CIVIL BATSON CHALLENGES AND NEG. SUPERVISION OF POLICE: TAYLOR V. O’NEIL (COA 7/20/2007)

TAYLOR V. O’NEIL
CIVIL PROCEDURE: JURY SELECTION (BATSON CHALLENGES); MISTRIAL MOTION AND IMPROPER ARGUMENT;
TORTS: NEGLIGENT SUPERVISION OF POLICE OFFICER; CITY LIABILITY FOR EMPLOYEE
2005-CA-001301
PUBLISHED: AFFIRMING
PANEL: WINE PRESIDING; ABRAMSON, TAYLOR CONCUR
COUNTY: JEFFERSON
DATE RENDERED:  7/20/2007

In a highly publicized case involving a fatal Louisville Metro Police shooting of a handcuffed man, the estate sued for wrongful death and the CA affirms the jury verdict of justifiable use of deadly force. (Jefferson Cir. Ct., Hon. Kathleen Voor Montano, judge, presiding).

On 12/5/02, LMPD officers O’Neil and Luckett went to a home on St. Catherine street in Louisville to investigate a crime. On approach, they heard screaming and a female voice say the word "knife." Luckett saw James Edward Taylor through the open door with his fists clenched; O’Neil saw crack pipes on a table. In addtion to Taylor, there were 4 other people in the apartment; one was screaming that Taylor was not going to cut her. By all accounts, Taylor was very agitated and appeared intoxicated. Luckett entered the apartment, sat Taylor in a chair and handcuffed his hands behind his back. While O’Neil was searching the other occupants, Taylor repeatedly tried to rise from the chair, though Luckett was able to push him back down. Taylor retrieved a box cutter from his pocket, got up and began advancing toward the officers. O’Neil drew his weapon, ordered Taylor to stop and drop the knife. Taylor refused and attempted to slash Luckett. Several witnesses testified that Taylor cursed the officers and challenged them to "come on." At this point, the accounts vary somewhat. Luckett had allegedly backed up to the door and O’Neil was backed into a corner. Taylor advanced on O’Neil. O’Neil fired once, hitting Taylor in the chest. Taylor did not stop; O’Neil fired again, hitting Taylor ten more times. Despite the shots, Taylor was still standing and the box cutter was in his hands. O’Neil kicked at Taylor; Taylor fell backward and died at the scene.

The estate sued the city, the police department and the officers for wrongful death and failure to adequately train and supervise the officers. On appeal, the estate argues that the appellees improperly used peremptory challenges to strike African-American jurors from the panel, that it was entitled to a jury instruction on its independent negligence claim against the city, that it was entitled to directed verdicts on its claims against the city and O’Neil, and that the trial court should have granted a mistrial based on improper comments during opening statements. Cross-appeals were also filed.

After voir dire, the city and O’Neil independently used their peremptory challenges to exclude the 4 remaining African-American jurors from the panel. All of the African-Americans stricken had answered "yes" when asked if they believed it is "impossible for a man in handcuffs to pose a threat of death or serious bodily injury to a police officer." The estate argued that these improper race-based strikes, noting that defense counsel had circled the race of all members of the venire on the juror questionnaire forms; that the strikes excluded all African-Americans from the panel; and that defense counsel chose not to strike whites who also answered "yes" to the relevant question. CA holds that the estate did not show the TC’s determination of no race-based strikes to be wrong to a clear and convincing degree.

CA found no clear error in its rulings on directed verdict. CA also holds that there are no Kentucky cases holding that an employer may be independently liable for an injury caused by its failure to adequately train or supervise an employee. Finally, the estate moved for a mistrial when O’Neil’s counsel, during opening statements, informed the jury that Taylor had been convicted of manslaughter. O’Neil’s counsel argued that it was relevant to the estate’s claim for the destruction of Taylor’s power to earn money. CA finds no abuse of discretion in failing to grant a mistrial.

By John E. Hamlet

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