Murray-Ruhl v. Shiawassee

338 Eighth (1991) 2680,

C. Dеfendant’s Amendment 836 (plurality); 115 L.Ed.2d (“This Organek, see also 65 F.3d at Challenge engage Court in proportionality ‘will not Finally, Defendant contends that his analysis in cases except penalty where the “sentence vacated is should be because it imposed is or life in prison death without disproportionate crime committed possibility parole.’”). Defendant has past history even factoring his criminal death; rather, not been sentenced to De and totality 26 of the circumstances fendant has been sentenced to serve 480 (Def.’s 35) concerning his arrest.” Br. at months of imprisonment. Even if Defen stated, previously As advisory Defendant’s dant’s functionally equivalent sentence is spanned range Guidelines from 360 case, to a life sentence not does imprisonment months’ to life. The district statutory exceed the maximum sentence court sentenced Defendant to 480 months imprisonment life under U.S.C. of imprisonment. The crux of Defendant’s 841(a). 841(b). § § See 21 U.S.C. “[A] appears claim to be this is sentence statutory sentence within the maximum functionally like a sentence to impris- life generally set statute does not constitute ” onment. punishment.’ We review this constitutional ‘cruel and unusual Austin Suarez, Jackson, 298, challenge v. de novo. 213 F.3d 263 F.3d at Cir. 2000). Smith, 455). Consequently, Defendant’s Eighth 476 (citing 182 F.3d at Amendment claim is also unavailing. First, Defendant did not raise an Eighth challenge Amendment to his sen CONCLUSION tence before the district court at his sen reasons, For the foregoing we AF- tencing hearing, his sentencing mem FIRM. result, orandum. As a Defendant failed to

preserve challenge appeal, and we

deem it waived. United See States v. Or (6th Cir.1995) (find

ganek,

ing Eighth the defendant’s Amendment

challenge cognizable appeal because

he failed to raise it his sentencing hear

ing); Co., Broadcasting see also Taft

F.2d at 243. MURRAY-RUHL, Joan Marie Personal Representative of the Estate Mi rate, At Eighth Defendant’s Murray, Deceased, chael Dean Plain challenge Amendment fails on the merits. tiff-Appellant, Defendant claims that this court “whеn v. reviewing Eighth Amendment challenges, adheres proportionality to the ‘narrow Thomas PASSINAULT Jason principle’ articulated Harmelin v. Mich Jenkins, Defendants- (Def.’s 35) igan.” Yet, atBr. Harmelin Appellees. does not control the result here. Harme No. 05-2607. lin itself “[proportionality stated that re Appeals, United Court of States respects view is one of several which we Circuit. Sixth different,’ have held that ‘death imposed protections that the Consti Aug. provides.” tution nowhere else Harmelin Michigan, 111 S.Ct. BOGGS, Judge, Chief Circuit

Before: DAUGHTREY, Judge, and Circuit MILLS,* Judge. District DAUGHTREY, MARTHA CRAIG Judge. Circuit Murray-Ruhl filed Plaintiff Marie Joan under 42 U.S.C. rights civil action County 1983, claiming § that Shiawassee Deputy Thomas Passi- (Michigan) Sheriffs unreason- Jenkins acted nault and Jason son, against her ably using deadly of his Fourth Murray, in violation Michael rights. appeals She now Amendment summary judg- grant of district court’s based on ment to the defendants they were enti- determination cоurt’s fatal immunity in the tled * Mills, by designation. ting United States District The Hon. Richard Illinois, sit- Judge the Central District of Murray. lights affirm

shooting grant engine, We ducked down his seat summary judgment defendant Jen- police, Rodriguez hide from the told However, kins. because we conclude that to do the same. genuine disputes the record reflects of ma- Jenkins and Passinault observed Mur- concerning terial fact the reasonableness ray’s exiting truck the lot near Uncle action, of defendant Passinault’s we find it it, concluding Buck’s and followed the necessary grant summary the to reverse erratically. truck was being driven Ulti-

judgment to him and remand the case to mately, located the truck in the officers the for proceedings. the district court further alley parked directly and behind vehicle, it. Jenkins blocking and Passi- FACTUAL AND PROCEDURAL and, patrol nault car got seeing out of the BACKGROUND truck, occupants began no visible the to Although the parties’ the versions of surrounding search the area on foot. Af- surrounding shooting facts the actual con- by, Murray ter the passed officers started flict, leading up the facts to the event are engine. Beyond the that point, truck’s essentially undisputed. The record estab- highly disputed. facts of this case are evening lishes September that on the The Defendants’ Facts Version friend, Conklin, Ryan Murray and party attended a at the home of a mutual Murray The defendants claim that after Conklin, to According pair friend. ar- truck, started he directly accelerated midnight rived sometime before and left Passinault, standing toward who was next up when party broke several hours to a pole approximately barn 165 feet Murray agreed later. and Conklin to north of the truck. Jenkins and Passinault women, drive young two Rebecca Rodri- “effectively also assert that was Passinault Straub, guez Corey and home from the trapped pole between the truck and the party. dropped Murray Conklin off and defendants, According barn.”1 Pas bar, Rodriguez at Uncle Buck’s where repeatedly sinault ordered the driver of Murray his truck parked had earlier in the the truck to but his stop, orders were evening, to then left take Straub home. disregarded and the driver of the truck accelerating continued toward him. Passi

Murray, Rodriguez sitting with in the gave conflicting nault accounts of how seat, passenger pulling was out of the Un- him, passed close as it the truck came lot parking cle Buck’s when he saw the eventually that it testifying was between by. car drive In patrol defendants’ a mo- away one and from eight feet where he panic, ment presumably because he had standing he fired the shot when first by violated parole consuming his alcohol immediately at the driver. But after the evening, Murray earlier that attempted to afterward, days he driving shooting and for some police by adjacent avoid the across reported by been hit the truck parking alley lots into an he had pulling injured—even going so far as to call opened parking nearby into a lot for busi- Murray nesses. turned off the for an to come to the scene truck’s ambulance pavement. report Despite undisputed as forensic states that characterization concurring opinion fact in the that "while heavy spin, caused the acceleration tires to feet, approaching eight within Passinault possible, but it is based ‍‌​‌‌​​​‌‌​‌​​​‌​​‌​​‌​​‌‌‌‌​‌​‌‌‌‌​‌‌‌​​‌‌‌​​‌​​‍on the evidence that is accelerating Murray enough to cause his record, begin in the truck did not that the truck,” spin tires to lose control of and to his Murray lose control and until turned rotate рre- record fails to establish officer’s hitting avoid Passinault. the wheel in order to cise location when the truck left tire marks on Passi- Rodriguez attention. testified that she heard he needed medical because However, that version the facts turned the truck yell stop nault complete out to be fabrication. once, repeated orders opposed claim made. that the defendants Passinault truth, hit Passinault had not been ordering According Rodriguez, after shooting truck and after it continued him, stop, he did not wait passed claiming had later Passinault heading might believed that the driver be weap- immediately but fired response Jenkins, partner, who was on toward his Moreover, tends to show record on. foot somewhere the area. Passinault fired first shot only that that Passinault also asserts that he at the truck as fired him passed truck and was mov- befоre the away from he was was driven him because fails to away, because forensic evidence ing the safety concerned for of other officers that one struck the reflect even bullet had been scene and who summoned the In- front of the truck the windshield. general. in was public for the The vehicle stead, according to Passinault Rodriguez, being operated high speed, not rate of remaining the truck fired the shots after however, and there officers were no other turned him. already past had and driven public or members of the in the area at the testified, fact, that she saw Passi- She time of these events. running after the he contin- nault truck as investigation Later that Passi- revealed shooting at it. ued nault fired a at the had total of shots fatal also that the plaintiff The contends truck, at least two or three of which struck not have fired in self- shot could been Murray. The truck to a eventually came because, stop autopsy in a ditch some the according distance down defense road, Murray slumped with over the report, the shot that would killed wheel, dead. paralyzed legs, yet also have he operate the for The Plaintiffs Version of the Facts gas pedal able to truck’s after Passinault. passing some distance eye- Rodriguez Because Rebecca was an addition, that autopsy the indicates report occurred, to what plaintiff witness the Mur- the bullet moved from the back of a significantly able to offer ver- different front, ray’s body indicating toward the that events, must, course, sion of which be shot from he was behind. light viewed the to her. most favorable facts, According to this account of plaintiff The calls Passi- into when started in order to the truck alleged safety сoncern nault’s for the alley, escape from he accelerated not Although others. claimed that Passinault toward Passinault but rather toward shooting truck had he continued after the only exit available him. Because the him because it was passed he believed patrol officers’ car blocked the truck partner, on his indi- bearing down Jenkins behind, alley “Murray from had one path that he was not in the truck’s cated past was to option, which drive forward being that never felt in he position Deputies” in order by plaintiff the vehicle. The also struck away. get concedes asserts that the officers lacked reason truck went at a Passinault Murray posed an ultimate threat believe feet, eight distance of about but asserts because, public general despite path only that he took this because he suspicions might officers’ that he have get alley any out of other could not sort, way. committed a crime of the most some they actually when, serious offense him saw com- terial fact exists assuming the truth mit awas traffic violation. non-moving party’s evidence and construing all inferences from evi- Alleging rights guaranteed violations of light dence most favorable to the Constitution, under the United States non-moving party, there is sufficient evi- plaintiff Murray-Ruhl filed suit on behalf dence for a trier of fact to find for that § of her son’s estate under 1983 and a Ciminillo, party. See 434 F.3d at 464. statute, Comp. comparable Michigan Mich. (2007), § 691.1407 against defen- Qualified Immunity Laws Jenkins, Passinault, dants Shiawassee In reviewing a claim of immu

County, County and Shiawassee Sheriff nity, recognize we “government offi Wilson, Jon but the latter parties two performing discretionary cials functions been dismissed from litigation by stip- generally liability are shielded from for ulation. The case below focused on the civil damages insofar as their conduct does plaintiffs claim that the officers used clearly violate established statutory or violation of the Fourth rights of constitutional which a reasonable Amendment. Defendants Passinault and person would have known.” Harlow v. Jenkins moved summary judgment 800, 818, Fitzgerald, 457 U.S. 102 S.Ct. qualified the basis immunity, of and the (1982). 2727, Qualified 73 L.Ed.2d 396 motion, district granted court holding immunity government entitles a official that qualified immunity appropriate “not to stand trial or face the other bur because Passinault reasonably acted when Katz, litigation.” dens of Saucier v. 533 and, he shot and killed alternative- 194, 200, 2151, U.S. 121 S.Ct. 150 L.Ed.2d ly, plaintiff because the identify failed to (2001) 272 (quoting Forsyth, Mitchell v. clearly right established that was violated 511, 526, 2806, 472 U.S. 105 S.Ct. 86 in the course of her son’s death. Pursuant (1985)). 411 L.Ed.2d purpose “The central to its discretion under 28 U.S.C. affording of public officials immu 1367(c)(4), § the district court declined to nity from protect suit is to them ‘from supplemental jurisdiction exercise and dis- undue interference with their duties and plaintiffs missed the state law claims. from potentially disabling threats of liabili The appeals now the district ty5.” 510, Holloway, 514, Elder v. 510 U.S. court’s order granting summary judgment (1994) 1019, 114 S.Ct. 127 L.Ed.2d 344 to the defendants. Harlow, (quoting 806, 102 457 U.S. at S.Ct. DISCUSSION 2727).

Standard of Review Katz, In Saucier v. the Supreme Court

We review a district grant court’s two-pronged inquiry established a to de- summary judgment de novo. See Ciminil- termine an quali- official’s entitlement Streicher, 461, lo v. immunity 464 fied in the context of an exces- Cir.2006). Summary judgment proper 200-01, is sive force claim. 533 at 121 U.S. pleadings, First, where “the depositions, answers reviewing S.Ct. 2151. court interrogatories, file, and admissions on light must ask: “Taken in the most favor- together affidavits, any, with the party asserting show able to the injury, do that there is no genuine issue as to alleged the facts show the officer’s conduct material fact and that the moving party 201, is viоlated a constitutional right?” Id. at judgment entitled to a aas matter of law.” 121 If a right S.Ct. 2151. constitutional violated, next, Fed.R.Civ.P. A genuine sequential issue of ma- was “the step is 56(c).

343 to ‘seize an for an officer clearly unreasonable right estab- to ask whether unarmed, suspect shoot nondangerous emphasized has lished.” Id. Court ” dead,’ Haugen, v. alleg- him Brosseau defining right ing importance 197, 596, L.Ed.2d 194, level of 125 S.Ct. appropriate at the U.S. edly violated curiam) Garner, (2004) (quoting the offi- holding right (per that “the specificity, 1694). The 11, to have violated must 105 S.Ct. alleged cial is 471 U.S. partic- test ‘clearly established’ a more reasonableness been Fourth Amendment’s ularized, relevant, judged more sense” be objective and hence one and “must is an right must and that contours offi “[t]he of a reasonable perspective from the offi- sufficiently scene, clear that a reasonable be than with the rather cer on the do- understand that what he is cial would hindsight.” v. vision of Graham ‍‌​‌‌​​​‌‌​‌​​​‌​​‌​​‌​​‌‌‌‌​‌​‌‌‌‌​‌‌‌​​‌‌‌​​‌​​‍20/20 ing right.” 1865, violates that Anderson Connor, 109 S.Ct. 490 U.S. 635, 640, (1989). 107 S.Ct. Creighton, Hence, may we L.Ed.2d 443 (1987). Thus, quali- L.Ed.2d 523 that of the judgment our substitute if it immunity inappropriate instead, is would but, fied officer on the scene police to a officer be clear reasonable the fact that make “allowance for must conduct was unlawful. make often forced to officers are judgments—in circumstances split-second case, disposition to our Central tense, uncertain, rapidly that are however, recognition is our if “the the amount of force is evolving—about completely legal question immunity necessary in a situation.” Id. particular which facts is dependent upon view the Accordingly, an offi 109 S.Ct. accepted by jury,” the district court deadly in viola using cer accused of grant immunity should not from Fourth Amendment suspect’s tion of a Cureton, Brandenburg claim. v. 882 force im qualified not be afforded rights should (6th Cir.1989). 211, F.2d 215-16 “[S]um- basis, “if, objective an is munity mary judgment is where inappropriate reasonably competent offi obvious that no disputes there are factual over contentious victim]; but cer would have [shot deadly reasonableness the use competence could officers of reasonable Pleasant, 142 City force.” Sova v. Mt. issue, immunity disagree on this should be (6th Cir.1998). 898, F.3d (alter Sova, 142 F.3d at 903 recognized.” Did Passinault’s Conduct Violate a Con- Malley v. original) (quoting ation in Right? stitutional 1092, 335, 341, 106 Briggs, 475 U.S. S.Ct. circuit, In this have noted that we (1986)). 89 L.Ed.2d 271 “[qualified immunity involving in cases case, contends deadly claims of force is difficult to deter this summary deadly liabil that Passinault’s use of force was judgment mine on because “constitutionally because ity upon the Fourth Amendment’s unreasonable” turns a threat to either the City pose Mt. did not reasonableness test.” Sоva (6th Cir.1998). Pleasant, 898, The dis general public. officers or to the Gamer, that disagreed, finding offi trict court Passi police Under Tennessee v. and, thus, escape nault’s conduct was reasonable may deadly prevent cer use force to “[wjhere no violation of Fourth probable the officer has there was rights. Saucier’s two- suspect poses cause to that the Amendment Under believe harm, inquiry, no constitutional physical pronged “[i]f either to threat of serious 1, 11, 105 others,” been violated were the right 471 U.S. would have the officer or (1985); established, “it is there is no necessi- allegations 85 L.Ed.2d S.Ct. ty inquiries concerning quali- for further appeal. But one fact glaringly obvious immunity.” fied from the record that emptied S.Ct. Passinault However, vehicle, it, weapon reloaded district court also ad- Murray perhaps many fired at dressed the as a prong, holding second that the dozen times even after the truck had plaintiff had not established that the de- and, thus, passed by him after Passinault fendants clearly had violated a established reasonably could believe that it imposed a right because she “ha[d] failed distin- threat to Deputy himself or—if Jenkins is guish” cases cited opin- the court in its partner. be believed—to his It was one ion and “failed to demonstrate similar of these “after that proved shots” to be factual scenarios where the Court denied fatal. qualified immunity to the defendant least,

officers.” At very The district court was forced to this record creates a dispute concede that of fact concerning the “factual scenarios” in whether events unfolded as three the defendants claim in cited cases were “not con- identical” to tending they are case, entitled to facts the instant but neverthe- immunity and whether their actions can be postulated they less were “similar.” said to objectively have been reasonable Our review of the cases upon by relied Indeed, under those circumstances. reveals, however, the district court reasonableness of the use of they virtually bear similarity no to the entirely turns on which version of the facts facts in this case. The district court was accepts. officers, one According to the undoubtedly led into error in regard Passinault’s decision to shoot at by having summarized the events out laid truck was reasonable because sentence, which, in single above far from Passinault, drove his truck directly at al- stating the light facts most favorable (and hitting most officer a discred- plaintiff, as required, actually sum- Passinault) version, actually ited hitting light decidedly marized them in a favor- refusing stop despite multiple or- able сoncluded, to the defendants and then ders, then erratically raced toward Jen- without further analysis, that Passinault’s kins, posing a serious threat of actions were reasonable: that officer. plaintiffs Under the version night On the of September Dep- facts, however, reasonably no com- uty split-second Passinault made a deci- petent perceived danger officer would have sion to use lethal in pro- order to justify shooting Murray: sufficient to Mur- tect Deputy himself and Jenkins from a ray aiming was not his truck at Passinault truck which accelerating was in his di- scene; trying but rather to leave the Pas- rection, which had violated his order to time, stop only sinault ordered him to one stop, which eight came within feet of opening waiting fire without for a re- striking Deputy Passinault, and which sponse; majority Passinault fired the escaping from the scene. The the bullets already after the truck had Court Deputies finds that Passinault and him; away turned from Jenkins was never reasonably Jenkins acted under the cir- danger struck; in of being and the officers cumstances. probable lacked cause to believe that Mur- Obviously, if single Passinault had fired a ray was involved in of an the commission shot as the truck came at him—or even as posed any- offense or that he a threat passed close to him—the district court’s In granting summary judgment one. fact, findings defendants, they abbreviated as simply the district court were, might subject be acknowledge deference failed to the conflicts in the defendants, Passinault According to the concerning fact allegations of parties’ Murray be- reasonably shooting in acted of Passinault’s action reasonableness deadly weap- a truck constituted cause the death, crediting Murray’s instead causing physical a of serious posed on that threat lead- version of the events the defendants’ to Jen- only to himself but also harm not so, the doing death. In ing up to officers, kins, general public. and the other function, jury’s usurped court district can be acknowledged that “a car haveWe effect—that Passinault con- deciding—in Freland, 954 deadly weapon.” a Smith out of past the need to do so firing tinued Cir.1992). But, we have F.2d frus- anger rather than fear or concern pre- circuit’s “[although also held us, former, would it seems to tration. deference give cases substantial vious true; the lat- objectively be reasonable a unarmed an decision to shoot officer’s ter would not. chase, officer must suspect in a car po- involving Sixth Circuit cases Other pres- that the car have a reason to believe shootings in the context of vehicular lice danger.” Cupр, 430 ents an imminent flight helpful examining are whether the situation Comparing F.3d at 775. summary judgment appropriate based two cases cited present case to that of objective rea- on the Fourth Amendment’s suggests that Passi- by the district court Cupp, sonableness test. In Smith v. to believe nault lacked sufficient reason (6th Cir.2005), a threat. posed an officer named truck such F.3d 766 Dunn shot and killed an arrestee who had cases, of those two Smith v. the first patrol control of the car gained officer’s (6th Cir.1992), Freland, F.2d 343 suspect in the vehi- when he left the alone officer shot and killed a man after upheld cle. Id. at We the district during high-speed chase. At various times qualified immunity court’s denial of based at- two different officers had pursuit, part suspect on our conclusion that the stop suspect by blocking tempted to posed no threat of to the officer. patrol cаr their cars. Id. at 344. with Although Dunn that he claimed fired officers, suspect Twice evaded the nar- patrol car self-defense as the vehicle rowly missing patrol a collision with the him, jury however, accelerated toward “reasonable Ultimately, one of the cars. Id. suspect could conclude that Dunn did not fire as managed officers to blockade the him in car. Id. When the officer bearing patrol the vehicle was down on with his car, approached exited his vehicle fear of his life ... that Dunn [but rather] however, reversed, suspect sped for- fired as he ran toward the driver side of patrol into the ward and crashed officer’s passed the car after the car him.” Id. car, again proceeded then reversed Similarly, plaintiff’s based on the version the patrol drive around the car. Id. While case, jury in a disputed of the facts this offiсer, zooming the suspect’s past car was could conclude that Passinault could not the driver. Id. gun, killing he fired his reasonably pre- have believed that Despite sented a to him. the offi- In of the two cases relied the second Murray’s upon cer’s claim to have fired court, by Clay Scott v. upon the district self-defense, plaintiffs in the view of Tennessee, truck County, 205 F.3d 867 Cir. autopsy report suggest facts and the 2000), the a car police officers shot at involved shots, all, majority pas that the of the a high-speed in a chase and wounded car by senger. began fired the officer after the had The chase when the driver were including speed- away. displayed driving, erratic already driving turned and was ing through stop sign narrowly a and prolonged interaction with in which he demonstrated a avoiding po- willingness collision with an unmarked engage harm an in police licе car. at in officer or reckless be- Id. 871-72. With the fact, examining havior. In pursuit, plaintiffs the in the engaged driver conduct that facts, statement of the we would “patently safety physical risked of ci- conclude that Passinault lacked reason vilian pedestrians, pursuing motorists and anyone believe that he would harm patrolmen, passenger, and himself.” [his] his attempt away to drive from the area. Finally, Id. at 872. the driver lost control Therefore, plaintiffs based on the version of his car and guard crashed into a rail. facts, jury could find that no pursuing A ap- Id. officer who then reasonably competent officer would have proached vehicle jump on foot had to victim, satisfying shot the thus the first way suddenly out of the when it accelerat- prong two-pronged qualified Saucier’s Seeing ed toward him. Id. the vehicle immunity analysis. again public roadway, race toward the car, gun wounding officer fired his at the Right Clearly Was the Established? passenger. Id. 872-73. Once is established that Passi Scott, In both Freland and we concluded nault violated constitutional that the officers’ actions were reasonable rights, step the next Saucier v. Katz’s under the Fourth objective Amendment’s two-pronged qualified immunity analysis reasonableness test. As we described asks whether right constitutional their situations in Cupp: issue was clearly pur established. The cases, In both of these there was no pose inquiry of this is to determine officers, that the lives of the “whether it would be clear to a reasonable the lives of both the officers and mem- officer that his conduct was unlawful in the area, public bers of the in the were Katz, situation he confronted.” Saucier v. endangered by fleeing suspects. 194, 202, U.S. S.Ct. suspect Each multiple (2001). demonstrated L.Ed.2d 272 “If the law did not willing injure times thаt he either was put the officer on notice that his conduct an got way escape officer that in the unlawful, clearly summary judg would be willing persist extremely or was qualified immunity ap ment based on reckless behavior that threatened the propriate.” Id. lives of all those around. The officers response to the defendants’ motion

reacted with after an qualified immunity, the plaintiff argued extended interaction between right that her son’s to be free from exces- suspect proved that the suspect was sive force and unreasonable seizure ‍‌​‌‌​​​‌‌​‌​​​‌​​‌​​‌​​‌‌‌‌​‌​‌‌‌‌​‌‌‌​​‌‌‌​​‌​​‍was likely to continue to threaten the Uves of “clearly established” such Passinault those him in attempt around to es- continuing should to fire have known cape. needlessly at the truck violated 430 F.3d at 775. In contrast to Freland rights. Fourth Amendment The district Scott, plaintiffs however, version of contrary, court held to the based present presents right facts case a situa- its determination assert- question regarding tion in which there is a general ed “broad reasonably whether the officer could proposition” particularized have and thus not anyone’s believed that endangered enough put life was a reasonable officer on no- by Murray attempted as he to flee in specific tice the factual context of this Here, truck. Passinault did not a case. at issue.” self, right the clearly establishes prong “clearly established”

Although the Id. analysis generally requires of the Saucier defined allegedly violated be right

that the version plaintiffs the Similarly, under recog has Supreme the Court specifically, facts, jury could conclude reasonable the a involving “in case” that an obvious nized offi danger to the no posed that force, stan genеral the use of the sus public. When general cers or the v. Gamer Tennessee dards established or of death immediate risk pect poses no are sufficient v. Connor Graham does not control danger, Brosseau serious conduct notice that his put an officer on a “clear provides v. and Tennessee Garner Fourth Amendment. See violates the the second that fulfills ly right established” 194, 199, Haugen, immunity analysis. Brosseau v. of the prong (2004) 596, (per 160 L.Ed.2d 583 125 S.Ct. a Consti Conduct Violate Did Jenkins’s (“in curiam) case, these stan an obvious Right? tutional answer ‘clearly can establish’ the dards Sixth Cir well-established Under law”). body relevant case even without a may be officer police cuit a precedent, however, defendants, According of ex officer’s use for another responsible in which Garner is not “an obvious ease” “(1) actively if the officer cessive force “сlearly estab provide a and Graham force, of excessive in the use participated Rather, argue, Bros right. they lished” (2) used exces the officer who supervised requires us to hold that the officers seau (3) force, duty owed the victim sive clearly es did not violate a this situation the use of excessive protection against right. tablished Scott, force.” Turner v. Cir.1997). Brosseau, (6th Obviously, examined vari In Court neither Jenkins, involving police shootings categories applies but ous cases first two In potentially applicable. third is flight of vehicular and concluded the context 422, 426 Dunaway, 684 F.2d Bruner v. “by ‘clearly no means that these cases (6th Cir.1982), held that example, we establish’ that conduct violat [the officer’s] noth stood and did police officers who the Fourth Amendment.” 543 U.S. ed by other was beaten ing while blush, at first Although 125 S.Ct. 596. § liable under could be held officers point, seems tо be on the Sixth Brosseau Nu’Man, F.3d See also Durham recently distinguished holding that Circuit Cir.1996) (6th (holding quali that 866-68 present in a case with facts similar to the security for a immunity improper fied that Cupp, ease. In Smith v. we held and a nurse who witnessed officer Haugen preclude does not “Brosseau v. patient but did beating of a shackled finding right from issue this court it). try stop general, clearly because the Bros established pre who fails to act officer facts undisputed that seau Court said may be of excessive force vent the use shooting officer believed showed that (1) the officer observed held hable when gun and was fearful for suspect had that excessive reason to know or had area.” 430 F.3d officers in the immediate used, and being or was force would be Cir.2005). In contrast to (2) opportunity the officer had both Brosseau, Cupp situation in dangerous harm from prevent meаns to and the comparable “no found that there was we occurring. cause to had [the officer] evidence Turner, F.3d at 429. an imme suspect] posed that [the believe danger” and facts here establish death or serious Because the diate risk of “Garner, to act to sufficient time by it- Jenkins lacked therefore concluded force, prevent Passinault’s use of considerably excessive narrower than does the ma- summary judgment appropriate. jority. was I fully agree majority’s Pas- with the rapid analysis sinault fired twelve shots in of succes- Officer Jenkins’s im- at Murray’s munity. sion truck. Even if Jenkins immediately perceive

was able to what was I happening fired, once the first shot was he would not have had enough time to act to opinion The court’s appears to concede stop Passinault from shooting. at least that, most, might Officer Passinault unpublished opinion, one the Sixth Circuit have been entitled to qualified immunity if where, duty has found no to intervene single [Murray’s] he “had fired a shot as here, “an entire incident unfolds ‘in a mat- Maj. truck came at him.” Op. at 344. It ” ter of seconds.’ Ontha v. Rutherford concludes, however, that his subsequent Tenn., County, 222 Fed.Appx. shots can be evaluated for reasonable- (6th Cir.2007). See also Gaudreault v. answering ness after (disputed) factual Salem, Municipality 923 F.2d he, question partner, whether or the ‍‌​‌‌​​​‌‌​‌​​​‌​​‌​​‌​​‌‌‌‌​‌​‌‌‌‌​‌‌‌​​‌‌‌​​‌​​‍(1st Cir.1990) (“A n. 3 police officer cannot general public in danger. were fact But held failing be liable for intercede he is, law, question as a matter of imma- has no ‘realistic opportunity’ prevent an terial to the qualified immunity analysis: attack”); Krzeminski, O’Neill v. whether, we look not to in retrospect, Mur- (2d Cir.1988) (“This 9, 11-12 was not an ray presented an danger, actual but episode of sufficient duration to support a whethеr, in the context unfolding conclusion that by an officer who stood events, Officer Passinault could have rea- trying without to assist the victim became sonably perceived a danger. See Graham collaborator”). a tacit Additionally, the Connor, 386, 396, 109 S.Ct. summary conclusion that judgment (1989). 1865, 104 L.Ed.2d 443 In this proper for Jenkins is reinforced light, disputes the factual concerning, e.g., plaintiffs lack of strenuous effort to main- what intentions were when he tain her against claims this defendant. started his truck in the direction of the officers; many how times Passinault or-

CONCLUSION stop; dered and whether Offi- cer Jenkins in fact in path the direct above, For the reasons set out we AF- struck, of the truck in danger being judgment FIRM the of the district court are all irrelevant. Jenkins, favor of judgment REVERSE the Passinault, of the district court in favor of There is no dispute, as the court ac- and REMAND the pro- case for further knowledges, Maj. Op. сeedings with respect to Passinault. truck passed eight within feet of Passi- nault, However, space. a confined there BOGGS, Judge, concurring Chief in the undisputed is also forensic of tire evidence judgment. scene, which, according marks on the Although reconstruction, I agree that there are triable state crash “indi- issues of fact rapidly material to the cated that the vehicle being qualified immunity, Officer Passinault’s parking accelerated as it entered the lot grass thus the district court erred in from the area. The tire marks granting summary judgment to him on this showed distinct evidence that the rear basis, separately I write I spinning heavy because consid- tires were because of accel- range disputes er the of material to be eration. The acceleration continued for

349 Murray-Ruhl’s al emphasizes began The court 35' where the vehicle aрproximately did not fear legation that Passinault as it rotated in a counter to lose control fact Maj. safety or that of Jenkins. for his own 111-12. clockwise direction.” JA Whatev may Again, though this Op. at danger Murray presented, actual er the it not dispute, factual matter be a assertion that “the officers court’s immu question qualified material to the probable cause to believe that Mur lacked only with the ob nity, which is concerned anyone,” Maj. ray posed ... a threat ac jective of the officer’s reasonableness Op. at is inconsistent with the undis tions, subjective state of and not with his that, puted approaching fact while Passi Fitzgerald, Harlow v. mind. See feet, eight Murray nault was accel within (“[Bjare 817-18, allega 2727 S.Ct. erating enough spin to cause his tires to to over tions of malice should not suffice” and to lose control of his truck.2 And immunity where the offi come appears dispute there to be no that Officer reasonable.); objectively actions were cer’s along general path further Jenkins was Cupp, Smith v. 771 n. again, regardless truck: Cir.2005) (“An will officer’s evil intentions actually the truck whether would a Fourth Amendment violation not make at the struck Jenkins whether Jenkins objectively out an reasonable use of a perceived time likelihood of Robinson, force.”) (citing United States himself, say cannot that we no reasonable 218, 235-36, 94 S.Ct. U.S. officer in Passinault’s circumstances could (1973)). L.Ed.2d 427 split-second make the that a judgment nearby in danger Similarly, appears fellow officer was of seri the court to conclude injury. Murray-Ruhl’s Murray ous assertion Harris,-U.S. -, 2. The court states that the "record fails to believed him.” Scott v. 1769, 1776, precise establish officer’s location when 167 L.Ed.2d 686 127 S.Ct. Thus, (2007). pavement,” the truck left tire marks on the many Murray however times possible, and that "it is based on the evidence that there was no basis Ruhl asserts as fact record, begin in the that the truck did not injury, for Passinault to be in fear of serious Murray lose control and rotate until turned unambiguously indicates that Mur record hitting the wheel in order to avoid Passi- ray's passed eight truck within feet of Passi 1). (Maj. Op. nault.” at 340 n. The relevance (at point where Passinault's retreat nault appears by of the first statement to be belied bam), by pole was blocked that it was report, the record: the forensic which Mur- being rapidly enough accelerated to cause its doubt, ray-Ruhl offers no basis to indicates spin, fishtailing. tires to that it was Mur that, above, quoted truck’s tires ray-Ruhl specificity dispute with does spinning, were and that the truck "rotated”— validity findings. forensic And of these not swerved—in a counterclockwise direction partial under those сonditions—a car at least when it was near Passinault. After momen- control, direction, ly heading out of in his out, tarily straightening yaw it "started to in a coming eight objectively within feet—it was clockwise direction.” The conclusion that reasonable for Passinault to fear for his safe proximity was out of control in close ty- depend any way to Passinault does not is, below, The second assertion as discussed location, knowing precise given the latter’s simply qualified immunity irrelevant general relatively that his location—in a analysis. Murray’s actual intentions are not undisputed. bounded area—is object inquiry: of our even if we credit unsupported supposition Supreme recently Court has reminded that, virtuously attempting in fact summary judgment, to avoid the offi- us in the context of cer, disputes—even not all factual material relevant is whether a ones— "genuine,” by arе reasonable officer under the where bare assertion circumstances non-moving party utterly perceived is "so discredited could have a likelihood of serious jury injury. the record that no reasonable could have because, with on whether a reasonable officer under the traveled toward the officers in, being perceived his truck otherwise blocked circumstances would have Mur- only option, ray likely danger was his constitutes a material as a to members of dispute Maj. Op. public might of fact. at 345. On the or other who be ar- officers contrary, being wrong riving Although in addition to a on the scene. our cases immunity of of logic (surely Murray grants qualified matter had the have affirmed basis, staying submitting danger or on this after the to the option put of to the even officers), subjective passed, intent of the vic- officers themselves had thе reason- depends in a on tim—unavailable to the officers who must ableness such context split-second judgment—is make a irrele- whether the behavior of the victim had question egregious enough support vant to the whether his actions been a rea- gave perception rise to a reasonable of belief that he constituted a contin- sonable danger. ued threat to others. Freland, Thus,

Murray-Ruhl’s Murray in assertions that Smith v. 954 F.2d 343 (6th Cir.1992), victim, endanger by engaging did not in fact in a officers or else, anyone and that in and high-speed crashing Passinault did not chase his vehicle car, danger, police patrol fact believe he or Jenkins were in into a had shown himself are not to the a disputes question dangerous enough support material such rea- were, qualified immunity. they any Clay County, If sonable belief. In Scott v. (6th Cir.2000), plaintiff fleeing in an excessive use of force claim 205 F.3d 867 summary judgment quali- expressed willing- a patently could defeat on victim had bystanders immunity grounds simply by asserting endanger fied ness to as well as police, crashing guard as a fact that the did a and after into a rail defendant not have mind, requisite heading highway reasonable state of or that was toward a when the victim, in hindsight, did not fact officer used force. Id. 872-73. present danger. contrary, Haugen, a And in Brosseau v. 543 On the U.S. (2004), immunity a 125 160 L.Ed.2d qualified ques- S.Ct. depends only objective Supreme upheld grant qualified tion of law that Court a reasonableness, a immunity suspect not on actual for an officer who shot a subjective fight, state of mind. See Barrett v. who had been involved a fled to Schs., to inter- City Jeep attempted Steubenville when the officer (6th Cir.2004). vene, and, Accordingly, despite attempt the officer’s Passinault’s keys, approaching use of force while reach into the vehicle to secure the moving vicinity engine begin him and in the of was able to start Although officer was plausibly moving where Officer Jenkins was locat- forward. immu- of the vehicle and thus not protected qualified ed should be side nity. any danger, there was reason to herself vehicle, in the gun believe the victim had do, however, There remain dis- material to be “fearful for the and she claimed of fact. The asserts that putes officers on foot who believed [she] other the shot that killed was fired well area, immediate for the [and] were passed after truck had both Passinault path and occupied victim’s] vehicles in [the Jenkins, turning when the truck was be in the might other citizens who At in the public point onto a road. (internal area.” Id. S.Ct. events, unfolding presumably Passinault omitted). quotation marks and citations had a belief that could not have reasonable hand, we have refused to dаnger, to be in On the other he or Jenkins continued immunity in somewhat analo- qualified immunity hinges claim of find and his fast, recklessly, Mur situations, and how where the actions of such as how gous but traveling, both when he was ray to a reasonable had been give the victim did rise officers and when he vicinity in the of the flight presented that his risk belief into the In Smith v. had heading them and was passed harm to others in the area. roadway; much time had Cupp, the victim public had arrested for how been calls, harassing telephone elapsed endangerment and was between his making entry public into the road running patrol officers and his the back of the officer’s basis, way; any, might and what spoke car officer while the with wrecker likely supported a belief that others were impound driver who had arrived to danger.3 be in the path opportu- car. The victim’s victim used nity to move to the driver’s seat of the sum, though agree I with the courts’s car patrol attempt and to flee. We ob- in favor of summary judgement reversal of that, Freland and Scott served whereas Passinault, I hold that Officer would clearly displayed the victims had their will- necessary to re- disputes material factual bystand- ingness endanger the lives of immuni- question ‍‌​‌‌​​​‌‌​‌​​​‌​​‌​​‌​​‌‌‌‌​‌​‌‌‌‌​‌‌‌​​‌‌‌​​‌​​‍solve the of his during ers an extended interaction with ty considerably sug- are narrower than police, the victim in that case had and, in gested by opinion, particular, so, indisputably precluding qualified done danger Murray actual questions about the immunity summary on judgment. posed, or the state of mind of Officer himself, are Passinault and irrele- facts this case to fall into the area vant to its resolution. Cupp on the one hand and Fre- between land, Scott, and Brosseau on the other. any- appear,

While does not on facts,

one’s version of the to have been as

clear a as the victims in the latter (or Scott), at least Freland

cases nei- appear

ther does he to have un- been as Cupp,

threatening as the victim in insofar did, Murray’s least, very actions at the America, UNITED STATES give rise to a reasonable fear that he was a Plaintiff-Appellee, danger to the lives of the officers on scene, something Cupp the victim in never JAMAL, Omar Abdi Defendant- Thus, did. the question whether Passi- Appellant. nault continuing was reasonable in to fire on truck out of fear for the safe- No. 05-5918. ty of others in area depends largely Appeals, United States Court of

whether up behavior to that Sixth Circuit. gave point rise to reasonable belief that Aug. presented requisite danger. he level of This, turn, depends on the answers to a questions dispute,

number of factual court, Freland, Scott, 3. The in its discussion of this is misdirected: is not wheth- Cupp, suggests that in this case “there is anyone endangered, er was in but wheth- fact question regarding anyone’s whether life er an officer in Passinault's shoes could have endangered by Murray attempted as he reasonably perceived endangerment. such Maj. Op. Again, flee in his truck.” at 346.

Case Details

Case Name: Murray-Ruhl v. Shiawassee

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 29, 2007

Citation: 246 F. App'x 338

Docket Number: 05-2607

Court Abbreviation: 6th Cir.