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Moore v. City of Ferguson

United States District Court, E.D. Missouri, Eastern Division

October 4, 2016

TINA MOORE, individually and as Personal Representative of the ESTATE OF JASON MOORE, et al., Plaintiffs,
v.
CITY OF FERGUSON, MISSOURI, et al., Defendants.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.

         Plaintiffs' decedent, Jason Moore, died during an altercation with police in Ferguson, Missouri. Plaintiffs are decedent's relatives; they have filed this lawsuit against the City of Ferguson, Officer Brian Kaminski in his official and individual capacities, and Thomas Jackson in his official capacity as Chief of Police for the Ferguson Police Department.[1] Defendants have filed a motion for summary judgment (#62). The matter has been fully briefed and is now ripe for disposition.

         I. Background

         The following facts are undisputed unless otherwise indicated.[2] Jason Moore was a 31-year-old man weighing approximately 135 pounds when he encountered police in the early morning of September 17, 2011. Mr. Moore was near his Ferguson, Missouri home when he took his clothes off and ran naked down the street yelling “God is good, ” “glory to God, ” and “I am Jesus.” Several 911 calls were made by individuals nearby, and Ferguson Police Department officers were dispatched.

         Defendant Officer Kaminski was first on the scene. As Kaminski arrived in the area, he was flagged by a woman in a vehicle who advised Kaminski that the naked individual was nearby at the intersection of Airport Road and Henquin. Officer Kaminski proceeded to that area and saw Mr. Moore, naked, walking from behind a building and standing near the curb of Airport Road. There was light traffic on the roadway, and it was just becoming daylight.

         Officer Kaminski walked toward Mr. Moore and ordered him to come to Kaminski, away from the street. Then he ordered Mr. Moore to stop and get on the ground. Instead, Mr. Moore began running at Kaminski, swinging his fists aggressively in a pinwheel motion.[3] Kaminski stepped backwards, but Mr. Moore continued to advance aggressively, so the officer unholstered his Taser and gave a third command to stop or else Moore would be Tased. Mr. Moore continued to aggressively move toward Officer Kaminski, so Kaminski deployed the Taser. The Taser shot two metal darts or probes at Mr. Moore and, although Kaminski could not see exactly where the darts landed, they attached at Moore's right chest and his leg. Kaminski had been aiming at the right side of Mr. Moore's body, near his hip. The Taser darts delivered a 50, 000-volt shock that lasting five seconds. Mr. Moore fell forward onto the ground. Kaminski commanded Mr. Moore to stay on the ground, but Moore attempted to rise up. Kaminski applied another Taser cycle.

         Non-party Officer White arrived just after Kaminski applied the second Taser cycle. He heard Kaminski giving orders to Moore to stay down, and he saw Moore trying to get back up. Although plaintiffs dispute just how far up Mr. Moore managed to move before being Tased again, plaintiffs appear to agree Moore raised himself up at least 6 inches. Moore was also yelling something indecipherable. Kaminski recalls Tasing Mr. Moore a third time, at which time White was able to handcuff Mr. Moore.

         The Taser device data is somewhat helpful. The Taser's data shows that the trigger was activated four times during the relevant period. The activation times and the duration of the Tases are as follows:

6:53:17 6 second duration
6:53:22 5 second duration
6:53:28 5 second duration
6:53:34 5 second duration

         The Taser's data download, however, advises that activation times are recorded at the time that the firing cycle ended, and that the activation durations recorded in the activation log are rounded up to the next second after 0.010 seconds. Thus, the activation log shows that the second cycle might have started up to 0.89 seconds after the first Taser cycle, and up to 1.99 seconds passed between each of the second and third and third and fourth Taser cycles.

         After Mr. Moore was handcuffed, Emergency Medical Services (“EMS”) was called to respond to the location. Officer White attempted to speak to Mr. Moore but noticed Moore was unresponsive and not breathing. Officer White rolled Mr. Moore onto his back and removed the handcuffs to begin chest compressions. At that point, Officer White was able to see that the Taser probes had attached at Mr. Moore's chest and leg. EMS was advised that Mr. Moore had stopped breathing and to expedite their arrival. The officers continued administering chest compressions until EMS arrived. Mr. Moore was transported to a hospital, where he was pronounced dead. Although the Assistance Medical Examiner, Kamal Sabharwal, M.D., ruled the manner of death as “natural” and the immediate cause of death as being “Agitated Delirium secondary to Psychosis, ” plaintiffs dispute that characterization. Plaintiffs' expert Philip Cuculich, M.D., testified that the third and fourth applications of the Taser more likely than not caused or contributed to Mr. Moore's death. The Ferguson Police Department's subsequent investigation made no determination as to whether or not Officer Kaminski's use of force violated the FPD's written policies and procedures and no one was disciplined.

         Mr. Moore's family members filed lawsuits that were consolidated into this matter. The plaintiffs filed a consolidated complaint asserting three counts. After dismissing some parties, the following counts remain:

Count I: Violation of Mr. Moore's Fourth and Fourteenth Amendment rights by using excessive force under 42 U.S.C. § 1983 against Officer Kaminski
Count II: Municipal liability for the violation of Mr. Moore's Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983 against the City of Ferguson and Chief Thomas Jackson
Count III: Wrongful death against Officer Kaminski Defendants have moved for summary judgment as to all three counts.

         II. Legal Standard

         Pursuant to Federal Rule of Civil Procedure 56(c), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that “there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law.” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467 (1962). The burden is on the moving party. City of Mt. Pleasant, Iowa v. Assoc. Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts ...


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