Alеx LITTLEJOHN, Plaintiff-Appellee, v. Ronald MYERS, et al., Defendants-Appellants.
No. 16-3608
United States Court of Appeals, Sixth Circuit.
Filed April 04, 2017
563
Further, as discussed in the previous section, the burden for receiving an evidentiary hearing under
III.
Because MacLloyd has made the requisite showing to entitle him to a hearing on the grounds that his counsel rendered deficient performance and that he was prejudiced by the deficient performance, an evidentiary hearing is required by
Paul J. Cristallo, Cristallo & LaSalvia, Cleveland, OH, for Plaintiff-Appellee
John Paul Bacevice, Jr., City of Cleveland, Cleveland, OH, for Defendant-Appellant
BEFORE: CLAY, SUTTON, and GRIFFIN, Circuit Judges.
CLAY, Circuit Judge.
Plaintiff Alex Littlejohn sued Defendants Ronald J. Myers and the City of Cleveland рursuant to
BACKGROUND
I. Factual background
At this juncture, the litigants’ versions of the facts differ substantially. For purposes of this interlocutory appeal, Myers concedes that Littlejohn‘s version of the facts controls. Littlejohn claims that upon breaking free, he did not reach for Myers’ gun or taser. Nor did he strike him or make any verbal threat to Myers. He never made any furtive gestures indicating possession of a weapon or an attempt to reach for one. Instead, he simply began to flee, at which point Myers shot him in the lower back. Myers never issued a warning prior to discharging his weapon.
II. Procedural History
Littlejohn initially filed a complaint in Ohio state court. On May 27, 2015, dеfendants Myers and the City of Cleveland removed the case to federal court. In response, Littlejohn filed an amended complaint on August 2, 2015, alleging that Myers violated his Fourth Amendment right to be free from excessive force; in addition, Littlejohn brought state law claims of assault and battery, and intentional infliction of emotional distress. The complaint also included a Monell claim against the City of Cleveland. A confеrence was held on August 20, 2015, during which the parties agreed to limited discovery to address the issue of qualified immunity. Following discovery, Myers moved for summary judgment. He also requested immunity under Ohio law for any state law claims brought against him. On May 17, 2016, the district court denied Myers’ motion for summary judgment on Littlejohn‘s excessive force claim, and explicitly declined to rule upon his state immunity defense. This interlocutory appeal followed.1
DISCUSSION
I. Standard of Review
This Court reviews de novo a district court‘s denial of a defendant‘s motion for summary judgment on qualified immunity grounds. Stoudemire v. Mich. Dep‘t of Corr., 705 F.3d 560, 565 (6th Cir. 2013). Summary judgment is appropriate if the movant cannot show that there is a genuine dispute as to any material fact.
Littlejohn brought a claim under
The district court in this case denied qualified immunity, finding that genuine issues of material fact existed for trial. But the fact that the district court denied the motion on such grounds “does not necessarily preclude this [C]ourt‘s jurisdiction over defendants’ appeal.” Livermore v. Lubelan, 476 F.3d 397, 402 (6th Cir. 2007). Rather, “regardless of the district court‘s reasons for denying qualified immunity, [this Court] may exercise jurisdiction over the . . . appeal to the extent it raises questions of law.” Williams v. Mehra, 186 F.3d 685, 689-90 (6th Cir. 1999) (quoting Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996)) (emphasis in original). Myers concedes Littlejohn‘s version of the facts, and instead argues that under Littlejohn‘s alleged facts, this Court cannot find a violation of clearly established law. Because the instant case turns on whether Littlejohn‘s alleged facts show a violation of clearly established law, and not on which facts the parties may be able to prоve at trial, this Court has jurisdiction. Mitchell, 472 U.S. at 527.
An excessive force claim is “most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures’ of the person.” Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Accordingly, to determine whether force is excessive, courts “apply an objective reasonableness test, looking to the reasonableness of the force in light of the totality of the circumstances confronting the defendants, and not to the underlying intent or motivation of the defendants.” Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013). In so doing, a court “must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Livermore, 476 F.3d at 405 (quoting Smith v. Freland, 954 F.2d 343, 346-47 (6th Cir. 1992)).
This Circuit has employed a non-exhaustive list of three factors to evaluate whether an officer‘s actions are reasonable: “(1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight.” Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015) (quoting Sigley v. City of Parma Heights, 437 F.3d 527, 534 (6th Cir. 2006)). But thе ultimate inquiry is always whether the totality of the circumstances justified the use of force. With respect to the reasonableness factors, both the severity of the crime—armed robbery—and the fact that Littlejohn actively resisted arrest, militate in favor of a finding that Myers’ use of force was reasonable.
With that said, this Court has explicitly stated—regardless of the other factors—that with respect to the usе of deadly force, there is a minimum requirement that the officer have “probable cause to believe that the suspect poses a threat of severe physical harm, either to the officer or others.” Untalan v. City of Lorain, 430 F.3d 312, 314 (6th Cir. 2005). Our analysis turns on whether Myers had probable cause to believe that Littlejohn presented a serious danger to either himself or others at the moment Myers discharged his firearm. See Bouggess v. Mattingly, 482 F.3d 886, 890 (6th Cir. 2007) (the relevant time for purposes of this inquiry “is the moment immediately preceding the shooting“). As a general note, the mere fact that Littlejohn was a felon fleeing from police is not sufficient to justify the use of deadly force. Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (“It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from fаiling to apprehend him does not justify the use of deadly force to do so.“). On the other hand, if a suspect threatens either an officer or any other person with serious physical harm during flight, deadly force is authorized. Dickerson, 101 F.3d at 1163.
Myers’ entire argument rests on the contention that it was reasonable for him to believe that Littlejohn was armed at the moment that he shot him. Specifically, Myers notes that he was responding to an armed robbery during which a suspect threatened employees with a handgun. Myers claims that at no point did he see Littlejohn turn over his weapon to Tisdale. Accordingly, he argues that he could justifiably assume that Littlejohn possessed a firearm. When evaluated in combination with the seriousness of Littlejohn‘s crime, and his willingness to resist arrest through the use of force, Myers argues that any reasonable officеr would have concluded, as Myers did, that Littlejohn posed a serious threat. Therefore, shooting him was warranted. We disagree.
But even crediting Myers’ belief that Littlejohn was armed, courts have noted that the mere fact that a suspect is armed is, by itself, not sufficient to warrant the application of deadly force. See, e.g., Bouggess, 482 F.3d at 896; Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). Rather, the inquiry turns on whether Myers had probable cause to believe that Littlejohn posed a threat of serious physical harm, either to himself or to others. See Chappell v. City of Cleveland, 585 F.3d 901, 910 (6th Cir. 2009). Myers’ conclusion that Littlejohn constituted a threat rests entirely on a misplaced belief that Littlejohn was armed, and that he previously attempted a robbery. But at the moment that he was shot, it is hard to see what threat of serious harm Littlejohn posed to anyone in the alley. Upon resisting arrest by merely bucking his hips and evading Myers’ grasp, Littlejohn never explicitly threatened Myers, never reached for a weapon, and never attempted to strike the officer. Instead, he immediately began to run. During his flight, Littlejohn did not reach to his side or make any comparable gesture that may have given a reasonable officer the impression that Littlejohn posed a serious threat. And the facts indicate that no one beside Myers was in the alley—removing any threat to an innocent bystander. Consequently, we conclude that a reasonable officer would not have exercised deadly force under the circumstances because Littlejohn did not constitute a threat to either the officer or to any bystanders.
Myers attempts to argue that such a conclusion would be erroneous in light of the obvious threat Littlejohn presented at the time of the armed robbery. However, we are required to foсus on the immediacy of the threat posed by Littlejohn at the moment he evaded Myers’ restraint. See Kirby v. Duva, 530 F.3d 475, 481-82 (6th Cir. 2008) (denying qualified immunity to officer where, under plaintiff‘s facts, “no one was ever in danger“); see also Scott v. Harris, 550 U.S. 372, 383-84, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (“Although there is no obvious way to quantify the risks on either side, it is clear from the videotape that respondent posed an actual and imminent threat to the lives of any pedestrians who might have been presеnt. . . .“) (emphasis added). And given the facts, a reasonable officer would not have concluded that Littlejohn presented an imminent threat to the lives of any pedestrians or to the officer. See Washington v. Newsom, 977 F.2d 991, 994-95 (6th Cir. 1992) (flight from ongoing armed robbery, without more, does not permit use of deadly force). Our conclusion is further buttressed by the fact Myers never warned Littlejohn that he might shoot, as required by Garner when feasible under the circumstances. See Bouggess, 482 F.3d at 892. Consequently, we agree that under Littlejohn‘s version of the facts, Myers violated Littlejohn‘s Fourth Amendment rights.
Next, we must answer the question of whether the right to be free from excessive force in the form alleged by Littlejohn was clearly established at the time of the seizure. A right is “clearly established” if “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The relevant inquiry is “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) rev‘d on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Qualified immunity is an objective rather than a subjective inquiry. Baynes v. Cleland, 799 F.3d 600, 610-11 (6th Cir. 2015). The Supreme Court has repeatedly cautioned that rights are not to be defined at a “high level of generality” but instead the inquiry must be undertaken in light of the specific context of the case. Brosseau v. Haugen, 543 U.S. 194, 199, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). With that said, an official can be on notice that his conduct violates established law even in novel factual situations. Hope v. Pelzer, 536 U.S. 730, 731, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002); Anderson, 483 U.S. at 640 (“This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful. . . .“).
Undoubtedly, a suspect‘s right to be free from excessive force is clearly established. Bletz v. Gribble, 641 F.3d 743, 756 (6th Cir. 2011). However, it is not appropriate to define a right at such a broad level of generality. The district court held that an officer who employs deadly force against a fleeing suspect without reason to believe that the suspect poses a significant threat of serious physical harm to himself or others constitutes an excessive force violation. In so doing, the district court relied upon this Circuit‘s 2007 decision, Bouggess v. Mattingly, to say such a right was clearly established. The aforementioned case clearly establishes a constitutional violation when an officer shoots a fleeing suspect in the back without a basis for believing that the suspect poses an imminent threat, regardless of the previous felony the suspect committed. See Washington, 977 F.2d at 994-95. As we have previously explained, Littlejohn did not pose a threat to the officer or to any innocent bystanders. Accordingly, a reasonable officer in Myers’ position would know that the use of deadly force was not authorized.
C. State law immunity
Myers asks this Court to dismiss Littlejohn‘s state law claims on the basis of Ohio law, which affords immunity to employees of political subdivisions for negligence claims arising out of the course and scope of the person‘s employment. See
CONCLUSION
For the aforementioned reasons, we AFFIRM the district court‘s decision to deny summary judgment, dismiss Myers’ state law appeal for lack of jurisdiction, and remand for proceedings consistent with this opinion.