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Case 7:15-cv-00030-KA

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS WICHITA FALLS DIVISION

BRENDA POWELL,

§

Plaintiff,

§

§

v.

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Civil Action No. 7:15-cv-00030-O-KA

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STEPHEN GINGER

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Defendant.

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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

This is an excessive force civil rights case under 28 U.S.C. § 1983 brought against Stephen

Ginger, a Wichita Falls police officer, by the Brenda Powell, the mother of Joshua Powell, a twenty-

two year old, who died as a result of being shot by Officer Ginger in an incident across the street

from his residence. Upon the parties’ written consent (ECF-8) this case was transferred to the

undersigned by the District Court’s Order of Referral (ECF 9) for the conduct of further proceedings

and the entry of judgment in accordance with 28 U.S.C. § 636(c). A private right of action may be

asserted against a police officer who violates federal constitutional or statutory rights while acting

under color of state law. 42 U.S.C. § 1983. By her suit Plaintiff asserts that Officer Ginger violated

her son’s Fourth Amendment rights by using deadly force against him when he shot him eight

times.

Officer Ginger’s Motion

Before the Court is Defendant’s Motion for Summary Judgment. By his motion Officer

Ginger asserts that he is entitled to summary judgment on the basis that no constitutional deprivation

occurred and on the basis of qualified immunity. Plaintiff Brenda Powell has responded and filed

certain objections to the summary judgment evidence tendered by Officer Ginger. Officer Ginger

has likewise file certain objections to summary judgment evidence tendered by the Plaintiff.

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Factual Background

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This is euphemistically called a “suicide by cop” case. Plaintiff Brenda Powell lived with

her son Joshua at her parents’ house at 2030 Gloria Lane in Wichita Falls. On May 14, 2014,

sometime after 4:30 p.m., Brenda Powell was coming home from work and saw two Mormon

missionaries in her neighborhood. These Mormon missionaries were later identified as Casey Linam

and Daniel Bushman. Powell pulled up beside them on the street and told Linam and Bushman that

her son was an alcoholic, needed help and she believed that they could give him some guidance.

Brenda Powell asked if they could come to her house around 6:30 p.m. When she got home from

work, Joshua became angry with her, became more agitated, and started yelling and cursing at her.

Joshua had been drinking and Brenda told her mother to call the police. At approximately 6:30 p.m.,

the Mormon missionaries, Linam and Bushman, arrived the house. Linam and Bushman observed

Joshua Powell outside the house. Linam, Bushman and Joshua Powell were standing on the sidewalk

by the Nissan truck while Brenda Powell stood up behind them in the driveway. According to

Linam, when they started speaking to Joshua, he was yelling and cursing at Brenda Powell. Linam

and Bushman tried to calm Joshua down by talking to him. According to Bushman, Joshua Powell

acted agitated, fidgety and emotional. At some point, Joshua became aware that the police had been

called. He made statements to Linam and Bushman that he knew the police had been called and he

was “ready for cops to come” and “he would fight them” Joshua also made comment that “today

was a good day to die.” Brenda Powell stayed in the driveway while Linam and Bushman talked

to Joshua and says that she did not hear their conversation. During the entire time Linam and

Bushman talked to Joshua, he was wearing black bladed knuckles with spikes on each hand and was

banging his fists together with the knuckles. Earlier, it was learned that Brenda had taken pictures

that showed that Joshua Powell had what appeared to be one of the black bladed knuckle weapons

on his right hand.

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That evening Officer Stephen Ginger who was working patrol was notified by police

dispatch of a family disturbance call at 2030 Gloria Lane in Wichita Falls. Officer Ginger was told

by dispatch that the caller’s grandson, Joshua Powell, was drinking and getting out of hand. He was

given a description of Joshua. He set out to respond to the call. He accidentally drove past the

house but turned around and went back to the street and pulled in across the street from the house.

Joshua Powell had seen the officer drive past and according to Bushman became more

agitated. As Ginger pulled up to park, he noticed Joshua stick his head out from around a SUV

parked in the driveway and look at him. This individual immediately started walking toward his

patrol car. He was not running, but he was coming directly towards Officer Ginger in a manner

Ginger describes as “with a purpose.”

According to Officer Ginger he saw that while Powell coming directly toward him Powell’s

hands were raised about waist–level. Officer Ginger says he scanned Powell from top to bottom and

when he got to his waist, he saw Powell had his fists clenched and something that looked like a

bladed object in his right hand. Ginger says he also observed that Powell had a similar bladed object

in his left hand. Officer Ginger says he thought the bladed object in Powell’s right hand was a knife.

As Officer Ginger was getting out of his car, he unholstered his gun. At this time, Powell was about

twelve (12) feet from Officer Ginger and closing in quickly. As soon as Officer Ginger got out of

the patrol car and cleared the door, which was left open because he did not have time to close, he

started backing up toward the rear of his patrol car to create some space between himself and

Powell. Bushman observed that Officer Ginger took three or four (3 or 4) steps backward. Officer

Ginger pointed his gun at Powell and says he told him in a loud voice to “get back” and Powell

responded “kill me” and continued advancing toward Officer Ginger.

Bushman heard Officer

Ginger say something to the effect of “drop it” and “stop.” Brenda Powell and another eyewitness

says she did not hear Ginger or Joshua say anything. But Brenda says she yelled to Ginger that

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Joshua did not have a weapon. Officer Ginger fired nine shots in rapid succession until Powell

stopped advancing and fell to the ground and died.

Qualified Immunity Analysis

The doctrine of qualified immunity protects government officials sued pursuant to 42 U.S.C.

§ 1983 “from liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It

is important to resolve qualified immunity questions at the earliest possible stage in the litigation.

Id. An analysis of the qualified immunity defense requires a two-step approach. First, the threshold

question is “whether the facts alleged, taken in the light most favorable to the party asserting the

injury, show that the officer's conduct violated a constitutional right.” 1 If the allegations could make

out a constitutional violation, the second question is whether it would have been “clear to a

reasonable officer that his conduct was unlawful in the situation confronted.” 2 Thus, an official is

entitled to the defense of qualified immunity “insofar as [his] conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would be aware.” 3

The qualified immunity issue is separate from the merits and can be considered separately

so that even if there is a fact issue as to whether the amount of force was excessive in the merits

context, it is instead to be measured in the qualified immunity context. Further, the Court also

determined that the qualified immunity issue must be decided early to avoid trial since qualified

immunity is immunity from suit as well as immunity from liability.

1 Keenan v. Tejeda, 290 F.3d 252, 261 (5th Cir. 2002) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).

2 Id.

3 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

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Summary Judgment Standard

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Under Rule 56 (c) of the Federal Rules of Civil Procedure, summary judgment is appropriate

when the pleadings and record evidence show that no genuine issue of material fact exists and that,

as a matter of law, the movant is entitled to judgment. “The substantive law will identify which facts

are material.”

Only genuine disputes about those facts will preclude the granting of summary

judgment. The burden is on the party moving for summary judgment to prove that no genuine issue

of material fact exists. If the moving party meets this initial burden, the burden then shifts to the

nonmovant, who must produce evidence establishing a genuine issue of material fact for trial. The

record before the court must be considered in the light most favorable to the non-moving party. 4

However, bare allegations in briefs and pleadings are not sufficient to withstand summary judgment.

The burden of proof for overcoming a qualified immunity defense at the summary judgment stage

in this case rests upon Plaintiff Brenda Powell. Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir.

1992); Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 490 (5th Cir. 2001).

Accordingly, Plaintiff Brenda Powell bears the burden of establishing that the facts show

Officer Ginger violated one of Joshua Powell’s constitutional rights and the right was “clearly

established” at the time of Officer Ginger’s alleged misconduct. Ontiveros v. City of Rosenberg,

Tex., 564 F.3d 379, 382 (5th Cir. 2009); accord Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150

L. Ed. 2d 272 (2001); Pearson, 555 U.S. at 236. “To negate a defense of qualified immunity and

avoid summary judgment, the plaintiff need not present ‘absolute proof,’ but must offer more than

‘mere allegations.’” Ontiveros, 564 F.3d at 382 (quoting Reese v. Anderson, 926 F.2d 494, 499 (5th

Cir. 1991)).

Excessive Force Analysis Standards

All claims that law enforcement officers have used excessive force -- deadly or not -- in the

4 Anderson, 477 U.S. at 248; Doe v. Taylor I.S.D., 975 F.2d 137, 139 n.2 (5 th Cir. 1992); Harrison v. Byrd, 765 F.2d 501, 504 (5th Cir. 1985).

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course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under

the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395,

104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989) (emphasis in original). In Saucier v. Katz, 533 U.S. 194,

the Supreme Court established the proposition that the issue of excessiveness in a police excessive

force case involving an arrest is a two pronged issue. Saucier was later qualified by the Court in

Pearson v. Callahan, 555 U.S. 223, 234-36 (2009) to allow the trial court to consider either of the

two prongs first. To establish the use of excessive force in violation of the Constitution, a plaintiff

must prove: “(1) injury, (2) which resulted directly and only from a use of force that was clearly

excessive, and (3) the excessiveness of which was clearly unreasonable.” Collier v. Montgomery,

569 F.3d 214, 218 (5th Cir. 2009). The use of deadly force is constitutional when the suspect poses

a threat of serious physical harm to the officer or others. See Tennessee v. Garner, 471 U.S. 1, 11

(1985). In analyzing the reasonableness of the specific use of force, courts must consider the totality

of the circumstances surrounding the officer’s decision. See Ramirez v. Knoulton, 542 F.3d 124, 128

(5th Cir. 2008). “The excessive force inquiry is confined to whether the [officer

] was in danger

at the moment of the threat that resulted in the [officer’s use of deadly force].” Rockwell v. Brown,

664 F.3d 985, 991 (5th Cir. 2011) (citation omitted) (emphasis in original). Joshua Powell’s death

as a result of the shots from Officer Ginger’s firearm satisfies the “injury” condition.

Courts must evaluate the officer’s action “from the perspective of a reasonable officer on

the scene, rather than with the 20/20 vision of hindsight.” Poole v. City of Shreveport, 691 F.3d 624,

628 (citing Graham, 490 U.S. at 396). “The calculus must embody allowance for the fact that police

officers are often forced to make split-second judgments in circumstances that are tense, uncertain,

and rapidly evolving about the amount of force that is necessary in a particular situation.” Graham,

490 U.S. at 396-97.

It is clear that the “use of deadly force, absent a sufficiently substantial and immediate

threat, violate[s] the Fourth Amendment.” “[W]here the suspect poses no immediate threat to the

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officer

, the harm resulting from failure to apprehend the suspect does not justify the use of deadly

force to do so.”) Reyes v. Bridgwater, 362 F. App'x 403, 409 (5th Cir. 2010) (“The cases on deadly

force are clear: an officer cannot use deadly force without an immediate serious threat to himself or

others.”). Cole v. Hunter, 68 F. Supp. 3d 628, 643, 2014 U.S. Dist. LEXIS 176515, p. 31 (ND. Tex.

2014, J O’Connor). Thus there is both a subjective element 5 to the determination as well as an

objective element. 6

As the Fifth Circuit ably stated in Rockwell v. Brown, 664 F. 3d 985 (2011), “An officer's

use of deadly force is not excessive, and thus no constitutional violation occurs, when the officer

reasonably believes that the suspect poses a threat of serious harm to the officer or to others.”

Manis, 585 F.3d at 843 (citing Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379, 382 (5th Cir.

2009)). “The excessive force inquiry is confined to whether the [officer or another person] was in

danger at the moment of the threat that resulted in the [officer’s use of deadly force].” Bazan v.

Hidalgo Cnty., 246 F.3d 481, 493 (5th Cir. 2001) (citing Fraire v. City of Arlington, 957 F.2d 1268,

1276 (5th Cir. 1992) (“[R]egardless of what had transpired up until the shooting itself, [the

suspect’s] movements gave the officer reason to believe, at that moment, that there was a threat of

physical harm.”)).

The threat must be “immediate;” the court must consider the totality of the circumstances,

including relevant information known to the officer. The court’s focus is not upon actual risk, but

upon the question of whether the officer could have “reasonably believe[d] that the suspect pose[d]

a threat of serious harm to the officer or to others.” Harris v. Serpas, 745 F.3d 767, 773 (5th Cir.

2014) (quoting Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011). See also Sanchez v. Fraley,

376 F. App'x 449, 453 & n.1 (5th Cir. 2010) (unpublished) (“[I]t was clearly established well before

[2007] that ‘deadly force’ violates the Fourth Amendment unless ‘the officer has probable cause to

5 That is “what did Officer Ginger believe?”

6 That is “what gave Officer Ginger that reason to believe?”

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believe that the suspect poses a threat of serious physical harm’

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[which] must be ‘immediate.’”

(citations omitted) (quoting Bazan ex rel. Bazan v. Hidalgo Cty., 246 F.3d 481, 488 (5th Cir. 2001),

and Tennessee v. Garner, 471 U.S. 1, 11 (1985); Reyes v. Bridgwater, 362 F. App'x 403, 407-09

(5th Cir. 2010); Reese v. Anderson, 926 F.2d 494, 500 (5th Cir. 1991).

The court’s inquiry into the officer’s use of deadly force is limited only to the moment that

he fired his weapon. See Bazan v. Hidalgo County, supra (“The excessive force inquiry is confined

to whether the Trooper was in danger at the moment of the threat that resulted in the [Defendants’]

shooting.”); Faire v. Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992) (“[R]egardless of what had

transpired up until the shooting itself, [the suspect’s] movements gave the officer reason to believe,

at that moment, that there was a threat of physical harm.”).

Accordingly, it is the factual circumstances existing in the moments immediately preceding

Officer Ginger’s first discharge of his weapon that are the material facts that must be determined in

ruling upon the motion for summary judgment. These facts include the elements of speed of Joshua’s

approach toward Ginger, his proximity to Ginger at the moment of discharge, Joshua’s apparent

demeanor, his body configuration (tilt, lean, arm and hand position), and the appearance of any

object in his hands. These are elements that appear critical to the assessment of the reasonableness

of Ginger’s perception of the danger to him from Joshua’s conduct.

There is no video 7 of the

incident to connect together the stream of moments of action, the locations of the persons, their

bodies and their movements. There is no audio recording of words spoken or sounds made at the

scene.

Before addressing the summary judgment merit issues, the court must address the parties’

challenges to that evidence raised by their recently filed objections. 8

7 The patrol car video was not turned on until after the shooting.

8 Plaintiff’s Objection, ECF-27 and Defendant’s Objection, ECF-29.

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Plaintiff’s Objections

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Included in the exhibits tendered by the Officer Ginger in support of his motion for summary

judgment are a report of an investigating officer, an autopsy report and two reports of two expert

witnesses engaged by Defendant. 9 Plaintiff objects to the court’s consideration of the investigator’s

supplemental report and those expert reports incident to its determination of Defendant’s motion for

summary judgment on the grounds that the reports are clearly hearsay and unsworn. As to the

autopsy and expert reports, Plaintiff additionally urges that they do not meet the hearsay exception

under Evidence Rule 902(11). As such they fail to meet the requisites of Fed. R. Evid. Rules 803(6)

and 902(11), Plaintiff posits that unsworn expert witness reports are inadmissible as summary

judgment evidence citing Queen Trucking, Inc. V. GMC, 2007 U.S. Dist. LEXIS 95082 (N.D. Tex.

2007); Provident Life and Accident Ins. Co. V. Goel, 274 F. 3d 984 (5 th Cir. 2001). Further, Plaintiff

objects to the court’s consideration of the District Attorney’s letter 10 relating the circumstance of the

grand jury’s no bill because of its irrelevance.

In reply, Defendant Ginger has sought leave of the court to supply affidavits to support the

admissibility of the autopsy and respective expert reports and court’s commensurate consideration

of them.(ECF-30). As this request was unopposed, leave was granted. Accordingly, these three

reports shall be considered as a portion of the summary judgment evidence to be considered.

I find that the grand jury’s no bill of any criminal complaint against Officer Ginger is

irrelevant to this determination and shall not be considered as part of the summary judgment

evidence.

Defendant’s Objection

Defendant Ginger has objected to the affidavit of Brenda Powell (now Gamboa) on the

ground that it constitutes a sham affidavit created solely to attempt to create material fact issues in

9 ECF 20, pp. 16-39; Report of Officer John Laughlin; ECF-26 Reports of Fries, Rodriguez and Lawrence.

10 ECF 20, p. 84.

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opposition to the Defendant’s Motion for Summary Judgment asserting that the affidavit testimony

in direct conflict with her previous sworn deposition testimony. In support of that proposition, the

affidavit testimony is compared to the deposition testimony. The conflicts relate to the gait of

Joshua’s approach toward Officer Ginger, the distance between Joshua and Officer Ginger when the

first shot was fired and when he fell, whether he stopped his advance, whether he raised his hands,

whether he appeared shocked, whether he was armed, where his hands were as he advanced, and

whether Ginger gave any warning or instruction to Joshua. Without summarizing here the conflicts

between Brenda’s deposition and affidavit testimony that is fully set out in the Defendant’s

objection, I find that the conflicts are direct and irreconcilable. Due to that irreconcilable conflict,

I conclude that in accordance with Federal Rule 56 (h) paragraphs 10, 11 and 12 of Brenda’s

affidavit (ECF-26-1) are a sham and should be, and they are hereby STRICKEN and shall not be

considered in ruling upon Defendant’s Motion for Summary Judgment.

The Issue Defined

What Officer Ginger did perceive and believe and what he objectively should have perceived

and believed in those micro-moments as he exited his vehicle until he discharged his gun is the

issue.

His right to qualified immunity and thereby his right to avoid a trial depends upon the

determination of this issue. Does the summary judgment evidence raise a material question of the

reasonableness of Officer Ginger’s perception and belief that he was in danger of “serious bodily

injury or death” from the conduct and appearance of Joshua at the moment that he fired his first

shot? That conduct and appearance included the elements of the speed and gait of Joshua’s

approach, his apparent aspect and demeanor, his proximity to Officer Ginger, the position of his

hands, what could be seen in his hands, the configuration of his body, and what may have been said

by either before the shot was fired. Each of these elements seem critical to this determination.

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Summary Judgment Evidence Analysis

Annexed to Officer Ginger’s Motion for Summary Judgment are his affidavit and the

affidavits of two Morman missionaries (named Linam and Bushman) both of whom were

eyewitnesses to the event. Annexed to the Plaintiff’s Response to Ginger’s Motion for Summary

Judgment are affidavit of Brenda Powell 11 and the deposition testimony of Jamie Claire Trumpf, a

neighbor, each of whom were also eyewitnesses to the incident. The testimonies of all of the

eyewitnesses present consistent perceptions of the scene and the events preceding Officer Ginger’s

arrival on the scene. With regard to the facts that occurred from the moment of Ginger’s arrival and

parking of his patrol car, the observations of Ginger and the two Morman witnesses are in substantial

agreement. They agree as to the speed and gait of Joshua’s approach toward Officer Ginger, 12 as

to the distance between them at the moment of the gun’s first discharge, 13 as to the position of

11 Brenda Powell’s affidavit has been stricken under Rule 56(h) as a sham as being in irreconcilable conflict with her deposition testimony.

12 Officer Ginger interview in Laughlin Report (ECF-20, p.29)(“he was ‘walking

with a purpose’ directly at him.”). Ginger affidavit (ECF-20. p.7)(“He was not

running, but he was coming directly towards me with a purpose

quickly.”); Linam Affidavit (ECF-20, p.9)(“

officer at a fast pace.”); Bushman affidavit (ECF-20, p.12) (“

towards it at a fast pace.”); Trumpf deposition (ECF-26-2, p. 68) (“

fast walk. He was not running

closing in

proceeded

directly towards the

walked straight he was in a

”);

13 Officer Ginger affidavit (“When I got out of my car, I pulled my gun out of my holster. At this time, Powell was about 12 feet from me and closing in quickly.”);

Ginger deposition (ECF 26-2, p. 37 (“A.

he wasn’t running, he wasn’t charging at me, but he was walking with a purpose. It wasn’t like he wasn’t strolling over to me. It was definitely with a purpose.”); Linam Affidavit (“The officer had his weapon pointed out towards Joshua as he was backing up, but as Joshua continued walking towards the officer raised his weapon. Once Joshua got very close to the officer, he fired.”); Bushman affidavit (“The police officer got out of his car and took three to four steps backwards while telling Joshua to ‘drop it’ or ‘stop.’ Joshua never stopped moving towards the police officer. The police officer fired and struck Joshua. Joshua fell right by

My best way to explain it is it wasn't --

driver side door of the police car.”).

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Joshua’s hands, 14 as to the configuration of his body, 15 as to what could be seen in Joshua’s hands, 16

and as to what was said either by Officer Ginger or by Joshua 17 in the micro-seconds of the

encounter.

The deposition testimony of Jamie Trumpf does reconcile with the other eyewitnesses as to

the speed or gait of Joshua’s approach toward Officer Ginger, 18 as to the location of Joshua’s

hands, 19 but it does not present any detail as to the distance between Joshua and Officer Ginger at

the time of the discharge, 20 or of what was said by either of them. 21 I find that the minor

14 Officer Ginger affidavit (“As Powell was coming toward me, his hands were

raised about waist- level.); Ginger deposition (A

somewhere right here, around the waist area, around the side of the waist area.);

(Trumpf deposition (“Joshua’s “hands were at his side as he walked toward Officer Ginger.”); Linam Affidavit (“Joshua was raising his hands with the black bladed knuckles as he walked towards the officer.”)

I

want to say that they were

15 Autopsy report (ECF-21, p. 21, 22) (“The projectiles struck him traveling from front to back and downward relative to his body in an upright position” and one bullet entry “suggests that the ulnar aspect of the forearm was directed towards the direction of fire.”).

16 Ginger affidavit (“The bladed object looked like a knife to me.” “Powell was

holding in his clenched fists some sort of bladed objects.”); Linam affidavit

(“raising his hands with the black bladed knuckles

entire time he talked with us he had on black knuckles with spikes.”).

”);

Bushman affidavit (“The

17 Ginger affidavit (“

told

him in a loud voice to ‘get back’ and Powell responded

‘kill me

’”);

Bushman affidavit (“

police

officer

telling

Joshua to ‘drop it’ or

‘stop.’”)

18 Trumpf deposition ECF 26-2, p. 68 (“He pulls, he pulls up. And as he is sitting in his car, fixing to get out, I see Josh start heading his way. To me, it appeared he

was ln a fast walk. He was not running

”).

19

Id., p. 71

ever raise his hands? Or where were his hands as he was crossing the street,

approaching the vehicle? A.

As

Josh was approaching the vehicle of Officer Ginger, did Josh

His arms, as to my recollection, were to his side.”).

20 Id

21 Id., p. 70 (“Before you heard the pop, meaning the first gunshot from Officer Ginger, did you hear any words exchanged between either Officer Ginger and

Joshua or stated by either Joshua or Officer Ginger? A.

To my recollection, I don't remember hearing anything.”); p. 71 (“A. heard. I did not hear any conversation between the two of them.”).

I did not hear anything.

Not that I

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discrepancies between the testimony of Jamie Trumpf and the other eyewitnesses are non-

consequential differences in perception and are insufficient to raise a substantial or material fact

issue concerning the reasonableness of Officer Ginger’s perception and belief that Joshua Powell’s

movements posed an immediate threat of serious physical harm to Officer Ginger.

Based upon my review of the exhibits submitted in support of and in opposition to Officer

Ginger’s motion for summary judgment, I find that Plaintiff Brenda Powell has failed to sustain her

burden of proof that there are substantial material facts in dispute both as to Officer Ginger’s

entitlement to qualified immunity and as to whether his use of force was excessive under the

circumstances or was objectively unreasonable. While this was a tragic occurrence, I conclude that

there is no genuine issue of material fact, that Officer Ginger is entitled to qualified immunity and

that his motion for summary judgement should be GRANTED.

It is so ORDERED that Defendant Ginger’s Motion for Summary Judgment is hereby

GRANTED, this 4 th day of February, 2016.

Jud gment is hereby GRANTED, this 4 t h day of February, 2016. Robert K. Roach

Robert K. Roach

UNITED STATES MAGISTRATE JUDGE

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