The opinion of the court was delivered by: Judge Sharp
Pending before the Court in this excessive force case is Defendant Joe Shelton's ("Officer Shelton's") Motion for Summary Judgment (Docket No. 69).*fn1 Also pending are Plaintiff Clarisse Sweat's ("Sweat's) Motions to Strike certain affidavits and expert testimony (Docket Nos. 82 & 83) filed in support of the summary judgment motion. Those Motions have been fully briefed by the parties and, for the following reasons, the Court will deny Officer Shelton's Motion for Summary Judgment, and also deny Plaintiff's Motions to Strike.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
After being awakened by the sound of an intruder in his home at 10:30 a.m. on March 12, 2010, Kyle Marion ("Marion") called 911, and spoke with the operator while the burglar was in the next room. By the time police arrived, the burglar had absconded, but Marion was able to tell them that several items were missing from his home, including an iPod Touch that had a black front and silver-colored sides and back.
At the time of the incident, Officer Shelton, a K-9 handler and 24-year veteran of the Metropolitan Nashville Police Department ("MNPD"), was monitoring radio transmission and heard about the burglary at Marion's residence. He also heard officers, who had been in an unsuccessful foot pursuit, describe the suspect. Along with his K-9 partner Memphis, a Belgian Malinois, Officer Shelton responded to the call.
Upon arriving at the scene, Officer Shelton confirmed that there had actually been a residential burglary, and determined the situation met departmental policy for the deployment of a police dog. A patrol officer took Officer Shelton to the last place officers had actually seen the suspect before he eluded them, which was across the street from a residence located at 1026 Villa Place.
Officer Shelton radioed dispatch, and told the operator to instruct officers in the area to remain in their cars so they would not contaminate the scent trail left by the fleeing suspect. Officer Shelton then deployed K-9 Memphis.
Attached to a tracking harness and a 15-foot lead, K-9 Memphis led Officer Shelton across the street and onto the deck of 1026 Villa Place. K-9 Memphis located the suspect, later identified as Reginald Wallace ("Wallace"), hiding under the part of the deck that ran along the side of the house.*fn2
Officer Shelton released the lead, K-9 Memphis went under the deck after Wallace, and Officer Shelton ran to the rear portion of the house to look under the deck. From that vantage point, Officer Shelton could see K-9 Memphis holding onto Wallace with his teeth, and jerking back. Wallace had his hand in the right front pocket of his pants, and Officer Shelton, thinking that he might be reaching for a gun, knife or rock, unholstered his service pistol.
Officer Shelton told Wallace to stop resisting and show his hands. Wallace removed his hands from his pocket and Officer Shelton re-holstered his weapon.
Wallace crawled toward the end of the deck by digging in with his left arm and pulling himself forward, dragging K-9 Memphis along. Upon exiting from under the deck, Wallace began kicking and trying to sling K-9 Memphis off his leg. All four of the dog's feet came off the ground during this attempt.
Wallace then tried to escape over a privacy fence while K-9 Memphis was still holding onto his leg. As Officer Shelton pulled Wallace off the fence, Wallace swung his arm back and struck Shelton with a glancing blow to the side of his face.
During the ensuing struggle, Officer Shelton was behind Wallace and to his right, trying to control him. K-9 Memphis was still attached to Wallace's leg.
Wallace again put his hand into his right pants pocket, whereupon Officer Shelton attempted to "trap" Wallace's hand in his pocket, by grabbing the outside of the pocket with his own hands and holding onto Wallace's hand through the material of the pocket.*fn3
Officer Shelton could feel Wallace's hand through the material of the pocket. He also felt a hard object with a squared off-edge, and saw a "silverish" object protruding a half inch or inch from his pocket. Officer Shelton thought that the edge might be the slide or back-strap of a pistol.
According to Officer Shelton, he continued to tell Wallace to show his hands and quit resisting. In his deposition he described what happened next:
A. I began to think I was too close to the suspect. I could tell I was losing my hold on him. I went to spin him around to get some distance from him and pushed off. And I drew my weapon and fired.
Q. How far were you from the fence at this point?
Q. So you were attempting to push him --
A. And that's when I -- at that time I just shoved off of him and pushed him directly away from me.
Q. At that time did you have a fear that you were about to be shot?
Q. Is that fear based on anything other than what you have already described for me?
Q. When you drew your weapon, how much distance was there between you and Mr. Wallace?
A. I don't remember, sir.
Q. Did you pause before discharging your first bullet?
A. I don't believe so, sir.
Q. Was Mr. Wallace facing you when you ...