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Estate of Simpson v. Yellowstone County

United States District Court, D. Montana, Billings Division

January 24, 2017

ESTATE OF LOREN SIMPSON et al, Plaintiffs,
v.
YELLOWSTONE COUNTY, et al, Defendants.

          OPINION AND ORDER

          SUSAN P. WATTERS UNITED STATES DISTRICT JUDGE

         Loren Simpson's Estate, mother, sister, brother, and maternal grandmother (hereinafter collectively referred to as "the Estate") brought this action against Yellowstone County and Yellowstone County Deputies Chris Rudolph and Jason Robinson alleging that the deputies used excessive force when they shot and killed twenty-eight year old Simpson on January 8, 2015.

         The deputies moved for summary judgment on the issue of qualified immunity. The Estate filed an opposition brief and the deputies replied.[1] For the following reasons, the deputies1 Motion for Summary Judgment (Doc. 16) is GRANTED in part and DENIED in part. The deputies' Motion to Strike Reply to Response to Motion re Cross Motion for Summary Judgment (Doc. 41) is GRANTED.

         I. Scope of the Court's Inquiry

         As a preliminary matter, the court must address the nature of the relevant evidence. The shooting, and the moments before and after the shooting, were captured on cameras mounted on the deputies' patrol car dashboards. The videos form a large part of the record. (See Exhibit to Doc. 19 (found at Doc. 27), containing Simpson Video Parts 1-3; see also Doc. 35, Ex. 4 attached to Pi's Statement of Disputed Facts containing Leonhardt Video).

         When videos capture the events in question, no genuine dispute of fact exists for anything that is clearly discernable in a videotape of the events at issue, even if sworn testimony in the record contradicts what the video shows. Scott v. Harris, 550 U.S. 372, 380-81 (2007). However, when the videos fail to capture "everything, " the court may consider supplemental evidence, including deposition testimony, so long as it is viewed in the light most favorable to the non-moving party. Brosseau v. Haugen, 543 U.S. 194, 195 (2004).

         The deputies contend that the video footage provides everything the court needs to know to grant summary judgment. (See Doc. 23 at 14.) But while the dash-cam videos show most of the relevant facts, they do not show them all. In this case evidence of the events leading up to the shooting is critical to the determination of what reasonable officers in the same situation would have done. Accordingly, the court will consider other evidence, including police and investigative reports, and statements, to supplement the videos. The facts, presented in the light most favorable to the Estate, as the nonmoving party, are set forth below.

         II. Background

         On January 8, 2015, Deputies Robinson and Rudolph were working day-shift patrol together. (Robinson Case Report, Doc. 33-2 at 7). Around 2:00 p.m., they were dispatched to Berry's Cherries, a used-car dealership, to investigate an auto theft. (Id. at 7). Dispatch described the stolen vehicle as a 1995 purple Ford Explorer without license plates. (Rudolph Case Report, Doc. 33-2 at 4).

         According to Robinson's case report, the stolen vehicle's description matched the description of a suspicious vehicle call he and Rudolph had responded to earlier in the day at Rykken Circle, in another area of town. (Robinson Case Report, Doc. 33-2 at 7). After matching the VIN numbers with dispatch, Robinson and Rudolph decided to go to Rykken Circle before going to Berry's Cherries to see if they could find the Explorer. (Id.). After searching and not finding it, they drove to Berry's Cherries. (Id.).

         There, manager Jerry Schuster told them that a 1995 purple Ford Explorer had been stolen from the lot. (Id. at 4, 7). Schuster said he had taken the Explorer in as a trade a couple of days earlier and when the previous owner had returned to collect her belongings, it was gone. (Id. at 7). The Explorer had been parked on the east side of the parking lot where no camera coverage existed. (Id.). Schuster said he thought he could sell the Explorer for about $1, 000. (Rudolph Case Report, Doc. 33-2 at 4).

         As the deputies were talking to Schuster, the Explorer's former owner showed up and said she had just seen the Explorer in the area of the Country Inn and Suites on Main Street in the Billings Heights. (Id.). She said it looked like a male with a scruffy brown beard was driving. (Rudolph Case Report, Doc. 33-2 at 4). When asked if the Explorer had any identifiable characteristics, the owner told the deputies that she thought it had a broken drivers' side headlight. (Id.). Robinson and Rudolph went to where the Explorer was last seen, as well as surrounding areas, but did not find it. (Id.).

         According to Robinson's report, he thought Loren Simpson was possibly involved, given the possible connection to Rykken Circle. (Robinson Case Report, Doc. 33-2 at 7). Although the report does not provide any real detail about why Robinson suspected Simpson, he apparently knew that Simpson was often in that area and associated with someone who lived two trailers down from where the Explorer had been parked. (Id.). The deputies drove to Simpson's residential address and a nearby Wal-Mart parking lot, but still saw no sign of the Explorer. (Id.). Robinson called Schuster and told him they were not able to find the Explorer. He also informed dispatch he and Rudolph were "clear, " meaning that they were available to take other calls. (Id.).

         Dispatch responded by advising Robinson and Rudolph of a burglary on Justice Trail. (Rudolph Statement, Doc. 33-2 at 24). According to Rudolph, the burglary was ''cold" so the deputies did not feel any urgency to respond. (Id.) ("I think it was a cold burglary. Q: At that time you didn't feel any urgency to respond? A: No[.]"). So instead of heading directly to Justice Trail, they decided to drive by Rykken Circle again to check for the Explorer. (Id. at 23). Still not finding it, they headed out to handle the burglary call. (Id. at 23).

         From Rykken Circle, they drove down Johnson Lane to Pryor Creek Road and turned on to White Buffalo Road. (Id. at 24). At around 4:20 p.m., while waiting for a school bus to unload children, they noticed a purple SUV pull out from Justice Trail on to White Buffalo Road. (Rudolph statement, Doc. 33-2 at 24). According to Rudolph's statement, he could not tell if the SUV was a two door or a four door and he had not seen it before. (See id.).[2] Despite the fact that Rudolph didn't recognize the SUV, according to Robinson, both deputies agreed that it looked like the stolen Ford Explorer. (Robinson Case Report, Doc. 33-2 at 7). Accordingly, Rudolph advised dispatch that they had observed a vehicle that matched the description of the stolen Explorer and they intended to follow it before responding to the burglary. (Id.).

         Deputy Joshua Leonhardt was dispatched to the burglary instead. (See Leonhardt Case Report, Doc. 33-2 at 5). Leonhardt's investigation revealed that the burglary was in fact a domestic dispute where a woman's husband stole a number of items from her home because he was mad at her. (Id.). Neither individual was involved with or related to this case. (Id.).

         Meanwhile, however, Rudolph and Robinson deemed it likely that whoever was driving the Explorer was also involved in the burglary that had occurred hours earlier and that they had not yet investigated, so they followed the Explorer, "in order to observe the driver's behavior." (Robinson Case Report, Doc. 33-2 at 7). Robinson reported that they watched the Explorer from a distance and didn't turn on the patrol lights "or anything like that" because they wanted to see if it was the right car, in which case they wanted to make contact with it. (Robinson statement, Doc. 33-2 at 12). Two cars were between the patrol car and the Explorer. (Id.) In the video, when the deputies began following the Explorer, Rudolph asked Robinson, without explanation, if he wanted his shotgun or his assault rifle. (Simpson video Part 2 at 16:20:50-16:20:54, Doc. 27).

         After following the Explorer for a few minutes, the road began to get steeper and the two cars in between the patrol car and the Explorer turned off White Buffalo Road. Robinson told Rudolph to get closer, "to make sure" it was the right car. (Robinson statement, Doc. 33-2 at 12). At that point however, according to Robinson, the Explorer started "pulling away." (Id.). From the video, it is apparent that the roads were snow-covered and the Explorer was already some distance in front of the deputies. (Simpson video Part 2 at 16:21:40-16:22:07, Doc. 27).

         A few minutes after they started following the Explorer, Robinson received a call from his supervising officer Joel Ketch. (Id., at 16:22:08). He can be heard telling Ketch that he and Rudolph were on White Buffalo Road and that the Explorer was headed into the hills. (Id. at 16:22:10-16:22:25). He told Ketch that he didn't know if they "[would] be able to catch 'em because the roads [were] turning to shit." (Id. at 16:22:27-16:22:33). He also told Ketch that he was "pretty sure" it was the right car, (id. at 16:23:40) and that the deputies were "right behind 'em." (Id. at 16:22:48). Nevertheless, neither deputy turned on the overhead lights or siren in an attempt to stop the Explorer. (Id. at 16:19:43-16:24:57). Inconsistent with his statement to Ketch that the deputies were right behind the Explorer, in Robinson's post-shooting statement he explained that he and Rudolph did not attempt to conduct a traffic stop at that time because Simpson "was too far away, " and was "running." (Robinson statement, Doc. 33-2 at 12).

         In the video, as the deputies accelerated up the hill, the patrol car became bogged down in the snow. (Simpson Video Part 2 at 16:23:00, Doc. 27). Robinson can be heard telling Ketch that the patrol car was stuck in the snow, they couldn't go forward, and that Rudolph was backing the patrol car down the hill. (Id. at 16:23:08). Robinson told Ketch that he couldn't "see shit" and that he wasn't "even 100% sure it's the car." (Id. at 16:23:34-16:23:37). He ended the call with Ketch and contacted dispatch to advise that they were stuck and needed a four wheel drive vehicle. (16:24:30-16:24:40). He also advised that they had "lost sight of the suspect vehicle." (16:24:36-16:24:37). The first video then ends.

         Not long after the patrol car became stuck in the snow, another vehicle with teenagers heading home from school stopped and helped free the patrol car from the snow. (Robinson report, Doc. 33-2 at 7). Instead of parking the patrol car in one of the plowed driveways nearby, however, Rudolph parked the patrol car in the center of the road where it was "unlikely to get stuck again." (Leonhardt Video 16:41:40-16:42:15, Doc. 35). Meanwhile, Robinson discovered from one of the teens that White Buffalo Road was a dead-end so whomever was driving the Explorer would have to come back down the road toward the officers to get out. (Robinson report, Doc. 33-2 at 7). Robinson took down the teenager's cell phone number, sent him up the road, and asked him to keep a look out for the Explorer. (Id.). He told the teen he would call him to see if he had seen the Explorer up the road. (Id.).

         Now knowing that White Buffalo Road was a dead-end, the deputies determined that they had the Explorer driver "bottled up." (Rudolph Statement, Doc. 33-2 at 20, "We've got him bottled up."). Believing that they had "him caught, " they decided they would stay where they were instead of going back to the main road, Pryor Creek. (Id.).

         The second video begins while the deputies are waiting for the Explorer to come back to them. (Simpson Video Part 2 at 16:31:39, Doc. 27). Rudolph can be heard telling Robinson that he sent Leonhardt and Ketch a message that there was "only one way in." (Id. at 16:32:48-52). Robinson next called the teenager and confirmed that the Explorer was headed back down the hill towards the deputies. (Id. at 16:34:57-16:35:16).

         Despite not knowing who was driving the Explorer, whether it contained any passengers, and having no reason to believe the driver was armed, (Yellowstone County's Discovery Responses, Request for Admission No. 3, Doc. 33-3 at 4), the deputies decided that "since the suspect was in a stolen vehicle and possibly involved in a recent burglary, " they should "have rifles at the ready, just in case [the suspect] decided to do anything drastic." (Robinson Case Report, Doc. 33-2 at 7). They did not discuss any plan, including whether they should let the Explorer pass and then effect a standard traffic stop. Rather, they kept the patrol car parked in the middle of the road. (Simpson Video Part 2 at 16:31:39-16:38:40, Doc. 27). Neither deputy activated the patrol car's headlights or overhead lights. (Id.). Robinson apparently requested that dispatch send Deputy Leonhardt to their location "for cover" because "the more the better in these kind of situations." (Robinson statement, Doc. 33-2 at 14). Neither Robinson nor Rudolph asked Deputy Leonhardt about any suspects involved in the burglary. (Simpson Video Part 2 at 16:31:39-16:38:40, Doc. 27).

         Instead, after Robinson told Rudolph "it's coming back toward us right now, " Rudolph asked Robinson how to release Robinson's shotgun from its rack in the patrol car, and then loaded it. (Id. at 16:35:23-16:36:03) (Robinson Case Report, Doc. 33-2 at 7 ("Rudolph grabbed Robinson's 12-gauge shotgun out of the gun rack in the patrol car.")). Robinson can be heard retrieving his AR-15 assault rifle from the ...


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