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Shumpert v. City of Tupelo

United States District Court, N.D. Mississippi, Aberdeen Division

November 8, 2017

PEGGY SHUMPERT, individually and as the Administrator of the Estate of Antwun Shumpert, Sr., THE ESTATE OF ANTWUN SHUMPERT, SR., and CHARLES FOSTER PLAINTIFFS



         In their Second Amended Complaint [59], the Plaintiffs assert a federal claim for excessive force under 42 U.S.C. § 1983 and the Fourth Amendment to the United States Constitution against Tupelo Police Officer Tyler Cook individually.[1] The Plaintiffs also ask the Court to exercise supplemental jurisdiction over a number of state law claims. Cook filed a Motion for Summary Judgment [190], requesting that the Court dismiss all of the Plaintiffs' claims against him. The Plaintiffs filed a Response [191], and Cook filed a Reply [197] making these issues ripe for review.

         Factual and Procedural Background

         On the evening of June 18, 2016, the Tupelo Police Department Special Operations Unit was conducting surveillance of the Townhouse Motel due to complaints of drug activity. One of the surveillance team members watched a vehicle enter the motel parking lot without stopping at the office and then exit about three minutes later. Suspecting that the occupants of the vehicle were involved in narcotics activity, the surveilling officer notified the team that the vehicle was now headed north on South Gloster Street.

         Another officer, Joseph Senter, was in his unmarked patrol car near that location and started following the suspect vehicle. After observing the vehicle make a right turn without signaling, Senter activated his blue lights and attempted to initiate a traffic stop.[2] Senter radioed that the vehicle was “slow rolling” him and continued to follow. The vehicle went through a three-way stop without stopping and made a left hand turn on Harrison Street. Then, the vehicle stopped and the driver, Antwun “Ronnie” Shumpert, exited the vehicle and ran into a nearby neighborhood. The passenger, Charles Foster, remained with the vehicle. Senter gave chase on foot, identifying Shumpert over the radio as a black male wearing shorts and a maroon jersey with the number five on it.

         Officer Cook was in the area, parked his patrol vehicle and set out on foot with his K9, Alec, in an effort to locate Shumpert. Alec led Cook to the rear of a nearby house where Cook observed a hand trying to hold the door to the crawlspace under the house closed from the inside. The area was dark, and the only light illuminating the area was the light attached to Cook's drawn gun. Cook opened the crawlspace door and announced, “Tupelo Police Department, show me your hands, come out from under the house, I have a dog, and he will bite.” At this point Shumpert attempted to flee further under the house. Cook gave the bite command to Alec and released him sending him under the house through the crawlspace door. K9 Alec engaged Shumpert, and Shumpert began punching the dog and slamming the dog's head up against the floor joists above. Shumpert fought Alec off, but Alec held on to Shumpert's jersey. Still engaged in a struggle, Alec and Shumpert came out from under the house, and in the process, Shumpert's maroon jersey came off. As he exited the crawlspace, Shumpert charged and tackled Cook with a football style tackle, with Shumpert ending up on top of Cook punching him. Cook attempted to strike back at Shumpert with his fist and gun. Cook started to lose consciousness, and as he did, he shot Shumpert four times in succession, twice in the chest, once in the stomach, and once in the groin.

         Several officers were in the area and heard the gunshots. Officers Senter and Adam Merrill were the first to arrive at the scene. Senter handcuffed Shumpert and requested an ambulance. Emergency medical personnel arrived within approximately five minutes, administered aid to Shumpert, and then transported him to the hospital. Cook was also transported to the hospital where he was treated for bruising to his face. Shumpert ultimately died from his wounds.

         Standard of Review

         Federal Rule of Civil Procedure 56 governs summary judgment. Summary judgment is warranted when the evidence reveals no genuine dispute regarding any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The rule “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

         In reviewing the evidence, factual controversies are to be resolved in favor of the non-movant, “but only when . . . both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). When such contradictory facts exist, the Court may “not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

         The moving party “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324, 106 S.Ct. 2548 (citation omitted).

         Because Cook asserts that he is entitled to the protection of qualified immunity in this case the Court notes, “A good-faith assertion of qualified immunity alters the usual summary judgment burden of proof, shifting it to the plaintiff to show that the defense is not available.” Orr v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016) (quoting Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016) (internal quotation marks omitted)).[3] A plaintiff “must rebut the defense by establishing that the officer's allegedly wrongful conduct violated clearly established law.” Wolfe v. Meziere, 566 F. App'x 353, 354 (5th Cir. 2014) (citing Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005); Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001)). The Plaintiff “cannot rest on conclusory allegations and assertions but must demonstrate genuine issues of material fact regarding the reasonableness of the officer's conduct.” Id.

         Preliminary Issue: Evidence

         Titus Smith, a resident of San Antonio, Texas, is Shumpert's brother-in-law. The Plaintiffs produced an affidavit from Smith that they argue creates several material factual disputes. In the affidavit, Smith recounts an anonymous telephone call he received early in the morning on June 19, 2016. According to Smith, the anonymous male caller related a very different version of the events involving Shumpert and Cook. Smith made attempts to identify the caller but was unable to.

         The Defendants object to this affidavit arguing that it is hearsay and inadmissible for consideration here under the Federal Rules of Evidence and Federal Rule of Civil Procedure 56(c).

         Rule 56 states, in relevant part:

(2) A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. [. . .]
(4) An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed. R. Civ. P. 56 (c)(2)(4). The Plaintiffs do not dispute that the affidavit is hearsay, but argue that the affidavit is admissible under the present sense impression and excited utterance exceptions to the hearsay rule. See Fed. R. Evid. 803(1-2). The relevant text of Rule 803 states:

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the ...

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