Debbie Latits v. Lowell Phillips

interest, ty timely its claim is because period tolled

§ 500.2833(l)(q) Michigan of the Com-

piled disagreed, court Laws. district

concluding that insurers like surplus-lines subject general

Scottsdale are “not Code,” Michigan’s

provisions Insurance (In §

including 500.2833(l)(q). contrast court,

the district Scottsdale contends narrowly surplus-lines insurers exempted only the substantive 500.2833(1)). §

requirements of need We argument this reach alternative be-

cause our claim conclusion Palmer’s governed by

is a personal action the six-

year period limitations found

§ dispositive appeal. 600.5813 reasons,

For we have no need the same argument resolve Palmer’s that Scotts-

dale waived defense. limitations

III. CONCLUSION above,

For forth all the reasons set judgment

we the dis- REVERSE

trict court and REMAND the case proceedings

further consistent with

opinion. LATITS, Rep-

Debbie Jean as Personal of the Estate of Laszlo

resentative Latits, Deceased, Plaintiff-Ap-

John

pellant, PHILLIPS,

Lowell Police Officer Ferndale,

for the

Defendant-Appellee.

No. 15-2306 Appeals,

United States Court

Sixth Circuit.

Decided and Filed: December

Rehearing En Banc Denied

February Ernst,

ON BRIEF: Kevin ERNST FIRM, Detroit, Michigan, LAW El- Dean liott, ELLIOTT, PLC,- Oak, Royal DEAN Peck, Michigan, Lindsey A. Appellant. for to the Plaintiff. HENDERSON, favorable Roy- light most & PECK SEWARD Byrd, 798 F.3d See Godawa Oak, Appellee. Michigan, for al plaintiffs (accepting the STRANCH, Circuit they were not Before: CLAY of the facts because version BLACK, video). Judge. District Judges; “clearly contradicted]” by deposition testi- provided

Facts are also STRANCH, J., opinion of delivered presented in the other mony and evidence D.J., BLACK, joined, court in which district court. CLAY, J., CLAY, J. joined part. 24, 2010, midnight on June Fern- After 554-59), separate opinion delivered (pp. stopped Jaklic Kenneth Police' Officer dale dissenting in part. concurring part and wrong way onto a turning approached the Jaklic divided boulevard.

OPINION his produced Latits flashlight. car with a opened glove his box license and driver’s STRANCH, Judge. B. Circuit JANE registration and insurance to his retrieve Ferndale Police Phillips, then a Lowell testified that in- Officer Jaklic documents. Officer, on the outskirts a car ended bags one or more that the box he saw side car by ramming Laszlo Latits’s of Detroit marijuana to contain and suspected he lolling and off the road then bottle, to attempted Latits pill all which flight. Latits’s he to resume Latits as tried tes- passenger seat. Jaklic move under the Phillips Officer sued former widow to get Latits out of thát then told tified he Phillips’s § alleging U.S.C. by the car. video officer’s The recorded Amendment. actions violated the Fourth took shows Jaklic dashboard camera summary judg- granted court district gun eight his seconds after walk- out about concluding that the shoot- Phillips, ment to car, up and then stood at La- ing determine ing was reasonable. We shining flashlight his into the tits’s window objective- force was use gun ground for at the pointing car and unreasonable, Fourth of the ly violation Jaklic then thirty seconds. Officer about existing at the time Amendment. Caselaw pointed it at gun and Latits’s raised events, however, did of the range. Latits drove point-blank head at objective unreasonableness establish back to his away, and Jaklic ran Phillips’s actions in the circumstances pursue him. this is therefore entitled Phillips case. pur- that he Officer Jaklic broadcast AFFIRM. immunity and we must fleeing other officers suing a vehicle and to join direction the chase. in that headed I, BACKGROUND chasing Jaklic announced for traffic violation possible recorded The events this case were violation, including “stashing on the dash- health code by video cameras mounted his chair.” Af- narcotics separate of four cars. Conse- some underneath boards nearly from min- “in the ter Jaklic two quently, the facts we describe (during Latits’s car cannot Har- time depicted by videotape.” Scott v. utes which video), ris, clearly on Latits entered 167 be seen (2007). lot. Officer Jaklic’s car en- appeal empty parking Because L.Ed.2d 686 slowly lot moved parking motion for tered the arises from the Defendant’s car, at time into of Latits’s which judgment, path relevant summary we view steering away from seen Latits can be gaps left videos uncertainties n colliding. attempted to avoid Jakl- Latits Jaklie’s Officer next a U-turn make partially ic broadcast that Latits “tried to ram but ran then over the curb of the grassy highway Wurm, my Another officer can be heard median. vehicle.” still Latits, officer asking clarify attempted rammed first behind also whether Latits U-turn, car, responded: make the patrol which Jaklic collided driver’s to.” At Officer rear side Latits’s “He tried car.2 Officer deposition, Wurm then broadcast over ra- Jaklic admitted that Latits fact turned “Oh, just dio: I hit him.” got way Officer his wheel and out of the avoid following shortly behind Officers hitting patrol car. Jaklic, Wurm and and the district court At moment of miss of the near that a jury determined could find Jaklic, Latits and cars of the dashboard that Wurm’s car hit knew Latits’s Defendant, Phillips, camera car. As the cars tried to reorient on the parking lot shows where highway, again Officer Wurm collided with just Phillips. located was ahead of the rear at which time an court reasonable district that a determined Wurm) (presumably officer can be heard jury could find that Officer video exclaiming: “Shit!” Phillips, close try could see that Latits did Jaklic, behind Wurm could see Wurm ram and therefore that Officer Jaklic knew hit Latits a second time. An can Jaklie’s statement was false. otherwise saying: then guy’s be heard “This over all car, avoiding After Officer Jaklie’s Latits road, the hit he’s me several times.” The lot, parking on to fled the south turning videos, however, show that Latits had not highway. divided ten-lane Three cars; rather, hit any police he had turned chasing now close behind Latits: Offi- were hitting to avoid Officer Jaklic and had first, cer Andrew Wurm Officer Jaklic sec- hit by Officer twice Wurm. ond, Phillips Officer All and third.1 three car impacts by The two Officer Wurm’s recording their had dashboard cameras apparently of caused Latits lose control of perspectives the chase. his right which swerved to the and seconds, approximately thirty For Latits pe- then back left across three No lanes. three led the officers southbound down the cars besides of Latits those destrians hour, highway sixty per about miles on and the officers are visible video the passing through lights. pedes- straight- two red No during this time. Latits’s car then on trians other cars are the visible out for and traveled northbound ened nighttime highway except nearly car parked one five seconds. Latits was While away highway from swerving, Phillips sped past two lanes Latits. The Officer Offi- and, by one five cemetery nearly was bounded side cers Jaklic and Wurm on straightened a commercial zone state after Latits’s car had and vacant seconds out, on car the fairgrounds Phillips the rammed Latits’s from other. partment policy joining pursuit 1. Plaintiff to the dis- as the The submitted evidence (from deposition police required permis- car trict court in another case third without in which the Ferndale Chief of Police dis- sion. Phillips’s Officer events cussed in the of role case) Department reprimand Ferndale Police Wurm a written 2. Officer received policy prohibits intentionally police striking than two cars vehicle for actively pursuing during pursuit from car without in of Ferndale’s violation permission. according Chief special policy, Chief of Po- Ferndale Ferndale Officer of Police. lice testified that violated de- Offi- he reversed. left, diately of pushing it across two lanes behind Latits back Phillips’s following in the direction- Phillips, off the Officer same road.3 cer traffic and spin ramming Latits’s car to out caused see reversing, which Latits was grass of and concrete to onto an path. area direct no one Latits’s was in right. casings recovered ' shell were Seven stopped paral- Latits’s car When gun.6 Phillips’s matching Officer the scene Phillips’s car. right lel to‘the of Officer by three Latits struck bullets died grass paral- onto pulled Officer Wurm morning. hospital at the later car. opposite side Latits’s lel to autopsy reported that direction slowly began drive forward to Latits’s chest and ab- gunshot wounds between cars through the opening front to back. Less were from domen Wurm, Jaklic Officer Phillips and while from the time passed four minutes than opening slowly same drove towards away from Officer Jaklic Latits first drove apparent opposite from the direction Phillips. he to the time was shot Jaklic’s attempt block it. Latits’s and very low-speed then head-on ears for conduct Phillips was terminated his collision. Officer Jaklic testified ended the shoot- during pursuit injured car suffered hot Among 'the ing of Latits. reasons death push bar its damage minimal termination, the Chief Ferndale front end. following violations Police cited time,

At about same in vehicular Phillips engaged policy: toward car jumped and ran out third car without pursuit as the it.4 Latits’s from behind secondary pri- permission, passed the alongside 'Latits’s front passenger-side PIT pursuit, mary vehicles used a reversing away started door when Latits order, of a direct maneuver violation car.5 Latits’s car can from Officer Jaklic’s taking up to -instead and ran Phillips and reversing past Officer be seen using as position tactical his a vehicle cov- ' of one camera out' the of frame dashboard er. following on One Phillips second with foot. 42 The Plaintiff U.S.C. sued reversing’ later, car can be seen Latits’s La-; alleging Phillips’ § that violated into the cam- frame of dashboard clearly Fourth Amend established tits’s can era, gunshots apparently and what is deadly to termi rights by using force ment stop as rolls to heard. be granted court nate the chase. The district gun Phillips frame with' his enters the concluding judgment Phillips, summary of fourth camera raised. dashboard objectively force use of that his arriving shot the time Latits at timely appealed. imihe- reasonable. Latits persons cars were shows that appeal Phillips that the PIT Officer claims This so-called PIT 5. 3. maneuver. against policy, having videotape jump were -and out of maneuvers Ferndale shows specifically of the Chief Police ordered way when drove after backwards use never to a PIT maneuver. colliding Officer Jaklic’s car. The video with reversed, Phillips as Latits instead shows that 4. Chief of The Ferndale Police testified of car. Wasto side Latits’s department proce- violated by running dures vehicle in- 6, firing one deposition, recalled At taking using position his a tactical stead volley only shots. four vehicle as cover. II. objectively ANALYSIS be reasonable under to tality particular of the circumstances. Gra A. of Review Standards Connor, ham v. 386, 396, U.S. grants summary We review 1865, (1989). S.Ct. 104 L.Ed.2d Among novo, judgment viewing in de facts analyzed the factors to determine the con light to. the non-moving most favorable permissible stitutionally. amount force Godawa, party. To 798 F.3d at 462. are “the severity issue, crime at record, extent that videos in show facts whether the suspect poses an immediate clearly so jury that a reasonable could threat to safety or oth officers in only way, facts one those those view ers, and actively whether he is resisting light facts should be depicted viewed attempting arrest or to evade by arrest Harris, See videos. flight.” Id. To the 1769. extent facts inquiry reasonableness is interpreted shown videos can be in mul one, objective considered from the per tiple ways ifor do videos not show all spective hypothetical of a reasonable offi facts, relevant such facts be should viewed position cer the defendant’s most favorable the non- knowledge time, at the regard -but without Godawa, moving party. See subjective actual defendant’s intent Summary judgment appropriate 463. is if when taking Id. at actions. in the materials record show there S.Ct. 1865. The court must avoid “the no genuine as to issue material fact hindsight,” vision of recognizing that 20/20 and the movant is to judgment entitled officers in evolving tense and situations Id. law. at 462. matter may split-second have to .make a decision about the amount is neces This implicates suit the doctrine of Id, sary. 396-97, 109 S.Ct. 1865. The qualified immunity. Public officials are en analysis reasonableness includes some thus immunity titled suits “built-in of deference to measure the offi damages civil if either the official’sconduct judgment.” cer’s on-the-spot Mullins v. right did not violate a constitutional if Cyranek, 805 F.3d right was not established (citations omitted). time, At same the time of the conduct. at 462-63. 201-02,“fact quickly situation unfolds does Katz, Saucier not, itself, permit use 2151, 150 (2001)). L.Ed.2d 272 Rather, qualified immunity force. is avail may inquiries Courts consider those two only Id, split-second able where make officers either order. Pearson v. Calla in the of physical S.Ct, decisions face serious han, 223, 236, 808, 129 172 -to threats Id. themselves others.” (2009)). L.Ed.2d 565 (internal marks, quotation 766-67 brack ‘ ets, omitted). and citations Right B. Whether a Constitutional Was Violated general rule, As á the Fourth prohi

The Fourth prohibits' Amendment’s Amendment deadly the use of against bition pro unreasonable seizures prevent escape force to of fleeing sus tects citizens from excessive force law pects unless “the officer probable has enforcement officers. Id. at 463. While offi cause to suspect poses believe that the may? degree cers use physical harm, some of of physical threat serious either to arrest, coercion to make -an the Fourth the officer or to others.” Tennessee v. Gar requires ner, 1, 11, Amendment 1, 1694, amount of force 471 105 85 548 moments analysis of both the requires (1985). three non-exclu- Of the 1

L.Ed.2d Graham, prior threat and the in “the the shots were fired listed before factors sive requirement Phillips. for the factor is ‘a minimum between Latits interactions ” Mullins, 805 F.3d shots, force.’ use of the videos show Just before Lorain, City v. Untalan (quoting Phil- past Phillips before Latits reversed of 2005)); see also (6th Cir. 430 F.3d gunshots can gun before lips raised Streicher, 461, 468 v. Ciminillo F.3d City v. In Hermiz be heard. Southfield (6th 2006) (stating person that a has Cir. drawing jury “A that: reasonable we stated per- they are shot unless “right not to be in favor could deter- the estate’s inferences or to officers a threat posing ceived officer that aimed and fired mine that an others”). vehicle,” after shots while to side already suspect’s] car “the hood [the has devel The Sixth Circuit it harm passed point [the where assessing framework oped “a consistent officer],” time to realize involving have had vehicular “would deadly-force claims Dayton, of the flight.” Cass v. longer path no that he was (6th 2014). ques The “critical danger.” Cir. longer no immediate objective officer had 2012). is whether the tion” Like- Fed.Appx. “ [fleeing] car ‘reason believe wise, Phillips fired after because Officer danger’ to ‘officers imminent presents an point passed where Latits’s ” in the area.’ public of the and members him, to real- Phillips had time could harm Cupp, Id. Smith 430 F.3d (quoting danger. longer no in immediate he was ize 2005)). justi is Deadly force that Officer also shows The evidence objectively ap “a who against driver fied or no officers other Phillips could see into an officer ready to drive pears path in Latits’s when persons other were car,” generally bystander but with reversing away Phillips fired. Latits was away, leaving the the car moves “once Wurm, who were Jaklic and Officers of safe position in a bystanders officer and left, respectively. of him to his front prior “the officer’s interactions ty,” unless camera suggest that the driver will dashboard the driver Officer Danielson’s ear.” others with his endanger continue to her car was between shows omitted). (citations Circuit Sixth car at the time car and Latits’s justified by prior found has away reversing shooting, Latits was so continuing demonstrating interactions dan no other There were from her as well. only “suspect demon gerousness when scene, evi- on the and there multiple times that he either strated suggestion by the Defendant dence got in the willing injure officer that immedi- in the public members of the were willing persist way escape or was Cupp, 430 F.3d car. path ate Cf. threat extremely reckless behavior deadly force unreasonable (finding at 774 Cupp, of all those around.” ened the lives not establish the “record does where sus (characterizing ... any bystander whose presence Cty., 205 F.3d Clay in both Scott v. pects have been endan- safety physical (6th v. 2000), and Smith Cir. actions”). The vid- driver’s] gered [the 1992)). Freland, (6th Cir. 954 F.2d position Phillips’s displaying Officer eos no persons that he could see show pre To whether Latits determine path on which cars were the immediate danger to officers or an imminent sented traveling. shot Latits was Phillips time Officer public at the car; Phillips colliding testified that after the district court determined that car, directly Officer Jaklic’s looked Phillips Latits could see try that Latits did not him, engine, back at ram car. Latits rewed his and moved Jaklic’s then fled at no sixty the car than Phillips, per towards at time miles hour down which an entirely almost empty fired his ten-lane Phillips weapon. The video evi- divided highway night. Latits, at dence, however, pursuit In his testimony contradicts passed Phillips only parked one and we view the in the evidence no pedestrians, other cyclists, or non-police Harris, See depicted by the video. visible cars dashboard Furthermore, at 1769. for the camera of the remainder chase. record includes no suggesting evidence The videos Phillips make clear that ob- reverse, by continuing Latits’s in- partially Latits drive grassy served over a anything tention was except to flee. Given median, U-turn, attempting a and then saw analysis, objec- the above Latits did not twice, car hit Officer Wurm’s Latits’s car tively appear ready to into drive someone Latits and that did not ram Officer Wurm. Phillips Officer when shot him. Phillips then observed Latits swerve of our Several cases have concluded empty highway, across which was bor- objectively force was unreasonable cemetery largely dered vacant when the officer to the side grounds. state fair Phillips sped As Officer moving car or the already car had passed past the two officers preceding him the by him—taking out of harm’s the officer (in pursuit department violation of policy), way—when the officer shot the driver. Go he could observe that Latits was able to dawa, 466-67; Hermiz, F.3d at 484 straighten his car for about five seconds Sigley City 16; v. Parma Fed.Appx. Phillips before rammed off the road Heights, 527, 531, 437 F.3d (also in department violation of policy and 2006); Cupp, But the 774-75. order). Up point direct to the when fact that no one was in the direct car’s stop came to a after Officer path at the time the was shot does driver Phillips road, rammed it off the Latits had Cass, analysis. not end the 770 F.3d at 376 injure shown intent the officers. (“[T]he narrow.”). inquiry nearly is not so Though briefly Latits did lose control and must also look to prior We interactions (for swerve after Wurm hit him twice Phillips between Latits and Officer and the disciplined which for Officer Wurm was potential of imminent offi other violating department policy), there were no public cers members of the area. public nearby members of the to be endan- See id. gered regain Latits con- appeared trol of his car Phillips before Officer it is undisputed Because that Latits was him. rammed arrest, fleeing to avoid we turn to the Graham factor analyzes severity Finally, after Latits’s car come to a crime issue. Officer knew stop road, off the Officer observed from Officer Jaklic’s broadcast that Latits slowly drive and collide forward originally suspected possessing nar- front of with the Officer car. How Jaklic’s cotics—not crime. The ever, violent second permits the video the reasonable in Graham poses factor asks if the individual terpretation that this collision was acciden safety tal, immediate threat of an provide which case it would less officer or Sigley, force. See justification others. The videos show that Cox, 536; first Vaughan observed Latits’s 343 F.3d turning as it was (holding avoid Jaklic’s that a 550 leading police a motorcyclist killed a police-car a that could be

collision with sixty per not jury as accidental chase at hour by a five-minute- miles viewed did force); Go deadly automatically justify through high a an light empty down red cf. dawa, (finding deadly at 463 way Kentucky). flight F.3d in rural jury force because a was unreasonable effectively empty highway; on an he had the officer initiated could determine willingness no to intention or drive shown rather impact with the driver’s car the recklessly through neighbor residential intentionally targeting the than the driver Altogether, prior Latits’s conduct to hoods. - officer). Moving through gap forward shot, light being viewed most in when of, Wurm, between the cars arid Plaintiff, a persis showed favorable to facing head-on Officer Latits not with not tent flee to intent but an intent to to two Jaklic’s ear until one seconds before injure, public placed never likely too late impact, their for either officers at risk. imminent collision, low-speed Viewing to avoid the must, however, view also facts We light in most to the the video favorable quick to the due deference decisions Plaintiff, collision intent to slow reveals tense, in to make a Phillips- had flee, injure intent Whether officers. uncertain, rapidly evolving situation. suspect objective a fleeing showed intent Graham, 396-97, injure officers is relevant whether subjectively 1865. that he Phillips testified jus suspect presented danger sufficient: believed Officer Jaklic’s broadcast that La- Sigley, See tify deadly force. F.3d at tits had to ram Jaklic’s tried (reversing grant summary judg a thought trying ram'an officer ment clear where was not whether the a second time he saw Latits’s when others). suspect injure” “intended to five with Jaklic’s car about seconds collide additionally reveal that Latits videos did assault, at Latits. before fired “We have commit felonious which also Graham, ‘[wjithin a previously few seconds addressing factor held relevant Godawa, crime. See sufficient severity reasonably perceiving a dan (reversing ger, at 466 the district court for if may use even F.3d in viewing light hindsight the evidence per most the facts show that the Plaintiff considering when escaped favorable sons threatened could have un ” Mullins, which com crimes driver had F.3d at (quot harmed.’ mitted). Untalan, 315). ing 430 F.3d But we bbjective must an analysis, undertake

Permitting Latits to continue to flee in in the viewing the most evidence put stead would not have Latits, as done favorable to above. we public imminent either. Untalan, Thus, both Mullins which under occurred circumstances we held force was reasonable public relatively which risk low. a dangerous because had situation of sixty Latits- at maximum evolved drove miles the officers into safe one before effectively large, empty high hour on a change, (a chance realize distin way non-populated areas surrounded engaged guishable. There officers were cemetery .fairgrounds), and vacant state physical, confrontations:with hand-to-hand pedestrians, cyclists, or motor passing being before shot moments police trailing ists him. who besides Cf. Id.; Untalan, Davis, gun had held Walker knife. Here, life (affirming the of sum 315. denial and, danger, mary to officer who was never in imminent judgment rammed and

551 objective (suspect Latits’s slow colli 2021-22 analysis through swerved traffic car, hour, sion with Jaklic’s other at 100 per passing over miles more endangered in mo officer’s life than forcing two vehicles dozen sever ments fired. before course); Harris, al to alter their 375, 379-80, at S.Ct. (suspect 127 1769 Furthermore, the short time between sped down two-lane roads at narrow over the collision with an officer’s vehicle and per miles swerving 85 hour not, around itself, more by justify does than a on dozen cars both Godawa, sides for example, force. In we line, double-yellow forcing ears on that it held unreasonable the offi- both shoulder); to sides Clay cer shoot at the two seconds after to the road Cty., driver 205 the officer with F.3d at led (suspect police contact the driver’s 872 on twenty- had car, though subjectively even the. officer up hour, minute per miles to 100. , motorist, just targeted believed driver road); forcing Freland, off the 466; car. 798 F.3d at assaulted with his 954 F.2d at 344 at (suspect fled over 90 (“The Cupp, see F.3d fact also 430 at 775 per ultimately miles hour and crashed into evolving that this rapidly was a situation car). cases, stationary police In other not, itself, him to by does use dead- permit only seeing officers fired after another offi force.”). ly If shock of a collision to the cer foot in being on imminent on its to own justify insufficient injured by suspect’s car or already Godawa, deadly force in such alone shock actually suspect’s struck car. See here, is also particularly insufficient where Cass, 372-73, (officers F.3d 376 770 at Latits collided a different officer than suspect’s struck fired after car both of the one shot him. who them, down); knocking Hocker v. one Pikev argues that level of also some 150, 151, ille City Dep’t, Police F.3d 738 permits deadly (6th recklessness force even 2013) 153 (suspect Cir. collided with injure intent to without driver’s standing car while an officer was ram, extremely driving because reckless it, next arm officer’s became can threat create the imminent others trapped in car’s door and he was See, .justify e.g., that can force. backpedal suspect’s forced car — Rickard, —, v. U.S. 134 pushed the officer’s which time Plumhoff 2012, 2017-18, 2021-22, S.Ct. 188 L.Ed.2d fired); another officer on the scene (2014); Harris, 379-80, 550 Park, Williams Grosse Pointe v. 384, Supreme Court 127 S.Ct. 1769. But (officer finding deadly and Sixth Circuit precedent , through suspect’s who had his arm end a car chase is reasonable suspect’s down as window was knocked distinguishable cases in because those accelerated, time offi at which another dangerous significantly prior volved fired). Finally, cer cases some featured driver, risk conduct imminent suspects reasonably who believed party, objective harm to an identifiable they guns willing be were carrying evidence of intent to harm the driver’s addition,to (in .highly fire at officers officers. , Luna, driving). See Mullenix reckless. — S,Ct. 305, 306, 309, cases, U.S. —, In the suspects several demon Eden, (2015); Dudley v. willingness L.Ed.2d endanger strated obvious 2001). public by leading chases is' very high through argues speeds comparable, active case Hocker, Williams, traffic. and Freland. Plumhoff, Plumhoff, See above, establishing right the form of a cases are distin can be explained As these authority or a guishable. “controlling of robust case of cases authori- persuasive consensus of sum, totality considering of the In (citation Plumhoff, 134 at 2023 ty.” S.Ct. light depicted in the circumstances omitted). quotation internal marks and otherwise favorable video and most has Plaintiff, Supreme not The Court instructed that conclude Latits did we that beyond that is question must be debate present ongoing danger an imminent or “particular con specific not one: Was that was therefore and “in addition, of con specific al- violative duct” objectively reasonable. In Mullenix, of the case.” 136 S.Ct. procedures not set the text though police do (citations omitted); Amendment, Bolick con- see also v. of the Fourth we 308 bounds Fed.Appx. E. Phillips City Rapids, re- Grand 580 it relevant that Officer sider (6th 2014) (“[W]e 314, 320-21 must peatedly both Cir. procedures violated rights appropri car. at issue ‘at the up to his define ramming running and Mullins, (“Whether reasonably par of generality—a ate level See 805 F.3d at 768 ” Hagans one.’ proce- (quoting ticularized v. following police an officer is not certainly question Cty. Office, Franklin dures is relevant to Sheriff’s cases, 505, 2012))). Stating force that reasonableness excessive clearly require established not necessarily proof law “does but it is conclusive violated.”). directly on point,” Supreme case Court that the Constitution has been reasons, recently reversed a im For conclude that Offi- denial these we munity court Phillips’s use of was ob- because the “failed cer lower jectively identify a case officer under sim unreasonable and violation where an rights.7 Latits’s constitutional ilar circumstances ... was held have the Fourth v. violated Amendment.” White — Clearly Right U.S.—, C. that Pauly, Whether 551- S.Ct. (citation (2017) Established 196 L.Ed.2d 463 omitted). look Accordingly, we brackets if Phillips Even violat controlling time of authority, extant right, he is enti ed constitutional violation, entailing similar conduct and right if qualified immunity tled to that circumstance. clearly at the time established clearly 2010. “A estab Plaintiff has violation—June The not identified case- officer, right sufficiently sufficiently clear lished one that is law where an have every reasonable official would similar circumstances held Amendment, doing that what violates the Fourth understood he is violated and nei- Mullenix, The right.” Sigley at 308 have we. relies on ther Plaintiff (citation quotation Cupp argue marks and internal violated omitted). occur, “existing prec clearly For established dissent law. also placed statutory argues Sigley Cupp clearly edent must have had question beyond constitutional debate.” established conduct (citation omitted). that, clearly precedent have held unconstitutional. We arguments parties’ 7. We not address was the same for need time when situation (La- analysis potential volley purposes about a of shots. of this second reasonableness already bul- passed Whether Officer fired the seven tits’s car had moving away lets one or two were fired from all officers on the volleys, all shots and was scene). within a few seconds of one another and at 2007, Sigley Cleveland, es- Cupp immunity.” Bell E. “shooting po- while (citations tablished driver 125 F.3d 855 fleeing car to the side of his vio- omitted); sitioned see also City Cty. & San — Amendment, Fourth some lates the Sheehan, absent U.S.—, Francisco v. suggesting poses that the indication driver (2015) L.Ed.2d Hermiz, fleeting than a threat.” (“Even if an officer contrary acts her Sigley Cupp at 17.8But Fed.Appx. training, however ... that does itself distinguishable from in a material this ease negate qualified immunity where it would con- way: Those cases involved officers warranted.”); be otherwise Russo v. fronting a in a parking lot and Cincinnati, 953 F.2d of attempted non-violent driver he 1992) (“[T]he Supreme Court has indi flight. Sigley, initiate See 530- pro the violation of cated established Here, 31; Cupp, F.3d at Phil- 769-70. is cedure alone insufficient to overcome a lips three shot Latits Latits led after immunity qualified claim.” Davis v. on a car min- several Scherer, utes—during repeatedly which Latits (1984))). It L.Ed.2d must sought capture—an important evade clearly is established that conduct at apart case factual distinction that sets this Constitution, violates the sue not internal Sigley presents Cupp.9 and This case policies. call, Supreme but in a close important This case establishes constitu- analyses recent in Court’s Mullenix and At tional of the ac- parameters. time They Pauly, these cases do not suffice. did however, of Phillips, tions Officer it cannot many keys of not involve facts existing precedent be said that made case, on open such as car chases roads and clear reasonable officials that what Phil- collisions between the and lips did violated the Fourth Amendment. Accordingly, although now hold cars. we Thus, satisfy “clearly this case fails to Phillips’s conduct fell outside the prong of the qualified established” immu- Amendment, of the Fourth control- bounds nity doctrine. authority ling at the time of the events had clearly iden- rights not we established III. CONCLUSION

tify today. that Officer Phillips’s We hold conduct Although it is the first relevant to objectively unreasonable and viola- of prong qualified immunity analysis, tion the Fourth Amendment. Its unrea- 13, Phillips’s Part II.B at viola supra see sonableness, however, was es- not Department poli tion of Ferndale Police the time of tablished at Officer require a outcome. cies does different actions, is and he entitled merely fact that an therefore “[T]he officer’s conduct reason, immunity. For departmental policy qualified does we violates that officer to cause lose their must affirm.10 sirens, controlling While itself is not au- the court 8. and concluded that at Hermiz case, shot, thority unpublished Sigley as an he was one was in time Cupp, the cases caselaw that established the "blocked in.” Id. at his car was 482. Hermiz, controlling. cited summary grant we affirm the 10.Because Duva, Kirby 9. dissent also raises dismissed, we judgment case will be and the case, too, 2008), but that parties' arguments re- need not address the There, materially distinguishable. the driver discovery punitive garding damages. voluntarily pulled response over in later, past sped Officer IN AND seconds PART CONCURRING Latits, into and rammed IN Jaklic and PART Wurm DISSENTING two thrusting Latits’ car across lanes CLAY, concurring part Judge, Circuit spun out to off the traffic and road. part. dissenting in arid concrete, leaving him grass an area opin- its majority spends bulk'of ending the Phillips’ thus parallel with Phillips’ Officer use explaining ion how told, chase lasted about All chase. unreasonable, objectively deadly force was through entirety And three minutes. (mariy from before citing case upon case it, that Officer only collisions question) 20Í0, the incident year twice hit occurred when Wurm saw to conclude violated himself, Latits, Phillips, rammed and when In the final rights. Latits’ ’constitutional Phillips’ From into left. van- Latits’ back however, majority abruptly stretch,'" the' that Latits had tage point, see 'that Latits’ to hold constitu- gears shifts to maneuver around repeatedly tried ' clearly’established tional were rights hitting cars to them. avoid officers’ Phillips is enti- therefore that Officer stopped, Officer Wurm Latits With immunity. holding, In so qualified tled to to grass parallel onto the Latits and pulled nearly impene- created majority the has began Phillips. slowly from Latits opposite seeking to plaintiffs vin- barrier trable through opening the be- to drive forward governmental rights against their dicate Wurm, while Officer Phillips and tween majori- I the Because believe that officials. slowly Latits’ front to Jaklic drove toward governing contrary to- case opinion is ty very Jaklic had him in. Látits and block law, an offi- clearly which establishes collision, in Jaklic low-speed which head-on ;a suspect who may not shoot cer mini- injured not his car sustained and others, I respectfully to poses no damage. mal dissent. procedure, Officer police In violation of facts, and the record The as revealed of his car ran Phillips jumped out and majority, the are as fol- presented from it. Phillips Latits’ behind car toward 24,2010, night City of On of June lows: the pas- Latits’ standing alongside front turning stopped Latits for Police Ferndale backing started senger-side as Latits door wrong way onto a divided boulevard. the Although away from Officer Jaklie’s car. no- approached the and Officer Jaklic or persons no see that cars hide, ap- what attempting Latits to ticed immediately Latits as he re- behind were drugs. told Latits to to be Jaklic peared . Latits, versed, opened fire and took, Latits off. get out of and Latits stop. to a Latits’ car rolled on a squad Latits then,pursued Three cars by three bullets and died at struck parking and through lot down morning. hospital later speeds exceeding not empty highway Phillips’ nature of a temporary The unconstitutional Latits’ came m.p.h. vehicle clear to a would reason to make a U-turn over conduct have halt tried when Indeed, clearly it was highway police At officer. grassy median. able the curb Garner, attempted Tennessee v. point, Officer Wurm established under 1, 11, 105 hit Latits’ S.Ct. make the same U-turn and vehi- L.Ed.2d. 1 (1985), may not fire at police to reorient Wurm tried cle., Officer La- vehicle, fleeing felons such as non-dangerous a second time. he hit Latits Bouggess Mattingly, his vehicle and be- tits. See straightened out northbound, when, (applying Gar five traveling about 894-95 gan employs Mullenix, ner that an officer hold who officers approached plain deadly against force fleeing suspect with tiffs car and told that he was under 3Ó6, reason to believe arrest. 136 plaintiff out S.Ct. at sped off poses armed risk and led “on an otherwise serious 18-minute chase speeds physical between 85 per harm is not entitled 110 miles Gamer, hour.” Id. During pursuit, immunity). In Supreme plaintiff Court twice dispatcher called “claiming held “use of pre force to gun to have a and threatening to shoot escape felony vent suspects, all they officers if did abandon their circumstances, whatever is constitu Id; pursuit.” A police positioned tionally unreasonable.” 471 U.S. at highway on a himself overpass and fired at (“Where suspect poses vehicle, killing Id. plaintiff. immediate threat the officer and no inquiry, relevant explained, the Court “was others, threat resulting the harm whether was established that the failing apprehend justify him does prohibited Fourth Amendment the offi so.”). the use of do [particular] cer’s conduct situation Although Gamer pre- did involve a (internal confronted.” quotation [he] chase, ceding holding its was clear omitted). marks and citation The Court enough to placed Phillips have on notice concluded that none precedents of its that his conduct was unconstitutional. governed]” “squarely presented, facts Bouggess, (“Our circuit therefore, accepting that “[e]ven these others held that some cases can circumstances fall somewhere between [ex obvious under Gamer be so governing cases], isting qualified immunity protects precedent circuit that officers should be ‘hazy actions border between exces the. presumed to have been that aware their ’.’ 306, sive force.’ Id. acceptable 312 standards”) conduct constitutional violated v. Haugen, (quoting Brosseau Sample Bailey, v. (citing 689, 409 F.3d 699 S.Ct, 194, 201, 596, 125 160 L.Ed.2d 583 (6th 2005) McClel- Dickerson v. Cir. (2004)). Nonetheless, the Court distin- lan, (6th 1151, 1996)). 101 F.3d 1163 Cir. guishéd Mullenix from other cases where Gamer deadly can- plain made force the circuits denied immunity to officers not against escaping be an suspect used suspects may who “who shot have done who not pose does an immediate to little flee relatively more than low anyone. here, That rule applies where rea- Davis, Id. at 312 speeds.” Walker v. Phillips’ sonable officers in position 502, (6th Kirby 2011); 649 v. 503 F.3d Cir. would not have perceived or threat dan- a Duva, (6th 475, 2008); F.3d 479-80 Cir. ger to public safety. This not conclusion is 989, Speers, Adams v. (9th changed by the fact oc- seizure Cox, Vaughan 2007); v. 1323, Cir. 343 F.3d following curred a was not (11th 2003)). 1330-31, Cir. and n.7 executed under hazardous circumstances Mullenix, Unlike this- is not a case parties (except evidently and where officer may where have a needed risk; decedent) were at judicial guidance to determine relies on Mullenix v. majority particular justified risk whether the — Luna, —, Indeed, 136 S.Ct. majority use of force. deadly (2015), L.Ed.2d to hold that not present was that Latits not concludes “did an clearly ongoing established that an in Phil danger” imminent to officers lips’ position prohibited using to any civilians. This case therefore falls deadly against fleeing force Mullenix suspect. a In into of cases that category clearly time con- It was established squarely those distinguished—ie., shooting, Supreme Court based trolled Gamer. caselaw, may that an officer Circuit Sixth that Laths’ reaching its conclusion In deadly a felon against not use force from the use of right to be free Indeed, as poses no threat to others. who not clear- circumstances was force in these held: early as this Court established, markedly rais- majority ly taking measure of the drastic Before qualified posed legal barrier es last using deadly force as a resort existing beyond any le- immunity defense fleeing suspect, officers should against standard, virtually impossi- making it gal sim- probable have cause believe to overcome defense plaintiffs ble for has committed some ply suspect that the where then- circumstances even under probable have cause felony. They should obviously violated. The poses rights suspect that the also believe or a holding safety of the officers threat majority quotes Mullenix community large. if left at danger to the that is right is one clearly established “[a] of- every reasonable sufficiently clear Memphis Dept., v. Police 710 F.2d Garner 1983). that what ficial have understood Circuit case- would Sixth See, right.” point. e.g., on this is in consensus doing violates law (denying qualified Bouggess, 482 F.3d 886 (internal citation quotation marks and employed to officer who immunity omitted). majority gen- then takes fleeing suspect rea against without literally, applies it proposition eral that the was armed son believe whether—along a continuum asking of physical a risk posed or otherwise offi- officials—any more or reasonable less harm); Heights, Parma Sigley that he cial have believed (denying If official could violating right. immunity to officer who shot believed, majority seems have so where, facts “[vjiewing the fleeing suspect conclude, right then the plaintiff, most favorable no action- there was established hence running sus [the behind officer] [the stan- majority’s able violation. Under danger, suspect] pect’s] out of and [the dard, plaintiff quali- a could overcome on the in a manner to avoid others drove immunity defense if official could fied Dickerson, flee.”); attempt in an to scene conceivably that he was not violat- believe (holding despite un- 101 F.3d at plaintiffs rights. newly But this ing the danger to controverted evidence serious Instead, is not the law. minted standard suspect’s from clear stemming officers the immunity qualified test is “the crux weapon, firing of possession of a his recent they ‘fair whether have notice’ officers threatening language weapon, his and his Mullenix, acting unconstitutionally.” undisput police, because was toward J., (Sotomayor, dissenting) 136 S.Ct. at 314 nonthreatening suspect was ed 730, 739, Pelzer, v. Hope shot, the officer when he was 2508, (2002)); L.Ed.2d 666 v. immunity); to Russo entitled 635, Creighton, v. see Anderson Cincinnati, City 953 F.2d (1987) 97 L.Ed.2d (6th 1992) (“[U]nder court’s clear this Cir. (“The right be suffi- contours must has person ‘a ly precedent, established per official ciently [is] clear a reasonable not to be shot unless he right doing pursuing pose that what he is a threat would understand ceived ”) (quoting Robinson v. or others.’ right.”). violates that Bibb, (6th 1988)); Id. Cir. the officer and himself. 774. The tow Bibb, (holding 840 F.2d at 350 that where truck driver also stated that the officer caught “running an a suspect dismantling officer the was patrol towards the car” when officer’s car he fired shots at Id. suspect plaintiff. and then warned the stop, the officer was not entitled to considering After the evidence under the qualified immunity for shooting killing plaintiffs events, version of this Court con-. suspect mid-flight). This case law eluded that the plain- officer violated the has consensus been reaffirmed in since tiffs constitutional rights. The Court stat- Byrd, cases like Godawa v. 798 F.3d 457 ed: 2015) Walker, F.3d 502. According to plaintiffs’ evidence, particular

Three cases in fur- warrant [the officer] shot police Smith after v. Cupp, Sigley Smith v. ther discussion: was past cruiser [the officer] there Heights, Parma Kirby danger no immediate anyone in Duva, v. Cupp, Smith In 430 F.3d 766 vicinity. [The use of force officer’s] 2005), materially this Court addressed was made even more unreasonable similar facts to the case hand and held the fact that Smith had cooperative the use of force up point, this and was arrested for circumstances violated the Fourth Amend- making nonviolent offence harass- subsequent controlling precedent ment. No ing phone Although calls. there was has of Cupp’s clarity diminished the danger hold- public some to the from Smith’s ing or applicability present driving its case. off police in a stolen danger presented by Smith was not so In Cupp, this Court an concluded that grave justify as to the use of to qualified entitled immu- force. nity for his use of deadly against Id. at 773. The Court said that reason- case, man In that car. position able officer “would have police plaintiff, officer had arrested the perceived scene,” anyone at the perceived whom the officer to be intoxicat- including himself. 774. The Court ed, for making harassing phone calls that, explained further “[although this cir- presence. Id. placed 769. The officer previous give cuit’s cases substantial defer- compliant plaintiff in back of ence to an decision to shoot officer’s cruiser while he went talk with a tow chase, unarmed in a car the officer truck plaintiff driver. The then moved must reason to believe began the back seat to the front and Id. at 775. presents danger.” an imminent to flee the scene in the officer’s plaintiff Sigley, Similarly, police arranged vehicle. drove the vehi- cle toward the truck buy-bust officer and tow operation controlled arrest a driver. ofway ecstasy The officer moved out the at suspected dealer. the vehicle at parked and fired four fatal shots the An to informant his vehicle next plaintiff past. as he suspect’s, completed The officer the the two a drove and plaintiff claimed that the had through directed the their driver’s side win- transaction Id. vehicle at him and the tow truck driver dows. When the deal was com- 530. in, and that plaintiff he shot the in plete, blocking self-de- officers the sus- closed fense. Id. Id. truck pect’s 770. The tow driver car their vehicles. Several vehicles, plaintiff may stated that the positioning have redirect- officers exited their vehicle, ed the vehicle in suspect’s order to follow the the di- themselves around road, rection of Id. target the rather than to him to vehicle. In stop and ordered events, others. to harm the officers the intention plaintiffs version pre- that Latits his vehicle around Absent some indication trying to maneuver attempt suspects to when an in an flee than the officers’ a threat sented suspect’s into Cupp Sigley, preventing gun resump- pointed in him in the and shot flight side window in flight a driver’s tion of a instead quali This Court denied at 531. Id. back. is without first instance a distinction officer, that, holding immunity to the fied difference. light most favorable “viewing the facts in a Duva, Moreover, Kirby v. 530 F.3d 475 Plaintiff, running officer] to [the 2008), compar- even closer invites danger, out suspect’s] [the behind Kirby, In officers surrounded ison. to suspect] in a manner drove and [the. during stop a traffic and plaintiffs attempt scene in others avoid plain- on the when the opened fire vehicle true, facts as Accepting [the these flee. Viewing facts in the escape. tiff tried fair notice that shoot would officer] plaintiff, the most favorable suspect] in the when he ing back did [the at- plaintiff that the evidence' showed an immediate threat to other not pose in non- manéuver his car tempting to Id. at 537 officers was unlawful.” officers threatening manner around the Garner, and U.S. at that he “[n]ot vehicles and their 697).

Sample, 409 F.3d at (alteration 'in [going] very fast.” Id. at 479 Cupp majority contends that Indeed, that one testified original). witness Sigley insufficiently similar the facts plaintiff' trying to like the “was looked for it be case order .in parking get parallel spot of a pull out Phillips’ conduct violated that established Id. “More officer’s vehicle].” [the around every It that case is law. is a truism plaintiffs] importantly, [the version every from other. But the distinguishable story, of the officers were ever none major- similarity that the degree of factual circumstances, way.” In these harm’s probably impos- ity’s approach requires is plaintiffs’ held ver- “[t]he the Court Indeed, any plaintiff sible meet. holding supports ... of the events sion majority’s attempt meaningfully distin- decedent’s] violated [the that defendants entirely unper- guish Cupp Sigley right to be free Amendment from Fourth: majority says these cases suasive. Id. force.” 482. The Court excessive case insofar from instant are different explained: more than one or involved little “each version, plaintiffs vehi- [the Under park- confronting a car more officers moving slowly in' non- cle] was ing as he at- lot and the driver manner, hit not have aggressive precise- That is tempted flight.” initiate officers, stationary and was ly situation here.1 Latits was we have shooting. Consequently, the time of the backing slowly away shot as ’was flight reasonable defendants’ attempting po- to resume his lice, Mullenix, positions plaintiff La- would have believed Unlike the threats, ‘pose[d] a serious plaintiff] threat of tits ho and he showed [the made (holding although correctly Although points F.3d at 1152 majority 1. out nine just plaintiff had drunk and had fired officers on a led minutes, prior inside his home to the officers’ for several if tells us shots Dickerson chase arrival, justified in were not anything, it officers is that an officer’s conduct must was judged at the time he was shot he be on confront- because the circumstances that officers). by walking his side hands officer at he took the action. ed the time harm, or physical right either to the officers] to be seized to others.’ fleeing force when arrest was es- clearly killed, tablished at the time was I re- Garner, 471 U.S. at spectfully dissent. 1694). The Court held that Gamer further clearly established that officers “police may at non-dangerous fire fel

ons.” Id. at 483. The majority attempts to

distinguish Kirby grounds on the that “at shot, time he danger no one was in

and his in’.”-This is a ‘blocked draw, distinction to con

curious when one siders that the-majority has concluded OWENS, Plaintiff-Appellant, James in this case posed the Plaintiff similarly no danger to others. Phillips presented no evidence EVANS, al., John et Defendants- violent,'

that Latits was that he had a Appellees. weapon, going endanger or that he No. 16-1645 other individuals in All that can the area. driving, be said about Latits’ based Appeals, United Court of States

majority’s description of leading the events Seventh Circuit. up shooting, to the is that he initiated' a Submitted December “in risk public which to the low,” relatively that he tried maneuver Decided December officers, Sigley around plaintiffs like the * Opinion Issued December Kirby, and that his struck vehicle was multiple times the officers’ vehicles.

Moreover, him, when shot

Latits had shown no to harm the intention officers, see that

no persons other were Latits’

path away. as he cir- backed Under these

cumstances, it clear to would they reasonable officer that could not against

use Latits.

Again, applicable case law estab- that an protect-

lishes should be by qualified immunity

ed the shoot- when

ing poses victim immediate public.

the officer panel Our

unanimous its that the officer conclusion objectively cáse acted in an unrea- per- needlessly

sonable manner cost

son life. I also believe Because

* initially appeal by The court non- opinion, resolved this sued as an precedential being The order is reis order.

Case Details

Case Name: Debbie Latits v. Lowell Phillips

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Dec 27, 2017

Citation: 878 F.3d 541

Docket Number: 15-2306

Court Abbreviation: 6th Cir.