The opinion of the court was delivered by: Thomas A. Varlan United States District Judge
These two consolidated § 1983 actions arose from the shooting of plaintiff Deputy Hubert Dean (John) Yancey by his partner, Deputy Marty Carson, during a police raid on a Scott County meth lab. The major dispute is whether the shooting was an unfortunate accident or murder. Currently pending is the defendants' motion for summary judgment [Doc. 30.] For the reasons that follow, the motion will be granted with respect to defendants Jim Carson, Robby Carson, Donnie Phillips, Carl Newport, and Scott County. In all other respects, the motion will be denied.
There are profound disputes of fact between the plaintiffs' and defendants' versions of events in this case. The following factual allegations are taken from deposition testimony*fn1 , affidavits, and written reports and will be considered in the light most favorable to the plaintiffs.
Plaintiff John Yancey and defendant Marty Carson were both officers of the Scott County Sheriff's Department who worked together as partners, sharing the same vehicle, beginning in November 2003. [Doc. 33-2, pp.14-15.] Marty Carson's father, Jim Carson, was the Sheriff of Scott County at the time. Plaintiff Lori Ann Yancey testified that her husband intended to run for Sheriff of Scott County in 2006 against Marty Carson. [Doc. 33-4, pp.121-22.]
On the evening of November 28, 2003, Officer Yancey requested that Officers Donnie Phillips and Carl Newport meet him and Officer Marty Carson at a food court near Williams Creek Road. [Doc. 33-2, pp.18-19.] According to Marty Carson, an informant of Officer Yancey had told him that a person on the FBI Ten Most Wanted list would be coming to Scott County to operate a meth lab at a trailer on Williams Creek Road. [Id.] Plaintiff Lori Yancey contends that it was Marty Carson who instigated the raid on the trailer and that on the previous night, November 27, 2003, Marty Carson had gone to the trailer without Yancey. [Doc. 33-2, p.105.]
After meeting at the food court on November 28, Marty Carson drove Yancey to the suspected residence on Williams Creek Road to do a "knock and talk." Officers Phillips and Newport followed in a separate vehicle. John Yancey had informed Phillips that they were looking for a man named Mark, who was on the Most Wanted list. Phillips had a laptop in his vehicle and he typed in the name "Mark" to pull up arrest records in Scott County, and the only "Mark" on Williams Creek Road was a man named Mark New. Officer Yancey contacted his informant by cell phone to get more information on the suspect. He had determined from a computer description of Mark New that he was not the person identified by the informant. [Doc. 33-2, pp.18-19.] Defendants contend that it was John Yancey who was insistent upon going to the Williams Creek Road residence that night because he and Marty had just completed a meth certification school. [Id. at p.19.] Defendants contend that both Marty Carson and Deputy Phillips tried to talk John Yancey out of going to the meth lab that late in the day, but John got them to agree to accompany him. [Id.]
Marty and John pulled into the driveway first and parked their vehicle in front of a window at one end of the trailer. [Doc. 33-5, pp.11-12.] John exited the vehicle and went to where the owner of the residence, Ryan Clark, was in the yard. [Id.] Phillips and Newport then arrived and Phillips went over to John and Clark, and Newport went around to the other side of the trailer. [Id.] While John talked to Clark, Marty walked up to the back porch, then knocked on the door. [Doc. 33-2, pp.19-20.] Nicole Windle answered the door. It was cold and snowing, so Marty Carson asked her if he could come in, and Nicole Windle let him in. [Id.] Officer Phillips also walked up to the back porch. [Id.]
While Marty was talking to Ms. Windle, he noticed a closed door down the hallway to the right of the back door. [Id.] Marty Carson asked Ms. Windle if anyone else was in the trailer, and she said, "No." [Id.] Marty claimed that he heard someone in the back bedroom and further claimed that headlights from his police vehicle were shining through the back window of the trailer, and he could see movement in light through cracks in the closed door. [Id.] He testified that he told Ms. Windle to get into the kitchen area and hollered for the suspects in the back room to "come out now." [Id. at 20-21.] A male voice, Mark Rector, was heard from the bedroom to say, wait, that he would be out in a minute. Marty Carson ordered the suspect to come out immediately with his hands up. Marty testified that he then heard a female voice screaming, "He's got a gun! He's got a gun! He is going to kill you! He is going to kill me! He is going to kill us all! Get away from the window." [Id.] In response to this screaming, Marty Carson stuck his head out the back door and purportedly told the officers outside, "Don't come in! He's got a gun!" Nicole Windle claims she did not hear Marty yell "Don't come in! He's got a gun!", but "Boys, they are in here. Come in here." According to Ryan Clark and Pennie Carpenter, both Clark and Windle had been up doing meth for 20 straight days without sleep. [Doc. 33, p.55.] Windle claimed that, whatever Marty yelled outside, John came into the trailer and followed Marty down the hall toward the back bedroom. [Doc. 41-6, pp.13-15.] Marty denies that John was directly behind him.
Marty testified that as he was walking down the short hallway from the back door to the bedroom, the door opened partially and he could see the outline of a figure who appeared to be holding a gun. [Doc. 33-2, pp.20-21.] He then darted into a bathroom immediately to the left of the bedroom door. [Id.] He testified that it was pitch dark in the bathroom, but he saw what he believed to be the barrel of a gun come into view in the bathroom door, which then began to point in his direction. [Id.] Marty fired one shot into the middle of the doorway and then heard John yell, "Please help, I'm shot." Windle claims that after Officer Yancey came into the trailer, she backed out of the way and out of the line of sight. [Id. at 18-19.] She claims that she heard a lot of stomping and bumping noises like someone wrestling or being dragged out of the bedroom door, followed immediately by a gunshot. [Id. at 16-19.] After Marty heard John say he was shot, Marty entered the hall from the bathroom, looked at the bedroom door, which was now closed, and kneeled over John who was on the floor. [Doc. 33-2, pp.22, 89.] After seeing John's eyes roll back in his head, Marty tried to pull his prone body from the trailer, but he was too heavy. [Id. at 22, 84.] Marty believed John's injury to be fatal, and he fled the trailer. [Id. at 22, 84, 89.] According to Marty, he heard only one shot, but in his terrified state was not sure whether another shot had been fired by the suspect out of the bedroom, which was what he assumed had occurred. [Doc. 33-2, pp.22-23, 34-36, 63, 65-68, 73-75.]
All of the witnesses in the trailer (Marty Carson, Nicole Windle, Mark Rector, and Pennie Carpenter) each have a different recollection of what lights were on. According to Marty Carson, the bathroom was pitch dark and the hallway darkened. [Doc. 33-2, pp.20-21, 23-25, 54-55, 67-68.] Windle testified that the bathroom light, the stove light in the kitchen, and the porch light outside were on, but the hallway light was out. [Doc. 33-7, pp.11, 25, 58.]
Mark Rector was not really looking for lights as he and Pennie fled out of the trailer, but recalls the hall light, a kitchen light, and the back porch light being on. Pennie's recollection was that the bedroom and hall lights were off, but she could see from the kitchen into the hallway. [Doc. 33-7, pp.6-7, 11.]
When Marty exited the trailer, he saw Carl Newport now standing in the back yard and yelled at him to take cover because Marty believed that the suspect had a gun. [Doc. 33-6, pp.11-12.] The two of them hid behind trees. [Id.] Marty then went to Phillips's cruiser behind Marty's vehicle, told Phillips that John had been shot and to "get the shotgun, I'm going back in and get John." [Doc. 33-5, pp.17-21.] Phillips said to wait for back-up which was arriving. [Id.] Marty then went back into the trailer with another deputy to get John. According to Windle's testimony, it was eight ...