United States District Court, S.D. Indiana, Indianapolis Division
DAWNE A SANZONE Personal Representative of the Supervised Estate of Keith R. Koster, Deceased, Plaintiff,
OFFICER WILLIAM “BILLY” MURPHY, OFFICER JAMES GRAY, OTHER UNKNOWN OFFICERS AND PERSONNEL OF THE CITY OF INDIANAPOLIS in their official capacities, CONSOLIDATED CITY OF INDIANAPOLIS, MARION COUNTY, INDIANA, Defendants.
ORDER ON MOTION FOR RELIEF FROM JUDGMENT
WALTON PRATT, JUDGE
matter is before the Court on Plaintiff Dawne A.
Sanzone's (“Sanzone”) Motion for Relief from
Judgment filed pursuant to Federal Rule of Civil Procedure
60(b) (Filing No. 103). Following the grant in part
and denial in part of a Motion for Summary Judgment
(Filing No. 84) filed by Defendants Officer William
Murphy (“Officer Murphy”), Officer James Gray
(“Officer Gray”), Other Unknown Officers and
Personnel of the City of Indianapolis and the Consolidated
City of Indianapolis, Marion County, Indiana (“the City
of Indianapolis”), Officer Gray appealed to the United
States Court of Appeals for the Seventh Circuit (Filing
No. 85). The Court of Appeals reversed and remanded,
instructing the Court to enter summary judgment in Officer
Gray's favor, which this Court did. (Filing No.
97; Filing No. 98.) The Court later entered
summary judgment on behalf of Defendant, the City of
Indianapolis, on all claims. (Filing No. 101.)
Sanzone filed the instant motion for relief the final
judgment entered at Filing No. 102. For the
following reasons, the Court denies
Sanzone's Motion for Relief from Judgment.
facts of this case are set forth in detail in the Courts'
Entry on Defendants Motion for Summary (Filing No.
84) and thus, are only summarized in this Order. On
January 21, 2014, Keith R. Koster (“Koster”) left
a voice message on his friend Timothy Bess'
(“Bess”) telephone, indicating that Koster was in
distress. Because Bess lived in a different state and could
not check on Koster himself, he called the Indianapolis
Metropolitan Police Department (“IMPD”) and asked
if they could send an ambulance to do a wellness-check on
Koster. An IMPD dispatcher spoke with Koster over the
telephone and informed him that she was going to contact an
ambulance. The dispatcher asked Koster if he would open the
door for paramedics when they arrived and Koster responded
that he would not let them in. The dispatcher called Sarah
Hunt (“Hunt”), the apartment manager, and asked
Hunt to provide keys to Koster's apartment so that upon
their arrival, paramedics and police officers could enter and
thereafter, Officer Murphy arrived at Koster's apartment,
where Hunt met him. Officer Murphy and Hunt opened the door
and Koster stated: “Don't come in. I don't want
you to come in.” A short time later, Lieutenant
Benjamin Holton of the Indianapolis Fire Department
(“Lt. Holton”) arrived at Koster's apartment
and announced from Koster's doorway that they needed to
enter the apartment to help him. Koster responded: “If
you enter my apartment I will shoot you.” At that
moment, Hunt looked down and noticed a gun in Koster's
right hand, partially covered by a blanket. Hunt backed out
of Koster's apartment and, once she was outside of the
apartment, announced that Koster had a gun.
learning of the gun, Officer Murphy radioed his supervisor,
who decided to call the special weapons and tactics
(“SWAT”) team. While waiting on SWAT to arrive,
Officer Murphy attempted to negotiate with Koster, requesting
that Koster put his gun down so that he could receive medical
attention. Koster did not comply.
SWAT arrived at the scene, SWAT negotiators Daniel Rosenberg
(“Officer Rosenberg”) and Eli Raisovich attempted
to negotiate with Koster to put the weapon down. Officer
Rosenberg observed Koster laying at an angle on his bed,
which was a mattress on the floor, with his back visible from
the door. Officer Rosenberg also noticed a black revolver in
Koster's right hand that was lowered down to his side.
More officers arrived on the scene. Officer Chris Phemster
(“Officer Phemster”) positioned himself in front
of Officer Rosenberg with a ballistic shield in one hand and
.40 caliber Glock in his other hand. Officer Justin Reese
(“Officer Reese”) stood to the left of Officer
Phemster with his gun drawn. Soon after, SWAT team Officer
Gray and Sergeant Steve Walters (“Sgt. Walters”)
arrived. Officer Gray was armed with an MP5 submachine gun
and Sgt. Walters had a less lethal bean bag shotgun. Upon
arriving, Officer Gray quickly instructed Officer Reese that
he maintained “priority of shot”-meaning he
occupied a position with the best viewpoint to shoot. At this
point, there were a total of five tactically dressed officers
standing in Koster's doorway with their firearms drawn.
conversation between Koster and Officer Rosenberg continued
and at a point, Koster became agitated. All officers in the
doorway took cover with the SWAT teams ballistic shield. By
this time, Koster was sitting up, cross-legged on his bed
with his hands in his lap. (Filing No. 69-10 at 31.)
Officer Rosenberg continued negotiating with Koster. However,
Koster became more agitated when the officers refused to
leave and informed the officers that he intended to
“fire a warning shot.” (Filing No. 77-9 at
10.) Officers observed movement of Koster's shoulder
as he began to raise up his arm that was holding the handgun.
(Filing No. 69-10 at 36.) Noticing the handgun,
Officer Gray began to point his firearm at Koster.
Id. Koster's arm came to a full extension.
Id. Sgt. Walters, armed with the less lethal bean
bag shotgun, stated: “everyone…stay down, if
this goes bad I'm going to fire a less lethal round first
so don't jump up I don't want to…hit you in
the back of the head with a less lethal bean bag at point
blank range.” (Filing No. 77-10 at 8.) Almost
simultaneously with Sgt. Walters' firing the less lethal
bean bag shotgun, Officer Gray fired two or three shots with
his MP5 submachine gun. Two shots fired by Officer Gray hit
Koster in the head and the neck, killing him.
September 21, 2015, Sanzone, as personal representative of
Koster's estate, filed an Amended Complaint asserting
five counts: (Count I) false arrest in violation of the
Fourth Amendment against Officers Murphy and Gray, (Count II)
excessive and deadly force in violation of the Fourth
Amendment against Officers Murphy and Gray, (Count III)
assault and battery under Indiana law against the City of
Indianapolis, (Count IV) false arrest under Indiana law
against the City of Indianapolis, and (Count V) wrongful
death under Indiana law against the City of Indianapolis.
(Filing No. 11.) This Court granted summary judgment
as to Counts I and IV of the Amended Complaint and dismissed
Officer Murphy. (Filing No. 84.) But this Court
denied summary judgment as to Counts II, III, and V, finding
that a material question of fact existed regarding whether
Officer Gray acted reasonably, and therefore the Court could
not determine at the summary judgment stage that he was
entitled to qualified immunity. Id. at 16-17.
Accordingly, the state law tort claims against the City of
Indianapolis arising out of Officer Gray's actions
Gray appealed the Court's Entry on Summary Judgment to
the United States Court of Appeals for the Seventh Circuit.
(Filing No. 85.) In a per curiam opinion,
the Court of Appeals determined the undisputed evidence
showed that Koster pointed a firearm at Officer Gray and
other officers, and that by law Officer Gray “did not
violate Koster's Fourth Amendment right by defending
himself and other officers once Koster pointed a gun at
them.” (Filing No. 97 at 10.) It consequently
reversed and remanded to this Court “with instructions
to enter judgment for Gray on the excessive-force claim,
” and to terminate him from this action. Id.
at 12; Filing No. 98 at 1. The claims remaining were
the state law claims against the City of Indianapolis for
Assault and Battery (Count III) and Wrongful Death (Count V).
In accordance with Local Rule 16-2, the parties were ordered
to file their position statements regarding how the Court
should proceed on the remaining state law claims.
consideration of the parties' position statements
(Filing No. 99; Filing No. 100), summary
judgment was granted in favor of the City of Indianapolis on
all claims. (Filing No. 101.) Having resolved all
claims as to all parties, the Court directed the entry of
final judgment and dismissed the action with prejudice.
(Filing No. 102.) Following that entry, pursuant to
Federal Rule of Civil Procedure 60, Sanzone filed the instant
Motion for Relief from Judgment. (Filing No. 103.)