England v. City of Columbus

1

JAMES J. ENGLAND, Plaintiff, v. CITY OF COLUMBUS, OHIO, et al., Defendants.

No. 2:19-cv-1049

United States District Court, S.D. Ohio, Eastern Division

December 20, 2021

KIMBERLY A. JOLSON MAGISTRATE JUDGE

OPINION AND ORDER

SARAH D. MORRISON UNITED STATES DISTRICT JUDGE

This matter is before the Court on three motions. First, Defendant City of Columbus filed a Motion for Summary Judgment (City Mot., ECF No 39), to which Plaintiff James England responded (Resp., ECF No. 48), and the City replied (City Reply, ECF No. 46). Defendant Officer Keith Abel also filed a Motion for Summary Judgment (Abel Mot., ECF No. 38), to which Mr England responded (Resp.), and Officer Abel replied (Abel Reply, ECF No. 45). Finally, Mr. England moved to strike new arguments raised in Officer Abel's reply. (Mot. to Strike, ECF No. 47.) Officer Abel responded (ECF No. 48), and Mr. England has filed a reply (ECF No. 49). All three motions are now ripe for consideration. For the reasons set forth below, Mr. England's Motion to Strike is GRANTED IN PART and DENIED. Officer Abel's Motion for Summary Judgment is DENIED; and the City's Motion for Summary Judgment is DENIED.

I. BACKGROUND

A. Factual Background

This suit centers on the arrest and shooting of James England by Columbus Division of Police Officer Keith Abel. Perhaps unsurprisingly, many of the facts are in dispute. Although the Court must construe all disputed facts in the light most favorable to the plaintiff, Davenport v. Causey, 521 F.3d 544, 546 (6th Cir. 2008), they are discussed from all relevant perspectives in the section that follows.

1. February 6, 2015 Incident

Officer Keith Abel first joined the Columbus Division of Police (“CDP” or the “Division”) in 1996. (Abel Dep., 11:25, ECF No. 30-1.) On February 6, 2015, he was a first shift patrol officer in Columbus's Thirteenth Precinct. (Id., 15:20, 16:22.) That morning, Officer Abel reviewed the Division's daily bulletin and noticed a felony warrant for James England, a name he recognized. (Id., 28:16-24, 32:6-15.) Officer Abel decided to look into the warrant further and “actually attempt to go pick him up.” (Id., 29:18-20.) After confirming that the warrant was valid, Officer Abel, Officer Douglas Fulwider, Officer Armando Dungey, and Sergeant Kenneth Griffis went to Mr. England's home on Dolby Drive. (Id., 39:24-40:4, 41:5-6.) At the home, Officer Abel “took up an observation spot” by the back door while the other three approached the front. (Id., 47:17-18.) Officer Fulwider then indicated to Officer Abel that Mr. England was inside and that they “were trying to get him to come out.” (Id., 49:13-15, 54:5-8.)

What happens next can be understood only in context of the unique physical surroundings. The house is a one-story structure with an attached back patio. (ECF No. 30-3, PAGEID # 380.) The patio has three doors: the back door to the house; a door opening into a yard enclosed by a six-foot privacy fence; and a door opening onto the driveway. (ECF No. 30-5, PAGEID # 393.) The patio was at one time screened-in, but all the screens have been removed. (Id.) The portions of the patio opening onto the yard remain open. (Id.) The portions opening onto the driveway are covered with plywood. (Id.) Although the panels next to the driveway door are boarded floor-to-ceiling, the door itself is boarded only part-way. (Id.) The plywood covering the door is roughly four and one-half feet high, leaving about a two-foot opening at the top. (England Dep., 68:12, ECF No. 31.) As a result, a person standing in the driveway can reach their arms into the patio. (ECF No. 30-5, PAGEID # 394.) The back door to the house is just a few feet from the plywood-covered door, on the perpendicular wall. (Id., PAGEID # 395.) The back door has a pet entrance, or dog door, cut into it. (Id.)

At his post by the plywood-covered door, Officer Abel drew his TASER. (Abel Dep., 57:19-24.) He heard a dog enter the patio and felt it jump up onto the plywood. (Id., 62:8-10.) At five-feet six-inches tall, Officer Abel did not have complete visibility into the patio. (Id., 59:22, 60:19-22.) However, shortly after he heard the dog, Officer Abel observed the back door open and “out comes Mr. England.” (Id., 62:22-24.) Officer Abel then delivered loud verbal commands directing Mr. England to “stop.” (Id., 70:2-3.) Mr. England complied. (Id., 70:5.) Officer Abel directed Mr. England to approach the door and put his hands up. (Id., 70:7-9.) Again, Mr. England complied. (Id., 70:19.) Officer Abel then “[went] hands- on, ” securing Mr. England's hands in one of his own. (Id., 71:6-72:5.) Although Officer Abel believes “‘control' is kind of a strong word to use” to describe that moment, he acknowledges that he was “holding [Mr. England's] hands above his head.” (Id., 74:2-4.) Mr. England was not resisting Officer Abel's grasp. (Id., 74:7.)

Officer Fulwider, Officer Dungey, and Sergeant Griffis heard Officer Abel's loud verbal commands and arrived in the back of the house to see Officer Abel “hands-on” with Mr. England. (Fulwider Int., 07:00, see ECF No. 42-1; Dungey Int., 03:30, see ECF No. 42-1; Griffis Int., 06:15, see ECF No. 42-1.^[1]) Officer Fulwider joined Officer Abel in securing Mr. England in handcuffs. (Fulwider Int., 7:00; Abel Dep., 79:8-11.)

At this point, the first-hand accounts begin to vary. In Officer Abel's version of events, he stepped away from the door to “giv[e] [Officer Fulwider] some clearance to try and” get the cuffs on. (Abel Int., PAGEID # 361, ECF No. 30-3.) In doing so, he fumbled his TASER and dropped it. (Id., PAGEID # 359. See also Abel Dep., 90:1-4.) Officer Abel then drew his service weapon and approached the door again. (Abel Dep., 92:23-24.) He heard Officer Fulwider say something to the effect of “He's not secure, I don't have him secure.” (Id., 95:16-17.) Officer Abel maintains that Mr. England “never was” handcuffed. (Abel Int., PAGEID # 359.)

According to Officer Fulwider, Mr. England “started squirreling, started pulling, twisting” when he tried to get the cuffs on. (Fulwider Int., 8:00.) Ultimately, Officer Fulwider “was able to get one handcuff on [Mr. England.]” (Porter Report^[2], 2, ECF No. 42-2.) Together, he and Officer Abel got the second handcuff on-but “[Officer Fulwider] never got them locked, double-locked or anything.” (Fulwider Int., 8:25.) After Mr. England was handcuffed, his two dogs, which Officer Fulwider believed to be large pit bulls, “came out onto the patio” and “were aggressive towards the officers.” (Porter Report, 2.) “Officer Fulwider told Mr. England to order his dogs back into the house.” (Id.) Mr. England complied, but only one dog retreated. (Id.)

According to Sergeant Griffis, Officers Fulwider and Abel were attempting, but struggling, to handcuff Mr. England over the plywood. (Griffis Int., 7:20.) He said that “Mr. England was hesitant or wasn't able” to control the dogs and was concerned about the dogs getting hurt. (Id., 8:30.) Officer Dungey reported that Officer Abel was putting handcuffs on Mr. England when he arrived in the back of the house. (Dungey Int., 3:30.)

For his part, Mr. England recalls “back[ing] up until both officers [presumably, Officers Fulwider and Abel] had both hands on both of [his] wrists, and they put - placed [him] in handcuffs. . . . [A]t that time it was two officers back there. One was more in charge because he was giving the other one orders as far as ‘Hold his hand. I'm stepping up on this. I am going to pull him over,' so forth, so forth.” (England Dep., 39:2-11.) It was only when the “officers had [him] fully handcuffed” that his dogs came out onto the patio. (Id., 39:12-14.) Mr. England recalls an officer giving “the command to go ahead and kill the dog, ” and pleading for their safety. (Id., 40:10-21.)

Around this time, the officers tried to extract Mr. England from the patio through the opening at the top of the door. (Abel Dep., 94:7-16.) Officer Abel stood on “something” next to the door, “locked onto [Mr. England's] arm” and, with Officer Fulwider, tried to lift Mr. England-a five-foot nine-inch man weighing one-hundred eighty pounds with his arms pinned behind his back-off the ground and over the four-foot six-inch piece of plywood he and the officers were standing against. (Id., 94:12-22, 98:16-25. See also ECF No. 30-7, PAGEID # 399.) Soon after this effort began, Officer Fulwider let go of Mr. England and “grabbed ahold of [Officer Abel's] gunbelt to stabilize him as he went to pull [Mr. England] up.” (Fulwider Int., 10:40.) Officer Abel was “up in the threshold of [the plywood-covered door], holding onto” Mr. England with his left arm, while holding his service weapon “at the low ready” with his right. (Abel Dep., 106:10-11, 108:19-20.) Officer Abel then “felt [his] weight going over the patio door and onto that patio - onto that concrete.” (Id., 109:8-10.) He “thought [Mr. England] was trying to take [him] out”-that Mr. England had “lunge[d], trying to pull [Officer Abel] over the patio door.” (Id., 109:4-5, 12-13.) Officer Abel “aimed [his] gun and fired two shots at [Mr. England].” (Id., 112:11-12, PAGEID # 346.)

Mr. England remembers the shooting differently:

The next thing it just happened so quick, you know what I mean? The next thing I remember I was being pushed forward, and I was shot. As soon as I heard the gunshot, both the dogs, they locked up. They . . . shot through the doggy door. When they shot through the doggy door, it was an instant. I heard the gunshots, boom, boom. My dogs are running.

As soon as I seen the dogs go for the doggy door, I'm already in handcuffs, but I'm scared to death, so I shoot for the dog door too. I shoot for it.

(England Dep., 41:2-13.)

As Mr England dove through the dog door, Officer Dungey...