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Buren v. Crawford County

United States District Court, E.D. Michigan, Northern Division

August 14, 2017

MICHELLE VAN BUREN, Personal Representative for the ESTATE OF WILLIAM REDDIE, deceased and WILLIAM REDDIE, Plaintiff,
v.
CRAWFORD COUNTY, CITY OF GRAYLING, JOHN KLEPADLO, and ALAN SOMERO, in their individual and official capacities, Defendants.

          ORDER DENYING SECOND MOTION TO FILE THIRD AMENDED COMPLAINT AND HOLDING MOTION FOR RELIEF IN ABEYANCE

          THOMAS L. LUDINGTON United States District Judge.

         Michelle Van Buren brought this suit on behalf of William Reddie, who was fatally shot by a Crawford County Sheriff's Department Deputy, John Klepadlo, on February 3, 2012. ECF No. 1. On August 3, 2016, this Court issued an order which concluded that, based on the evidence then presented, summary judgment should be granted for the Defendants. ECF No. 84. However, because Plaintiff was contending that the Defendants had spoliated audio evidence of the shooting, summary judgment was not entered. During the fall of 2016, the Court held three days of evidentiary hearings on the spoliation issue. On January 17, 2017, the Court issued an order concluding that the City of Grayling and Officer Somero spoliated evidence and sanctioning them, reasoning that the “simplest explanation for the missing recordings, taking all evidence into account, is deliberate spoliation.” ECF No. 118 at 25.

         The Court also found that there was no evidence that the Crawford County Sheriff's Department had possession of a recording of the shooting and declined to sanction Crawford County or Deputy Klepadlo. Id. at 29-32. Although Klepadlo had not spoliated evidence and was not being sanctioned, the questions raised by the destroyed audio recordings (in combination with the sanctions imposed against Somero) demonstrated a material issue of fact regarding whether Klepadlo shot Mr. Reddie with excessive force and, further, whether Somero should have prevented that use of force. The City of Grayling and Crawford County were dismissed because Plaintiff did not allege a policy and practice of permitting the use of excessive force, meaning that there was no basis for liability under Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978).

         Defendants have filed an interlocutory appeal of the order sanctioning Defendants. ECF No. 119. Simultaneously with the appeal, Defendants filed a motion to stay the case during the pendency of the appeal. ECF No. 121. On February 16, 2017, Plaintiff filed a motion seeking leave to file a third amended complaint which adds new parties and claims related to the evidence spoliation. ECF No. 127. On April 13, 2017, the Court denied Plaintiff's first motion to file a third amended complaint and denied Defendants' motion to stay. ECF No. 133. As regards the motion to file a third amended complaint, the Court concluded that Plaintiff's proposed civil conspiracy claim was noncognizable and so amendment would be futile. That is because civil conspiracy claims are derivative and thus depend on an underlying claim. Plaintiff identified no evidence that the Defendants had conspired, before the shooting, to use excessive force against Mr. Reddie. And, under Michigan and federal law, there is no an independent claim or cause of action for evidence spoliation. Thus, Plaintiff's attempt to premise a civil conspiracy claim on either of those two theories was futile.

         Now, Plaintiff has filed two more motions. On June 15, 2017, Plaintiff filed a motion for relief from the Court's January 17, 2017, opinion and order imposing sanctions on Defendants. ECF No. 139. Plaintiff explains that Defendants recently disclosed that they have discovered the S.D. card which would have contained the audio recordings in question. Because Defendants have repeatedly indicated that they did not have the card, Plaintiff now argues that this new disclosure justifies additional sanctions. On June 21, 2017, Plaintiff filed a second motion for leave to file a third amended complaint. ECF No. 140. Plaintiff seeks to add a First Amendment claim for denial of access to courts. For the following reasons, the motion for leave to amend will be denied, and the motion for relief will be held in abeyance.

         I.

         The allegations surrounding Mr. Reddie's death and the evidence spoliation were provided in the Court's January 17, 2017, Opinion and Order. ECF No. 118. Because the evidence of spoliation bears considerable relevance to the current motions, a portion of that summary will be reproduced here:

Because Mr. Reddie is deceased, all allegations regarding what transpired in his apartment come solely from the testimony of the officers and care workers who were present at the time. On February 3, 2012, Defendants Somero and Klepadlo responded to reports of a potential domestic violence incident at Mr. Reddie's home. The officers found no evidence of domestic violence, but, after questioning Mr. Reddie and searching his apartment, the officers discovered that Mr. Reddie had been using marijuana in his home. Somero told Mr. Reddie that he would be reported for using marijuana in front in his minor child, despite Mr. Reddie's indication that his son was sleeping in another room at the time he smoked the marijuana. Naturally enough, Mr. Reddie was upset during his conversation with the officers. Klepadlo Dep. at 45, ECF No. 68, Ex. A. Based on that report, Child Protective Services visited Mr. Reddie, who admitted to smoking marijuana but refused to consent to removal of his son. Child Protective Services sought and obtained a court order to remove Mr. Reddie's son. Somero, Klepadlo, and two Child Protective Services care workers went to Mr. Reddie's apartment to effectuate the removal.
Upon seeing the officers, Mr. Reddie immediately picked up his son and retreated into the apartment. He repeatedly told the officers he would not allow them to take his son. The officers and care workers followed Mr. Reddie into his apartment, where the situation quickly escalated. The officers testified that Mr. Reddie was five to ten feet away from them, separated by a coffee table. They further testified that Mr. Reddie was playing loud music and they believed he was preparing himself to fight.
Defendant Klepadlo testified that he drew his Taser and pointed it at Mr. Reddie. Around the same time, the care workers removed Mr. Reddie's son from the apartment. Soon after Klepadlo drew his Taser, one of the care workers shouted that Mr. Reddie had a knife. In response, Klepadlo holstered his Taser and drew his handgun. The officers testified that they told Mr. Reddie to drop the knife, but he did not do so. Mr. Reddie then came out from behind the coffee table. The officers testify that they told Mr. Reddie they would shoot if he did not comply with their orders.
According to the officers, Mr. Reddie raised his hands to shoulder height and moved towards the officers (described as a “lunge”). Klepadlo fired at Mr. Reddie, who died instantly.

Jan. 17, 2017, Op. & Order at 2-3, ECF No. 118.

         Testimony at the evidentiary hearing established that Defendants City of Grayling and Officer Somero did not preserve any potential audio recording of the incident:

Somero testified that, on the day of the Reddie shooting, he activated his recording device prior to both visits with Mr. Reddie. Evid. Hearing Tr. I at 12, 34. Somero also testified that he believed the in-car video was working but not the audio. Id. at 15. After Mr. Reddie was fatally shot, Somero remained at the apartment. Id. at 36. Once additional officers arrived, Somero was assigned to guard the apartment door. Id. During the approximately forty-five minutes Somero was securing the scene, he did not return to his vehicle. Id. Eventually, Grayling Police Chief Baum told Somero to report to the Grayling Police Department and await questioning by the Michigan State Police (MSP). Id. Somero drove his vehicle, by himself, back to the department. Id. at 37. He testified that he followed normal procedures for handling the S.D. card: he removed the card from the system, gathered his other equipment, and set everything down on his office desk. Id. . . . Somero testified that he does not remember whether he handed the card to the Chief or simply referred to the presence of the card. Id. Regardless, Somero testified that he physically furnished the card to Chief Baum. Id. at 65. See also Somero Dep. at 157-59, ECF No. 85, Ex. B. According to Somero, he has not seen the S.D. card since that evening. Evid. Hearing Tr. I at 65. He further testified that he never talked to any other person about the S.D. card. Id. at 44-45.
Chief Baum's account of events is different. He testified that he does not have “memory of exactly how” the post-incident events occurred. Id. at 84. However, he did assert that “I did not make a copy of it because I did not have the knowledge to do that.” Id. Chief Baum further stated that he did not know what happened to the S.D. card and that he did not have a memory of ever seeing it. Id. When asked if he ever handled it, Chief Baum said, “Not that I remember.” Id.
When asked if he had ever represented that the S.D. card had been given directly to the MSP, Chief Baum denied any knowledge of making that representation. Id. at 84-85. At the evidentiary hearing, Chief Baum was asked whether the S.D. card should have been handled with a proper chain of custody. Id. at 89. He admitted that it should have been and that leaving the S.D. card lying on a desk would violate chain of custody principles. Id. He also admitted that, to the best of his recollection, the S.D. card was in Grayling Police Department custody when taken out of Somero's vehicle. Id. at 90.

Jan. 17, 2017, Op. & Order at 7-8.

         The Michigan State Police (MSP) investigated the shooting but did not seize the S.D. card containing the original audio files or pursue the possibility that the files had been intentionally destroyed:

Detective Rick Sekely was the investigating MSP detective. Id. at 125. He testified that he received a compact disc which purportedly contained the recordings from Somero's car on March 1, 2012, twenty-seven days after the Reddie shooting occurred. Id. at 126. Detective Sekely was never given the S.D. card and never discussed the S.D. card during his investigation. Id. at 126-27. Detective Sekely requested a copy of the recordings from Chief Baum on the night of the shooting. Id. at 127. He testified that, when questioned about the recordings, both Chief Baum and Somero stated that there would be no audio, but that “we'll see if there's video.” Id. at 128. Detective Sekely also testified that Chief Baum told him that the manufacturer helped the department download the S.D. card to the compact disc. Evid. Hearing Tr. II at 38. ProVision has no records of doing so and Defendants have not provided any other substantiation for this theory.
According to Detective Sekely, he asked for a copy of the recordings from Somero's vehicle during his initial investigation of the shooting. Evid. Hearing Tr. I at 127. Detective Sekely did not receive the recordings, in the form of a compact disc, until March 1, 2012. According to Detective Sekely, Chief Baum contacted him when the disc was available. Id. at 138. Detective Sekely traveled to the Grayling Police Department and picked up the compact disc along with some paper reports. Id. Detective Sekely is unsure if Chief Baum came out to greet him. Id. Several days later, Detective Sekely tried for the first time to play the files on the disc. Id. He was unable to get the files to play, despite trying several different computer programs. Id. at 139. Detective Sekely then emailed Chief Baum and asked if a special program was needed to view the files. Id. at 141. Chief Baum did not respond, and Detective Sekely never followed up. Id. The identity of the person who burned the compact disc remains unknown.

Jan. 17, 2017, Op. & Order at 9-10.

         Forensic analysis of the disc provided to the MSP strongly suggested that a recording existed at one point, that a member of the Grayling Police Department listened to it, and that the individual then created the disc which was given to the MSP but did not transfer the actual audio recordings onto the disc:

During the evidentiary hearing, witnesses testified about the operation of the ProVision system and interpreted the metadata found on the otherwise inoperable compact disc. Plaintiff's expert, Edward Primeau, has worked in the audio/video surveillance field for over thirty years. [Evid. Hearing Tr. III] at 62. In that time, he provided audio/video authentication and enhancement services, as well as evidence recovery services. Id. at 63. At the evidentiary hearing, Mr. Primeau explained that although the compact disc provided to the MSP did not contain any audio/visual files, it contained “metadata.” Id. at 65. According to Mr. Primeau, metadata is “information about the file such as when it was created, the system it was created on, the date it was created, the size of the file.” Id. at 66. This metadata can be found using special software programs. Id.
The compact disc provided to the MSP contained fourteen “.xspf files.” Id. at 69. These files act as a kind of directory or playlist: they point towards the location of the underlying audio/visual recordings. Id. These .xspf files are generated by the VLC Player software, a media player used by the Grayling Police Department. Id. at 71. According to Mr. Primeau, .xspf files are created through a multi-step process. First, an audio/visual file must be accessed on a computer. Id. at 72. Second, the file must be opened in the VLC Player. Id. Third, a playlist file had to be created via the VLC Player, named by the user, and then saved. Id. Mr. Primeau was able to recover metadata contained in the .xspf files which provided information about the underlying but now missing audio/visual recording files. Id. at 72. First, he explained that each of the 14 .xspf files were renamed by a user and contained “Reddie” in the filename. Id. at 72-73. He further testified that the metadata indicated that each recording was exactly five minutes long and that all fourteen recordings were created on February 3, 2012. Id. at 73. The metadata also revealed that the recordings were from GPD02. In summary, Mr. Primeau testified that the metadata showed that fourteen audio/visual recordings, which were each five minutes long, were made on February 3, 2012. Id. at 74. Those recordings were then opened in the VLC Player and fourteen playlist files were created. Id. Those playlist files, but not the actual audio/visual files, were then saved to the compact disc that was provided to the MSP. Id. When asked to confirm that the metadata proved that audio/visual recordings existed at some point in time, Mr. Primeau explained that VLC Player would not be able to make or save the playlist files unless there was an audio/visual file. Id. at 75-76. In order to have functionality, VLC Player must open an actual audio/visual file. Id. However, he admitted several times that there was no way to know conclusively whether the recordings made in this instance contained both video and audio or only video. Id. at 116, 140.
Mr. Primeau further testified that, if a user was attempting to burn audio/visual recordings from an S.D. card to a disc, loading the files in VLC Player is both unnecessary and “clunky.” Id. at 76. Instead, a user could simply insert the S.D. card into the computer, insert a blank disc, and directly copy the files from the S.D. card or computer to ...

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