United States District Court, E.D. Kentucky, Northern Division, Covington
EDWARD GODAWA, ET AL. Plaintiffs,
OFFICER DAVID BYRD Defendant.
MEMORNADUM OPINION AND ORDER
WILLIAM O. BERTELSMAN, District Judge.
This is a 42 U.S.C. §1983 and state law action arising from the death of a young man, Michael Godawa, when he attempted to flee the scene of an arrest by assaulting a police officer with his vehicle. The officer in this case was forced to make a split-second judgment to protect his life and the lives of the public. The single shot that was fired by the officer within seconds of the vehicular assault was fatal, and this action ensued.
Plaintiffs allege a violation of the Fourth Amendment for use of excessive force, a violation of the Fourteenth Amendment due process clause, and state law claims of wrongful death and "intentional tort, battery and murder."
This matter is now before the Court on Plaintiffs' motion for summary judgment (Doc. 47), Defendant's cross-motion for summary judgment (Doc. 48), and Defendant's motion to strike the report and testimony of Plaintiffs' expert witness (Doc. 49).
The Court held oral argument on these motions on June 27, 2014. Christopher Roach was present for the Plaintiffs, and Jeffrey Mando, Philip Taliaferro, III, Ryan Turner, and Levi Daly were present for the Defendant. Defendant Officer Byrd and Chief of Police Tim Thames were also in attendance. Officia court reporter, Joan Averdick, recorded the proceedings. Thereafter, the Court took the matter under advisement. Doc. 62, Order.
On July 1, 2014, the Court issued an order directing the parties to file supplemental briefs addressing the recent Supreme Court decision, Plumhoff v. Rickard, No. 12-1117, ___ U.S. ___ 134 S. Ct. 2012, ___ L.Ed.2d ___ 82 USLW 4394 (May 27, 2014) (Doc. 63).
Having heard from the parties, reviewed the parties' briefs and supplemental briefs, and being sufficiently advised, the Court hereby issues the following Memorandum Opinion and Order.
Michael Godawa (the "decedent") was a 21-year-old patron at the Finish Line Bar in Elsmere, Kentucky, on the evening of June 22, 2012 and early morning of June 23, 2012. Doc. 51-1, T. Godawa Depo., p. 33. At approximately 1:00 a.m., Officer David Byrd, a police officer for the city of Elsmere, was conducting his regular patrol. Doc. 26-1, Byrd Depo., p. 24. At the time, he was patrolling on a bicycle and was wearing his bike patrol police uniform. Id.
A Finish Line employee approached the officer and complained that a patron in the parking lot appeared to be drinking underage. Doc. 26-1, Byrd Depo., p. 25. The officer watched as the suspect decedent drove his car from the back of the parking lot to an open parking space closer to the front of Finish Line. Id. at 26.
The officer approached the vehicle and asked the decedent if he had been drinking, and the decedent responded negatively. Doc. 26-1, Byrd Depo., pp. 27-28; Doc. 21-1, Lapel Video at 1:23:26-32. The officer asked for an explanation of the beer bottle sitting in the cup holder of the car, to which the decedent responded that the beer belonged to his girlfriend, who was inside the bar. Doc. 26-1, Byrd Depo., p. 28; Doc. 21-1, Lapel Video at 1:23:33-1:24:33.
When the officer asked for the decedent's identification, the decedent responded that he was licensed, but did not have the license on him. Doc. 26-1, Byrd Depo., p. 27; Doc. 21-1, Lapel Video at 1:24:33-45. The officer then asked the decedent to submit to a field sobriety test. Doc. 21-1, Lapel Video at 1:24:51-1:25:03. The decedent responded that he was nervous and did not want to take the test. Id. at 1:25:03-1:25:09. The officer instructed the decedent to "hold on a second" while he went to the rear of the vehicle to retrieve a notepad and pen. Id. at 1:25:10-1:25:11. He then walked back to the decedent's side window and obtained the decedent's name and social security number. Id. at 1:25:26-1:25:48.
After returning to the vehicle, the officer again questioned whether the decedent had been drinking. Id. at 1:25:48-1:25:51; Doc. 26-1, Byrd Depo. p. 28. The decedent then admitted to lying to the officer and said he actually had "one or two" drinks and that the beer in the cup holder was not his girlfriend's. Doc. 26-1, Byrd Depo. p. 28; Doc. 21-1, Lapel Video at 1:25:51-1:26:25.
The decedent then told the officer he would submit to a field sobriety test. Id. at 1:26:32-1:27:21; Doc. 26-1, Byrd Depo., p. 30. The officer told the decedent to "hold on" and walked to the rear of the vehicle to request backup from dispatch, Doc. 21-1, Lapel Video at 1:27:21-43.
While the officer was still at his bicycle behind the vehicle speaking with dispatch, the decedent started his car and began backing out of his parking spot. Doc. 26-1, Byrd Depo., p. 30; Doc. 21-1, Lapel Video at 1:27:44-48. The decedent struck the officer's bicycle and nearly struck the officer in the process of backing up. Doc. 26-1, Byrd Depo., pp. 23, 30. As the decedent was backing up, the officer loudly yelled "hey" five times. Doc. 21-1, Lapel Video at 1:27:51-54.
As the decedent shifted the vehicle from reverse to drive, the officer ran to the front of the car with his gun drawn and ordered the decedent to stop the car. Doc. 26-1, Byrd Depo., p. 31; Doc. 21-1, Lapel Video at 1:27:55-58; Doc. 15-2, Finish Line Video at 1:19:11-13. The officer commanded the decedent to "stop" four times. Doc. 21-1, Lapel Video at 1:27:55-58.
The decedent accelerated forward at a rate of five to ten miles per hour. Doc. 26-1, Byrd Depo., p. 32. The officer did not fire when the decedent began driving towards him. Id.
The decedent continued to drive forward and struck the officer in the left leg around the knee, which knocked the officer onto the hood on the car. Id. at 33, 99; Doc. 21-1, Lapel Video at 1:27:58-59; Doc. 15-2, Finish Line Video, 1:19:13. The car traveled forward while the officer was on the hood of the car and his feet were off the ground. Doc. 26-1, Byrd Depo., p. 100. The impact of the officer and the vehicle cannot ...