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Liggins v. Cohen

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

May 10, 2019

ANTOINETTE LIGGINS, individually and on behalf of B.C., a minor., Plaintiff,
v.
OFFICER MICHAEL COHEN, individually and in his official capacity, and the CITY OF SAINT LOUIS, Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         The case arises out of the July 11, 2015, shooting of Plaintiff Antoinette Liggins's 16-year-old son, B.C., by City of St. Louis police officer Michael Cohen. B.C. survived but suffered permanent partial paralysis, rendering him a paraplegic. Plaintiff filed suit on March 25, 2016, asserting claims under 42 U.S.C. § 1983 and Missouri law against Cohen, in his individual and official capacities, and against the City of St. Louis for money damages.[1] The only remaining claims are a § 1983 claim against Cohen, in his individual capacity, alleging excessive force in violation of the Fourth and Fourteenth Amendments; a § 1983 claim against the City alleging municipal liability; and state-law assault, battery, and loss of services claims against Cohen.[2]

         The matter is now before the Court on Defendants' motion (ECF No. 107) for summary judgment. For the reasons set forth below, the Court will deny Defendants' motion as to Plaintiff's § 1983 claim against Cohen in his individual capacity; the Court will grant Defendants' motion as to all other claims.

         BACKGROUND

         Viewing the evidence and all reasonable inferences in the light most favorable to Plaintiff, for purpose of the motion before the Court, the record establishes the following. On July 9, 2015, Anna Marie Jones purchased a .40 caliber Hi-Point pistol and ammunition, gave possession of the gun and ammunition to her boyfriend Chris McClung, and then dropped off McClung and the gun at an apartment complex located on Hodiamont Avenue in the City (the “Complex”). On the evening of July 10, 2015, B.C.'s brother, 15-year-old A.C., stole the gun from McClung.

         On the evening of July 11, 2015, at approximately 7:10 p.m., Jones placed a 911 call to the City Police Department and reported that A.C. had been observed at the Complex with her stolen .40 caliber Hi-Point pistol. In her 911 call, Jones reported that A.C. was wearing a red hoodie and blue shorts, and that he was at that time standing in the breezeway of the second apartment of the Complex.

         Shortly thereafter, City Police Officer Cohen was notified of Jones's 911 call. On that date, Cohen was serving as a field training officer and was accompanied by two “probationary” officers, Kathleen Gutjahr and Paul Chester. City Police Officers Brandon LaGrand and Matthew Shaw also assisted Cohen responding to Jones's 911 call.

         Unbeknownst to the officers, at some point on July 11, 2015, B.C. had taken the gun away from A.C. in order to return it to McClung. For the purpose of this motion, the Court accepts that B.C. had never handled a gun before.

         Cohen knew A.C. because he had met him a couple of weeks before July 11, 2015, in connection with an investigation of an unrelated carjacking. As part of the carjacking investigation, Cohen also viewed a surveillance video showing A.C. and B.C. occupying the stolen vehicle and thus believed that they had been involved in criminal activity. Cohen had decided at that time that if he saw A.C. and B.C. again, he was going to take them into custody; Cohen knew at that time that A.C. and B.C. were brothers and that both brothers were minors.

         Cohen, Shaw, and LaGrand were also familiar with the Complex and knew the Complex had a history of violent activity. Cohen was aware that it was a common occurrence for people in or around the Complex to run away from police. Specifically, Cohen was aware of a hole in the fence at the rear of the Complex, on the right side, behind a playground, by which individuals in the Complex often escaped police.

         After being notified of Jones's 911 call at 7:10 p.m. on July 11, 2015, but before responding to the call, the five officers met and devised a plan for approaching the Complex and apprehending A.C. Cohen led the planning meeting, and during this meeting, Cohen discussed the hole in the fence at the rear of the Complex. Under Cohen's plan, LeGrand and Shaw were to approach the front of the Complex. Cohen would go around the rear, accompanied by Chester and Guthjar, to prevent A.C. from fleeing through the hole in the rear fence.

         The officers approached the Complex at approximately 7:26 p.m. on July 11, 2015. Shaw and LaGrand drove in separate vehicles to the front of the Complex, and Cohen drove a third vehicle to the rear parking lot of the Complex. Chester and Guthjar accompanied Cohen-Chester in the front passenger seat and Guthjar behind Chester. The officers drove police vehicles but did not turn on their lights or sirens.

         B.C. was standing in the first floor breezeway of an apartment in the Complex when the police vehicles began arriving. The breezeway connected the Hodiamont Avenue side of the Complex to the rear parking lot and playground. When the police arrived, other people were gathered in the breezeway, and B.C. heard “a bunch of” people start yelling “Police! Police!” ECF No. 108 at 3. B.C. was wearing a white baseball shirt and knee-length blue denim shorts at that time. He was carrying the Hi-Point pistol in a blue over-the-shoulder bag.

         B.C. knew he had the gun in his bag and did not want to get in trouble, so he began to flee through the breezeway to the front of the Complex, toward Hodiamont Avenue. As soon as B.C. emerged from the breezeway's front opening, he observed police approaching the Complex. After seeing the police, B.C. quickly pivoted and ran back into the breezeway toward the rear of the Complex. As he turned to run back into the breezeway, B.C. began to reach for the gun inside his over-the-shoulder bag.

         While running through the breezeway and toward the rear of the Complex, B.C. removed the gun from his bag in order to dispose of it. B.C. was holding the gun by the barrel and pointed down in his right hand when he emerged from the breezeway at the rear of the Complex, in front of the rear parking lot and playground.

         Meanwhile, Cohen was pulling his police vehicle into the rear parking lot. The parking lot was situated between the breezeway and the rear fence, directly to the left of the playground. There was a green pick-up truck parked in the parking spot closest to the playground. Cohen pulled into the parking spot to left of the pick-up truck, such that the pick-up truck stood between Cohen's vehicle and the playground.

         In his deposition in this case, Cohen testified that, even before he got out of his police vehicle, he saw the person now identified as B.C. running through the breezeway, carrying a gun in his right hand, held down at his side.[3] Defs.' Statement of Facts, Ex. H, Cohen Dep., ECF 108-8 at 112-113, 117-119. There is no evidence that Cohen recognized that the person was B.C. at the time, and Cohen testified that he did not recognize it was B.C. As noted above, B.C. was wearing a white t-shirt and not a red hoodie like the one Jones reported A.C. to be wearing. Cohen was not aware at this time of any bystanders located close by; surveillance video (discussed further below) shows that there were a few bystanders present in the area but none nearby or directly in B.C.'s path.

         Cohen then exited his police vehicle and ran around the back of the pick-up truck toward the playground, intending to cut off B.C.'s path toward the hole in the rear fence. Id. at 126. As Cohen approached the playground, he had his gun drawn and pointed at B.C.

         At this time, B.C. was still running fast from the breezeway onto the playground while holding the gun by the barrel and pointed down in his right hand. As he was running, B.C.'s hands were down low, by his sides, but they were moving at least slightly because he was running. Defs.' Statement of Facts, Ex. C, Claxton Dep., ECF No. 108-6 at 72. B.C. was not aware that there were any police officers at the rear of the Complex. B.C. was attempting to run away from the police that he had seen in the front of the Complex and was heading toward the hole in the fence. Again, accepting Plaintiff's rendition of the facts, the path that B.C. was taking is depicted in Defendant's Exhibit P (ECF No. 108-16), which is a photograph of the rear of the Complex that was marked up by B.C. during his deposition in this case.[4] This path would have led B.C. away from Cohen.

         Meanwhile, Chester and Guthjar had exited the passenger side of Cohen's police vehicle and were running around the front of the pickup truck toward the playground. All of the officers were in uniform but did not announce themselves as police when they encountered B.C. Although Cohen and some of the witnesses testified that Cohen yelled “Drop the gun” before he fired his first shot, [5] B.C. did not hear Cohen or any other officer yell anything before firing. Nor did two other witnesses who were on the second-floor balcony of the Complex at the time.

         B.C. was still running fast with the gun in his right hand, held by the barrel and pointed down, when Cohen fired his first shot. B.C. and two witnesses to the incident testified that B.C. never turned his body toward the police before Cohen fired. Cohen fired four shots in total within a matter of seconds. After the first shot, which missed B.C., B.C. dropped the gun and turned his head to look in the direction of Cohen. The second shot grazed the right side of B.C.'s head, the third shot hit B.C.'s right forearm, and the fourth shot hit B.C.'s abdomen, while B.C. was on the ground.[6] At the time B.C. was on the ground, he did not have the gun in his hand. B.C. was already on the ground by the time Chester and Guthjar caught up to him. The gun was found near B.C.'s body, but the parties dispute how close it was to B.C.

         ARGUMENTS ...


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