United States District Court, W.D. Arkansas, Fayetteville Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
ERIN L. SETSER, Magistrate Judge.
Tyrone Welch brings this civil rights action pursuant to 42 U.S.C. § 1983. He proceeds pro se and in forma pauperis. Plaintiff contends Defendant wrongfully arrested him and made false accusations against him.
The case is before me on a motion for summary judgment (Docs. 31-33) filed by the Defendant. Plaintiff responded (Doc. 35) to the motion. The summary judgment motion is ready for decision.
According to a report prepared by Fayetteville Police Department Corporal Mark Laird, on May 30, 2012, at approximately 5:35 p.m., he was dispatched to the area near Fairlane and Curtis in response to 911 calls of gunshots being fired. Defendant's Exhibit (hereinafter Deft's Ex. ) C; Plaintiff's Exhibit (hereinafter Plff's Ex. ) 21. Corporal Laird interviewed several witnesses who reported that five or six shots were fired from a blue Cadillac. Deft's Ex. C. The witnesses identified the two people in the Cadillac as Plaintiff and Allen Stevens. Deft's Ex. C.
In his report, Detective Williams noted that an individual who was scheduled to be a witness against Plaintiff in a June 12th trial lived in this area. Deft's Ex. A. In his supplemental report, Detective Williams summarized the statements of a number of witnesses, including four who reported having observed Plaintiff shooting from the Cadillac. Plff's Ex. 19; Deft's Ex. A.
The evidence submission form indicates that five 9 mm shell casings were recovered. Plff's Ex. 6. Additionally, Corporal Fields noted in his report that a bullet hole was found on the south side of a home on Huntsville. Plff's Ex. 13. The bullet went through the bed and into a dresser. Id. The bullet was not recovered. Id.
According to Detective Williams' supplemental report, when Stevens was interviewed, he stated that a man in a gold passenger car had tried to drive them off the road and then fired at them. Plff's Ex. 8. Detective Williams noted that a bullet hole was found in the trunk and a fired bullet was found inside the car. Id. Detective Williams stated that the bullet matched a bullet found in a home just north of Curtis Avenue on the north side of Huntsville Road. Id. It also matched a bullet found imbedded in a telephone pole. Id. In Detective Williams' opinion, all three bullets "would likely have been fired from a shooter facing north on Curtis." Id.
In both his affidavit and his preliminary report to the prosecutor's office, Detective Williams stated that during the investigation, the officers learned there had been a report that Plaintiff and Stevens had assaulted two men at a convenience store at the corner of Curtis and Fifteenth Street shortly before the shots were fired. Deft's Exs. A & B; Plff's Ex. 21. Corporal S. Mauk interviewed the two men identified as brothers Cornelius Cox and Jeremy Cox. Deft's Ex. B. According to Corporal Mauk's report, the Cox brothers believed that Plaintiff and Stevens had guns. Id.
Surveillance video from the store has been submitted as Defendant's Exhibit D. This shows a vehicle, identified by Detective Williams as a Chrysler 300, parked at a gas pump at the convenience store. Deft's Ex. A & D. The car is parked at a vertical angle from the store with the front of the car the farthest away from the camera. Deft's Ex. D. One man is outside the car pumping gas while another is in the driver's seat of the vehicle. Id.
A blue vehicle, identified by Detective Williams as a Cadillac, is seen approaching from the left. Deft's Exs. A & D. The Cadillac parks horizontally in front of the Chrysler. Deft's Ex. D. It is difficult to judge the distance between the two vehicles from the video but it appears that the Chrysler would have been unable to drive forward and leave the gas station. Id. However, the back of the Chrysler was not blocked. Id.
Two men, identified by Detective Williams as Plaintiff and Allen Stevens, got out of the vehicle and approached the Chrysler. Deft's Exs. A & D. Plaintiff was wearing a white t-shirt, tan pants, tennis shoes, and a black hat. Deft's Ex. A. Stevens is wearing a white shirt and shorts. Id.
Plaintiff and Stevens are walking towards the Cox brothers quickly and in a very purposeful and forceful manner. Deft's Ex. D. Plaintiff and Stevens are gesturing and reach towards their waist or right hip area as if reaching for a weapon. Id. The Cox brothers run away from Plaintiff and Stevens. Id.
Plaintiff then appears to be getting into the Chrysler. Deft's Ex. D. The Cox brothers reported to Corporal Mauk that Stevens told Plaintiff to take the vehicle. Deft's Ex. B. Cornelius Cox reported that he told Plaintiff that he was stupid trying to take the car with all the ...