FINDINGS OF FACT AND CONCLUSIONS OF LAW
Jerry Lee Cooperwood was the subject of misdemeanor warrants for resisting arrest and fleeing and for failure to pay child support when Officer Mark Wages of the Kensett Police Department attempted to arrest him at approximately 2:00 a.m. on March 4, 2005. The attempted arrest took place on the carport of the home of Neita Cooperwood, Jerry Cooperwood's sister. Wages knew that Jerry Cooperwood was prone to flee, so when he began to arrest Cooperwood, he reached out with his left hand and grabbed Cooperwood by the shoulder. A struggle then ensued. Cooperwood attempted to free himself from Wages's grip. With his right hand, Wages unholstered his baton and struck Cooperwood on the leg. During the struggle, Wages also struck Cooperwood across the arms and upper torso. At some point during the struggle, Cooperwood grabbed the baton. Cooperwood testified that he grabbed the baton in an effort to stop Wages from hitting him with it. Wages testified that Cooperwood took the baton from him and then came toward him, screaming, with the baton raised in a threatening manner. According to Wages, he (Wages) then drew his firearm and fired. In an interview given on the morning of the incident, Wages stated, "I drew my service revolver and shot twice striking Jerry as he was coming at me. He was approximately three or four feet from me." In an interview approximately three weeks later, Wages stated, "I threw my left arm up in the air and may have closed my eyes, drew my weapon and shot from the hip twice." At trial, Wages testified that he was in a crouched position and shot from the hip.
Cooperwood contends that, when he broke free from the grip of Wages, the baton fell between them, and he fled. He contends that Wages shot him in the back. Cooperwood asserts that Wages used excessive force and therefore committed an unreasonable seizure of his person in violation of the Fourth and Fourteenth Amendments to the Constitution of the United States. He brings this action pursuant to 42 U.S.C. § 1983.*fn1
I. It is More Probable Than not That Cooperwood Attempted to Flee and was Shot in the Back
From a consideration of all of the evidence presented by both sides, the Court concludes that
it is more probable than not that, when Cooperwood and Wages disentangled, Cooperwood turned to flee and was shot in the back. It is more probable than not that Cooperwood did not come at Wages with the baton raised above his head as though he were going to strike Wages. The Court so concludes for the following reasons.
First, Cory Cooperwood testified that he came to the carport door during the altercation and saw Wages shoot Jerry Cooperwood. According to Cory Cooperwood, when Jerry Cooperwood and Wages disentangled, the baton fell onto the carport, and Jerry Cooperwood turned to flee. Then, Wages drew his firearm, aimed it with both hands extended in front of his body, and shot Jerry Cooperwood in the back. Jerry Cooperwood then turned "like he couldn't believe it," and Wages then shot a second time. According to Cory Cooperwood, Jerry Cooperwood turned to the left. After the second shot, Jerry Cooperwood stumbled and fell near the end of the carport.
Cory Cooperwood had a clear, unobstructed view. He testified calmly, with confidence and conviction, in such a manner that the Court believed that he was testifying truthfully.
Cory Cooperwood's account is confirmed by other important facts. First, according to Cory Cooperwood, Wages held the firearm in both hands with his arms extended in a manner that would have caused the bullets to travel more or less horizontal to the ground. One of the bullets struck Jerry Cooperwood slightly to the left of the spine, several inches above the waistline, traveled through the abdomen, and exited his right side. Photographs of the entry point and the exit point show that the bullet traveled approximately horizontal to the ground, and the surgeon who operated on Jerry Cooperwood testified that the bullet that entered the back and exited the abdomen traveled a horizontal path. Both bullets hit Jerry Cooperwood's torso at a height consistent with Cory Cooperwood's testimony that Wages held the firearm in both hands with arms extended when he fired.
On Wages's account, he fired from the hip while in a crouched position. From his demonstration in the courtroom, the Court estimates that his firearm would have been approximately 30 inches off the ground at the time he fired, if he fired in that position. Wages says that he fired twice in rapid succession. Both bullets entered Jerry Cooperwood's body several inches above his waist, approximately four feet from the ground. On Wages's account, both bullets would have traveled in an upward direction, not parallel to the ground.
The Court cannot determine with certainty the trajectory of the bullet that hit Jerry Cooperwood in the left front portion of his torso. That bullet fractured the left fourth, fifth, and sixth ribs, left a metallic trail of material extending at an oblique angle into the lower chest consistent with gunshot residue, and was later found under the skin of his left shoulder. That bullet may have struck Cooperwood's ribs while he was erect and been deflected; it may have struck the ribs while he was falling; or it may have struck the ribs and been deflected while he was falling. However, the bullet that entered the back to the left of the spine and exited on the right side of the abdomen was not deflected off-course. That bullet traveled parallel to the ground, in a horizontal course, which is consistent with the testimony of Cory Cooperwood but inconsistent with the testimony of Wages.
Furthermore, both bullets struck Jerry Cooperwood's torso at approximately the same height. If Wages had fired two shots from the hip in rapid succession, as he testified, according to plaintiff's expert witness the "kick" from the firearm would have forced Wages's hand upward as he fired the second shot. Therefore, if Wages shot twice in rapid succession from the hip, the second shot would have struck Cooperwood at a point higher than did the first bullet.*fn2 However, one shot did not strike at a point higher than the other.
Wages testified that immediately after the shooting he ran to Jerry Cooperwood, and Cooperwood said, "Why did you shoot me in the back?" That remark was an unpremeditated, spontaneous statement spoken almost immediately after the shots were fired and before Jerry Cooperwood would have had the opportunity or the wherewithal to fabricate a story. The question -- "Why did you shoot me in the back?" -- is the reaction of a man who was trying to run away when he was shot, not the reaction of a man who was attacking with a baton when he was shot. A man who took a baton away from a policeman and then ran toward the policeman with the baton raised over his head in an aggressive fashion immediately before being shot by the policeman would not be likely to ask immediately after being shot, "Why did you shoot me in the back?"
Furthermore, it is undisputed that Jerry Cooperwood fell near the end of the carport, which would be more than fifteen feet from the location of Wages when the shots were fired.*fn3 On Wages's account, Jerry Cooperwood took a round from a .357 Magnum revolver fired into his rib cage from a distance of three or four feet, then he took another shot that passed through the abdomen, and then he walked or ran to the end of the carport. Wages stated, "Jerry then turned to run but collapsed at the flower bed and front yard." According to Cory Cooperwood, Jerry Cooperwood took another step after the first shot, and then after the second shot he stumbled and fell. Cory Cooperwood's testimony gives a more plausible explanation of how Jerry Cooperwood came to fall at the end of the carport.
In summary, the Court finds that it is more probable than not that Jerry Cooperwood was attempting to flee when he was shot in the back because Cory Cooperwood, the one eyewitness other than Jerry Cooperwood and Mark Wages, testified to that effect, and he was a credible witness; the trajectory of the one bullet that undoubtedly was not deflected from its course is consistent with Cory Cooperwood's description of the shooting and inconsistent with Wages's description of the shooting; that both bullets struck Jerry Cooperwood's torso at the same height several inches above the waist is consistent with Cory Cooperwood's account of how the shots were fired and inconsistent with Wages's account; the spontaneous, unpremeditated question by Jerry Cooperwood immediately after he was shot further ...