Aipperspach v. McInerney

963 F. Supp. 2d 901, 2013 WL 3990689, 2013 U.S. Dist. LEXIS 108436
CourtDistrict Court, W.D. Missouri
DecidedAugust 2, 2013
DocketCase No. 11-01225-CV-W-DGK
StatusPublished
Cited by1 cases

This text of 963 F. Supp. 2d 901 (Aipperspach v. McInerney) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aipperspach v. McInerney, 963 F. Supp. 2d 901, 2013 WL 3990689, 2013 U.S. Dist. LEXIS 108436 (W.D. Mo. 2013).

Opinion

ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

GREG KAYS, District Judge.

In the present lawsuit, Plaintiff Aipperspach,1 the Personal Representative of Mahir Al-Hakim’s (“Al-Hakim”) Estate, alleges that Al-Hakim was subjected to excessive force when he was shot and killed by law enforcement officers on March 18, 2010 in Riverside, Missouri. Currently pending before the Court are summary judgment motions on behalf of the Riverside Defendants2 (Docs. 164 and [903]*903165) and Defendants Kansas City Board of Police Commissioners3 (“KCBOPC”) and Officer Robbie McClaughlan (Doc. 171).4 Also pending is Plaintiffs “Motion to File a Supplement to Her Suggestions in Opposition to Defendants’ Motions for Summary Judgment, to Further Comply with Local Rule 56.01(a) (Doc. 182)5 and the Riverside Defendants’ “Motion to Exclude the Testimony of Plaintiffs Designated Expert Brian Frist, M.D.” (Docs. 167, 168)6 and “Motion to Exclude the Testimony of Plaintiffs Designated Expert D.P. Van Blaricom (Docs. 169 and 170).”7

Because there is no genuine issue of material fact, the motions for summary judgment on behalf of the Riverside Defendants and the KCBOPC and Officer McLaughlan (collectively “the Defendants”) are GRANTED.

Background

I. The Court grants Plaintiff’s motion to supplement her suggestions in opposition.

As a preliminary matter, the Court grants Plaintiffs motion to supplement her suggestions in opposition to the Defendants’ motions for summary judgment. Local Rule 56.1(a) provides in pertinent part that “[a]ll facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the opposing party.” Plaintiff filed one response to Defendants’ two motions for summary judgment. In this combined response, Plaintiff did not comply with Rule 56.1(a), making it difficult for Defendants and the Court to determine which facts were controverted and which were not.

To rectify this error, Plaintiff filed a motion to supplement her suggestions in opposition to controvert specific paragraphs of Defendants’ statements of facts. Rather than deem the entirety of Defendants’ statement of facts admitted because of Plaintiffs failure to comply with the Local Rules, the Court grants Plaintiffs motion to supplement (Doc. 182). However, where Plaintiff has not controverted Defendants’ statements of facts with reference to specific paragraph numbers, the Court deems Defendants’ facts admitted. Additionally, where Plaintiff interjects information into her argument not set forth in her statement of uncontroverted facts, the Court disregards such information.8

II. Statement of Facts9

The following facts are undisputed unless otherwise noted.10

[904]*904A. The Day of the Shooting

On March 18, 2010, William Hart (“Hart”) made a 911 call to the Riverside Missouri Police Department indicating that his Mend, Mahir Al-Hakim, refused to leave Hart’s apartment. Detective Billy Aaron and Captain Michael Costanzo arrived at Hart’s apartment in response to this call. Upon arrival, Hart told Detective Aaron that Al-Hakim had come to his apartment asking to borrow money. Hart informed Detective Aaron and Captain Costanzo that Al-Hakim had left shortly before their arrival and had started walking to the wooded area west of his apartment. Hart never informed Detective Aaron or Captain Costanzo that Al-Hakim was armed.

After speaking with Hart, and while Detective Aaron and Captain Costanzo were still outside Hart’s apartment, Defendants allege that the Riverside Police Dispatch informed them there was an outstanding warrant for Al-Hakim’s arrest.11 They then began looking for Al-Hakim in the wooded area behind Hart’s apartment. Riverside Police Sergeant Dennis Jones arrived soon after and also began looking for Al-Hakim in the woods.

Sergeant Jones found Al-Hakim sitting in a ravine to the west of Hart’s apartment. Sergeant Jones identified himself multiple times as a Riverside police officer and asked Al-Hakim to come up the hill and talk with him. Al-Hakim refused and produced what Defendants allege appeared to be a handgun held against his jaw. Sergeant Jones dropped his radio, pulled his own gun, and told Al-Hakim in a loud voice to drop the gun. Detective Aaron and Captain Costanzo heard Sergeant Jones yell “drop the gun,” and responded to Jones’ location. Detective Aaron then went down the hill to stand next to Sergeant Jones. Detective Aaron also identified himself as a Riverside police officer and told Al-Hakim to drop his gun. Captain Costanzo immediately radioed that an officer needed assistance with an armed party.

Hearing Captain Costanzo’s request for assistance, Riverside Police Officer Matthew Westrich and Riverside Police Sergeant Trevor Ballard left the scene of a fatality accident and traveled to the wooded area. Upon arrival, Officer Westrich took a seated firing position with his department shotgun in the area above AlHakim. Captain Costanzo instructed Sergeant Ballard to provide cover with his patrol rifle for Sergeant Jones and Detective Aaron because Ballard was wearing a ballistic vest and Jones and Aaron were in plainclothes without vests. Sergeant Ballard complied and took a position next to Sergeant Jones and Detective Aaron nearest Al-Hakim, aiming at Al-Hakim with his rifle sight.

Several officers from neighboring police departments, including Kansas City Police Department (“KCPD”) Officers Robbie McLaughlan, Chris Stammler, J.D. Petty, Pete Schultz; KCPD Sergeant Phil Smith; Platte County Deputy Daniel Fred Green; Gladstone Officer Christopher Morales; North Kansas City Officer Kyle Pansing; and Platte Woods Officer William Babbitt, also responded to Captain Costanzo’s request for assistance.

Upon arrival, Officer McLaughlan grabbed his patrol rifle, and he and the other officers walked to the embankment near the woods where they saw Al-Hakim sitting at the bottom of the ravine, holding a gun to his neck. Defendants allege that Al-Hakim’s gun looked like a .45 Hi-Power pistol to Officer McLaughlan, a semi[905]*905automatic handgun to the Riverside Defendants, and a real gun to the other officers. In reality, Al-Hakim was holding a Daisy 08 BB/pellet gun, whose packaging was lying nearby.12 Officer McLaughlan positioned himself behind a small tree facing Al-Hakim. The tree width did not cover Officer McLaughlan’s entire body.

At that point, officers began telling AlHakim to put down his gun. Sergeant Jones pleaded with Al-Hakim, requesting several times that he relinquish his weapon. Sergeant Jones also offered to lower his firearm if Al-Hakim would drop his gun. Defendants allege that at one point Al-Hakim started to point his gun away from his head and in the general direction of Sergeant Jones, and Jones told AlHakim to not point the gun at him again or he would shoot him.

Officer Morales also attempted to get Al-Hakim to set down his gun. Recognizing him from past dealings, Officer Morales used Al-Hakim’s first name when he told him, “Mahir, put the gun down.” Officer Morales also told him, “No one’s here to hurt you. Help us out. Put the gun down.”

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Bluebook (online)
963 F. Supp. 2d 901, 2013 WL 3990689, 2013 U.S. Dist. LEXIS 108436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aipperspach-v-mcinerney-mowd-2013.