Pipkins v. City of Hoover

647 F.Supp.3d 1211

April PIPKINS, Plaintiff, v. CITY OF HOOVER, ALABAMA, Defendant.

Case No.: 2:19-CV-1907-RDP

United States District Court, N.D. Alabama, Southern Division

Signed December 16, 2022

Frankie E. Lee, Lee & Associates, Birmingham, AL, Rodney F. Barganier, Barganier Law Group, Birmingham, AL, Devon M. Jacob, Pro Hac Vice, Jacob Litigation, Inc., Mechanicsburg, PA, for Plaintiff.

Albert L. Jordan, Phillip D. Corley, Jr., Cecil H. Macoy, Jr., Roderick J. Evans, Wallace Jordan Ratliff & Brandt LLC, Birmingham, AL, for Defendant.

MEMORANDUM OPINION

R. DAVID PROCTOR, UNITED STATES DISTRICT JUDGE

This matter is before the court on Defendant David Alexander's Motion for Summary Judgment. (Doc. # 97). The Motion has been fully briefed (Docs. # 98, 108, 116), and is ripe for decision. This is a tragic case. Nonetheless, for the reasons discussed below, Alexander's Motion is due to be granted.

I. BACKGROUND¹

On November 22, 2018, Defendant David Alexander was employed by the City of Hoover, Alabama ("the City") as a police officer. (Doc. # 99-1 at ¶ 2). He had been employed by the City as a certified police officer since 2017. (Id.). On November 22, 2018, Officer Alexander and his partner were assigned to foot patrol inside the Galleria Mall ("the Mall"). (Id. at ¶ 3). November 22, 2018 was Thanksgiving evening, and the Mall was crowded with shoppers. (Doc. # 99-2 at 13; Doc. # 99-1 at ¶ 5).

At approximately 9:51 p.m., Officer Alexander and his partner were in uniform on the second floor of the Mall. (Doc. # 99-2 at 8; Doc. # 99-1 at ¶ 5). Officer Alexander heard two gunshots and a female's scream behind him. (Doc. # 99-1 at ¶ 5). Officer Alexander and his partner turned toward the gunshots and drew their firearms. (Doc. # 99-1 at ¶ 5; Doc. # 99-2 at 16, 18).

Officer Alexander was approximately 75 feet away from the location of the initial gunshots when he heard them. (Doc. # 99-2 at 18). He moved toward the area where he heard the gunshots and looked for immediate threats. (Doc. # 99-1 at ¶ 5). Officer Alexander observed a crowd of shoppers near Foot Action running away from where he heard gunshots (Id. at ¶ 9), but also observed two males near some railing not running. (Id. at ¶ 7, 8, 10). One of the two males was clutching his stomach and appeared to be injured. (Id.).

Officer Alexander also observed a male with a handgun in his right hand moving quickly toward the two males who were not running. (Id. at ¶ 8). Officer Alexander feared for the lives of shoppers, his partner's life, and his life. (Id. at ¶ 10).

Officer Alexander believed that the man running with the gun, later identified as Emantic ("E.J.") Bradford, was about to shoot the two males near the railing. (Id. at ¶ 10). Officer Alexander's partner also believed they were confronted with an "active shooter situation." (Doc. # 99-2 at 18). Officer Alexander fired his duty weapon four times, with three bullets striking Bradford and killing him. (Doc. # 99-1 at ¶ 9; Doc. # 99-2 at 22).

Officer Alexander did not provide Bradford any verbal warning before he fired. (Doc. # 114-3 at 37-38, 42, 48, 61-62). Officer Alexander did not believe it was feasible to give a warning. (Doc. # 114-3 at 38, 129-30). Bradford was about 10 feet away from the two males near the railing when Officer Alexander fired. (Doc. # 99-1 at ¶ 10; Doc. # 99-2 at 17). Although he saw Bradford running toward the injured man with a gun in his hand, Officer Alexander never saw Bradford in a "ready fire" position before he (Alexander) fired his weapon. (Doc. # 114-3 at 132).

The entire event, from the time Officer Alexander heard the two initial shots until he shot Bradford lasted approximately five seconds. (Doc. # 99-1 at ¶ 11; Doc. # 99-2 at 8, 13, 29).

Immediately after shooting Bradford, Officer Alexander recounted the events as follows: "Me and [Officer 2] were standing over there. We heard two shots. And I turned around; we drew our guns. That guy [Bradford] was running toward them with a gun in his hand. I shot him." (Doc. # 99-2 at 16). Surveillance video from inside the Mall captured many of the events and confirms Officer Alexander's timeline. (Doc. #99-2 at 8-10, 13-15).

Plaintiff provided the preliminary opinion of Nicholas G. Bloomfield, a New Mexico peace officer with over eighteen years' experience, who provides training and consulting services to security, law enforcement, corrections, and military professions. (Doc. # 114-2). Bloomfield's preliminary opinion included the opinion that "Officer Alexander's failure to provide a verbal warning prior to his application of deadly force against [ ] Bradford Jr., was unreasonable, tactically unsound, and contrary to generally accepted police practices." (Doc. #114-2 at 6).

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party asking for summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. Once the moving party has met its burden, Rule 56(c) requires the non-moving party to go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial by pointing to affidavits, depositions, answers to interrogatories, and/or admissions on file. Id. at 324, 106 S.Ct. 2548.

The substantive law will identify which facts are material and which are irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. See Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine, "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. See id. at 249, 106 S.Ct. 2505.

When faced with a "properly supported motion for summary judgment, [the non-moving party] must come forward with specific factual evidence, presenting more than mere allegations." Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson teaches, under Rule 56(c) a plaintiff may not simply rest on her allegations made in the complaint; instead, as the party bearing the burden of proof at trial, she must come forward with at least some evidence to support each element essential to her case at trial. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ("[A] party opposing a properly supported motion for summary judgment 'may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.' ") (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)) (cleaned up).

Summary judgment is mandated "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, 477 U.S. at 322, 106 S.Ct. 2548. "Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative." Sawyer v. Sw. Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (citing Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505).

"[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505. "Essentially, the inquiry is 'whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.' " Sawyer, 243 F. Supp. 2d at 1262 (quoting Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505); see also LaRoche v. Denny's, Inc., 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999) ("The law is clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a motion for summary judgment.").

Although the court must resolve all reasonable doubts in favor of the non-movant, this does not mean the court cannot rely on objective videotape evidence. "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Thus, if a videotape clearly depicts events and leaves no material factual disputes, the court need not rely on one party's version of facts when they are obviously discredited by the evidence. Id. at 380-81, 127 S.Ct. 1769.

III. ANALYSIS

Title 42 U.S.C. § 1983 provides a private cause of action against any person who, "under color of" state law, deprives another of "any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. Plaintiff April Pipkins is E.J. Bradford, Jr.'s mother. She filed this lawsuit alleging that Officer Alexander, and others, violated her son's Fourth Amendment rights against unlawful seizure and excessive force in violation of § 1983 when he was shot and killed at the Mall on November 22, 2018. She has also asserted state law claims of...