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Revel Zain v. Michael Zahradnicek et al.

March 19, 2013

REVEL ZAIN PLAINTIFF
v.
MICHAEL ZAHRADNICEK ET AL. DEFENDANTS



MEMORANDUM OPINION AND ORDER

Before the Court are cross motions for summary judgment. For the reasons set forth below, the Court will grant Defendants' motion and deny Plaintiff's motion.

I. FACTS

Plaintiff brought this pro se civil-rights action concerning events at his house on April 24, 2009, against Louisville Metro Police Officers Michael Zahradnicek, Thomas D. Schardein, R. Schroeder, Darice Wiley, and M. Shugart and against the Louisville Metro City Government.*fn1 After initial review, the Court allowed the following claims to go forward against Defendants Zahradnicek, Schardein, Schroeder, Wiley, and Shugart: Plaintiff's Fourth Amendment claim relating to Defendants' failure to leave his property after their "knock and talk" visit to his residence and Plaintiff's Fourth Amendment excessive-force claim against Defendants for firing a taser at him prior to his arrest. The Court dismissed all other claims.

The allegations in Plaintiff's verified complaint were as follows. According to Plaintiff, on the evening of April 24, 2009, he was at his home with his minor son, J.Z. He looked out his window and saw what appeared to be police detectives in his front yard. He opened his door to investigate further. When he did so, he encountered Defendants Shugart and Schardein.

Plaintiff asked them what was going on. Defendant Shugart stated that they were wondering the same thing. Plaintiff told Defendants he did not know what they were talking about and that there was no trouble at his house. Plaintiff states that Defendant Shugart stated that he would like to talk to Plaintiff. Plaintiff asked Defendant Shugart if he was under arrest. Defendant Shugart stated that Plaintiff was not under arrest and that they just wanted to talk to him. Plaintiff responded that if he was not under arrest for anything, he had nothing to talk about. Plaintiff states that he then went back inside of his house.

When Plaintiff looked outside his window a bit later, he saw that the Defendant officers were still on his property -- standing in his front yard and next to his truck in the driveway. Plaintiff again opened the door and was met there by Defendant Schardein. Plaintiff states that he repeatedly asked Defendants to leave, but they refused to do so. By this time, Plaintiff claims that the Defendant officers were pointing guns at him and his son. He again asked if he was under arrest, and the Defendant officers again told him that was not. He states that Defendant Zahradnicek then approached from the side of Plaintiff's garage and shot him with a taser gun causing him to fall to the ground. Plaintiff states that when he recovered, he called 911, a family friend, and his attorney. Plaintiff states that he was so fearful for his and his son's safety that he could not leave the home.

The tasing allegedly occurred at 20:41:17 on April 24th.*fn2 Plaintiff states that at this time he was not under arrest. Defendants later obtained a warrant for his arrest. Plaintiff was removed from his home at approximately 12:10 a.m. on April 25th. Approximately twenty minutes later, Defendants conducted a search of Plaintiff's home pursuant to a search warrant.

Defendants' version of the events as set forth in their motion for summary judgment and in their response to Plaintiff's motion differs in some particulars. Defendants do not dispute that they went to Plaintiff's residence on that evening, or that they did not leave after being told to do so by Plaintiff, but according to Defendants by the time Plaintiff asked them to leave they believed they had probable cause and exigent circumstances to remain on his property based on reports that Plaintiff had fired a gun and observations of him going into the home with a child.

According to Defendants' response to Plaintiff's summary-judgment motion, Defendant Zahradnicek was the first officer to respond after the 911 calls from Plaintiff's neighbors and he observed Plaintiff outside with a gun. Plaintiff then went inside his home. According to the Louisville Metro Police Department Special/Auxiliary Team After Action Report, the Hostage Negotiation Team (HNT) was notified at 22:21, arrived at 23:00, and cleared the area at 01:30. That incident narrative is as follows:

On 4/24/2009, at about 1900 hours, the suspect was the perpetrator of a street robbery at a shopping center on Hurstbourne Parkway. The victim of that robbery followed the suspect as he left the scene in his vehicle. The suspect was followed to his residence at 12014 Rock Spring Ct. where he was confronted by the victim of the robbery. The suspect entered his residence and came back outside with a firearm which he shot in the air several times. 8th Division Officers were called at about 1925 hours. They arrived on the scene and asked the suspect to leave the house. He refused to do so. There were reports of children in the home during the shooting and subsequent standoff. Reports indicate that the suspect was using children as shields.

SWAT/HMNT arrived at around 2300 hours, after being notified at about 2221 hours. The HNT truck was unavailable for service. HNT Negotiators used a police vehicle as an operations center, and used what equipment that was on-hand and operable to make a recording of their interaction with the suspect.

At 2350 hours, Negotiators attempted to make contact with the suspect by phone, but were unsuccessful. At about 2356 hours, Metrosafe notified HNT that the suspect had dialed 911 and was on the line with them. Metrosafe was asked to transfer that call to negotiators. The call was transferred to HNT at about 0001 hours. Negotiators spoke briefly with the suspect, whose concern was that someone was coming to pick up his son so that the son would be taken care of after the surrender to police. The suspect did come out without much prompting by Negotiators, and was taken into custody without incident at about 0010 hours.

According to attachments to Defendants' motion for summary judgment, the robbery victim, Jackie Wilson, and Plaintiff had had a sexual relationship approximately two years earlier for two to three months and on April 24, 2009, the day of the alleged robbery, Plaintiff had called her over 120 times and left a note on her car at work. The complaint for the arrest warrant stated that Plaintiff approached Ms. Wilson and her aunt at a department store, where Plaintiff grabbed her purse telling her that now she would have to talk to him. Ms. Wilson and her aunt then followed Plaintiff back to his house in an effort to get her purse back. During the ensuing confrontation, Plaintiff fired once at the car and twice into the air.*fn3

Attached to Defendants' motion for summary judgment is a copy of the arrest warrant, which was signed by the judge at 10:56 pm on April 24, 2009. The arrest warrant listed the following charges: harassing communications; first-degree robbery; first-degree stalking; two counts of first-degree wanton endangerment; and endangering the welfare of a minor.

Another attachment shows that on December 20, 2010, Plaintiff entered a plea of guilty to possession of a firearm by a convicted felon, two counts of wanton endangerment in the first degree, and harassing communications.

II. ANALYSIS

Summary-judgment ...


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