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White v. United States

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

May 16, 2018

HOPE ANGELIC WHITE, et al. Plaintiffs,
v.
THE UNITED STATES OF AMERICA, et al., Defendants,

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE

         Plaintiff Hope Angelic White brings this action individually and in her capacity as personal representative for the Estate of her decedent, Myron Pollard, against defendants the United States of America and Bernard Hansen, an agent with the United States Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). Currently pending before the Court are defendants' motions for summary judgment (#50, #52), the plaintiff's motion for sanctions (#83), and defendants' motion to exclude plaintiff's expert testimony (#54).

         I. Factual Background

         A. Facts Related to Summary Judgment

         On August 29, 2012, an undercover ATF agent met several men behind a warehouse in St. Louis, Missouri. The men were thought to have committed robberies and other crimes, including home invasions for the purpose of stealing money, drugs, or contraband. The agent posed as disgruntled drug courier who wanted to arrange for the robbery of his drug supplier. The plan was to arrest the men before they embarked on the robbery.

         Because the men were suspected to be armed and dangerous, the ATF Special Response Team ("SRT") --- the ATF's version of a SWAT team --- was asked to assist with the undercover operation. Defendant Hansen was a member of SRT 1, which was assigned to assist with this particular operation. At the pre-operation briefing, Hansen learned that the suspects told a confidential informant that they were going to rob and kill the undercover agent after the robbery.

         SRT 1 arrived at the parking lot before the suspects arrived. Several members of SRT 1, including Hansen, were in the back of a U-Haul truck parked in the warehouse parking lot ready to arrest the suspects once the undercover agent confirmed that the suspects were armed and prepared to commit the fictitious robbery.

         While in the back of the U-Haul, although the SRT team could not see the suspects, Hansen learned that two suspects arrived on foot and more suspects arrived in a car shortly thereafter. Hansen knew generally where the suspects would be based on a map that he saw during the briefing.

         After the signal to start the arrests, Hansen was first to exit the U-Haul. He was assigned the responsibility of ascertaining the threat level being encountered by the entire team. The suspects' car was parked approximately two car lengths away from the U-Haul truck: the U-Haul was parked next to a fence, a driveway was next to the U-Haul, a white van was parked facing the wall of the warehouse next to the driveway, and the suspect's car was parked on the other side of that van, facing the wall of the warehouse. When Hansen jumped out of the back of the U-Haul, he had to turn left and then left again to face the suspects and the car. Hansen yelled “Police!” while running toward the suspects' car with the other agents behind him. When Hansen was approximately seven yards away from the suspects' car, he saw the car's reverse lights come on. Hansen and the other agents were all behind the car, although it is unclear how close they were to the car's path. The car reversed in a semi-circle back in Hansen's general direction and then to Hansen's right. The plan had been for the SRT members to form a line along the driver's side and rear of the suspects' car in an “L-shape” to provide coverage from multiple angles. Hansen, concerned that the car would hit himself or members of the SRT, raised his rifle and aimed at where he believed the driver was sitting. Hansen moved to his left to avoid the vehicle and fired three rounds toward the driver in an effort to stop the car. Another ATF agent who had also been in the back of the U-Haul fired baton round shots from his weapon at the driver of the suspects' car. Meanwhile, a bucket truck (similar to the sort of truck used by electric companies to work on power lines) came from the other side of the parking lot and rammed into the car, disabling it. Fewer than three seconds elapsed between the time the car went into reverse and when it came to a complete stop.

         Although Hansen did not know it, plaintiff's decedent, Myron Pollard, was sitting in the front passenger seat of the suspects' car. It was later determined that one of Hansen's bullets struck Pollard, who died the next day at a hospital.

         Notably, plaintiff denies that the car's driver, Dametrius Creighton, was backing up toward the SRT members. However, Creighton admitted he backed the car in their direction at the hearing in which he pleaded guilty to conspiracy to commit a Hobbs Act robbery.

         Plaintiff brings this action as the personal representative for Pollard's estate and also as an individual. Her remaining counts are under the Federal Tort Claims Act (“FTCA”) and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Defendants have each filed a motion for summary judgment.

         B. Facts Related to Sanctions Motion

         ATF Agent Jason French set up four video cameras in advance of the sting operation in order to record the events of that morning. The cameras did not record onto storage devices local to the video cameras. Instead, the cameras wirelessly transmitted the video to a server at a remote location. A copy of the videos from each camera was burned onto DVDs and then given to an ATF agent. According to the defendants, the DVDs were then put in a sealed envelope and put in an evidence room to be used in the criminal prosecutions following the sting operation.

None of the four videos show the shooting clearly. According to plaintiff,
None of the four cameras showed the actual shooting by Special Agent Hansen -two of them were obscured by other objects and two are missing the video frames at the time of the shooting. Of the two videos that are missing the video frames during the shooting, one has “frozen” or repeated digital frames although the analogue audio is not erased. The other video (a pole camera), does not have an audio file; but the video is missing between the time the car backed up (that included the shooting) and the time a ramming truck rammed into the back of the car. Over four seconds of video are missing from the pole camera.

(#56-1 at 2.) ATF Agent French explained at his deposition that he believed the “frozen” scenes in the video were caused by the wireless signal being disrupted by all the vehicles getting in between the transmitter and receiver. Plaintiff sought access to the server onto which the cameras recorded (and from which the DVDs were made).

         ATF Agent Grothaus had possession of the server itself. He states in his declaration that he believe he deleted the video files from the server in early 2013 as part of routine maintenance of the server, but it is possible the files were no longer on the server at that time. Before deleting the files, Grothaus confirmed with the respective case agents that the video files were no longer needed on the server.

         An ATF Investigator recovered 75 deleted files from the server. However, the deleted files did not include any data that would allow them to be identified by a date and time recorded. They would have to be viewed one-by-one to determine whether they were responsive, but the Investigator could not view them with her software. So she emailed one small file to a colleague in another location, who was able to view the file and determine it was not responsive (it was video of an office interior and copy machine). The investigator could not email the other files because they were too large.

         Plaintiff moved for sanctions against defendants pursuant to Federal Rule of Civil Procedure 37 and common law spoliation of evidence principles. Plaintiff sought an order stating that defendants violated Rule 37(e) and common law principles of spoliation of evidence by destroying the original videos on the server. Plaintiff seeks either a judgment against defendants or an adverse jury instruction against defendants at trial regarding the content of the deleted videos.

         This Court treated plaintiff's motion as a motion to compel and ordered defendants to inspect the 75 deleted video files and produce any files that relate to this matter to the plaintiff. (#74.) The Court stated it may entertain a renewed motion for sanctions at a later date, if appropriate. The parties have filed supplementary memoranda. Defendants were unable to locate any video files on the server that relate to this case. (#75.) Plaintiff has renewed her motion for sanctions and seeks denial of defendants' summary judgment motions (#80).

         The Court has viewed the videos in question, which were submitted by defendants in connection with the recent supplementary briefing. Three of the five video files show action from the relevant time period.

         The Pole Camera:

         One video --- taken from a camera mounted high on a pole ---includes a timestamp that shows that the video includes one frame every two to four seconds, with some longer gaps in between the frames. The speed at which the camera streamed footage depended on the internet connection that wireless transmitted images from the camera to the offsite server which recorded the footage. Unfortunately, the video skips from 11:25:59 to 11:26:18 to 11:26:22. At 11:25:59, the back door of the U-Haul is closed and the suspects appear to be talking to the undercover agent. At 11:26:18, the back door of the U-Haul is open, but none of the SRT members are completely outside the U-Haul yet. By 11:26:22, the car has crashed into the bucket truck, and the car is surrounded by SRT members.

         The Side Camera:

         Two video cameras were mounted under a tractor-trailer that was parked in front of the U-Haul. (Inexplicably, it appears that the Court was not provided with complete video from one of the two cameras, so it is not clear what video from the other camera shows.) The video footage provided to the Court shows the camera was focused at the van parked up against the building. It is difficult to see what is going on behind the van, but the suspects clearly retreat as the ATF agents approach and then the car backs up quickly, turning to the right. There is gunfire and smoke, and the bucket truck can be seen ramming into the back of the car. It is impossible to see what is going on inside the suspects' car either before or after it is hit by the bucket truck. The video has relatively low resolution, so although the suspects and SRT members' general movements are easy to make out, there is no fine detail. The video freezes briefly as the SRT members approach the suspects' car, but because of the angle of the camera and the recording's low-resolution format, it does not appear that any information of use was lost as a result of the frozen frame. Notably, the video freezes briefly at least one other time earlier in the recording.

         The Rear Camera:

          Another video camera was mounted on the ATF surveillance vehicle in an alley to the right of the warehouse parking lot. It is zoomed in on the suspects' car at the time of the incident. The suspects may clearly be seen retreating, but then the bucket truck pulls in between the camera and the suspects' car, obscuring any useful view of the incident.

         II. Spoliation Motion

         Because plaintiff seeks, inter alia, denial of defendants' summary judgment motion as a sanction for deletion of the original video files recorded on the server, the Court first addresses plaintiff's spoliation motion. (#78.) Rule ...


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