Gambrel v. Knox Cnty.

476 F.Supp.3d 580

Pearlie Sue GAMBREL, Personal Representative of the Estate of Jessie J. Mills, Plaintiff,

v.KNOX COUNTY, et al., Defendants.

No. 6:17-CV-184-REW-HAI

United States District Court, E.D. Kentucky, Southern Division. London.

Signed August 5, 2020

Arthur Loevy, Elliot Slosar, Pro Hac Vice, Jon Loevy, Michael I. Kanovitz, Pro Hac Vice, Loevy & Loevy, Chicago, IL, Amy Robinson Staples, Loevy & Loevy, Shelbyville, KY, for Plaintiff.

Jason E. Williams, John F. Kelley, Jr., Williams & Towe Law Group, PLLC, London, KY, for Defendants.

OPINION & ORDER

Robert E. Wier, United States District Judge

I. BACKGROUND

A late-night kidnapping, a struggle with police in the middle of a country road, two gunshots. This regrettable sequence of events describes the final hours of Jessie Mills's life, which ended on June 29, 2016.

Earlier that evening, Mills had arrived at the home of James and Geneva Helton, Mills's in-laws and the legal custodians of Mills's four children. See DE 64 (PL 594 James Helton Audio); DE 68 at 5 (Geneva Helton Dep.). The Commonwealth had removed Mills's children and given custody to the mother's parents because of substance abuse and domestic violence issues. See DE 85-1 ¶ 6 (finding Jessie and Whitney Mills "not fit and proper" custodians "due to a history of domestic violence and substance abuse.... [They] are unable to provide a safe and proper home for the children"). According to Geneva, sometime around 10:00 p.m., she woke to the sound of Mills knocking on the door. DE 68 at 9–10. Geneva let Mills inside and noticed his unusual behavior: Mills got himself a drink without saying a word to her, and he tried (unsuccessfully) to dress some of his (newly awakened) children. See id. at 9–11. Geneva did not believe that Mills was sober at the time. Id. at 11. The older children refused to go with their father. See DE 64 (James Helton Audio); DE 70 at 5–6 (James Helton Dep.).¹

Mills then picked up his two-year-old daughter—who was crying—and went out the porch door. See DE 64 (James Helton Audio). Mills, with utterly no right to take the child, began to drive away in a Ford Explorer with his daughter in his arms. See DE 70 at 15. The Heltons yelled after Mills and attempted to stop him from leaving with the child. See DE 64 (James Helton Audio); DE 68 at 12. Both James and Geneva recall having to jump out of vehicle's path as Mills left their home. See DE 64 (James Helton Audio); DE 68 at 12. James followed Mills by car; Geneva stayed with Mills's other children and called 911. See DE 64 (James Helton Audio); DE 68 at 14.

When James caught up with Mills, he found him walking in the road, carrying his daughter. See DE 64 (James Helton Audio). Sitting in the road was the (apparently inoperable) Explorer Mills had been driving. See DE 64 (James Helton Audio); id. (PL 598 Ricky Hobbs Audio); DE 69 (Ricky Hobbs Dep.) at 4–5. Ricky Hobbs, one of James's friends who lived nearby, noticed the scene and had approached Mills. See DE 64 (Hobbs Audio). Mills asked Hobbs for a ride; Hobbs refused. See id. ; DE 69 at 5. James told Hobbs that Mills had stolen the child and that the police had already been called. See DE 69 at 5. James and Hobbs then walked together—trailing behind Mills and his daughter—in an attempt to prevent unsuspecting drivers from hitting them as Mills walked in the middle of the dark road. See DE 64 (James Helton Audio); DE 69 at 7.

Knox County Sheriff's Deputy Mikey Ashurst and Knox County Constable Brandon

Bolton,² riding together in Ashurst's vehicle, responded to the calls for service just before 11:00 p.m. See DE 85-2 (KSP Investigation Report); DE 108-2 (CAD Report); DE 65 (Brandon Bolton Dep.) at 5–6; DE 80 (John Michael Ashurst Dep., Vol. I) at 104–05. By the time Ashurst and Bolton arrived, at 10:57 per the CAD Report, Mills had made it to Kentucky Route 223, a two-lane road with a double yellow line down the middle. See DE 69 at 29; DE 80 at 90. At this point, Mills was still walking in the middle of the road, carrying his young daughter, and James and Hobbs were still on foot, following the pair. See DE 65 at 7; DE 69 at 30; DE 80 at 90; DE 81 (John Michael Ashurst Dep., Vol. II) at 14.

The parties offer competing versions of what unfolded in the 5-6 minutes between the initial encounter with law enforcement and the fatal gunshots. But they do not dispute at least this much:

Mills's behavior on the evening in question was, at a minimum, very erratic. See DE 65 at 26 (Bolton recalling Mills's unpredictable behavior and surprising strength); DE 69 at 23 (Hobbs describing Mills as "out of his head" and relating that Mills flexed his arm muscle at the officers); DE 81 at 77 (Ashurst explaining Mills's "1,000 yard stare"). The KSP investigative file reflects that the officers believed Mills to be "under the influence of some kind of drug." DE 85-2 at 1. In his deposition, Hobbs testified that he told the officers about Mills's drug use. See DE 69 at 34.³ To phrase it as depicted by Hobbs, the central source relied on by Plaintiff: "He was just out of it ... He was out of his mind. He wouldn't listen to nobody." Hobbs Dep., internal pp. 88–89. Also, "The methamphetamine's started it when it got him out of his mind." Id. at internal p. 128.

Upon arrival, Ashurst and Bolton got out of the vehicle and approached Mills, attempting to get his attention. See DE 65 at 7; DE 69 at 8; DE 81 at 17–19. The officers recall, and no witness appears to explicitly refute, that Mills verbally refused to relinquish his daughter. See DE 65 at 7 ("She's got my blood. You'll have to beat me in the face with them flashlights before I give her up."); DE 81 at 31 ("The only way you'll get this baby is if you pry her out of my cold, dead hands."). Mills evaded the officers’ efforts to secure the child, so they used force (a Taser or strike) to take Mills to the ground and to remove her from Mills's arms. See DE 65 at 8; DE 69 at 8, 30–31; DE 70 at 10; DE 81 at 30–31, 36–39. Bolton brought the child to her grandfather James, a short distance away from where the officers encountered Mills. See DE 70 at 10–11. She remained with James for the duration of the incident.

For much of the rest of the interaction, Mills was lying in the road, where he received numerous strikes or force expressions from the officers as they endeavored to arrest him. Ashurst effectively deployed his Taser at least once (with the prongs making contact with Mills's back), and each officer later tried to or did use the Taser in drive-stun mode. See DE 65 at 10–11; DE 81 at 48–54. Bolton further admits to hitting Mills with his flashlight, and Ashurst struck Mills with his knees, flashlight, and ASP (a metal baton). See DE 65 at 11; DE 81 at 62–64, 70–73, 79–80.⁴ During this time, Ashurst was yelling commands at Mills to stop resisting and to roll onto his stomach. See DE 65 at 10–11 ("The whole entire time Mr. Ashurst is yelling at him to stop resisting."); DE 67 (Daniel Smith Dep.) at 23 ("I don't remember exact words, but, you know, I remember them telling him to—to lay down on the ground."); DE 69 at 24 (agreeing that the officers gave Mills instructions); DE 72 (Shannon Burdine Dep.) at 64 (quoting commands as "Stop being combative," and "Just put your hands behind your back."); DE 81 at 76. But see DE 69 at 11 (Hobbs claiming that, while the officers were striking Mills, Hobbs "never hear[d] him [presumably, one of the officers] saying nothing."). Mills was significantly larger than both officers: Mills was about two inches shy of six feet tall and weighed approximately 210 pounds; Ashurst was 5’8" and 145 pounds; the diminutive Bolton was 5’7" and 120 pounds. See DE 85-2 at 1–2; DE 75 (Meredith Frame Dep., Vol. I) at 33. Neither Ashurst nor Bolton recalled noticing a weapon on Mills's person. See DE 65 at 9; DE 81 at 82.

While on the ground, Mills never rolled onto his stomach or put his arms behind his back, despite Ashurst's commands to do so. See DE 69 at 23, 32; DE 81 at 54, 58. Instead, after numerous strikes by the officers, Mills got to his feet, which prompted Ashurst again to order Mills to lie down and submit to arrest. See DE 65 at 26; DE 69 at 32–33; DE 81 at 84. At this time, Ashurst warned Mills that he would shoot. See DE 69 at 33; DE 81 at 85. Mills still proceeded in Ashurst's direction, with his hand or arm extended, when Ashurst pulled the trigger. See DE 69 at 24, 33, 35; DE 81 at 85. Neither Ashurst nor Bolton rendered aid to the mortally wounded Mills. See DE 81 at 90. After the altercation, both officers had blood on them—Mills's, apparently, as neither officer had suffered any lacerations. See DE 65 at 15–16; DE 69 at 8; DE 80 at 34; DE 82 at 62. Bolton recalled sore muscles, and Ashurst had a knot on his knee. See DE 65 at 15; DE 82 at 62.

Now, the disputed events: Plaintiff's version, drawn almost entirely from Hobbs's (sworn and unsworn)⁵ statements, adds detail to the above narrative. According to Hobbs and James, when the officers first encountered Mills with his daughter, they tried unsuccessfully to grab the child from his arms. See DE 69 at 8; DE 70 at 9–10. When Mills turned and moved away from the officers, Hobbs saw the uniformed officer (presumably Ashurst) hit Mills in the back of the head with a flashlight. See DE 69 at 7–8. James recalled both officers striking Mills in the head with an unidentified black object. See DE 70 at 9–10. Using Hobbs's words: "Well, he ducked around, swing, something like that and gets loose from them. And he takes off running." Hobbs Dep., internal p. 23. These blows caused Mills to fall to the ground and release his daughter. Per Hobbs, in the altercation that ensued, Mills did not fight with the officers; Ashurst and Bolton attacked Mills unprovoked. See DE 69 at 9, 23. Hobbs described a beating that involved the use of the officers’ hands, feet, elbows, and knees. See id. at 8–9, 32–33. Mills's lone act of resistance was a "little mule kick" in response to the...