Scozzari case bound for Jan. hearing in fed court

Bill Scozzari

      CLARE – A federal judge will hear oral arguments Jan. 25 on a motion for summary judgment related to the wrongful death suit naming Police Chief Dwayne Miedzianowski, Officer Jeremy McGraw and others as defendants.
      The court is in Bay City.
     Police fired shots striking William Scozzari, 51, the night of Sept. 18, 2007, at his downtown Lone Pine Motel residence during an altercation. Scozzari died later that night.
According to the defense, the case should be dismissed based on doctrine of immunity that protects government officials. The suit also names the city of Clare and City Manager Ken Hibl.
     Detroit Attorney Hugh Davis represents plaintiff Steven Scozzari, personal representative of his deceased brother’s estate.
     The plaintiff seeks a jury trial.
     Only a jury can decide a question of material fact. “An issue of matter of law in this case is that police didn’t have the right to go back to the motel and order Scozzari out of his cabin,” Davis told The Clare Sentinel Friday, by phone.
     “Once you let someone get back inside their house, you have to get a warrant. Instead they kicked in his door.”  Davis said the Scozzari case is moving forward at a rapid pace.
     His motion to extend discovery for a month or two was denied by the judge.
Consequently, defendants’ motions for summary judgment and plaintiff response were given a November deadline.
      “We claim that there was a cover-up,” Davis said, and that the officers “conspired to conceal what really happened when Mr. Scozzari was already dead.”
     In his 48-page brief, Davis said eyewitness and forensic testimony contradicts the “perfect scenario for self-defense and justifiable homicide” police are using as a defense.
     “I think that we can make a compelling case that the incident did not occur the way the police reports say it did and that the investigation was botched,” Davis said.
     The Clare Sentinel has obtained a copy of the 39-page motion for summary judgment filed by Troy Attorney Roger A. Smith, for defendants Miedzianowski and McGraw. Smith had the copy emailed but he was unavailable for comment.
     Davis also provided an emailed copy of his response document.
     East Lansing Attorney David Otis, representing the city and the city manager, could not be reached.
     The documents detail circumstances leading up to the police altercation with Scozzari that night.
Both documents will be available on The Sentinel website at www.clarecountyonline.com.
Excerpts from the two documents are printed here but none of the case law citations are included:
     Questions posed by the plaintiff:
1. Where the officers illegally created the circumstances which they claimed required them to use deadly force, are they entitled to summary judgment or qualified immunity, where their version of the events is contradicted by independent witnesses and forensic evidence?
2. Did the officers violate Plaintiff’s Fourth Amendment rights as a matter of law when they undertook to order him from his home for the purpose of submitting to arrest and broke his door, without warrant, exigent circumstances or probable cause?
3. Did the officers’ aggressive pursuit of Plaintiff prior to the time that he went into his home constitute a seizure within the meaning of the Fourth Amendment?
4. Did Defendants unreasonable decision to delay treatment for 12 minutes violate Plaintiff’s rights?
5.  Did the city of Clare violate the (Americans with Disabilities Act) by failing to perform any self-assessment or conduct any education or training, particularly including within the police department, regarding how to communicate and deal with handicapped persons, particularly mentally handicapped persons?
6. Whether or not the city of Clare violated the ADA, did their complete failure to train their officers in how to deal with, particularly mentally, handicapped persons give rise to municipal liability?
     Scozzari had lived in a small cabin at the Lone Pine Motel property for at least seven years. A diagnosed schizophrenic on disability, Scozzari was receiving care at Clare County Mental Health.
     He was hard of hearing, blind in one eye, and had diminished sight in the other.
     He stood 5’3” and weighed 113 pounds. Scozzari was obsessively reclusive and impossible to engage in conversation. He would not even allow his own parents into his cabin.
     Davis disputed the police officers’ claim that they had to pepper spray Scozzari, when he appeared to want to harm them. Davis could find no evidence Scozzari “reacted in any way consistently with being pepper sprayed. After his alleged initial confrontation with the chief, he turned and walked directly into his cabin. He had no time to change clothes or ameliorate the effects of pepper spray before the Chief and McGraw returned to arrest him.”
     Also, a state trooper indicated Scozzari’s pants were too large to fit a knife in the waistband, Davis said.
     As the situation with Scozzari escalated at his cabin, McGraw had tripped over a retaining wall and fallen backwards. He said as he went down, he fired his taser in the direction of Scozzari, who then closed the door of his cabin. Scozzari reportedly opened the door and stood holding three weapons in his hands.
     “McGraw heard 3 shots. Scozzari did not react, but kept advancing. McGraw scooted up on his side, but was still down on his back.”
     He was unable to reload the taser with Scozzari 3 to 5 feet away, still holding his weapons in the air. As Scozzari advanced closer, McGraw fired his pistol but did not see if he hit Scozzari.
     “Scozzari stopped and turned toward the Chief and McGraw kept shooting because he thought the Chief was in danger,” McGraw said in his deposition. “Scozzari turned toward the cabin, took 2 or 3 steps and fell over the embankment.”
     In his deposition, Miedzianowski fired his pistol when he saw McGraw go down and Scozzari advancing.   “He fired first to protect McGraw. He later claimed to have been afraid that Scozzari was too close to McGraw and McGraw might get hit,” the chief said in a deposition.
     Miedzianowski fired 4 times. McGraw then fired. “Although McGraw thought he only shot twice, he fired 7 times. He hit Scozzari 5 times – 3 in the back,” according to the autopsy.
     “The Chief did not hit Scozzari at all,” Davis said.
     Davis said testimony from eyewitnesses dispute the officers’ claim of self-defense and justifiable homicide.
     “Because the Chief and McGraw refused to give statements to MSP Detective Jerry Carter the evening of the incident and canceled a meeting with Carter the next morning at the direction of City Attorney and City Manager, the MSP had no idea what the critical points were and thus did not obtain the information about McGraw being down (or not) and the distances involved. That should cause the criminal investigation to be reopened,” Davis said in the response document.
     Eyewitnesses maintain “McGraw was not down when he fired the shots and Scozzari was not near him.”
MSP ballistics technician Reinhart Pope said in a deposition the bullet tracks did not show an upward path. Instead, the path was “consistent with a bullet having been fired with a person standing rather than a person lying on the ground…”
     The technician went on to state “To me, it’s consistent with the two officers in a relatively stationary position firing at – in the direction of the cabin.”
     Motion for Summary Judgment
     The motion for summary judgment attests there are disputed facts in the case, but that “none of them constitute a genuine issue of material fact sufficient to defeat this motion…”
     The document states “There is no dispute that the defendant officers attempted to arrest Scozzari while responding to a dispatch of shots fired near (Shamrock) the park, after Scozzari had refused Miedzianowski’s command to stop and after he had assaulted Miedzianowski with both a cane and what appeared to Miedzianowski to be a knife.
     “There is no dispute that, when the officers went to his cabin, the officers announced that they were police officers, asked Scozzari to come out and were confronted by Scozzari holding what reasonably appeared to the officers to be a knife and a hatchet. There is also no dispute that Scozzari was repeatedly ordered to drop the weapon but that he failed to do so.
     “There is no genuine dispute that the officers progressed through the use of force continuum, and eventually discharged their weapons in self-defense and/or defense of others and that Scozzari sustained fatal wounds.”
     A footnote on page 11 acknowledges that “verbal commands to drop the weapon(s) were repeatedly given, Miedzianowski deployed pepper spray (Freeze+P) and McGraw deployed a taser before deadly force was used.”
     About the plaintiff’s position, the defense attorney said that “any argument by plaintiff that the defendant officers did not possess probable cause to believe that Scozzari was a suspect in the shots fired incident or possess probable cause to believe that Scozzari had assaulted Miedzianowski or that the officers committed an illegal entry into Scozzari’s cabin, is irrelevant to the question before this court.”
     As for the conflicted testimony eyewitnesses gave over whether or not Scozzari held weapons when police confronted him, case study acknowledges that minor conflict of perception is common among eyewitnesses, “and is not sufficient by itself to create a material dispute of fact as to the officers’ credibility.”
     The motion addressed perspectives of McGraw and Miedzianowski. On page 22, it states “there is no dispute that, from McGraw’s and Miedzianowski’s perspectives, immediately before shots were fired, Scozzari was approaching McGraw with a knife and a hatchet in his hands with his arm extended. Even if the officers mistakenly believed that Scozzari was holding a weapon, their undisputed perception of the imminent harm presented by Scozzari justified their use of force.”
     Noted was Miedzianowski’s comment to Michigan State Police Detective Sgt. Jerry Carter that “he was concerned he had waited too long to use lethal force and that Scozzari had gotten too close to McGraw by the time he fired his gun.”
     Also disputed is whether the officers showed indifference to Scozzari’s gunshot wounds. “There is not evidence to suggest that delayed medical care worsened Scozzari’s injuries or otherwise caused him additional harm,” the motion read.
     “The record shows that Chief Miedzianowski responded immediately by reporting the incident and by requesting emergency medical response.”
     Records show MMR dispatch received a call at 11:27 p.m. and was on the scene by 11:33 p.m. Instructed to stage off-site until the scene was cleared, MMR attended to Scozzari “by approximately 11:35 p.m.”
     Another of the issues addressed in the motion is the civil conspiracy claim that alleges “the defendant officers conspired with others to ‘conceal, distort, cover-up, ratify and condone their wrongdoings and that of others by concealment/destruction of evidence, premature investigation and feigned ignorance’…”
     Therefore, the plaintiff’s Fourth Amendment rights were violated. Added to the list were violations of the plaintiff’s First and Fourteenth Amendment rights.
     “However, plaintiff is named as the personal representative of the Estate of William Scozzari and, hence, cannot maintain any cause of action in this suit which plaintiff, Steven Scozzari, believes may have accrued to him personally. The only causes of action which have accrued to plaintiff have accrued by virtue of the Wrongful Death Statute…”
     The defense noted “Circuit has held that conspiracy claims must be pled with some degree of specificity and that vague and conclusory allegations unsupported by material facts will not be sufficient to state a claim.”