By Pat Maurer
A lawsuit against Clare Police officers and the City of Clare is still active after the majority of a three-judge panel for the U.S. Sixth Circuit Court of Appeals upheld a District Court denial of immunity for Clare Police Chief Dwayne Miedzianowski and Officer Jeremy McGraw in connection with the 2007 shooting death of William Scozzari.
The decision was filed January 4.
Scozzari, 51, died September 18, 2007 at the Lone Pine Motel where he lived for about ten years. He was shot during an altercation with the Chief and an Officer.
On the night of September 18, 2007, Miedzianowski had responded to a report of shots fired near Shamrock Park when he saw William Scozzari walking in the area. According to the court documents, Miedzianowski said Scozzari ignored his orders to stop and responded with profanity. Miedzianowski followed the man to the Lone Pine Motel where Officer McGraw arrived as backup. When they confronted him, the officers said he came out of his cabin with a knife and a hatchet towards the officers compelling them to defend themselves.
State Police investigating the shooting and former Clare County Prosecutor Norm Gage ruled that the shooting was justified because the officers had tried and were unable to subdue Scozzari with pepper spray and a Taser.
After the two officers were cleared of wrongdoing in Scozzari’s death, Steven Scozzari of Lake Orion , brother of the Clare man, filed a civil suit in March 2008 against the officers, City Manager Ken Hibl and the City of Clare, charging the use of excessive force, deliberate indifference to Scozzari’s medical issues immediately after the shooting, assault and battery, gross negligence, municipal liability, conspiracy to violate Scozzari’s civil rights and discrimination under the Americans with Disabilities Act.
According to the court document, the officers believed Scozzari posed a threat, but the court opinion said, “The circumstances here present a genuine question whether the situation compelled a split-second decision to use lethal force.”
The court documents described William Scozzari as slight, 5 foot 3 inches, 133 pounds, partially blind, hard of hearing and “hardly intimidating.” He was reported as schizophrenic.
Witnesses also have cast doubt on whether Scozzari was armed and some suggested the weapons were placed by his body after he was shot.
The Appeals court declined to review additional claims filed in a separate action alleging Fourth Amendment rights violations including that Miedzianowski illegally detained William Scozzari, used unreasonable seizure when officers attempted to force their way into Scozzari’s cabin and used excessive force because of the use of pepper spray by the Chief.
In November, 2009 the defendants Miedzianowski and McGraw had asked U.S. District Judge Thomas L. Ludington to rule in their favor without a trial. They moved for summary judgment on all claims against them. In April, 2010 The District Court granted the motion in part, denied it in part and held other issues in abeyance according to court documents.
Judge Ludington said the officers were not entitled to qualified immunity from Plaintiff’s constitutional claims, and ordered the parties to brief two new Forth Amendment claims, raised in response to the defendant’s motion. The court also granted summary judgment (dismissed) state-law gross negligence and civil conspiracy claims. Ludington said Steven Scozzari failed to show that the officers agreed to violate William Scozzari’s rights.
He ruled that Scozzari can pursue claims of excessive force because of conflicting witness testimony about the distance between McGraw and William Scozzari and whether McGraw flee to the ground and fired from there.
Ludington said Scozzari could also pursue the claim of indifference because of a delay in allowing crews to administer medical treatment after William Scozzari was shot.
The judge also absolved the city of the conspiracy claim and dismissed claims against Hibl.
Miedzianowski and McGraw filed an appeal of the District Court ruling.
The Appeals court agreed with the District Court ruling that Defendants Miedzianowski and McGraw could not assert governmental immunity from the Plaintiff’s common-law assault and battery claims, but ruled in their favor on the new Fourth Amendment claims.
The panel included Circuit Judges Helene N. White of Detroit, Circuit Judge David W. McKeague of Lansing and The Honorable Jack Zouhary of Toledo, Ohio, United States District Judge for the Northern District of Ohio, sitting by designation.
Two of the judges, White and Zouhary, upheld all parts of the denial for immunity.
The third judge, McKeague, disagreed with the others on whether medical treatment was unreasonably delayed after Scozzari was shot. White and Zouhary’s opinion said, “Slightly less than twelve minutes lapsed from the report of the shooting until Scozzari received medical attention.” It cited a two-minute delay caused when emergency crews were told to “stage” away from the scene.
McKeague wrote, “I cannot conclude, as the majority does, that the slight delay caused by the officers’ failure to secure the scene by the time paramedics arrived violated Scozzari’s clearly established constitutional rights.” The two minutes that elapsed between the time the ambulance arrived “on-scene” and when the paramedics were “at patient,” were a reasonable amount of time for the personnel to park, exit the vehicle and reach Scozzari with treatment. He said the “officers responded appropriately to Scozzari’s obvious need for medical attention by promptly calling for an ambulance.”