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Thursday, June 13, 2024 | Back issues
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No Liability in 911 Report Error That Led to Deaths

(CN) - Emergency operators who said a woman threatening to shoot herself was unarmed are not responsible for a cop killing that woman and her 74-year-old mother, a federal judge ruled.

Barbara Baker, 74, had informed 911 operator Phil Raines that her daughter, Penny Schwartz, 51, was "totally out of control threatening to shoot herself" at their home in Duluth, Ga., on on July 22, 2009, at around 9 p.m.

Baker said Schwartz was on prescription medication and maybe "some kind of illegal junk." Though she knew of no guns in the house, she said Schwartz might have a gun.

Raines typed into the computer system, however, that Baker said there were no weapons in the house, and confirmed this to 911 dispatcher Neomi Sanchez's trainer, Tonya Holter.

Sanchez then radioed to police officer Lyndsey Perry that Schwartz was threatening suicide by pill.

Noticing the 911 information on her vehicle computer, Perry asked Sanchez how Schwartz was threatening to commit suicide - by pill or gun. Sanchez said that Schwartz was threatening to shoot herself and that the house contained no weapons.

When Perry arrived, Baker said, "She's going to shoot you, she's got a gun, she's going to shoot you to get you to shoot her."

Perry then told the 911 dispatcher that Schwartz was armed, and took out her gun.

Within seconds, Schwartz descended the stairs with her gun pointed at Perry.

Though Perry saw some movement out of the corner of her eye, she was unsure if it was Baker. Perry then shot at Schwartz twice, saw Schwartz still approaching with gun in hand, and fired three more rounds.

Schwartz dropped her gun and fell to the floor. Perry's shots had killed both Baker and Schwartz.

In a July 2011 complaint, Baker's children, Jody Ahlfinger and Michael Schwartz, and Schwartz's 25-year-old son, Derrick, sought to hold Gwinnett County; Perry; Perry's supervisor Sgt. D.A. Brown; and the 911 officials liable for wrongful death and violation of Baker and Schwartz's Fourth and Fifth Amendment rights. They also sought fees and costs.

The defendants moved for summary judgment in August 2012, while Perry filed for a Chapter 7 bankruptcy stay on Oct. 8, 2012.

U.S. District Judge William Duffey, Jr. partially granted the motions on Feb. 15.

"It is undisputed that the 911 defendants and Brown were not present at the scene of the shooting, did not use force against Baker or Schwartz, and were not in a position to intervene to prevent Perry from using force," Duffey wrote. "Summary judgment is appropriate for the 911 defendants and Brown on plaintiffs' Fourth Amendment claim based on an unreasonable use of force."

The family's supervisory liability claim failed, as well.

"There are no grounds for imposing supervisory liability on the 911 defendants or Brown because there is no evidence of the existence of prior widespread constitutional abuses or an improper custom or policy that resulted in deliberate indifference by Perry or the 911 operators to put Brown or the 911 defendants on notice of a need to take action with regard to them," the 36-page ruling states.

The heirs could not sustain wrongful death claims, either.

"Even if a trier of fact found that Raines failed to accurately convey information, there is no evidence that he or any other 911 operator acted with indifference to Baker's call or intended to harm or inflict injury on Baker or Schwartz," Duffey wrote. "The undisputed facts are that the 911 operators at the communications center did not exhibit willful or wanton misconduct, or bad faith in handling the call from Baker."

The judge denied the plaintiffs' request for oral hearing on the 911 defendants' motions, and stayed ruling on claims against Perry.

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