The opinion of the court was delivered by: Marianne O. Battani United States District Judge
OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
Before the Court is Defendants Comstock, Shanlian and Stone's Motion for Summary Judgment (Doc. No. 35), and Defendant Michigan State Police Trooper Dirkse's Motion for Summary Judgment Based on Qualified Immunity (Doc. No. 26). The Court heard oral argument on November 12, 2009, and at the conclusion of the hearing, granted Plaintiff's request for a continuance under Fed. R. Civ. P. 56(e), to depose the law enforcement officers who were present at the scene when Kevin Simmonds was shot. Plaintiff deposed Defendant officers and submitted a supplemental brief in opposition to the summary judgment motions. The parties appeared on January 19, 2010, for additional argument. For the reasons that follow, the Court GRANTS Defendants' motions.
Plaintiff, Daniel Simmonds, Personal Representative for the Estate of Kevin Simmonds, sued Defendants, County of Genesee, Josh Dirkse, James Comstock, Kevin Shanlian, and Douglas Stone, alleging that law enforcement officers violated his son Kevin's constitutional rights on November 23, 2007, when Kevin Simmonds was shot and killed. See First Amended Complaint. The facts giving rise to the claim follow.
Around 5:00 p.m. on November 23, 2007, Lieutenant Shanlian, who was employed by the Genesee County Sheriff, overheard a radio traffic from 9-1-1 Central Dispatch about a hit-and-run accident. Because he was in the vicinity of the incident, Lt. Shanlian, who was off-duty, looked for the suspect vehicle, a gray, S-10 pick-up truck driven by a white male. Shortly thereafter, Lt. Shanlian heard another call concerning a domestic fight with possible gun involvement at 467 Simmonds Drive, the home of decedent Kevin Simmonds and his parents. (Genesee Defs.' Ex. A.)
Daniel Simmonds, Kevin's father, called 9-1-1 because his son had threatened to kill the parents of his former girlfriend. Daniel Simmonds informed the 9-1-1- operator that his son might be armed. A second 9-1-1- call was made by the mother of Kevin's former girlfriend, Beverly Carey, regarding Kevin's threats. (Genesee Defs.' Ex. G).
Michigan State Police Troopers Doug Kaiser and Defendant Trooper Dirkse were dispatched. They requested backup due to their distance from the location. Richfield Township Officer Bernard responded, as did personnel from the Genesee County Sheriff's Department--Defendant Lt. Shanlian, Defendant Deputy Comstock, and Sgt. Tucker.
Lt. Shanlian, Officer Bernard and Trooper Kaiser, and Deputy Comstock arrived at the Carey's residence and confirmed that Kevin Simmonds was not at the address. Trooper Kaiser remained at the Careys' house to take a complaint. (Genesee Defs.' Exs. A, B). The other officers went to Simmonds Drive where they met Sgt. Tucker, Deputy Stone, and Trooper Dirkse. The officers talked with Daniel Simmonds and decided to block off Simmonds Drive to prevent the suspect's escape. They planned to get shields and helmets and attempt negotiations with the suspect. (Genesee Defs.' Exs. A, C). Before the plan could be implemented, Kevin Simmonds drove up a two-track drive located on the property and met Trooper Dirkse and Sgt. Tucker. According to Deputy Stone, he arrived at the Simmonds' residence and assisted Trooper Dirkse in blocking the exit from a two track located on the property. Trooper Dirkse activated his overhead lights, as did Deputy Stone, and ordered Kevin Simmonds to show his hands and exit the vehicle. Instead, Kevin Simmonds shifted into reverse and backed down the two-track through the woods.
Trooper Dirkse and Sgt. Tucker followed the pick-up in their vehicles. Deputy Comstock and Officer Bernard jumped into Deputy Stone's vehicle, and pursued the pick-up. Lt. Shanlian remained at the house in case Kevin Simmonds returned on foot.
After the pick-up got stuck in the snow, the officers exited the vehicles and again repeatedly commanded Kevin Simmonds to show his hands. Deputy Stone approached the driver's side window from the rear. (Genesee Defs.' Exs. A, D). When he had positioned himself near the rear of the driver's door and partially opened the door, he yelled "Taser, Taser," and deployed his department issued taser model X26 at the driver. Id. According to Deputy Stone, he believed he had been successful because Kevin rolled toward the passenger seat. Id. When Kevin Simmonds leaned toward the center console and the passenger side of the vehicle, he placed his back to the officers who were positioned outside the driver's side door of the pick-up. Kevin Simmonds suddenly yelled he had a gun and turned abruptly toward the officers with his hands extended in a firing posture. Deputy Comstock and Trooper Dirkse fired their service weapons. (Genesee Defs.' Ex. A). Sgt. Tucker was unable to fire because Deputy Stone was in his line of fire. (Genesee Defs.' Ex. E). Deputy Stone stated he was certain Kevin was going to shoot him in the face and he turned his face and body toward the rear of the truck, hoping he would be shot in the back of his vest rather than his face. (Genesee Defs.' Ex. A). Officer Bernard sought cover.
After the shooting, Deputies Comstock and Stone began life saving efforts; however Kevin Simmonds did not survive.
The Federal Rule of Civil Procedure authorize this Court to grant summary judgment "if the pleadings, the discovery and disclosure of materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). There is no genuine issue of material fact if there is no factual dispute that would affect the legal outcome of the issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether summary judgment is appropriate, this Court "must construe the evidence and draw all reasonable inferences in favor of the nonmoving party." Hawkins v. Anheuser-Busch Inc., 517 F.3d 321, 332 (6th Cir. 2008). However, a party opposing summary judgment "may not rely merely on allegations or denials in its own pleading; rather, its response must--by affidavits or as otherwise provided in this rule--set out specific facts showing a genuine issue for trial." FED. R. CIV. P. 56(e)(2). In assessing Plaintiff's excessive-force claim, the Court must construe all of the facts in the record "in the light most favorable" to Plaintiff. Champion v. Outlook Nashville, Inc., 380 F.3d 893, ...