The opinion of the court was delivered by: J. Leon Holmes United States District Judge
Christopher D. Lyons has brought suit against Randall Aragon, in his official capacity as Chief of Police for the City of Conway, Sergeant Ottie Cowgill, both individually and in his official capacity as a police officer for the City of Conway, and the City of Conway. Pursuant to 42 U.S.C. § 1983, Lyons alleges that the defendants deprived him of rights guaranteed him by the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution, specifically the right to be free from excessive force and unlawful seizure, the right to be free from cruel and unusual punishment, and the right to due process. Lyons seeks to recover compensatory and punitive damages against the defendants as well as costs and attorney's fees. Before the Court is defendants' motion for summary judgment, or in the alternative, a motion for qualified immunity. For the following reasons, the motion for summary judgment is granted in part and denied in part.
A court should enter summary judgment if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed. 2d 202 (1986); Cheshewalla v. Rand & Son Constr. Co., 415 F.3d 847, 850 (8th Cir. 2005). The party moving for summary judgment bears the initial responsibility of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed. 2d 265 (1986). If the moving party carries its burden, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed. 2d 538 (1986) (quoting Fed. R. Civ. P. 56(e)). Furthermore, the nonmoving party "must do more than simply show there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356. A genuine issue for trial exists only if there is sufficient evidence to allow a jury to return a verdict for the nonmoving party. Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. When a nonmoving party cannot make an adequate showing on a necessary element of the case on which that party bears the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. More specifically, "in passing upon whether there is sufficient evidence to submit an issue to the jury [the court] need look only to the evidence and reasonable inferences which tend to support the case of" the nonmoving party. . . . [S]ubsequent decisions have clarified that this passage was referring to the evidence to which the trial court should give credence, not the evidence that the court should review. [In the context of summary judgment], we have stated that the court must review the record "taken as a whole."
In doing so, however, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence to the evidence favoring the non-movant as well as that "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses."
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 2110, 147 L.Ed. 2d 105 (2000) (quoting Wilkerson v. McCarthy, 336 U.S. 53, 57, 69 S.Ct. 413, 415, 93 L.Ed. 497 (1949); Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356; Anderson, 477 U.S. at 255, 106 S.Ct. at 2513; 9A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2529, at 300 (2d ed. 1995)) (reviewing a Fifth Circuit decision to grant judgment as a matter of law, but stating "the standard for granting summary judgment 'mirrors' the standard for judgment as a matter of law, such that 'the inquiry under each is the same'" (quoting Anderson, 477 U.S. at 250-51, 106 S.Ct. at 2511-12)) (citations omitted); see also Kinserlow v. CMI Corp., 217 F.3d 1021, 1025 (8th Cir. 2000).
On February 27, 2002, Christopher Lyons attempted to shoplift steaks from a Kroger store in Conway. Lyons was chased by a Kroger employee and hid behind a nearby restaurant. At approximately 4:40 p.m., Conway police officers Sergeant Ottie Cowgill and Shane Hobbs separately responded to a dispatch from a call regarding the incident at Kroger. When Cowgill arrived on the scene, the employee who had been chasing Lyons informed Cowgill of Lyons's location.
Through slats in a fence behind the restaurant, Cowgill was able to see Lyons in a crouched position. The officers were forced to enter the fenced area and then turn to face Lyons. Upon having to enter the fence and turn to face an unknown suspect, Cowgill drew his weapon, but did not cock it; Hobbs also drew his weapon. At that point, Cowgill could not determine whether or not Lyons was armed. Cowgill stated that he felt threatened because Lyons had run from Kroger; he was wearing a bulky coat; he was in a crouched position in an enclosed area; and when the officers entered the enclosed area, they could not see Lyons's hand as they were "cuffed in his belt line area." Cowgill ordered Lyons to get up and come forward. When Lyons came near enough for Cowgill to observe his hands and clothing, Cowgill determined that Lyons was not carrying any weapons.
Once Cowgill was able to determine that Lyons was unarmed, he ordered Lyons to get on the ground. According to Cowgill, he also attempted to reholster his weapon at that point. Lyons started to get on the ground and was in a position "like a frog on a lily pad." The officers approached Lyons on either side of him, and each grabbed a shoulder. At that point, Cowgill's weapon, a .45 caliber weapon with hollow point bullets, discharged. The bullet traveled downward, striking Lyons in the shoulder, exiting his underarm and then striking the top of his thigh.
According to Cowgill, the discharge was accidental and a result of a botched attempt to reholster his weapon. Specifically, Cowgill was aiming to place Lyons on the ground in order to handcuff him and place him under arrest. In the process of doing so, Cowgill reached across his body with his left hand to place it on the back of Lyons's left shoulder; at the same time, Cowgill was attempting to holster his weapon with his right hand. Cowgill stated, "I was making every effort to try to put my weapon in the holster, I couldn't get it in. We were going to the ground and I was fighting with my holster, struggling with him to get him down on the ground, and I heard a loud boom." Hobbs stated that he saw Cowgill "pawing at his coat trying to get it to holster. He was having some kind of trouble with his coat and his holster combination . . . . I distinctly remember that." However, Hobbs diverted his attention from Cowgill back to Lyons prior to the gunshot.
Lyons also had his back to Cowgill at that point, so neither Hobbs nor Lyons witnessed the gun discharge. There were no other witnesses to the incident.
According to Cowgill, he never had any intention of firing his weapon. Cowgill also alleges that since the incident, he has experienced post-traumatic stress disorder, stating, "I was having a lot of dizzy spells. If I went to a call, . . . I got extremely dizzy. And if there was a call that required my firearm to come out, I wouldn't bring it out." As a result, Cowgill now works as a code enforcement officer rather than as an active duty police officer. Lyons admits that Cowgill appeared upset after the gunshot, but argues that he could have been upset for a variety of reasons.
As a Sergeant in the Conway Police Department, Lyons contends that Cowgill was certified as a handgun expert in general and also had specific training for the Sig Sauer P220 series semi-automatic, the gun he had on the day in question. Lyons also cites the Sig Sauer Pistol Owners Manual, which states, "You can fire the pistol only by pulling the trigger." Cowgill stated that he did not cock the weapon, thus requiring the firing of the weapon by double action, which requires twelve and a half to thirteen and a half pounds of pressure. While the Internal Affairs investigation found no evidence of intent on the part of Cowgill, Lyons notes that it also concluded that the gun most likely discharged as a result of physical confrontation with Lyons while Cowgill "had his finger inside the trigger guard." The Arkansas State Crime Laboratory tested the gun, which included firing it a total of eight times, and reached the following results: (1) the "pistol failed to ...