United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
ANDREW P. RODOVICH, Magistrate Judge.
This matter is before the court on the Motion for Summary Judgment [DE 47] filed by the defendant, Samuel Roberts, on June 30, 2014, and the Motion to Strike [DE 51] filed by Roberts on August 15, 2014. For the following reasons, the Motion for Summary Judgment [DE 47] is DENIED, and the Motion to Strike [DE 51] is DENIED AS MOOT.
On the afternoon of September 22, 2009, the defendant, Lieutenant Samuel Roberts, a supervisor in the Patrol Division for the City of Gary Police Department, was on patrol in a marked police car. Roberts received a dispatch regarding a report of abandoned guns near 34th and Maryland Streets in the Glen Park section of Gary, Indiana. Roberts headed toward the location of the abandoned guns, but he was diverted when he heard over the police radio that the guns had been recovered. He then received another dispatch regarding a burglary in the 3400 block of Virginia Street.
Upon arriving at the burglary call, Roberts spoke with a resident, LuAnn Weldon. She stated that she saw someone crawl out of her window and run west towards Maryland Street. She described the intruder during her call to the police as a black male with a small Afro, wearing a red shirt and dark pants. She stated that he was approximately 5'9"-6'0" and weighed 200-240 pounds. Roberts did not recall whether Weldon provided him with this description at the scene of the burglary or whether the other officers described the suspect to him. However, the offense report described the suspect consistent with Weldon's description. Roberts received a call that the burglary may have been related to the gun incident and left to go look for the suspect.
While traveling west on 35th Avenue, Roberts received a call on his cell phone from his girlfriend, Candi Manning. She lived in the area near where the abandoned guns had been discovered. Manning's neighbor, Willie Woods, told her that he observed one man wearing a red shirt walk past his house and put down the guns. Manning shared this description and told Roberts that she observed two men going back to the area where the abandoned guns had been discarded. Manning told Roberts that the individuals she saw were heading south on Maryland Street and if he hurried, he could catch them. She described one of the individuals as an African American wearing blue or blue jean shorts and carrying a bag. At her deposition, Manning stated that she knew one of the males was wearing a white t-shirt but that she could not recall the color of the other male's t-shirt.
Roberts spotted two males when he was approaching 35th and Maryland Streets who believed fit the description provided by Manning and reported over the police dispatch. One of the males was wearing blue shorts and was the plaintiff, Jerome Thomas. At the time, he was wearing blue basketball shorts and a white t-shirt. He was 6 feet 2 inches tall and weighed approximately 150 pounds. The other individual was Keith Thomas who was 5'9" tall, weighed 140 pounds, and was wearing basketball shorts and a black t-shirt. Both of the males were teenagers. Neither was armed, and Roberts had not observed either with a weapon.
Roberts followed the two males in his marked police car. They continued to walk away from the car until Roberts instructed them to stop, at which time they complied. At all times, the suspects followed Roberts' commands and did not display any aggressive conduct. Roberts did not call dispatch for backup, nor did he call the officers who were one block away investigating the burglary.
Because Roberts believed that one of the males fit the description of the suspect who committed the burglary and abandoned the guns, he took out his gun as he approached the males, approximately one block from where the teens were crossing the street. Roberts removed the gun from his holster on the right side of his waist using his dominant right hand. He placed the gun between his legs as he drove and picked it up with his left, non-dominant hand after he approached the teens and put his car in park. Roberts testified that he picked the gun up with his left hand so that if a battle started his left arm would not have been in the way of his right. With the gun in his left hand, Roberts opened the car door. Jerome testified that Roberts' gun was in his right hand the entire time.
Roberts stated that when he put the gun in his left hand, he put his finger on the trigger instead of the barrel. Roberts had been trained to keep his finger outside of the trigger guard until he was ready to shoot. When asked why his finger was on the trigger at this point, Roberts testified that he did not know.
During the course of exiting the vehicle, the gun discharged. Roberts did not remember at what point the gun discharged, except that he was stepping out of the car and had not made it entirely out of the car at the time it went off. He also testified that he did not know if the gun was on the left or right side of the car door when it discharged, but he concluded that because the bullet did not go through the window, his arm and gun were on the outside of the car door when it discharged. Roberts stated that he did not know why he pulled the trigger. A witness, Lorraine Scott, reported that Roberts was completely out of his car and standing at the time the gun discharged. Immediately after the discharged, Roberts said "Oh, shit."
The bullet hit Jerome in the right forearm, shattering it, and continued through his arm into his right kidney. Jerome lost his kidney as a result. Jerome asked Roberts why he shot him, to which Roberts replied, "dude, I didn't mean to shoot you." Roberts called for immediate medical attention. Jerome was arrested for the burglary, but he never was charged for either the burglary or any crime related to the abandoned guns. He also was arrested for minor in possession of alcohol and eventually pleaded guilty to neglect of a dependent because he left his 3-year-old nephew at home.
Prior to the shooting, Roberts had received gun training. As an early teen, he received firearm training with a rifle. From 1986-1990, he received additional training as a United States Marine. He became a Gary Police Officer in 1992, and received most of his training while employed by the Gary Police Department. On October 24, 2003, Roberts took 6 hours of gun safety and weapon training. On November 9-10, 2005, he took 12 hours of handgun/rifle/firearms training and an additional 4 hours of night shooting and rifle training. He took several more hours of firearm training in 2007 and 2008. Roberts also was required to qualify with his weapons once every year. His firearm examinations and qualification results from 2000, 2003, and 2006-2008, show that he was proficient with a handgun with both hands while standing, kneeling, and barricaded.
Jerome filed a complaint against Roberts in his individual capacity only on December 3, 2009, alleging that Roberts violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution by applying excessive force and stopping, seizing, and shooting him without probable cause. ...