Newton v. Huffman

632 N.W.2d 344

10 Neb. App. 390

James H. NEWTON II, Personal Representative of the Estate of Wesley Denton Heinrich Dunn, deceased, Appellant and Cross-Appellee, v. Ray HUFFMAN and Scotts Bluff County Sheriff's Department, a department of Scotts Bluff County, Nebraska, a political subdivision, Appellees and Cross-Appellants.

No. A-00-470.

Court of Appeals of Nebraska.

July 31, 2001.

James L. Zimmerman, of Sorensen, Zimmerman & Mickey, Scottsbluff, for appellant.

Michael J. Javoronok, Gering, and Sterling T. Huff, Scottsbluff, of Michael J. Javoronok Law Firm, for appellee.

HANNON, INBODY and MOORE, Judges.

MOORE, Judge.

I. INTRODUCTION

On June 19, 1997, Wesley Denton Heinrich Dunn was shot and subsequently died in Scotts Bluff County, Nebraska. James H. Newton II, as Dunn's personal representative, filed suit against Deputy Sheriff Ray Huffman and his employer, Scotts Bluff County, Nebraska (County) (collectively appellees), in the district court for Scotts Bluff County. Newton sought damages for Dunn's death pursuant to 42 U.S.C. §§ 1983 and 1988 (1994 & Supp. IV 1998). The district court granted appellees' motion for summary judgment, overruled their objections to the admission of certain evidence, and denied Newton's motion for new trial. Newton subsequently appealed to this court, and appellees cross-appealed. For the reasons stated below, we affirm.

II. BACKGROUND

On the evening of June 19, 1997, Huffman was on duty as a Scotts Bluff County deputy sheriff and was wearing a uniform. The 911 emergency dispatch service (911) received a citizen call at approximately 8:50 p.m., regarding a possible drunk driver described as a white, blond female, driving a silver Firebird, license No. 21-BN63. The vehicle was reported to be westbound on U.S. Highway 26 from Harry's Truck Stop in Minatare, Nebraska. A records check by 911 indicated the vehicle was a silver Pontiac Firebird registered to Cynthia Brown of Gering, Nebraska. At approximately 10:38 p.m., 911 received a second call in reference to this same vehicle. A Violet Stover reported that the vehicle was now parked at trailer No. 9 in Harry's Trailer Court in Minatare, that a "`Cindy' " had asked to use Stover's telephone to call a cousin for assistance, that Cindy and her boyfriend had had a fight, and that the boyfriend had been drinking. Stover expressed concern that there would be additional trouble, but did not indicate that Cindy had asked her to place a call to 911 or had requested assistance other than wanting to use Stover's telephone. Stover further indicated that Cindy "took off walking down the highway." A Deputy Bob DeLara also spoke with Stover. DeLara advised the dispatcher that he would notify Huffman of the reported possible domestic problem, requiring a check on the welfare of Cindy. Thereafter, 911 received a third call expressing concern that the occupants of trailer No. 9 were on drugs. The caller expressed concern about the occupants' behavior and reported that other residents of the mobile home court were scared.

Huffman was dispatched to Harry's Trailer Court. En route, he spoke with Stover by cellular telephone and learned that the Firebird had recently been driven away by a blond male described as the "boyfriend." Huffman asked the dispatcher for verification that the Firebird was registered to Brown. From a prior incident, Huffman was aware that Brown's boyfriend was Dunn. In approximately April 1997, Huffman and DeLara had investigated another incident involving Dunn and Brown. At that time, Dunn had been arrested for assaulting Brown by knocking out her two front teeth. Dunn had been drunk and had mildly resisted arrest.

During the April 1997 incident, Huffman had learned that Dunn's driver's license was under suspension. From the description given on the evening of June 19, Huffman assumed that the male driver was Dunn and that if the driver was Dunn, he was driving under suspension. Although Huffman believed Dunn was still under suspension on June 19, he did not seek confirmation of this from 911. Huffman intended to stop Dunn to investigate the reported domestic disturbance in Minatare, investigate the welfare of Brown, and verify that Dunn was not driving under suspension.

At approximately 11 p.m., Huffman was driving east on Highway 26 toward Minatare when he passed the Firebird traveling west. Huffman turned his vehicle around and followed the Firebird. After following the Firebird for a distance, Huffman formed the opinion that Dunn was driving. By the time the Firebird turned left on East Overland, Huffman had activated his vehicle's flashing overhead lights. Huffman radioed DeLara that he planned to stop the Firebird near the Western Sugar factory on East Overland and called 911, which confirmed that this was the vehicle that had been involved in the Minatare disturbance. The Firebird did not initially stop for Huffman, but, rather, alternated speeding up and slowing down, eventually turning into the Western Sugar factory parking lot and stopping. The driver then exited the Firebird, at which time Huffman positively recognized him as Dunn.

Huffman testified in his deposition that Dunn did not make any aggressive movements toward Huffman when Dunn exited the Firebird. Nor did Huffman recall Dunn saying anything to him. Huffman recalled yelling at Dunn to stop because he was under arrest, but did not recall whether he indicated to Dunn why he would be under arrest. Dunn did not stop when Huffman yelled that he was under arrest, but ran from the driver's side of his car into the employee entrance of the factory. Huffman indicated that Dunn looked back as he was pulling open the door, at which point Huffman caught up to him and again told Dunn that he was under arrest. Huffman testified that Dunn threw out his left arm to knock Huffman away from him, contacting either Huffman's arm or the flashlight that Huffman was carrying. When Dunn entered the factory, Huffman knew that DeLara was reasonably close and responding to his location. Huffman indicated that Dunn proceeded through the door into a hallway, which runs north and south. Huffman returned his flashlight to its holder on his duty belt and went inside after Dunn. Huffman stated that his gun was holstered as he entered the factory and that he chased Dunn through the hallway.

Huffman estimated that Dunn was 10 to 15 feet ahead of him going down the hallway, but stopped when he reached a stairwell on the west side of the hallway, where Huffman again advised Dunn that he was under arrest. Huffman testified that near the stairway, Dunn suddenly turned around and looked toward Huffman. Huffman indicated that he continued to approach Dunn until he was approximately 8 feet from Dunn, at which point Dunn "squared off" with Huffman. Huffman testified that Dunn's face was "full of rage" and that the look in Dunn's eyes "told [Huffman that Dunn] was going to kill [him]." Huffman indicated that Dunn physically attacked him and struck him several times about the head, including one solid blow to the face which dislodged his glasses and rocked him back a step. Medical records admitted into evidence indicate that Huffman incurred a facial cut to his left cheek, requiring 16 stitches. Huffman testified that after this blow from Dunn which rocked Huffman back a step, he came back forward and tried to refocus. Huffman indicated that he then realized Dunn was off to his left and that Dunn's left arm was "blading across [Huffman's] body." Huffman testified that he could feel something tugging at his gun belt and that he reached down with his own right hand to protect his gun. Huffman further testified that his hand was on the grip and that Dunn's hand was on the back part of the gun's slide. Huffman stated that both men had one hand on the gun when it came out of the holster and that as the struggle continued, the gun accidentally discharged, fatally striking Dunn. Huffman did not know whose finger was on the trigger when the gun discharged, and his initial impression was that the bullet went into the wall.

The holster worn by Huffman on the night in question had a "thumb break" composed of two leather pieces or "ears" that went up along both sides of the gun slide up to the rear of the slide. Another piece, the "retention strap," wrapped over the rear or top of the slide of the gun as it rested in the holster and snapped inside of the top of the "ear" next to Huffman's body. To unsnap the holster and remove the weapon, one only needs to slide the thumb down the inside of the ear next to the body and push the side of the holster out or away from the snap. Huffman testified that the holster was snapped shut when he entered the building and that it would not have been his hand that unsnapped the holster as his hand was on the bottom part of the grip of the weapon.

Huffman testified that as soon as the weapon discharged, Dunn's hand released the gun, at which point, Huffman stated, he immediately reholstered it. Huffman's impression while reholstering his gun was that Dunn spun counterclockwise 360 degrees away from him and began to move north down the hallway toward the door they had originally entered. Huffman testified that he then followed and came up behind Dunn and that Dunn dropped to his knees. Huffman then pushed Dunn to the floor, and Dunn came back up hard against him. Huffman took Dunn back down to the floor, told him to stay down, brought Dunn's right arm perpendicular across Dunn's back, began to call on the radio, and then realized that Dunn was bleeding. Huffman further testified that he was not immediately aware that Dunn had been hit and that he was surprised to find that Dunn was injured. Huffman testified that he recognized, based upon his experience, that the blood was coming from Dunn's lungs. Huffman then realized that Dunn was seriously hurt, radioed for assistance, told an unidentified man in a white hardhat to call an ambulance, and remained on...