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Pollard v. City of Columbus

United States District Court, Sixth Circuit

August 30, 2013

KATHRYN POLLARD, Plaintiff,
v.
THE CITY OF COLUMBUS, OHIO, et al., Defendants.

OPINION & ORDER

ALGENON L. MARBLEY, District Judge.

I. INTRODUCTION

This matter is before the Court on Defendants' Motion for Summary Judgment (the "Motion"). (Doc. 33) Plaintiff, Kathryn Pollard, brings this suit to recover for alleged violations of the Constitution and Ohio law related to the killing of her son, Abram Bynum, by officers of the Columbus Police Department (CPD). Defendants move to dismiss Plaintiff's Complaint (Doc. 2) in its entirety. For the reasons set forth herein, the Motion is GRANTED IN PART and DENIED IN PART.

II. BACKGROUND

On June 29, 2009, the Los Angeles County Sheriff's Department (the "LASD") contacted Sgt. Terry McConnell of the Columbus Police Department ("CPD") to request that McConnell obtain a DNA sample from Abram Bynum, a suspect in a series of sexual assaults in California which occurred from 2004 to 2007. At the time McConnell received the request, Abram Bynum resided in Columbus, Ohio with his identical twin brother, Aaron Bynum. On the evening of June 29, CPD officers found Abram Bynum at Aaron's house and Abram voluntarily submitted to a buccal swab, thus providing the officers with a sample of his DNA. On June 30, McConnell sent Abram Bynum's DNA samples to the LASD.

On July 6, the LASD Crime Lab matched Abram Bynum's DNA profile with DNA obtained in five rape cases. Later that day, the Los Angeles Superior Court indicted Abram Bynum on 19 felony counts, including four counts of forcible rape and one count of assault with a deadly weapon. LASD informed McConnell of the indictment and asked that CPD maintain surveillance of Abram Bynum until LASD officers arrived in Columbus the next day, July 7, to arrest Abram Bynum. On the morning of July 7, CPD detailed Defendant Detective Michael Yinger of CPD's Strategic Response Bureau ("SRB") to conduct the surveillance and informed him of the particulars of Abram Bynum's indictment. Yinger enlisted the assistance of other SRB members and the FBI's Violent Crimes Task Force in maintaining surveillance.

The joint force quickly arrived at Aaron Bynum's residence, shared with Abram Bynum, located at 3574 E. Main St. in Columbus. Officers in unmarked vehicles successfully followed the Bynum twins throughout the day of July 7 as, together, they ran errands to a worksite, Wal-Mart, and a pawnshop. The brothers returned to the house at approximately 3:35 p.m. At that time Defendant Yinger and a member of the FBI task force contacted McConnell to ask what they should do if the brothers left Aaron Bynum's residence again. At that moment McConnell was en route to the airport to meet LASD officers coming to arrest Abram Bynum. McConnell instructed the surveillance team to detain the brothers and arrest Abram Bynum if they attempted to leave.

As Yinger finished the call with McConnell and returned to his car, Aaron and Abram Bynum emerged from the residence and proceeded to enter different cars. The surveillance team was not yet in position to execute McConnell's new instructions to detain the brothers. Instead, some members followed Aaron Bynum's vehicle, while others followed Abram Bynum's vehicle. Abram Bynum was driving his own vehicle, a white Cadillac. Four unmarked police vehicles, including one driven by Defendant Yinger and one driven by Defendant O'Donnell, followed Abram Bynum's white Cadillac. Defendant O'Donnell aired a request for the assistance of marked police cruisers in the area to stop Abram Bynum. Cruiser #91, driven by Defendant Amstutz, responded and joined the pursuit. Defendant Amstutz signaled for Abram Bynum to pull over by activating his vehicle's lights and siren. ( Cruiser #91 Video Recording, Doc. 34, Exh. B at 15:50:41.) Instead, Abram Bynum accelerated and proceeded to run five stop signs. ( Id. at 15:51:11.) After Amstutz had pursued Abram Bynum for approximately one minute, his supervisor, Sergeant Worthington, cancelled the pursuit. At that time, Worthington was not yet aware of the charges against Abram Bynum, but Worthington did instruct Amstutz to keep Abram Bynum's vehicle in sight while a police helicopter continued to follow Bynum. ( Channel 2 Radio, Doc. 34, Exh. A at 15:52:14.) The unmarked police vehicles that had followed Abram Bynum from the beginning also maintained pursuit. One police officer also attempted to stop Abram Bynum's vehicle with spiked sticks, but was unsuccessful.

At approximately 3:55 p.m. Abram Bynum entered I-70 East, with both unmarked cars and a helicopter still pursuing him. He was driving at excessive speeds and weaving through traffic. At 3:58 p.m., after learning from Sergeant McConnell that Abram Bynum was a rape suspect, Sergeant Worthington again authorized cruisers to pursue. ( Id. at 15:57:48.) Defendant Estepp and his partner, Officer Kinney, were in Cruiser #144 roughly one-half mile behind Abram Bynum at the time pursuit was reauthorized. They began to pursue Abram Bynum, also engaging their emergency lights and sirens. ( Estepp Affidavit, Doc. 33 at Exh. I.) Amstutz also rejoined the pursuit, roughly one-half mile behind Cruiser #144. (Doc. 34, Exh. B at 15:57:40.) Seconds later, Abram Bynum crossed the median and began driving eastbound in the westbound lanes of I-70. (Doc. 34, Exh. A at 15:57:48.) Abram Bynum's Cadillac narrowly missed hitting one vehicle and then did collide, head-to-head, with a semi-truck. (Doc. 34, Exh. B at 15:58:58.) The Cadillac spun before coming to a stop on the inside shoulder of the westbound lanes. It appeared severely damaged. The front-end had been directly impacted and the hood jammed at an upward incline, obscuring the view through the windshield.

The pursuing police vehicles stopped near the Cadillac and a number of officers approached it. Defendant Amstutz parked his cruiser roughly 25 meters from the Cadillac, facing the front of the Cadillac. The cruiser's dashboard camera recorded the following incident. At 3:59:22 p.m., a message on Channel 2 Radio informed the officers that Abram Bynum held a concealed carry weapon ("CCW") permit. (Doc. 34, Exh. B at 15:59:22.) That information was later discovered to be erroneous; only Aaron Bynum possessed a CCW permit. Amstutz approached the driver-side window, which had shattered, and radioed that Abram Bynum appeared to be unconscious. ( Id. at 15:59:31.) The subsequent autopsy found that Abram Bynum had suffered a number of injuries as a result of the crash, including: a fractured clavicle; a fractured sternum; multiple rib fractures; and abrasions to the head. ( Autopsy Report, Doc. 55, Exh. T at 1.) The video from Cruiser #91 shows that Defendant Estepp and Officer Kinney reached the white Cadillac seconds prior to Amstutz. (Doc. 34, Exh. B at 15:59:26.) Amstutz crossed to the opposite shoulder in order to check on the driver of the semi-truck. Kinney attempted to open the passenger door of the Cadillac and reached inside the vehicle. ( Id. at 15:59:30.) Estepp attempted to open the driver-side door and also reached inside the vehicle. ( Id. ) At 15:59:37, Estepp and Kinney both appear to have their heads inside the vehicle, through the shattered windows, while attempting to open it. ( Id. at 15:59:37.) At the same time, Defendants Yinger and O'Donnell approached the vehicle from the driver-side, stopping roughly ten feet distant. Defendant E. Edwards entered the frame of the cruiser video behind Yinger and O'Donnell. At 3:59:52 p.m., Abram Bynum apparently moved, in response to which the five officers around the Cadillac jumped and backed off the car. ( Id. at 15:59:52.) Defendant Yinger stated, "[Bynum's movement] startles. We're kind of jumping around, doing... then we're yelling, let's see your hands, let's see your hands." ( Yinger Deposition, Doc. 33-16 at 17.) Although Defendants' accounts differ somewhat, they agree that more than one officer yelled some form of command for Abram Bynum to show his hands. By 4:00:03 p.m., four officers (Kinney, Estepp, Yinger, and O'Donnell) stood in a rough semicircle approximately ten to fifteen feet from the Cadillac. (Doc. 34, Exh. B at 16:00:03.) At 4:00:05 p.m. three officers, Estepp, Yinger, and O'Donnell, began firing into the Cadillac. Shooting stopped three seconds later. Defendant Estepp stated that prior to firing he saw that Abram Bynum "appeared to be reaching for something on the floorboard of the car" before "[Abram Bynum] swung his hands toward the plain clothes officers." ( Estepp Affidavit, Doc. 33-8 at 4.) Defendant O'Donnell, however, stated that Abram Bynum twice appeared to be reaching "for something near the rear waistband of his pants" in addition to reaching for the floor. ( O'Donnell Affidavit, Doc. 33-5 at 6.) He also stated that he saw Abram Bynum holding a "dark object." ( Id. ) Although the details of Defendants' accounts differ, all state that Abram Bynum moved his arms in some way prior to the shooting.

When the first volley ended, Defendants E. Edwards, W. Edwards and Amstutz had arrived within approximately 20 feet of the driver-side of the Cadillac. Defendant Amstutz had returned to the scene when he heard the first volley, stating that he did so "Because I didn't know what was going on at that time. You know, I didn't know if anybody was hurt. I didn't know who was shooting." ( Amstutz Deposition, Doc. 33-13 at 6.) Amstutz also stated that he saw Abram Bynum "with his right hand reaching down towards under his seat, towards his right leg, and then bringing it up as if he had a - as if he had a weapon." (Doc. 33-13 at 7.) The second volley began at 4:00:20 p.m. with four officers, Defendants Yinger, Amstutz, E. Edwards, and W. Edwards, firing. (Doc. 34, Exh. B at 16:00:20.) No one attempted to communicate with Abram Bynum between the first and second volleys. (Doc. 33-13 at 7.) Defendant Yinger believes he was the first officer to open fire in both volleys. (Doc. 33-16 at 19-21.) Defendants O'Donnell and Estepp, whose positions remained unchanged during both volleys, did not fire in the second volley.

In total, Defendants fired 80 shots at Abram Bynum's car, 23 of which struck Abram Bynum. (Doc. 55, Exh. T at 9.) Abram Bynum died at the scene of the shooting. The doors of his vehicle could not be opened and had to be manually removed in order to extract his body.

Plaintiffs filed this suit against all six officers who fired at Abram Bynum, Estepp, Yinger, O'Donnell, Amstutz, E. Edwards, and W. Edwards. Plaintiffs also sued the City of Columbus. Defendants have moved for summary judgment for all Defendants on all claims. Plaintiffs oppose summary judgment. The Motion has been fully briefed. The Court heard oral argument on June 12, 2013.

III. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides, in relevant part, that summary judgment is appropriate "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 the moving party is entitled to judgment as a matter of law." A fact is deemed material only if it "might affect the outcome of the lawsuit under the governing substantive law." Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, (1986)).

The nonmoving party must then present "significant probative evidence" to show that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339-40 (6th Cir. 1993). The suggestion of a mere possibility of a factual dispute is insufficient to defeat a movant's motion for summary judgment. See Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir. 1992) (citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). Further, "summary judgment will not lie if the dispute is about a material fact that is ...


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