Bertha BOYD, Plaintiff-Appellee, v. Matthew BAEPPLER; David Wilsman, Defendants-Appellants

judgment under the collateral order doc- OPINION However, trine. as this court previ- has WELLFORD, Circuit Judge. ously “[ujnder explained, doctrine Jones, Johnson v. [515 U.S. Plaintiff Bertha administratrix of (1995),] L.Ed.2d 238 the estate of decedent Adolph Boyd, Jr. court cannot review on interlocutory ap- (“Boyd”), filed a 42 U.S.C. 1983 action peal a district court’s determination that against Cleveland officers Matthew genuine issue of trial, fact for exists Baeppler and David police chief jurisdiction we retain legal over the Pollutro, Rocco and the City Cleveland, question qualified immunity, i.e., asserting constitutional claims arising out given whether a set of facts violates death shooting The case clearly established law.” We review de was removed from state court to the feder- novo the district court’s of quali- denial al district court. Subsequently, defen- fied immunity. moved dants for summary judgment, Sizemore, Hoard v. 198 F.3d plaintiff opposed. The court district (citations Cir.1999) omitted). Plaintiff con- denied defendants’ motion for summary jurisdiction, tends we lack because the dis- judgment with respect to officers Baeppler trict court denied summary judgment and Wilsman and judgment reserved as to defendants qualified immunity upon defendants Pollutro and the City of Cleve- finding genuine “that issues of fact exist” land, concluding that: as use of deadly force. Defendants Based presented evidence by argue, however, that “genuine issues of plaintiff, the Court finds genuine fact, by found the district court are not issues of fact exist as to whether the genuine material, and that this appeal amount of force used by the offices was presents purely legal questions based on justified. essentially uncontroverted material facts.” A Specifically, issue of fact as to defendants assert exists that the dis- whether it trict court: objectively reasonable to (1) use force where a suspect is erroneously applied a fleeing felon anal- running away the officers in an ysis, and governmental misidentified the attempt to escape; the officers did interest at stake in this self defense not witness the suspect fire the weapon; case. The facts cited the District to the reasonableness irrelevant judgment are summary precluding Court Baep- and Office rel- Officer Wilsman’s analysis are not both under its erroneous with which to the threats reactions pler’s where inquiry, a self defense evant Again, agree. were faced.” they at stake interests government Boyd posed are whether in this case issues this re- officers. lives of to officers Wilsman and threat dis- do not Appellants [defendants] gard, and, so, of force if use District identified the facts pute The district was reasonable. response denial basis as the Court there remained finding no made court those facts because summary judgment issues. material to those dispute facts the relevant material to are not Nonetheless, review record we will case. in this immunity issues shall issue ing court’s appealability Denial controverted issues cludes a every under the nonappealable. ;¡: explain, we of Johnson We assertion material fact does such denial # agree, determination that summary of its circumstances surely does that believe & qualified there of material judgment often summary judgment therefore, as we # that not set forth. immunity were the district destroy the % mean that there are fact genuine ^[*] rul in- lack decision, window decide sert. walking jeans and white Arvai around affidavit gunshot feet Witness, Steve J. jurisdiction tall, stated that whether, holding a dark colored west on 11:10 or and stating that wore a dark otherwise, saw his home tennis shoes and Buckeye under the district a black 11:15 the male was plaintiff Arvai, on and p.m., blue near male armed April defendants looked maintains, we submitted jacket, East automatic. about appeared heard a out the court’s 122nd. blue and as- six point that he saw man added Arvai claim on permits petitioner Johnson Wendy’s outside people at three gun conduct which appeal that all any sight of him.1 he then lost that sufficiently sup- deemed District Court op- event, police called the promptly Arvai summary judg- purposes for ported observations. reported his erator Fitzgerald, 457 [v. the Harlow ment met undisputed. evidence was This 73 L.Ed.2d U.S. “objective legal rea- ] standard Baeppler and police officers Defendant sonableness.” to the effect affidavits submitted they were night question, in on the Scott, that F.3d Turner driving Pelletier, together, Cir.1997) duty Behrens v. (quoting call, Arvai’s car, shortly after and that 299, 312, 313, 116 S.Ct. U.S. to a “Code respond called (1996)). they were We determined L.Ed.2d indi- dispatch radio emergency pure- over jurisdiction One” that we had Turner a was a male with that there court’s cated questions despite district ly legal Road, Buckeye 120th area of East of mate- issues stating genuine order given description general met the existed; it who were otherwise “[i]f fact rial to the area proceeded Defendants- its Arvai. always insulate court could district headquarters radio Wilsman notified interlocu- immunity rulings from East they approached As their arrival. appropriate by mouthing tory review Baeppler and Wilsman Buckeye, Defendants 119th 119 F.3d at 428. shibboleth.” Zbikowski from Officer “heard a broadcast committed had that “whether assert male, just seen the he had shots, running away crime, or was "curb, right this inci- Buckeye after go up Road did police check of that area’s A later destroyed any evidence may have casing” dent and possible shell gutter, and sidewalk at this location. street sweeper that was negative results. A street met male was gun, armed with a and that the that since forensic testing after male running towards us.” death was either inconclusive or negative as to whether had held or fired a dispute

There is no but that this was the weapon, genuine issue remained regard- information furnished these two defendant ing carried, had pointed, or a dangerous officers: and emergency situ- fired the persons that five ation testified public on Cleveland streets at a time that he held in his hand they when near ob- midnight involving an armed man served him that fateful night.2 The reportedly who had dis- potentially trict court indicated no endangering dispute others in the area. to whether Boyd was armed. Baeppler and Wilsman testified that they then saw who sufficiently met The district court made the following the description given them and inwas brief findings factual that are pertinent at immediate reported, area running toward juncture: them with a in hand. Baeppler 1. There reported stopped the marked car in the inter- that an “African-American male had section of Buckeye Road and 119th East allegedly fired a gun.” Street, and both exited with weapons drawn, Wilsman with a shotgun. Both 2. A description of the suspect was fur- they testified that ordered nished, and “[t]his man turned out to stop and identified police, themselves as be decedent Adolph Boyd.” although it seems clear to us that “Boyd 3. received several fatal shots should have been anyone obvious to pres- that effectuated his death.” ent at the time. 4. Officer Wilsman only one shot police Cleveland officers Zbikowski and with shotgun “that led to Boyd’s Nabowski, who also amved on the scene death.” pursuant police broadcast, testified that at Buckeye and East 120th Street 5. Officer Baeppler at least six they person saw a matching the descrip- additional and “thirteen given tion of the suspect walking west on entrance wounds were discovered.” Buckeye and into a parking lot and that he 6. The officers “assert Boyd pos- that was with a gun. armed Zbikowski added sessed a weapon, he aimed or suspect that ran down Buckeye and weapon in the direction that he reported his information on his car of the officers.” No officer wit- radio. Both of these officers also drew nessed “Boyd fire a weapon.” their weapons when they observed the sus- pect at range. close 7. Baeppler and “pursue[d] Boyd foot,” after ignored he Boyd did not stop, ordered, nor order to stop, fired the did he drop gun which had been ob first Boyd, shots at it is unclear served in his by hand a disinterested wit whether any of those shots hit the ness by four police different officers at target. close range. We do not it deem genuine issue of disputed fact Boyd that “The shotgun 8. blast” fired Wils- was suspect so observed and man, that he who claimed Boyd that was was armed. We therefore give do not pointing weapon him, at wound- credence to counsel’s contention ed and felled brief, plaintiff's In Baeppler’s that claim ufactured the Boyd contention that was Boyd first saw object with armed, black in his hand because found at the scene (Pl.’s was dismissed as "incredible.” Br. at was not traced to and identifiable 9.) speculated, Counsel unfairly believe prints produced. were not justification, and without that man- further conceded was a issue of fact as to whether district court

The if resolu only is ‘material’ its in Boyd fleeing attempt fact was the officers “[a] the contro fact, affect the outcome of tion will escape. court district as however, put precisely, more versy.” It is fleeing, may sumed that was and this Inc., Liberty Lobby, in Anderson v. have been what caused it to apply the 91 L.Ed.2d U.S. However, analysis. Tennessee v. Garner (1986): material issue here is not law materiality, As to the substantive fleeing, but whether identify facts are material. will Boyd pointed weapon the officers Only disputes might over facts that af- posed and thus an immediate threat the outcome of the suit under the fect them. The district court did not address governing properly preclude law will this issue all. From what has been summary Factual entry judgment. stated, previously it is clear that when first that are irrelevant or unneces- disputes officers, observed generally sary will not be counted. See officers, running toward the hand. Alan Arthur R. Wright, 10A Charles officers, response Each of the four Miller, Kane, Mary Kay Federal & observation, weapon, drew his or her pp. Practice and Procedure 93- not in any attempt pursue or chase (1983). in- materiality inquiry is This fraught but to confront situation separate dependent of and danger. An independent witness had incorporation of the evi- question of the reported gunshots, that he heard and then summary dentiary standard into the saw pointing armed is, That while judgment determination. people public outside a restaurant. The materiality determination rests on recognized Boyd suspect law, it the substantive is the substantive the area in which he been had observed of which facts are law’s identification and in apparently which he lived.4 and which facts are irrelevant critical police independently themselves confirmed governs. that Boyd was armed but none saw indicated, already As have the issue heard him fire a shot. Defendants or Boyd before us this case is not whether Boyd stop, identifying dered to them a Tennessee presented these officers with They Boyd pointed selves. testified that fleeing v. Garnet3 felon situation —the sit gun ignored at them and their com to which court uation as the district found Boyd stop. away, mands to As he moved genuine that there remained issues of dis at the allegedly point gun continued to rather, Boyd puted fact—but whether outset, then, was Boyd officers. At the to these presented an immediate threat running away from the officers. As with an un they officers to which reacted him, ignored the officers confronted degree of force. We now re allegedly continued to orders view what the district court identified gun attempted at them as he to point his “genuine” issues of fact to determine flee. disputed

whether these facts material to the issues before us. Boyd weapon? 2. Did fire the away Boyd running 1. Was actually weapon Boyd Whether attempt escape? in an officers to is wholly is immaterial here. The issue blush, so. It might At it that the whether or not he threatened do appear first reported Boyd there to the officers that had finding district court made was 1, 1694, 4. had an 3. 471 U.S. 105 S.Ct. 85 L.Ed.2d 1 Plaintiff’s brief indicates apartment Buckeye (1985). in the immediate area of Road. probably fired gun pointed and had others, it cer or to it is not constitutionally at innocent observers at scene when to prevent unreasonable escape by using They observed. saw Boyd gun deadly Thus, force. if the suspect hand as did independent witness. No threatens the officer with a weapon or officer testified that he or she saw there probable is cause to believe that fire weapon. this, however, We deem he has committed a crime involving the as something other than a infliction or threatened infliction of seri- material issue of fact. physical harm, That ous defen- deadly force may be dants did not or hear used if necessary see prevent fire the escape, and weapon if, does feasible, not affect police whether the where some warning has officers, acting given. been reasonably under the cir- them, cumstances known acted in de- 11, 12, 105 Id. at S.Ct. 1694. fense of their safety own safety of We note also that in Gamer the com- through officers use of force. plaint under 42 U.S.C. 1983 had been dismissed against the police individual offi- 3. Did commit crime? actually cers involved in the shooting. Id. Again, this wholly immaterial to the S.Ct. The dissent in Gar- issue of presented a threat ner special made mention of difficult, “the to officers Wilsman and If, Baeppler. in- split-second decisions officers must deed, Boyd at other people or make.” Id. at 105 S.Ct. 1694. The even them, then he may case, according dissent, fell within “ have committed a one, crime. No howev- ‘the rubric of police conduct ... neces- er, much police, less the charged or sarily [involving] swift predicated action claimed that Boyd just had committed a upon the on-the-spot observations of the ” crime when confronted him. the beat.’ Id. at The purported never him treat 1694 (quoting Ohio, Terry v. 392 U.S. a fleeing felon suspect. They confronted (1968)). 20 L.Ed.2d 889 him dangerous as a armed ig- man who main points that distinguish Gamer from nored their reasonable command this case stop. are that suspect in Gamer That (1) command obviously included di- (2) deemed to unarmed; non- rection to stop pointing violent; (3) them, (4) non-dangerous; minor; this, too, ignored. the suspect did anything but con- front the police.

The principal issue in Tennessee v. Gar ner, 1, 471 1694, U.S. 105 S.Ct. 85 L.Ed.2d The inquiry in 1983 actions (1985), 1 involved of deadly use force against officer for unlawful or by police in pursuit of an unarmed minor unconstitutional use objective of force is an (a burglar “non-violent suspec[t]”) was not one based upon the “information pos before the court with respect to these de sessed” the police officer involved. claiming fendants qualified immunity. Anderson Creighton, v. 635, 483 641, U.S. Garner, 471 10, U.S. at 105 S.Ct. 1694. 3034, (1987). 97 L.Ed.2d 523 It Gamer also described the suspect victim involves what officer as a “nondangerous fleeing suspec[t].” Id. would believe to be lawful upon based at 105 S.Ct. 1694. That not was information possessed, then not what the factual presented situation to the court officers subjectively may have believed. with respect to these defendants claiming See id. In the here, case before us qualified immunity. question, rather, The question is whether reasonable in from Gamer is this: the position of officers Wilsman and Baep-

Where the officer has probable pler cause to would have believed that it was lawful believe that the suspect poses a threat of under the circumstances to use the same physical harm, serious either to the offi- degree of force used by those officers. We it, Boyd “pointed information Wilsman saw at already reviewed the have head, acted, ... at I right my me could see initially down upon which the officers barrel, thought and I I goner.” was a personal ob- upon based the officers’ some Wilsman then fired the at shotgun activity We view scene and servation. down, went still in hand. then, the reason- perspective, from the approached Boyd telling Wilsman him to police officer at the scene based able drop gun. Again, Boyd ignored that and what reports and information received again, command. did fire Connor, Wilsman v. he has observed. See Graham partner, Baeppler-threatened-fired ad- L.Ed.2d 109 S.Ct. U.S. ditional at closer range. shots (1989); Clay County, 205 F.3d Scott (6th Cir.2000). Wilsman did not when he fired at know Boyd, whether the latter had fired his own II. LIABILITY OF WILSMAN pistol thought them which Wilsman “a semi-automatic.” Boyd “appeared to fit one shot from his Wilsman fired description given” for a male towards shotgun “propelled “supposed shooting.” to be Wilsman’s affi- one, including plaintiffs No ground.” davit was consistent with his statement or that Wils- expert, testified contended response questions, but it added deadly force that man’s shot was fired, that before he he “feared for [his] question brought about death. life, partner, own the life of [his] oth- case, then, in whether he Wilsman’s ” .... ers Plaintiff concedes her brief degree used “a of force that was unreason any Baep- “it is unknown whether under the circumstances and viola able pler’s Boyd.” struck It earlier shots rights,” tion of decedent’s not whether Wilsman, unknown to who heard deadly guilty administering himself was Baeppler, Boyd, perhaps or some force, and whether he acted in concert one Plaintiff else had these shots. Baeppler administering deadly describes stated observations of Wilsman’s force. Boyd’s pointing at him run- while view, perspective In our from the (Pl.’s 12.) ning as incredible. Br. at Most based the information brief, however, is directed plaintiffs to him and the circumstances available officer and his actions. at the he fired the viewpoint from his time justifi- We do make all reasonable and shot, single we believe that entitled he was plaintiff, in favor of able inferences qualified immunity, and we therefore Liberty Lobby, Anderson v. non-movant. summary judg- REVERSE the denial of 477 U.S. regard.. contemporane- ment in this His (1986). not, however, L.Ed.2d 202 This is report emergency indicated an call to ous concerned, a insofar as officer Wilsman is “for male p.m. the scene about 11:30 case to whether he used force gun, shooting.” with a Other re- felon, capture fleeing excessive force to ported seeing suspect “running suspect attempting escape. or a As to hand,” in gun with a and Wilsman then Wilsman, it is a case of whether he acted Boyd me ... a “running saw towards with reasonably response dangerous, in to a in in uni- right hand.” night encounter late at with split-second form, yelled “stop, police,” Boyd disre- have been reported armed man garded warning, proceeding “diagonal- shooting he had in hand at ly Buckeye.” across Wilsman “turned to officer. squad run around the car to cut him off.” mission, upon City on this Plaintiff relies Russo running While ' (6th Cincinnati, Cir.1992), F.2d couple “heard a of shots.” He then saw claim, Boyd running ... but that case held that in the “still looked back at us context, must qualified immunity “plaintiff ... ... As pointed his back us.” present supported by ‘evidence sufficient create defendant officers is objective genuine issue as to whether the defendant and reasonable evidence. The ” “clearly in fact’ law” eyewitness testimony per- violated established of a number of taking the action he did. “Whether sons and the broadcasts to the defendants genuine issue of material fact exists” is a support a conclusion that the deceased was Russo, armed, question of law. Id. at 1043. In probably even that he had emphasized that we “look to the weapon. must Plaintiffs “counter-narrative” particular ‘facts and circumstances each Boyd carrying her brief that was not ... suspect pose[d] view, case whether the an gun, in our is not based sub- safety Bell, immediate threat to the of the offi- stantial and material evidence. See others, (fin- cers or and whether he [was] 1997 WL 640116. The various tests ” trace) attempting by flight.’ residue, to evade arrest Id. gerprint, firearm Childers, at 1044. We believe Ford v. 855 inconclusive under the circumstances and (7th (en Cir.1988) F.2d 1275-76 objective by proof are overborne banc), by armed, plaintiff, supports also cited our reasonably or perceived to be armed, that officer view Wilsman is entitled to police. qualified immunity part for his in the en- indicated, For the reasons we RE- counter in question.5 VERSE decision of the district court Our decision as to defendants and their as to defendant him Wilsman. We find qualified immunity supported is also entitled summary judgment based on Freland,

the statement from Smith v. 954 qualified immunity respect fir- to his (6th Cir.1992), F.2d ing one shot shotgun from his Thus, Graham, under we must avoid under essentially uncontested material

substituting personal our notions facts. We find as fact proper police procedure for the instanta- armed and could be considered an immi- neous decision of the officer nent threat and a to a danger scene. We must never allow the theo- partner officer and to his in Wils- retical, sanitized world of our imagina- man’s circumstances. replace dangerous tion to and com-

plex policemen every world that face III. LIABILITY OF BAEPPLER day. What constitutes “reasonable” ac- may quite tion seem different to some- prior Much of our ap discussion facing possible one assailant than to plies Baeppler, to defendant particularly as analyzing question someone at lei- to his initial may may shots that sure. have struck Certainly, these shots Connor, (citing Id. Graham v. 490 U.S. neither immobilized incapacitat nor 386, 396-97, loose, L.Ed.2d ed him. remained on the ap (1989)). also, armed, in a parently See somewhat com- potentially still dan parable situation, City Bell v. gerous. East We concede that question Cleveland, 96-3801, No. 1997 WL 640116 qualified immunity as to defendant Baep- 1997) Oct.14, difficult, Cir. (unpublished). pler especially is more Ba- since respect With grants our eppler multiple shots that contribut immunity, contrary to assertions of the ed to bringing about death. The dissent, we do not base opinion upon question our of law on this case is clear—it is conflicting factual contentions or credibili- about the conduct of acting self- ty testimony defense, determinations. The pursuit fleeing of both not about of a (9th Heideman, Hopkins Andaya, 958 F.2d 881 Cir. Martin v. 106 F.3d 1308 Cir. 1992), upon by plaintiff, 1997), also relied a involved to be relevant factual circum police encounter with an unarmed man. We stances of this case. pertinent, do not deem it nor do consider relied “evidence” only inconsistent to be reasonably thought suspect, felon report in the is found by the dissent dangerous. and armed Tucker, who did Dr. expert, plaintiffs of in the evidence eyewitness the All of only re- Boyd’s body, but not examine officers’ police the consistent record is This autopsy report. the state’s viewed surrounded that events of the recitation for his report the basis autopsy sole Unfortunately, officers shooting. the not have been might that conclusion and not Baeppler, and Wilsman after weapon point turn and his able to testify to available only ones the were landed. Dr. Tuck- shot officer Wilsman’s tak- Their statements shooting. the about however, definitively did not opinion, er’s investigation, during the en impossi- would have that it been conclude affidavits testimony and their deposition his up himself Boyd to raise ble for They story. consistent the same all tell Tucker weapon again. aim Dr. to his arms themselves they identified that testified “[sjince spine from the the entire opined, stop; Boyd to ordered unit, rational works as a coccyx to neck weapon with his to flee Boyd continued limited, throughout very are movements to four three Baeppler fired hand; officer added.) Dr. Tuck- (Emphasis spine.” Boyd responded Boyd, but rounds speculated: further er weapon at officer his pointing turning with medical postulate Thus one can one shot- Wilsman; officer im- arms were both probability that onto fell face forward blast and standpoint by from functional paired a his torso Boyd lifted ground; Admittedly loe do bullet wounds.... again at officer weapon point to turned extremity and upper know if these not Wilsman; finally, officer be- were suffered axillary bullet wounds until rounds seven more turning toward alleged or after the fore weapon. dropped proba- However with police officer.... extremity and these bility even without the forensic also that view We are of the im- there severe axillary wounds officers’ supports also evidence ability turn and with pairment of specif- The coroner event. of the rendition Boyd could Mr. probability medical conclude, he could that ically testified would posture assume defined of medical degree “within return capability to intent and signal his Adolph “the wounds certainty,” that point. fire at that consistent back to his sustained added.) sum, Dr. Tucker (Emphasis de- Baeppler’s and Wilsman’s with Officers of sequence assumptions about made Wils- immediately prior Officer scription pathways of and the bullets shots and that shotgun;” discharge of man’s degree concluded, a reasonable not within injury Boyd’s that caused pellet proba- certainty, only “with medical paralysis of immediate “caused spinal cord likely scenario was bility,” that more was still only. He the lower extremities and twist to lift his torso Boyd was unable extremities, upper able to move fully time. a second officer Wilsman threaten (Em- head, arms torso.” including his any point Tucker does Dr. Nowhere Furthermore, added.) the state’s phasis shot(s) proves what evidence forensic that nei- plainly indicates evidence forensic twist his to lift and Boyd unable rendered direction nor exact sequence ther sequence during torso, point ator what by determined the shots could shot(s) hit the critical events the coro- body, and examination expert is plaintiffs The speculation did office the coroner’s ner testified to create evidence not sufficient analysis of any type of not undertake fact. In view material issue of damage inflicted nerve musculature and/or support evidence uncontroverted shots. testimony Baeppler majority of officers and opinion Clay both relevance to the Birchwell, (6th any jury conclusion to the con- brook v. 199 F.3d 350 Cir. necessarily trary 2000), would be founded on granted summary which the court speculation, not on the evidence. mere judgment to defendant officers al Therefore, we REVERSE the denial of leged to have violated the plaintiffs’ sub summary judgment Baep- both process rights, stantive due an issue clear pler and Wilsman find as fact that ly confronting distinct from the one us perceived by here. presented officers in the circumstances Accordingly, we REVERSE the decision here, immi- was armed remained an of the district court grant danger finally and a until nent threat immunity claims of both defendants. dropped weapon Baeppler after officer fired his last shots. DAUGHTREY, Judge, Circuit assessing weight In expert testi dissenting. mony, not resort a credibility we do The majority summary awards Rather, judg- determination. we conclude that Baeppler ment to officers report and Wilsman the coroner’s is a clear medical finds, law, it because as a matter of statement not mere probabili based Adolph Boyd posed a threat to their safety ties. We conclude that Dr. Tucker’s re port, objec- which was made the use of upon probabilities based force only, tively essentially specula doing, majori- a matter of reasonable. so Metiva, (6th ty v. plaintiffs tion. Adams 31 F.3d 375 discounts the sug- evidence Cir.1994), dissent, gesting genuine clearly cited existence of issues of should, material distinguishable from this in fact that case. Adams under Johnson Jones, 304, 2151, volved a v. confrontation and encounter be U.S. 115 S.Ct. (1995), person preclude tween unarmed with L.Ed.2d 238 our assertion jurisdiction independent eyewitnesses several here. I support Because believe ing plaintiffs jurisdiction version of our court lacks events. There to decide appeal, was no expert very conflict of witnesses in least as to defen- comparable Baeppler, Adams. In a dant qualified immu and therefore that our de- situation, nity today we stated: cision preempts jury’s role in deciding sufficiency plaintiffs summary At the judgment stage, wheth- evidence, Pelletier, see Behrens v. 516 U.S. legal er the alleged clearly violation 834, 133 L.Ed.2d 773 incident, established at the time of the (1996), I respectfully must dissent. as well as whether a issue fact material exists as to whether the sense, In some majority’s analysis alleged occurred, questions violation the immediate Adolph circumstances of of law for the court. necessarily death a determi- makes Cincinnati, City 1036, Russo v. 953 F.2d credibility nation as to the (6th Cir.1992) (citing Dominque Wilsman, the only surviving eyewitnesses Telb, (6th Cir.1987)). 831 F.2d events, something the law of this Pelletier, Behrens v. 516 U.S. 116 court forbids us to do deciding while (1996), summary See, L.Ed.2d 773 also judgment e.g., motion. dissent, Nesbitt, cited is certainly not con- Kain v. 156 F.3d Cir.1998). trolling in this case. majority Behrens stands for accepts the offi- proposition that defendants asserting cers’ rendition of their interactions with qualified immunity defense of are not that Boyd fact: ran toward them limited to one interlocutory appeal. away them, See and then that he was simply ran, id. We do carrying not have that issue in while he and that he dissent, this case. Unlike the we see no towards them while run- course, that, is, The defendants then claim Boyd unable to after ning. Adolph Boyd fell with his stomach and face to the highlighted of these contest the truth ground approached and while the officers here, facts; Bertha plaintiff him, Boyd upper up his pulled torso from scenario, one that presents an alternate hand, ground brought right and his necessarily specificity Adolph’s lacks the holding weapon, across still his shoul- The testimony would have lent his case. ders and it at pointed Officer clearly states plaintiffs counter-narrative twisting point, to the left to do so. At that fact, Boyd Adolph one however: that Baeppler weapon Boyd Officer fired his this carrying gun. supports a She Boyd finally fully seven more times until by with trace evidence collected assertion collapsed. County Cuyahoga Coroner’s Office Baeppler Boyd’s Defendant claims that carrying that is inconsistent with his paralyzed continued movement while on April 14. No one other than night ground, including the twisting of his Adolph the defendants saw brandish upper display torso and continued of his Boyd weapon during meeting. Were firearm, shooting Boyd made seven times supplement alive to the trace evidence objectively reasonable use of force in events, imagine I with his version of Baeppler supports self defense. this as- find likely would be more to issues Dr. testimony, sertion with Challener’s any material fact to whether use of as that, even autopsy, based on while by Baep- force either Wilsman or fully was “still to paralyzed, able pler objectively reasonable. extremities, upper including move his his join my colleagues I Even were head, arms, plaintiff and The chal- torso.” ver- assuming the truth of the defendants’ expert lenges this assertion with testi- initial Adolph of their interaction with sion Tucker, mony of Dr. whose read- Howard join Boyd, I could not their reversal of the ing autopsy report supported of the his Baep- as to officer district court’s decision on scapular conclusion muscles both I conclusion after review- pler. reach this Boyd’s body Boyd’s sides of and both arms carefully sequence alleged ing bullets, “impaired hit were thus Boyd and series of interactions between Tucker ad- standpoint.” from a functional defendants, According to the the officers. if mittedly did not know these wounds them officer approached Baep- either were caused Wilsman’s freeze; stopping, him to ordered instead but stated that even without pler’s however, Boyd Buckeye Boyd’s scapulae ran across Road the wounds to arms ran, ability driveway. impairment and into a While “there was severe probability turn and with medical Mr. gun at who then Baeppler, his posture Boyd could not assume defined three or four rounds of ammunition signal capabili- intent and which would running away continued prone position. fire” from his ty to return brought and then from right arm and hand across his chest and Dr. tes- majority The dismisses Tucker’s armpit pointed weap- under his left timony probabilities, on mere as based on at Wilsman. Wilsman then fired one jury might reach from it any conclusions shotgun, round of ammunition from his speculation. doing, In so as mere ground. fall to the which caused majority again makes a determination report Boyd’s death autopsy stated credible, evidence it finds most this pellet shotgun that one blast again wrongfully and thus assumes vertebrae; mind, ac- lodged Adolph Boyd’s T9 my To this is a role of factfinder. Dr. cording Cuyahoga County coroner experts, of the medical classic battle Challener, pellet caused imme- which we must leave to Robert outcome of Doctors Challener Boyd’s jury to decide at trial. paralysis diate lower extremities. Tucker, the same medi working from COOK, Joseph as to In re: Benedict data, contrary results reach cal III, Movant. appear to ability to even Adolph from his the defendants aim a No. 99-6526 case, it In this should position. prone court, to jury, and not this Appeals, the task States Court United experts testimony of the medical weigh Sixth Circuit. credible, and which is more and determine 6, 2000 June presented have if could thus decide making Baep- each of the officers risk to to the sev from the first last

pler’s

enth, objectively Russo reasonable. Cf. Cincinnati, 1036, 1047 953 F.2d

City of Cir.1992)

(6th quali (stating, in context of § 1983 failure to immunity defense to

fied claim, do not believe that “we

train given are to be no experts

opinions [rjeliance testimony expert

weight .... on where, here, appropriate particularly ex directly upon the

the conclusions rest by the provided materials

pert’s review of itself’).

City otherwise, and holds

Today majority the unfortunate continues

its decision of this by other members

trend noted unto itself the panel “arrogating

court of a the factual dis resolving appeal

role of immunity

putes presented v. Clay action.” Scott

defense Cir.2000) (6th 867, 881

County, 205 F.3d J., (citing Claybrook v.

(Clay, dissenting)

Birchwell, Cir. 199 F.3d 359-60

2000)). I that the record believe Because court’s conclusion the district

supports disputes regarding remain rea conduct was

whether the defendants’

sonable, I therefore dissent.

Case Details

Case Name: Bertha BOYD, Plaintiff-Appellee, v. Matthew BAEPPLER; David Wilsman, Defendants-Appellants

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 6, 2000

Citation: 215 F.3d 594

Docket Number: 99-3234

Court Abbreviation: 6th Cir.