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Smith v. Jacko

United States District Court, D. South Carolina, Charleston Division

August 13, 2019

JAMES L. JACKO, ZACH LINDSAY, JOHN WIEDEMANN, and MATTHEW WEAN, in their respective individual capacities, Defendants.


          Bruce Howe Hendricks, United States District Judge.

         This matter is before the Court on the issue of qualified immunity. The jury trial in this case was completed on June 21, 2019. (ECF No. 120.) After the jury was excused, the Court directed the parties to submit, within seven days, briefs in support of their positions on qualified immunity. (Id.) Plaintiff Akiliou Smith (“Plaintiff” or “Smith”) filed his memorandum in opposition to Defendants' motion for qualified immunity on June 28, 2019. (ECF No. 128). Defendants James L. Jacko (“Jacko”), Zach Lindsay (“Lindsay”), John Wiedemann (“Wiedemann”), and Matthew Wean (“Wean”) (collectively “Defendants”), filed their memorandum in support of qualified immunity on the same day. (ECF No. 129.) Plaintiff filed a response to Defendants' memorandum on July 3, 2019. (ECF No. 130.) The issue is ripe for disposition and the Court now issues the following ruling.


         In this damages action brought pursuant to 42 U.S.C. § 1983, Plaintiff alleged that Defendants violated his rights under the Fourth Amendment to the U.S. Constitution to be free from the unreasonable search of his home, from the unreasonable seizure of his person, and from the use of excessive force. It is undisputed that Defendants possessed neither a warrant nor consent when Defendant Jacko kicked in the door of Plaintiff's home, entered along with Defendants Wean and Wiedemann, seized Plaintiff in the kitchen area, and removed him from the home in handcuffs. The testimonial, documentary, and electronic evidence at trial established the following facts.

         On December 17, 2015, Ms. Angeline Foggy came home to her house on Ghana Street to find an unknown man sitting on her sofa watching television. By Ms. Foggy's description the man was African American, had an afro haircut of approximately one to two inches in length, was of slim build weighing approximately 150 pounds, stood approximately five foot five inches (5'5”) tall, had a small amount of facial hair, and was wearing jeans and a jean jacket. She further estimated that the man was between twenty-five (25) and thirty (30) years old. Ms. Foggy called 911 and told the man-who gave his name as “Shawn Freeman”-to leave, which he did, walking directly past her while she stood on the porch near the doorway on the phone. Ms. Foggy gave her description of the intruder to the 911 operator and to the Sheriff's Deputies that eventually responded to her house. While Ms. Foggy was still on the phone with 911, now standing inside her doorway, the trespasser returned to her yard in an attempt to retrieve his belongings, which he had left inside the house in a plastic storage bin and a backpack. Ms. Foggy told him to leave her yard and he complied without having retrieved his belongings. More than thirty (30) minutes elapsed between the time Ms. Foggy called 911 and the Sheriff's Deputies responded to her home. While the Deputies were responding to the scene, the 911 dispatcher gave a caution over the radio for a “Deshawn Freeman, ” a forty-one (41) year old black male who had a previous conviction for assault on a police officer. However, the dispatcher clarified that the name “Deshawn Freeman” was not a perfect match for the name provided by the intruder, “Shawn Freeman.”

         Ms. Foggy informed the Sheriff's Deputies that her laptop had been moved from its usual place on her bedside table to the living room. At some point, the Deputies discovered that the trespasser had gained access to Ms. Foggy's home by removing an air conditioning unit from the window. The 911 dispatch call was elevated from a trespass to a burglary because the Deputies deemed removal of the air conditioner to be an indication that the suspect may have intended to steal Ms. Foggy's belongings, such as her laptop, while inside the home.

         At all times relevant to the case, Defendant Lindsay was a Sheriff's Deputy with Charleston County and a K-9 handler. On the night in question, Lindsay responded to Ms. Foggy's house with his K-9, Zeus, a German shepherd weighing approximately eighty (80) pounds. Lindsay was wearing green tactical BDU pants, a black shirt, and a black tactical vest with Velcro patches indicating he was a member of the Sheriff's Office. Zeus was also wearing a K-9 vest that had the word “Sheriff” on it. Lindsay testified that Ms. Foggy told her description of the trespass/burglary suspect to Defendant Jacko first, then Jacko relayed the information to Lindsay. After giving Zeus time to gain a scent to track, Lindsay set off into the neighborhood following Zeus who was pulling hard, which showed that Zeus was not merely sniffing around but was following a scent. Zeus turned onto Kano street, on which Plaintiff's home is located.

         When Zeus neared the end of Plaintiff's driveway, he lifted his head indicating an “air scent.” The significance of the air scent meant only that Zeus detected a person in close vicinity, not that the scent he smelled in the air somehow matched the scent he had been tracking on the ground. In his trial testimony, Lindsay confirmed that Plaintiff was on his property for the duration of their interaction, and that Plaintiff did nothing illegal when Lindsay observed him. Lindsay further testified that when he first saw Plaintiff, he did not believe Plaintiff was posing a threat to anyone. Lindsay stated that he saw Plaintiff “lurch behind a vehicle” parked in the driveway, which caused Lindsay to shine a flashlight on the vehicle. It was dark on the evening in question, and multiple witnesses testified that the bulb in the street light at the end of the driveway was not functional.

         For his part, Plaintiff disputed that he lunged behind the vehicle in the driveway. He was outside taking out the trash when someone at the end of the driveway pointed a flashlight at him and said, “Hey you, come here.” Plaintiff stated that the tone of this verbal command, the fact that he did not recognize the individual, the fact that the individual had a large dog with him, and the fact that Plaintiff is “not too fond of dogs, ” caused him to run back into his house. In his report, Lindsay stated that he said, “Show me your hands, ” to Plaintiff in the driveway. Jacko, who was also on scene at the time, stated that Lindsay said, “Sheriff's Office, stop.” At trial, Lindsay was not certain what he said because in high stress situations one often cannot remember exactly what was said.

         Lindsay and Plaintiff offered conflicting testimony about whether Plaintiff struggled to enter the house when he ran to the door. Lindsay stated that from his perspective Plaintiff's entry was “a little bit abnormal, ” that he “jiggled the door handle, ” and it “appeared to be a struggle” for him to get into the house. These conclusions led Lindsay to have a “gut feeling” that “maybe [Plaintiff] doesn't know this residence or belong at this residence.” Lindsay further testified that he “had no clue” if Plaintiff was the suspect from Ms. Foggy's house or not, which is why he “showed restraint and did not deploy [his] dog.” For his part, Plaintiff denied that he had any trouble getting into his own house and stated that he did not fumble at the door.

         The door in question opened directly into the home's kitchen. When Plaintiff reentered the house he locked the door, told his mother in law (“Ms. Davis”)-who was sitting at the kitchen table with Plaintiff's wife (“Mrs. Smith”) and children-that someone was chasing him with a dog, and followed her advice to call 911 and report the situation. The substance of Plaintiff's 911 call corroborates that he was not initially aware that the individual in the driveway with a dog was a law enforcement officer. Plaintiff began relaying Mrs. Smith's observations of the individuals outside the door to the 911 operator, such as, “They got guns and stuff.” Plaintiff testified that when the Sheriff's Deputies ultimately entered the house and he realized they were law enforcement officers, he was confused, “When they said I needed to go outside, I didn't even know why they wanted me outside.”

         Defendant Lindsay testified that when he followed Plaintiff and ran up to the door he heard yelling and screaming from inside the residence before he pounded on the door. He denied using any profanity when trying to gain entry into the home. Ms. Davis and Mrs. Smith both testified that no one was screaming or yelling in the kitchen until an unidentified individual began pounding on the door and shouting, “Open the fucking door.” They stated that the children began crying when the pounding began. Ms. Davis and Mrs. Smith further testified that when Ms. Davis asked the individuals who they were, they responded, “This is the fucking police!” Defendants repeatedly denied this assertion, stating that as Sheriff's Deputies they would never refer to themselves as “the police.” Ms. Davis testified that she responded to the Deputies' demand that she open the door by saying, “I have my kids in here.” Ms. Davis further testified that one of the individuals on the other side of the door said, “You have a fugitive in your house, ” to which she responded, “He's not a fugitive, he's my son in law.”

         Defendant Lindsay was the first Sheriff's Deputy to attempt to force entry into the home, but was unsuccessful because he had Zeus with him on the stoop. Defendant Jacko joined Lindsay at the door and Lindsay told Jacko to kick the door in. After two unsuccessful front-kicks, Jacko successfully back-kicked the door in, forcing the lock through the wood of the doorframe. Whereupon Jacko, knocked off balance by his kick, fell off the stoop, collided with Zeus, was bitten by Zeus, drew his service weapon, then holstered the weapon when he saw women and children sitting at the kitchen table.

         Lindsay stayed outside the home with Zeus while Jacko entered the dwelling, followed shortly thereafter by Defendants Wean and Wiedemann. Once in the home, Jacko never asked Ms. Davis, Mrs. Smith, or the children seated at the kitchen table whether they were safe. When Ms. Davis and Mrs. Smith confronted Jacko about his unauthorized entry into the house, he stated, “We need to speak to him and see him, ” referring to Plaintiff. Jacko acknowledged, in his testimony, that no one in the kitchen appeared to be in physical danger. Walking through the kitchen, Jacko encountered Plaintiff in a hallway where the kitchen and living room meet. Asked what conclusions he drew upon observing Plaintiff up close, Jacko responded, “I didn't have any immediate conclusion at that time. I just knew that a man may have forced entry into the home.” Plaintiff, who is five foot and seven inches (5'7”) in height, and weighed 220 pounds, was wearing his Atlantic Pest Control uniform, consisting of khaki cargo pants, a green company polo shirt, and a green company jacket bearing the Atlantic Pest Control emblem. He was clean shaven due to a company policy that did not allow facial hair, and his hair was closely cut also due to company requirements. None of the Deputies that entered the home asked Plaintiff for his name or identification, but simply told him that he needed to come outside.

         Jacko attempted to seize Plaintiff and place him in handcuffs. Plaintiff repeatedly questioned the Sheriff's Deputies why he was being detained and why they were requiring him to leave the dwelling rather than talking to him inside the home. Jacko initially had trouble getting the handcuffs on Plaintiff, but the extent of Plaintiff's resistance was to pull his hand away and put his arms at his sides when Jacko grabbed his hand. Wean helped Jacko get one of Plaintiff's hands into the handcuffs. Wiedemann never touched Plaintiff, but drew his taser and held it at the “low ready” position in order to gain Plaintiff's compliance with Jacko's efforts to handcuff him. At one point, Wiedemann pointed the taser at Plaintiff and told him that he needed to comply and come outside the home, which Plaintiff ultimately did. Mrs. Smith testified that when she verbally objected to Defendants' actions toward her husband, Wiedemann responded, “Shut up or I'll tase you too.” Wiedemann denied making any such statement.

         Once Plaintiff was standing in his driveway in handcuffs, Deputy Wean drove around the corner to Ms. Foggy's house and brought her to Plaintiff's driveway in order to identify him as the suspect from the trespass/burglary. Ms. Foggy testified that one of the Deputies shined a light on Plaintiff, at which point she told them that Plaintiff was not the trespass/burglary suspect. When asked at trial whether Plaintiff “looked the same” as the suspect, Ms. Foggy responded, “no.” When asked if Plaintiff even looked close to the suspect in appearance, Ms. Foggy responded, “no.” Plaintiff testified that from his vantage point in the driveway he observed Ms. Foggy shake her head inside Defendant Wean's Sheriff's vehicle, but that the Deputies did not take the handcuffs off of him at that time. Defendants first ran a search on Plaintiff through the National Crime Information Center to determine whether he had any outstanding warrants prior to releasing him.

         Deputy Brian Moniz (“Moniz”) was working the same squad as the named Defendants on the evening in question. He responded to Ms. Foggy's house and received her description of the suspect. When Lindsay was on the stoop of Plaintiff's home and Jacko breached the door, Moniz was about twenty (20) yards away, maintaining a perimeter in the front yard. Moniz observed Plaintiff when he was removed from the home and escorted to the driveway in handcuffs. Moniz testified that when Plaintiff walked out of the door into the ...

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