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White v. City of Birmingham

United States District Court, N.D. Alabama, Southern Division

March 27, 2015

JUSTIN A. WHITE, Plaintiff,
v.
CITY OF BIRMINGHAM, ALABAMA, et al., Defendants. LATISHA WILLIAMS, Plaintiff,
v.
CITY OF BIRMINGHAM, ALABAMA, et al., Defendants.

MEMORANDUM OPINION

KARON OWEN BOWDRE, Chief District Judge.

This § 1983 case comes before the court, in Plaintiffs Justin White and Latisha Williams' consolidated cases, on Defendants City of Birmingham, Alabama, Mayor William A. Bell, Officer Herman Harris, Jr., and Officer Eric Smith's "Motion for Summary Judgment and Supporting Evidence, " (Doc. 34); White and Williams' "Motion to Strike Defendants' Exhibits Five (5) & Six (6), " (Doc. 43); White and Williams' "Motion for Judicial Notice, " (Doc. 44); and the Defendants' "Motion to Strike, " (Doc. 54).[1]

For the reasons discussed below, the court GRANTS the Defendants' motion for summary judgment, (Doc. 34); GRANTS in part and DENIES in part White and Williams' motion for judicial notice, (Doc. 44); DENIES White and Williams' motion to strike, (Doc. 43); and DENIES the Defendants' motion to strike, (Doc. 54).

In general, the undisputed facts show that on November 30, 2012, plaintiff Williams and Deandre Major were passengers in a vehicle driven by plaintiff White. An occupant of White's vehicle fired a weapon at an unmarked Birmingham Police Department vehicle driven by defendant BPD Officer Harris with defendant BPD Officer Smith and defendant Birmingham Mayor Bell as passengers. Officer Harris followed White's vehicle onto Interstate 59 while Officer Smith radioed for backup. As White raced down Interstate 59, his steering wheel locked up and he crashed. Officers Harris and Smith stopped near White's vehicle and attempted to apprehend the occupants of White's vehicle, who Officers Harris and Smith thought to be armed and willing to shoot. Officers Harris and Smith fired their weapons a total of eleven times at the vehicle hitting White twice and Williams once.

Once Officers Harris and Smith regained control of the situation and backup arrived, ambulances transported White and Williams to the University of Alabama Birmingham medical center. White received treatment at UAB and remained at UAB for two weeks and a few days. Williams received treatment at UAB and UAB released her after two days. During part of their stays at UAB, BPD restrained White and Williams with handcuffs and posted BPD officers near their rooms.

White and Williams have now sued pursuant to 42 U.S.C. § 1983 and Alabama state law, arguing that the City, Mayor Bell and Officers Harris and Smith violated their constitutional rights by using excessive force, and violated their rights under state law by assaulting, battering, and falsely imprisoning them. The Defendants argue that they are entitled to summary judgment on all of White and Williams' claims. The court agrees with the Defendants because the Defendants are immune from suit on all of White and Williams' claims.

Before addressing the Defendants' summary judgment motion, however, the court must rule on several motions to determine the record before it for summary judgment purposes.

I. Motion for Judicial Notice

White and Williams request that the court take judicial notice of the following facts pursuant to Federal Rule of Evidence 201:

1. A Consent Decree filed in McGill v. City of Birmingham, 74-G-0692, on June 29, 1984, (Doc. 44-1);
2. A 2013 Motion filed by the City of Birmingham seeking relief from the requirements imposed by the Consent Decree in McGill, (Doc. 44-2);
3. An Order modifying in part the Consent Decree in McGill, (not attached);
4. That the calendar date of March 14, 2014 occurred after the date of November 20, 2012;
5. That the calendar date of December 1, 2012 occurred before the calendar date of March 14, 2014;
6. That the calendar date of December 2, 2012 occurred prior to the calendar date of March 14, 2014;
7. That the calendar date of December 30, 2012 occurred before the calendar date of March 14, 2014;
8. That a living person born on March 8, 1994 was eighteen years of age on November 30, 2012;
9. That the article Birmingham Mayor William Bell Said He Was Not The Target Of A Wild Interstate Shooting Friday Night, written by Carol Robinson, was posted to the website of Alabama Media Group on December 3, 2012, (Doc. 44-3);
10. That the Birmingham News article, Video Of Police Beating Prompts Birmingham Mayor Bell To Calls For More Training, written by Carol Robinson, Joseph D. Bryant, and Jeremy Grey was published on March 31, 2011, at 10:55 p.m. and updated on April 1, 2011, at 6:45 a.m., (Doc. 44-4);
11. That the Birmingham News article, Birmingham City Council Summons Police Chief A.C. Roper For Hearing On Allegations About Department's Use Of Force, written by Joseph D. Bryant, was published on April 20, 2011, at 7:30 a.m., (Doc. 44-5);
12. That the Birmingham News article, Birmingham Council President Wants Police Chief To Report On Excessive-Force Complaints Against Department, written by Joseph D. Bryant, was published on April 19, 2011, at 11:45 a.m. and updated on April 19, 2011, at 6:37 p.m., (Doc. 44-6); and
13. Any case filed in the United States District Court For The Northern District of Alabama, Southern Division.

(Doc. 44) (emphasis added). Generally, these items can be grouped into court documents (items 1, 2, 3, and 13), logical facts (items 4, 5, 6, 7, and 8), and news articles (items 9, 10, 11, and 12).

The court may take judicial notice when an adjudicative fact "is not subject to reasonable dispute" because the fact is either (1) "generally known within the trial court's jurisdiction;" or (2) "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201; see United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (finding only indisputable facts may be judicially noticed).

A. Court Documents

White and Williams request the court take judicial notice of certain court documents in items 1, 2, 3, and 13. The Defendants do not object. While the court "may not infer the truth of all the facts in the documents contained in [its own] records, the Court may take judicial notice of those records." In re Steeley, 243 B.R. 421, 427 (Bankr. N.D. Ala. 1999); see Ackermann v. United States, 178 F.2d 983, 985 (5th Cir. 1949).[2] Therefore, the court GRANTS the motion as to the fact that the court documents exist and DENIES the motion as to the factual accuracy of the content of court documents.

B. Logical Facts

White and Williams request the court take judicial notice of certain logical facts concerning dates and ages in items 4, 5, 6, 7, and 8. The Defendants do not object. Therefore, the court GRANTS the motion as to these logical facts.

C. News Articles

White and Williams request the court take judicial notice that the news articles in items 9, 10, 11, and 12 were published. The Defendants argue that these items do not meet the requirements for judicial notice in the Federal Rules of Evidence.

The court GRANTS the motion as to the fact that the news articles were published. However, the court DENIES the motion as to the factual accuracy of the news articles because the "facts" printed in the news articles are still subject to reasonable dispute. See Shahar v. Bowers, 120 F.3d 211, 214, nt. 5 (11th Cir. 1997) ("[Movant] has shown us no case - and we have found none - where a federal court of appeals took judicial notice of the unofficial conduct of one person based upon newspaper accounts... about that conduct."). Additionally, the court DENIES the motion as to White and Williams' characterization of the news articles. See In re Towne Servs., Inc. Sec. Litig., 184 F.Supp.2d 1308, 1318 (N.D.Ga. 2001) (finding court may not take judicial notice of "conclusory characterizations of such statements in the plaintiffs' complaint").

D. Summary

In summary, the court GRANTS in part and DENIES in part White and Williams' motion for judicial notice.

II. White and Williams' Motion to Strike

White and Williams ask the court to strike exhibits five and six to the Defendants' motion for summary judgment. Exhibit five is Williams' statement to BPD Investigator Jeff Steele on December 1, 2012 at 10:31 a.m. at UAB describing the events of November 30, 2012 leading up to and after White and Williams' encounter with BPD. (Doc. 36-5). Exhibit six is a declaration by Investigator Steele describing the procedures he took during and after his interview with Williams. (Doc. 36-6).

Whether to grant a motion to strike is an evidentiary ruling within the court's discretion. See United States v. Stout, 667 F.2d 1347, 1353 (11th Cir. 1982) ("A trial court's ruling as to the materiality, relevancy or competency of testimony or exhibits will ordinarily not warrant reversal unless constituting an abuse of discretion." (internal citations omitted)). For the reasons discussed below, the court DENIES White and Williams' motion to strike.

A. Competency

White and Williams first argue that Williams' statement should be excluded because she was a minor under the influence of medication when she gave the statement to Investigator Steele. First, whether Williams was a minor when she made her statement is irrelevant. "Every person is competent to be a witness unless [the Federal Rules of Evidence] provide otherwise." Fed.R.Evid. 601; see United States v. Perez, 526 F.2d 859, 865 (5th Cir. 1976) ("The ultimate test of competence of a young child is whether [she] has the requisite intelligence and mental capacity to understand, recall and narrate [her] impressions of an occurrence.").

Second, whether Williams was medicated does not render her incompetent. Williams argues she was under the influence of pain medication when Investigator Steele interviewed her on December 1, 2012 at 10:31 a.m. and some medical records indicate that UAB prescribed her medication as early as November 30, 2012. (Doc. 36-7, 53). Rather than exclusion, however, the court finds that Williams' statement is better addressed by taking every reasonable inference from her statement in White and Williams' favor for purposes of summary judgment. See McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240 (11th Cir. 2003) (using most favorable testimony of plaintiff on summary judgment when plaintiff was medicated when providing some parts of testimony).

B. Failure to Follow Regulations

White and Williams next argue that Williams' statement should be excluded because BPD did not follow its internal procedures when interviewing her. BPD regulations concerning "Arrests-Juveniles" require "[a]ll officers taking a juvenile into custody" to "notify the juvenile's parents or legal guardian." (Doc. 43-8, 3 (emphasis added)). Further, "[t]he officer advising a juvenile of Constitutional Rights' (Miranda Warning) shall have the juvenile ... sign the Rights Waiver Form." (Doc. 43-8, 10-11 (emphasis added)). " Juvenile means "a child under the age of 18...." (Doc. 43-8, 1 (emphasis added)). Williams was a minor when Investigator Steele interviewed her because she was only 18. However, the explicit words of the regulations state that the regulations only apply to persons under 18. Thus, Investigator Steele did not violate the regulations.

Further, even if BPD regulations applied, mere violation of the regulations provides no basis to strike Williams' statement absent an independent constitutional violation. See United States v. Caceres, 440 U.S. 741, 754-55 (1979); see United States v. Teers, ___ Fed.App'x ___, No. 13-15677, 2014 WL 6764272, at *11 (11th Cir. Dec. 2, 2014) (finding that even if a government agent violated IRS regulations, the violation of the IRS regulation was not a ground to suppress a plaintiff's statement to agent). In Teers, the Eleventh Circuit explained:

[A] rigid application of an exclusionary rule to every regulatory violation could have a serious deterrent impact on the formulation of additional standards to govern prosecutorial and police procedures. [I]t is far better to have rules like those contained in the IRS Manual, and to tolerate occasional erroneous administration of the kind displayed by this record, than either to have no rules except those mandated by statute, or to have them framed in a mere precatory form.

2014 WL 6764272, at *13 (internal citations omitted). Therefore, failure to follow BPD regulations is no basis to strike Williams' statement.

C. Exclusionary Rule

White and Williams next contend that Williams' statement should be excluded under a civil application of the exclusionary rule because Investigator Steele did not read Williams her Miranda rights prior to beginning a custodial interrogation.

The Supreme Court has "repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials." Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363 (1998) (inapplicable to parole hearing); see United States v. Calandra, 414 U.S. 338, 354 (1974) (inapplicable to grand jury proceedings); see United States v. Janis, 428 U.S. 433, 459-60 (1976) (inapplicable to civil claim for tax refund); see I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1034 (1984) (inapplicable to deportation hearing).

Other courts have found the exclusionary rule inapplicable in § 1983 claims. See Townes v. City of New York, 176 F.3d 138, 149 (2d Cir. 1999); see Wren v. Towe, 130 F.3d 1154, 1158 (5th Cir. 1997); see Thompson v. Carthage Sch. Dist., 87 F.3d 979, 981 (8th Cir. 1996); see Medlock v. Trustees of Indiana Univ., 738 F.3d 867, 872 (7th Cir. 2013); see Chatman v. Slagle, 107 F.3d 380, 382 (6th Cir. 1997); accord Shorter v. Dollar, No. 3:11CV531-WHA, 2011 WL 5358652, at *10 (M.D. Ala. Nov. 7, 2011).

To determine whether to apply the judge-made exclusionary rule, the court must "weigh the likely social benefits of excluding unlawfully seized evidence against the likely costs." Lopez-Mendoza, 468 U.S. at 1041. Benefits include deterring unlawful police conduct. Costs include the loss of probative evidence and more expensive adjudications. Id. Here, exclusion of Williams' statement may have some deterrent effect on BPD's procedures because BPD both collected the statement from Williams and is sued by Williams. See Janis, 428 U.S. at 458 (finding deterrent effect more "highly attenuated" when exclusionary rule removes evidence in civil case against a different sovereign than collected the evidence). However, Williams' statement is of immense probative value to the court's analysis of the summary judgment motion.

On balance, given the overwhelming case law against extending the exclusionary rule to civil cases, the court will not strike Williams' statement as the fruit of an alleged constitutional violation.

D. Hearsay

White and Williams further argue that Williams' statement should be excluded because it is hearsay that does not fall within any hearsay exception. However, "[t]he statement is offered against an opposing party and... was made by the party in an individual or representative capacity." Fed.R.Evid. 801(d)(2)(A). "Of course, statements made out of court by a party-opponent are universally deemed admissible when offered against him." U.S. for Use & Benefit of Carter Equip. Co. v. H. R. Morgan, Inc., 544 F.2d 1271, 1273 (5th Cir. 1977). Thus, the hearsay ground fails to hold water.

E. Summary

White and Williams have offered no legitimate basis for excluding Investigator Steele's declaration describing the procedures he took during and after Williams' interview. Thus, Investigator Steele's declaration should not be excluded.

In summary, the court DENIES White and Williams' motion to strike exhibits 5 and 6 to the Defendants' motion for summary judgment. However, the court will read Williams' statement in the light most favorable to White and Williams and will draw every reasonable inference in their favor.

III. The Defendants' Motion to Strike

The Defendants ask the court to strike exhibits L, L1, L2, L3, L4, L5; portions of exhibit M; and exhibits R, S, and U to White and Williams' response to the Defendants' motion for summary judgment. Exhibits L and L1 are BPD incident/occurrence reports ("IO reports") related to the drive-by shooting of Alfred Murphy on November 30, 2012. Exhibits L2, L3, L4, and L5 are IO reports related to White and Williams' November 30, 2012 encounter with BPD. Exhibit M is Deandre Major's declaration. Exhibits R, S, and U are news reports.

Whether to grant a motion to strike, an evidentiary ruling, falls within the discretion of the district court. See Stout, 667 F.2d at 1353. For the reasons discussed below, the court DENIES the Defendants' motion to strike.

A. Incident/Offense Reports

The Defendants argue that the IO reports are inadmissible because the reports themselves are hearsay and because the IO reports contain hearsay within hearsay. L and L1 contain the time of the Murphy shooting that Murphy communicated to BPD Officer Penn who subsequently recorded the time in two IO reports.[3] L2, L3, L4, and L5 contain the fact that BPD detained White and Williams as suspects on November 30, 2012, which was communicated to various BPD officers who then recorded the fact in various IO reports.

Generally, inadmissible hearsay cannot be considered on a motion for summary judgment. See Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999). However, a court may consider a hearsay statement "if the statement could be reduced to admissible evidence at trial" because, for example, the statement falls within a hearsay exception or is not offered for the truth of the matter asserted. Id. at 1323-24 (internal quotations omitted and emphasis added); s ee Gamble v. PinnOak Res., LLC, 511 F.Supp.2d 1111, 1123, nt. 5 (N.D. Ala. 2007) (finding court may consider hearsay statement for purposes of summary judgment if the plaintiffs "could feasibly authenticate most of the exhibits and overcome hearsay objections at trial" even if the statement is hearsay at the summary judgment stage). "Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule." Fed.R.Evid. 805.

First, the IO reports themselves are hearsay but are admissible under the public records exception to the hearsay rule because they are the official reporting document for BPD for the November 30, 2012 investigation. See Fed.R.Evid. 803(8)(A)(iii); see Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170 (1988) (finding statements of opinion in police reports admissible if based on a factual investigation and otherwise trustworthy). Also, the IO reports are hearsay but are excluded from the hearsay rule as statements by the agent of a party opponent because the IO reports are used by White and Williams against the Defendants and were made by BPD officers performing official police tasks within the scope of their employment as agents of the City. See Fed.R.Evid. 801(d)(2)(D).

Second, the statements to BPD officers in L and L1 are hearsay but could be reduced to admissible form at trial. The only hearsay within hearsay in L and L1 is Murphy's statement to Officer Penn that "on the listed date and time [November 30, 2012 at 9:20 p.m. ] he was driving the listed vehicle...." (Doc. 42-19). This statement could be reduced to admissible form at trial because Murphy could be compelled to testify at trial about his statement. Alternatively, this statement could be viewed as an excited utterance if the proper foundation were laid at trial because Officer Penn recorded the statement soon after Murphy was involved in a drive by shooting. See Fed.R.Evid. 803(2).

Third, the statements to BPD officers in L2, L3, L4, and L5 are hearsay but could be reduced to admissible form at trial. The only hearsay within hearsay in exhibits L2, L3, L4, and L5 are the following statements recorded by Officer Lewis in L3: (1) "I was informed by officer Harris that the mayor was in the vehicle and he was safe"; and (2) "When it was announced that all three suspects were in custody and everything was 10-24 (ok), I observed Lt. Irwin and Sgt. Ward of North Precinct and they appeared to have everything under control." (Doc. 42-22). The remainder of L3 and all of L2, L4, and L5 do not contain any other hearsay within hearsay. (Doc. 42-21; Doc. 42-22; Doc. 42-23; Doc. 42-24).

The first statement by Officer Harris to Officer Lewis is hearsay but is excluded from the hearsay rule as a statement by Officer Harris, a party opponent. See Fed.R.Evid. 801(d)(2)(D). The second statement by an unnamed speaker to Officer Lewis is hearsay but could be reduced to admissible form at trial because White and Williams could presumably call Officer Lewis at trial to determine who made the statement that "all three suspects were in custody" and could then subsequently elicit the statement from the speaker.

Finally, to the extent the Defendants argue that exhibits L, L1, L2, L3, L4, and L5 do not reflect the information that White and Williams' ascribes to them, those arguments go to the weight of the evidence and is not a basis to strike the exhibits.

B. Declaration by Deandre Major

The Defendants argue that paragraph nine of exhibit M should be stricken because the statement is opinion testimony that is not based on scientific, technical, or other specialized knowledge. See Fed.R.Evid. 701. Paragraph nine is Deandre Major's declaration that "[w]hen the car crashed, I was knocked out from the crash." (Doc. 42-25, 3). The Defendants' argument is silly. Major is not offering a medical opinion about whether he became unconscious; he is stating a fact he knows-that the crash knocked him out.

C. News Articles

The Defendants argue that exhibits R, S, and U should be stricken because the news articles are hearsay offered by White and Williams to prove the truth of the matter asserted in the news articles, that BPD had a policy or custom condoning excessive force.

News articles are generally not admissible to establish the truth of their contents. See United States v. Baker, 432 F.3d 1189, 1211 (11th Cir. 2005). However, news articles may be admissible if offered for other purposes. Baker, 432 F.3d at 1211; see United States v. Michtavi, 155 Fed.App'x 433, 435 (11th Cir. 2005) (to show articles existed); see Estate of O'Connor v. United States, No. 8:12-CV-02070-T-27MA, 2013 WL 1295925, at *2, nt. 8 (M.D. Fla. Mar. 28, 2013), appeal dismissed (Oct. 9, 2013) (to show party had notice of allegations in article); see Carter v. District of Columbia, 795 F.2d 116, 126 (D.C. Cir. 1986) (to show notice of pattern of police misconduct).

White and Williams do not offer Exhibits R, S, and U to prove the truth of the matter asserted and only offer the news articles to show that the articles existed and that the City had notice of the incidents the articles discussed to infer a need for additional excessive force training. These uses are not hearsay.

The Defendants argument that the news articles should be stricken because they are not authenticated fails. See Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater, 2 F.3d 1514, 1530 (11th Cir. 1993) (finding news articles may be considered at summary judgment even if inadmissible at trial). Further, the AL.com news articles are analogous to traditional newspaper articles and could be found self-authenticating at trial. See Fed.R.Evid. 902(6).

D. Summary

In summary, as to the Defendants' evidentiary matters, the court DENIES the Defendants' motion to strike exhibits L, L1, L2, L3, L4, L5; portions of exhibit M; and exhibits R, S, and U to White and Williams' response to the Defendants' motion for summary judgment.

IV. Motion for Summary Judgment

White and Williams sued the City, Mayor Bell, Officers Harris and Smith, and several unserved or fictitious parties under § 1983 for violations of White and Williams' constitutional rights. White and Williams also alleged the Defendants falsely imprisoned, assaulted, and battered them. For the reasons discussed below, the court finds the Defendants are entitled to summary judgment on all of White and Williams' claims.

A. Facts

The facts below are taken in the light most favorable to White and Williams.

1. Earlier on November 30, 2012

On the evening of November 30, 2012, beginning at 5:00 p.m., BPD Officer Herman Harris, a member of Mayor William Bell's security detail, drove Mayor Bell to and from several official events in an unmarked black Suburban owned by BPD. BPD Officer Eric Smith, another member of Mayor Bell's security detail, accompanied Officer Harris and Mayor Bell. Officer Harris drove, Officer Smith sat in the front passenger seat, and Mayor Bell sat in the rear seat on the passenger side.

Also on November 30, 2012, plaintiff Justin White drove Deandre Major and plaintiff Latisha Williams around the Smithfield area of Birmingham near Parker High School in his white Lincoln Town Car four-door sedan. White drove, Major sat in the front passenger seat, and Williams sat in the rear seat on the driver's side.

Officers Harris and Smith first saw White's vehicle as it pulled up and stopped at the traffic light on the corner of 8th Avenue and 6th Street, traveling east in the far right lane. A burgundy and gold Suburban driven by Alfred Murphy also stopped at the traffic light next to White's vehicle.

2. The Murphy Shooting

Officer Smith saw a black male fire three shots into the burgundy and gold Suburban from the passenger side window of White's vehicle. Officer Harris also saw a black male fire at the burgundy and gold Suburban, heard two shots, and also saw one muzzle flash at 7:30 p.m. Mayor Bell also saw an individual fire approximately three to five shots from White's vehicle. White and Williams invoked their Fifth Amendment rights against self incrimination when asked whether Major shot at the burgundy and gold Suburban and the court infers they witnessed Major shoot at the burgundy and gold Suburban.[4]

However, a BPD incident/occurrence report ("IO report") completed by BPD Officer Penn after the Murphy shooting states that the shooting occurred at 9:30 p.m., several hours after BPD took White and Williams into custody, and states that the shooting occurred on the 1600 block of 8th Avenue North, half a mile from where the Mayor's vehicle encountered White's vehicle. (Doc. 42-19). Thus, for purposes of summary judgment, taking the conflicting evidence in the light most favorable to White and Williams, the court assumes that the Murphy shooting did not involve the occupants of White's vehicle.

3. The Arkadelphia Road Shooting

After encountering White's vehicle, Officer Smith requested backup. Officer Harris circled the block and eventually wound up behind White's vehicle. White knew that he was being followed, but did not know the Mayor's vehicle belonged to BPD and felt threatened by the Mayor's unmarked vehicle. He did not call 911 or head towards a police station, however. White attempted to evade the Mayor's vehicle by driving around 45 to 50 miles per hour through a residential neighborhood, but he stopped at all stop signs, used his blinkers, and drove carefully. Officer Harris followed White's vehicle onto Arkadelphia Road heading north. Officer Smith advised Officer Harris to stay back a safe distance.

At the corner of 9th Avenue and Arkadelphia Road, a black male passenger in White's vehicle fired one shot at the Mayor's vehicle. Mayor Bell testified that one shot came from White's vehicle and that he saw a muzzle flash. Officer Harris heard a shot, but did not see a muzzle flash. Officer Smith heard a shot, but did not see a shot fired. As previously noted, because White and Williams invoked their Fifth Amendment rights against self incrimination in response to ...


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