Harper v. McAndrews

499 F.Supp.3d 312

Laveria HARPER as Personal Representative of the Estates of Arther McAfee, Jr. and Lorine McAfee, Plaintiff,

v.Jeff MCANDREWS and Harrison County, Texas, Defendants.

Case No. 2:18-cv-00520-RSP

United States District Court, E.D. Texas, Marshall Division.

Signed November 6, 2020

Daryl Kevin Washington, The Law Offices of Daryl K. Washington, PC, Dallas, TX, Benjamin Taylor, Taylor & Gomez, LLP, Phoenix, AZ, for Plaintiff.

Robert Scott Davis, Chad Carlton Rook, Flowers Davis PLLC, Tyler, TX, for Defendants.

MEMORANDUM ORDER

ROY S. PAYNE, UNITED STATES MAGISTRATE JUDGE

This case arises out of the tragic death of Arther McAfee on January 20, 2018. Mr. McAfee was shot and killed by Harrison County Deputy Sheriff Jeff McAndrews during a welfare check at Mr. McAfee's home requested by his sisters. On June 15, 2020, the Court heard oral argument on three motions. The first was the Motion to Strike Portions of Plaintiff's Evidence Attached to Plaintiffs’ Replies to Defendants’ Motions for Summary Judgment ("Motion to Strike") filed by Defendants Harrison County, Texas and Sgt. Jeff McAndrews. (Dkt. No. 143) . The second was Harrison County's Motion for Summary Judgment. (Dkt. No. 100) . The third was Sgt. McAndrews’ Motion for Summary Judgment. (Dkt. No. 101) . At the hearing the Court ruled, regarding the Motion to Strike, that the affidavit of Lorine McAfee will not be admitted as part of the summary judgment record, but the recorded interview of Lorine McAfee conducted by the investigating Texas Ranger just after the shooting will be admitted as part of that record. (Dkt. No. 157).

Harrison County's MSJ seeks summary judgment regarding all of Plaintiff Laveria Harper's claims, which include claims of certain inadequate policies, as well as failures in supervision, training and discipline. The motion also challenges the validity of the "bystander" claim brought by Lorine McAfee, who died from unrelated causes after suit was filed. (Dkt. No. 100 at 1). Sgt. McAndrews’ MSJ seeks summary judgment based on qualified immunity as to all claims asserted against him in Harper's Fifth Amended Complaint. (Dkt. No. 101 at 1).

I. BACKGROUND

On the morning of January 20, 2018, the Harrison County Sheriff's office received a telephone request from the McAfee family to conduct a welfare check because they had not heard from Mr. McAfee for a couple of days. Sgt. McAndrews was dispatched to the residence where he was met by Mr. McAfee's sister, Lorine McAfee, who lived next door and had a key. As shown on Sgt. McAndrews’ body camera, they entered the residence together, announcing who they were and that they just wanted to check on him. Mr. McAfee answered from the back bedroom but gave confusing answers, stating that he did not know where he was. Within seconds after Sgt. McAndrews reached the bedroom door, where Mr. McAfee was seated on the edge of his bed, Mr. McAfee angrily attacked Lorine McAfee, knocking her to the ground and hitting her with his fists many times.¹ Sgt. McAndrews discharged his taser immediately but it did not stop Mr. McAfee. A struggle ensued in the narrow hallway, knocking off the body camera and leaving only audio for about two and a half minutes before Sgt. McAndrews discharged his pistol twice. During those two minutes, the Sgt. can be heard repeatedly telling Mr. McAfee to turn on his stomach and also to let go of the taser, which can be heard discharging several times. However, it is impossible to know who was doing what. Mr. McAfee became unresponsive almost immediately and died as a result of the gunshot wounds.

Plaintiff makes much of the fact that Mr. McAfee was in his early 60's, used a walker, and was on disability, whereas Sgt. McAndrews was 40 and in good health. Given the agitation displayed by Mr. McAfee on the video, the Court does not find that those bare facts greatly inform the analysis of the relative threat presented, especially since the real question has to do with whether Mr. McAfee possessed the taser when the shots were fired. Similarly, Defendants make much of the ballistic evidence. The Medical Examiner reported finding that the first bullet entered Mr. McAfee's chest from the front and in a "slightly upward" direction. The second bullet was said to enter the chest from a "downward" direction. (Dkt. No. 100-3 at 22). To translate that evidence into the positions of the parties at a given time requires a weighing of evidence that is simply not appropriate on a summary judgment motion.

II. MOTION TO STRIKE

Complicating the picture further is the fact that Lorine McAfee has died since the filing of suit. Early in the case she signed an affidavit prepared by counsel but there is a clear line of authority holding that the affidavit of a dead person may not be considered on a motion for summary judgment. E.g. , Thorson v. Aviall Services, Inc. , 2018 WL 1426971 (N.D. Tex. 3/22/2018) ; Reinhardt v. Key Risk Management, Inc. , 2003 WL 292176 (N.D. Tex. 2/6/2003) ("the affiant here would not be available to present the evidence through direct testimony, and the affidavit itself would be objectionable hearsay at trial."); Tatum v. Cordis Corporation , 758 F.Supp. 457, 463 (M.D. Tenn. 2/14/1991) ("Hearsay evidence may be considered by the Court in response to a motion for summary judgment as long as the out-of-court declarant would be available to present the evidence through direct testimony."). The cases rely on the language of Rule 56(c)(4) that affidavits relied upon must "set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify ...."

Plaintiff does not dispute this line of cases but argues the application of the residual exception in Rule 807, which merely requires that the evidence be supported by circumstantial guarantees of trustworthiness and be more probative than any other available evidence. The Court finds that neither circumstance exists here. Lorine's affidavit (Dkt. No. 119-7) is clearly written by lawyers, rather than in her own words. A simple comparison with her recorded interview makes that conclusion indisputable. Furthermore, it is inconsistent with her interview in certain potentially important respects. Those two facts detract from the affidavit's trustworthiness and show that it is less probative than the recorded interview. Accordingly, the motion to strike the affidavit is granted.

However, the Court does find that the requirements of Rule 807 are met by the recorded interview that Texas Ranger Joshua Mason conducted with Lorine McAfee at the scene only two hours after the shooting. She wasn't under oath but she undoubtedly appreciated the solemnity of an interview with a Texas Ranger investigating a shooting that she witnessed. While she is not subject to cross-examination, the questioner was someone aligned with the Defendants who shared many of their legal interests. A good argument can be made that Lorine was still under the stress of the excitement, within the meaning of Rule 803(2), of witnessing the fatal shooting of her brother while she was right next to him. That itself is a circumstantial guarantee of trustworthiness recognized as an exception to the hearsay rule. While the interview is a little too far removed from the shooting to qualify as "immediately after" the event, it also shares some of the guarantees that undergird the present sense impression exception of Rule 803(1). Considering all circumstances, the Court finds that the recorded interview (Dkt. No. 143-2) is admissible as an exception to the hearsay rule, and the motion to strike it is denied.

The Court will also deny the motion to strike the affidavits of the three siblings of Lorine and Arther McAfee. (Dkt. Nos. 143-7, -8, & -9). However, the Court will not consider the hearsay statements of Lorine that are found within each of the affidavits.

III. LEGAL STANDARD

a. Summary Judgment

If the movant establishes that there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law, summary judgment may be granted. Fed. R. Civ. P. 56(c). Facts are material if they "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact creates a genuine issue if the jury could reasonably resolve the factual dispute in favor of the nonmovant. Id. at 249, 106 S.Ct. 2505.

Factual controversies are to be resolved in favor of the nonmovant, "but only when ... both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994). Courts must refrain from making credibility determinations. Choe v. Bank of America, N.A. , 605 Fed. Appx. 316, 320 (5th Cir. 2015) ; Haverda v. Hays Cnty. , 723 F.3d 586, 591 (5th Cir. 2013). However, greater weight is assigned even at summary judgment to facts evidenced in video recordings taken at the scene. Carnaby v. City of Houston , 636 F.3d 183, 187 (5th Cir. 2011) ; Scott v. Harris , 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

Summary judgment is entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant bears the initial burden of identifying those portions of the record they believe demonstrate the absence of a genuine issue of material fact. Id.

If the initial burden is met, the nonmovant must show beyond the pleadings that specific facts exist which create a genuine issue for trial. Little , 37 F.3d at 1075. The nonmovant must identify specific evidence in the record and explain how that evidence supports their claim. Forsyth v. Barr , 19 F.3d 1527, 1537 (5th Cir. 1994).

b. Underlying Fourth Amendment Violation

A county is liable if it causes a...