United States District Court, D. Montana, Billings Division
OPINION AND ORDER
P. WATTERS UNITED STATES DISTRICT JUDGE
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.
deputies moved for summary judgment on the issue of qualified
immunity. The Estate filed an opposition brief and the
deputies replied. 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.
Scope of the Court's Inquiry
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).
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).
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.
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).
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.
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).
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.).
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.).
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
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.). 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.
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.).
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).
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).
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
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.
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.).
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.).
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).
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).
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 ...