also disputes certain information as detailed below. Thus, for purposes of this motion, the Court only considers the portions of the attached documents that Mr. Brown expressly relies on and does not dispute.²

At approximately 3:00 P.M. on March 31, 2014, Ms. Brown called the Newton County 911 operator. (Compl. ¶ 18.) Ms. Brown told the operator that she wanted her to send someone to help her die. (Id. ) The operator issued a call report to officers on duty stating that "the caller needs help dying" and that the caller had asked the operator "to forget the request if the deputies were not going to kill her." (Id. ) Officer Gordon responded to the call report by stating he was en route to the caller's address, and he along with Officer Ramsey drove to Ms. Brown's property. (Id. ¶¶ 18, 20.) Along the way, 911 dispatch informed Officers Gordon and Ramsey that the caller was Shirley Brown and that she had stated she wanted to kill herself. (Id. ) In a separate vehicle, Officer Shirley overheard the call report and decided to go to the property as well. (Id. ¶ 22.) The content of the call report—including Ms. Brown's statements about wanting to commit suicide—was relayed to all three officers before they arrived at Ms. Brown's home. (Id. ¶¶ 19, 53.)

Officers Gordon and Ramsey arrived at Ms. Brown's property first. (Id. ¶ They drove up her driveway and approached the carport next to her house. (Id. ) As they approached, Ms. Brown came out of her house holding a gun. (Id. ¶ Ms. Brown was 74 years old at the time and weighed 145 pounds. (Id. ¶ 16.) Officers Gordon and Ramsey saw her gun, and as soon as they did, they backed down the driveway away from the carport and the house. (Id. ¶ 23.) As Officer Gordon was backing down the driveway, he reported over the dispatch system that Ms. Brown had a gun. (Id. ¶ 25.) Officer Shirley arrived around the same time that the other two officers were backing down the driveway. (Id. ¶24.)

Officer Gordon stopped his vehicle at "a safer distance" from Ms. Brown on the driveway. (Id. ¶ 26.) Officer Shirley stopped his vehicle near the other officers' vehicle. (Id. ) Officers Gordon and Ramsey got out of their vehicle, went to the trunk, and each one grabbed a gun. (Id. ¶¶ 26–28.) Officer Gordon grabbed a shotgun, and Officer Ramsey grabbed an AR–15 .223 rifle. (Id. ¶¶ 27–28.) They then positioned themselves at the rear of Officer Gordon's vehicle. (Id. ¶ 29.) Officer Shirley grabbed an M–16 .223 rifle from the trunk of his own vehicle, got low to the ground, ran to the rear of Officer Gordon's vehicle as well, and positioned himself on the driver's side of the vehicle while using it for cover. (Id. ¶¶ 30–31.) All three officers had positioned themselves behind Officer Gordon's vehicle at this point, which was about 120 feet away from where Ms. Brown was standing. (Id. ¶ 37.) Officer Shirley could see Ms. Brown from this protected position behind the car. (Id. ¶ 32.) He aimed the sights of his gun at her "center mass." (Id. )

Ms. Brown repeated her wish to die and appeared to be having difficulty handling her rifle. (Id. ¶¶ 41–42.) From his protected position, Office Shirley shot Ms. Brown. (Id. ¶ 32.) Officer Ramsey, who was similarly positioned at the rear of Officer Gordon's vehicle, stated that he also shot Ms. Brown at about the same time. (Id. ) None of the officers attempted to use non-deadly means to subdue Ms. Brown before the shooting occurred. (Id. ¶¶ 41, 42, 47.)

Ms. Brown was shot twice—once in her chest and once in her abdomen. (Id. ¶ 33.) The shooting occurred at approximately 3:14 P.M., about two minutes after Officer Shirley had arrived at the property. (Id. ¶¶ 13, 18, 41, 42.) Ms. Brown died from her gunshot wounds. (Id. ¶ 13.)

At approximately 3:30 P.M., the Georgia Bureau of Investigation ("GBI") was called in to investigate the shooting of Ms. Brown that had just occurred. (Id. ¶ 34.) GBI agents came to the scene of the incident soon after Ms. Brown was shot, and they took notes on their observations, photographed the scene, and also made a sketch of the scene. (Id. ¶¶ 34–35.) The GBI later generated an autopsy report on Ms. Brown (Exhibit 2 at 37–41), conducted a forensics analysis of the guns and ammunition collected at the scene of the incident (Exhibit 6 at 67–68), and individually interviewed Officers Ramsey, Shirley, and Gordon regarding the shooting (Exhibit 1 at 22–34) over the course of several weeks. Additionally, as part of their interviews, Officers Ramsey and Shirley each contributed statements describing what happened (Exhibit 1 at 25, 30–31), and Officers Ramsey and Gordon each contributed sketches of the crime scene (Exhibit 1 at 29, 35).

Mr. Brown's Complaint alleges that there are several inconsistencies within the results of the GBI investigation and the Newton County Sheriff's Office's incident report. For one, Mr. Brown discusses the GBI agent's sketch of the two shell casings found at the crime scene. (Compl. ¶ 35.) The sketch shows a .223 caliber shell casing located north and east of one police vehicle, and it shows another .223 caliber shell casing located north and west of another adjacent police vehicle. (Id. ) Mr. Brown states that the two shell casings were located on opposite sides of the two vehicles, which were interposed between the two casings. (Id. ) He alleges that this evidence suggests the shots were fired "from two different weapons by different officers." (Id. ¶ 44.) Mr. Brown also points to Officer Gordon's statement—taken within a day of the shooting—that both Officers Shirley and Ramsey had discharged their rifles. (Id. ¶¶ 36, 38, citing to Exhibits 2 and 5.) Officer Gordon stated that Officer Shirley had positioned himself at the left rear of a vehicle with a rifle, and Officer Ramsey had positioned himself at the right rear of the same vehicle with a rifle. (Id. ) However, Mr. Brown alleges that this evidence conflicts with the forensics analysis of the two shell casings found at the crime scene. (Id. ¶¶ 44–45.) He states that the analysis revealed "both shots had come from one rifle, Sgt. Shirley's." (Id. ¶ 39.) He further states that the Newton County District Attorney arrived at the same conclusion: Officer Shirley fired both shots. (Id. , citing to Exhibits 6 and 7.)

Furthermore, Mr. Brown discusses the GBI agent's sketch of the police vehicles located at the crime scene. According to the sketch, the vehicle that the officers were positioned behind when Ms. Brown was shot was located approximately 120 feet or more away from Ms. Brown. (Id. ¶ 36.) The sketch includes a curve in the driveway that separated Ms. Brown from the three officers. (Id. ¶ 37.) However, Officer Gordon stated that he backed up his car only 50 feet when he saw Ms. Brown had a gun. (Id. ¶ 36, citing to Exhibit 1 at 13.)

Based on these inconsistencies within the GBI investigation, Mr. Brown alleges two possible versions of what happened...