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Pollard v. City of Columbus

United States District Court, Sixth Circuit

September 23, 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 Plaintiff's Motion for Sanctions Due to Defendant's Destruction of Evidence (the "Motion") (Doc. 37). Plaintiff, Kathryn Pollard, brings 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). In this motion for sanctions, Plaintiff alleges that Defendants destroyed the 1994 white Cadillac driven by Mr. Bynum, a key piece of evidence in Plaintiff's case. For the reasons set forth herein, the Motion is GRANTED IN PART and DENIED IN PART.

II. BACKGROUND

This case concerns the death of Abram Bynum, who was killed after a high-speed police chase in Columbus in 2009.[1] At that time, Bynum had become a suspect in a series of sexual assaults perpetrated in California, and the Columbus Police Department ("CPD"), at the behest of the Los Angeles County Sheriff's Department, began surveillance of Bynum, including surveillance conducted by officers in unmarked police vehicles. On July 7, 2009, CPD officers followed Bynum throughout the day. That afternoon, however, Bynum and his twin brother Aaron each left Aaron Bynum's house, in separate vehicles, and CPD officers followed both men. Four unmarked police cars, including those driven by several Defendants, followed Bynum's 1994 white Cadillac. The officers activated their lights and sirens and signaled for Bynum to pull over; instead, Bynum accelerated, initiating a pursuit by CPD officers.

At approximately 3:55 pm, Bynum entered Interstate I-70 East, with unmarked cars as well as a CPD helicopter pursuing him. He drove at excessive speeds, weaving through traffic, and eventually crossing the median into the westbound lanes. Bynum's Cadillac collided headon with a semi-truck, coming to a stop on the inside shoulder of the westbound lanes. The car was severely damaged, with the front end impacted, and the hood jammed at an upward incline.

The pursuing vehicles stopped near the Cadillac, and a number of officers approached it. Defendant Amstutz parked his cruiser roughly 25 meters from the Cadillac, facing its front. 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 Bynum held a concealed carry weapon ("CCW") permit. 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. The subsequent autopsy found that 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.

The video from Cruiser #91 shows that Defendant Estepp and Officer Kinney reached the Cadillac seconds prior to Amstutz. 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. Estepp attempted to open the driver-side door and also reached inside the vehicle. Defendants Yinger and O'Donnell also 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. 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. 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 "[Bynum] swung his hands toward the plain clothes officers." ( Estepp Affidavit, Doc. 33-8 at 4.) Defendant O'Donnell, however, stated that 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 Bynum holding a "dark object." ( Id. ) Although the details of Defendants' accounts differ, all state that 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. Amstutz also stated that he saw 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. No one attempted to communicate with Bynum between the first and second volleys.

In total, Defendants fired 80 shots at the Cadillac, 23 of which struck Bynum. Bynum died at the scene of the shooting. Following his death, the Cadillac was towed to the Franklin County Coroner's Office. The doors of his vehicle could not be opened, and were manually removed in order to extract Bynum's body. Plaintiffs filed this suit against all six officers who fired at Bynum - Estepp, Yinger, O'Donnell, Amstutz, E. Edwards, and W. Edwards. Plaintiffs also sued the City of Columbus.

Prior to Plaintiff's filing of this suit, attorneys for Bynum's family sent a letter to the City Attorney for the City of Columbus, informing him of the investigation into the circumstances of Bynum's death, and asking him to order the City and the CPD to preserve "any paper or electronic files and any data, " as well as "voice mail, video tape, dash board video, cruiser video or tape recordings." ( Plaintiff's Motion for Sanctions, Ex. A, Doc. 37-1, at 1). This letter was forwarded to the CPD. ( Id., Ex. C, Doc. 37-3). It is undisputed that the City placed some form of "hold" on the Cadillac in the second half of 2009. ( Id., Ex. N, Doc. 40-18).

The City continued to hold the vehicle through 2010 and 2011. At that time, the vehicle was stored at the City Impound Lot, where it was to be released only at the direction of the detectives handling the case. ( See Defendant's Response to Plaintiff's Motion for Sanctions, Doc. 40, at 17; id., Ex. M, Doc. 40-17). Throughout 2010, the Impound Lot sent disposition forms to the handling detectives, inquiring as to the status of the Cadillac, and each time was ordered to continue to hold the vehicle.

By December 2011, however, three officers - Detectives Bisutti and McCoskey, and Sergeant Sacksteder - who had been involved with the Bynum investigation had retired. According to Defendants, when the Impound Lot sent another disposition form to Detective Eppert, who was not aware of the civil case, he checked with his supervisor, Sergeant Pilya, and was directed to inform the Impound Lot that a "vehicle hold was no longer needed." ( Id. at 17-18; id., Ex. O, Doc. 40-19). Once the hold was lifted, the Impound Lot, following its standard procedure, authorized the vehicle to be released. The Impound Lot attempted to contact Bynum and, when it learned that he was deceased, sent a certified letter to his last known address. ( Id., Ex. P, Doc.40-20). It is not clear whether Plaintiff received the letter, and indeed the certified ...


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