Lead Opinion
OPINION
Thrеe Lansing Police Department officers responded to an early morning alarm at a bank and found Derrinesha Clay hid
I
In the early morning on March 14, 2011, Officers Brian Rendon, Jillian Johnson, and David Burke of the Lansing Police Department responded to an- alarm call from a local bank. Rush v. City of Lansing, No. 13-CV-1317,
Officer Rendon, gun drawn, noticed that Clay was holding and waving a pair of scissors and forced her to the ground while holstering his gun. Id. at *2. Officer Johnson attempted to pry the scissors from Clay’s .hand, and both Rendon and Johnson ordered Clay to let go of the .scissors. Id. Clay rose to her knees while still holding and waving the scissors and moved toward Rendon. Id. Johnson testified that Clay “was frantic, shaking, and saying ‘I’m sorry, I’m sorry.’” Id. After a struggle between Johnson, Rendon, and Clay, Johnson was able to get the scissors out of Clay’s hand. Id. At that point, Johnson was in the storage room bеhind Clay, Ren-don was at the door’s threshold, facing Clay, and Burke was just outside the room, one to two feet to the side of Ren-don. Id.
After Johnson forced the scissors away from Clay, Rendon was standing in the doorway with one hand on Clay’s shoulder when Clay pulled a serrated steak knife from her coat. Id. Rendon yelled “knife,” Johnson backed away from Clay, and Clay, still kneeling, slashed the knife back and forth at Rendon at stomach height from about an arm’s length away. Id. at *2-3. Rendon let go of Clay’s shoulder, stepped backwards out of the room, pulled his gun from its holster, and fired one shot into Clay’s stomach. Id. at *3. After the shot, Rendon was just out of arm’s reach from Clay. Id.
The officers’ testimony varies as to Clay’s rеaction to Rendon’s first shot. In Rendon’s deposition, he testified that he shot Clay in the stomach, “[a]nd then right simultaneously when I shot her in the stomach area she lunged at me with the knife, and I shot her again.” R. 29-3, Rendon Dep. at 48, Page ID 333. When questioned further, he confirmed that Clay lunged again after the first shot. Officers Johnson and Burke, .however, testified that Clay did not lunge at Rendon after the first shot. Johnson testified that Clay’s body “tensed up and fell backwards after the first shot.” Rush,
Although the district court made no mention of the time between shots, all three officers also agreed that Rendon’s two shots occurred very close together in time. Officer Johnson gave the following testimony in her deposition:
A: As I stood up, I pulled my firearm out. As I got it up, I heard two shots.
* * * *
A: It all kind of happened at the same time. She — I want to say her whole body just kind of tensed up and went backwards.
Q: And that’s when you heard a second shot?
A: Yes. The two shots were very close together.
R. 29-2, Johnson Dep. at 35-36, Page ID 262-63 (emphasis added). In the police report, Johnson stated in her first interview that “the noise of the gunshots were close to one another” and that “at the time that she drew her weapon, was the exact same time as when she heard the two gunshots.” R. 31-2, Police Rep. at 5, Page ID 436. And in the follow-up interview for the report, she stated that the shots were “immediate and there was no lapse of time between the first and secоnd gun shot[s].” Id. at 7, Page ID 438.
Officer Burke did not discuss the time between shots in his deposition, but in his initial interview for the police report he stated that Rendon “drew his weapon and fire[d] two shots at the suspect ... the shots were one after the other.” Id, at 8, Page ID 439. He reiterated this in the follow-up interview, stating that “the two shots that Rendon fired were quick and immediate.” Id. at 10, Page ID 441.
Officer Rendon’s testimony aligns with the other officers’. In his interview for the police report, Rendon stated that “he drew his gun, and he fired, and then he fired again.” Id. at 12, Page ID 443. At his deposition, he testified: “And then I shot her in the stomach area. And then right simultaneously when I shot her in the stomach area she lunged at me with the knife, and I shot her again.” R. 29-3, Rendon Dep. at 49, Page ID 333.
Mary Rush, acting on behalf of Clay’s estate, sued Officer Rendon and the City of Lansing. The only claim on appeal is Rush’s claim, under 42 U.S.C. § 1983, that Rendon used excessive force in firing the second shot. The district court denied Rendon’s motion for summary judgment, holding there is a genuine dispute of material fact about whether it was objectively unreasonable for Rendon to fire the second shot, as the evidence did not establish that Clay continued to pose a significant threat after the first shot. Officer Rendon timely appealed.
II
As a threshold matter, we must address whether we even have jurisdiction to hear this appeal. As a general rule, the denial of summary judgment is not immediately appealable because it is not a final decision within the meaning of 28 U.S.C. § 1291. DiLuzio v. Village of Yorkville, Ohio,
We have jurisdiction to decide an appeal challenging the district court’s legal deter
At times, Officer Rendon makes impermissible factual challenges. His brief on appeal notes his perception that Clay lunged at him immediately after the first shot. See Appellant Br. at 9. The record has three conflicting versions of Clay’s reaction to the first shot: she either (a) lunged at Rendon (Rendon’s testimony); (b) fell backward (Johnson’s testimony); or (c) slouched forward (Burke’s testimony). If Rendon’s arguments required us to accept his version of Clay’s reaction, we could not consider them. But Rendon clarified that his legal arguments are not based on his version of the facts, and explicitly says as much in his briefing: “The' undisputed material facts in this case make clear that the interval between shots was a matter of seconds, and the movement of Clay’s body — whether forwards or back — was not sufficient to make clear to Officer Rendon that she no longer caused a threat.” Reply Br. at 8 (emphasis added). Thus, because Rendon’s legal argument is not premised on accepting only his description of Clay’s reaction, nothing prevents us from answering the legal question before us.
We must also consider whether the major premise of Officer Rendon’s argument — that the shots were fired so close together that it was not unreasonable for him to fire the second shot — is an impermissible fact-based challenge. The district court omitted any discussion or analysis of the time between Rendon’s first and second shots, and “because we defer to the district court’s factual determinations, ideally we need look no further than the district court’s opinion for the facts and inferences cited expressly therein.” DiLuzio,
Officer Rendon’s legal argument that he did not violate a clearly established constitutional right because “the shots were fired in such close proximity in time that [he] lacked time to re-evaluate the situation and conclude that deadly forсe was no longer justified” is not an impermissible fact-based challenge to the district court’s decision. Appellant Br. at 22. The district court made no factual findings regarding the time between shots, so Rendon cannot be challenging a (non-existent) factual determination of the district court. And we are not prohibited from examining the record regarding the amount of time between shots simply because the district court did not mention it. See DiLuzio,
All three officers stated that Rendon’s two shots occurred very close together in time. Based on this consistent, uncontro-verted evidence in the record, Rendon’s legal argument is not an impermissible fact-based challenge. The key events occurred in the following sequence: (1) Clay pulled out a knife and slashed at Rendon; (2) Rendon shot Clay in the stomach; (3) Clay had some reaction (fell back, slumped forward, or lunged again at Rendon); and (4) Rendon shot Clay in the head. Rendon does not dispute that the two shots occurred separately, nor does he dispute the factual sequence of events. He simply argues that, based on the undisputed facts, his actions were not unreasonable.
Whether the two shots were, in the officers’ words, “almost simultaneous,” “in quick succession,” “very close together,” “immediate and there was no lapse of time,” or “quick and immediate,” the record contains numerous, consistent statements from all three officers showing that there was very little time between shots. This is uncontroverted record evidence, and Officer Rendon is not prohibited from making a legal argument based on the evidence in the record, so long as it is viewed in the light most favorable to Rush. Semantic differences in these words and phrases aside, and even viewed most favorably to Rush, there is no question that the evidence shows the shots occurred very close together. Because Officer Rendon’s legal argument is based on the facts in the record, taken in the light most favorable to Rush, we have jurisdiction over this appeal, and the facts we take into account can — indeed, must — include that Officer Rendon’s two shots occurred very close together in time.
Ill
To determine whether an officer is entitled to qualified immunity, we apply a two-prong test: “(1) whether the facts, when taken in the light most favorable to the party asserting the injury, show the officer’s conduct violated a constitutional right; and (2) whether the right violated was clearly established such ‘that a reasonable official would understand that what he is doing violates that right.’” Mullins v. Cyranek,
A
Under the first prong, we must determine whether Officer Rendon’s use of deadly force was unreasonable so as to violate Clay’s Fourth Amendment right to be free from excessive force. See Mullins,
Rush first argues that Rendon’s first shot was unreasonable and thus a constitutional violation. Rush did not raise this argument in the district court, and as a general rule we do not consider new arguments presented for the first time on appeal. Overstreet v. Lexington-Fayette Urban Cty. Gov’t,
Turning to the second shot, we generally apply three non-exhaustive factors to guide our evaluation of whether an officer’s actions were reasonable: “(1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight.” Mullins,
When examining these factors, the key question is “whether the officers’ actions [were] ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Goodwin v. City of Painesville,
We must judge the reasonableness of the use of force from the perspective of a reasonable officer oh the scene and not through the lens of 20/20 hindsight, allowing for the fact “that police officers are often forced to make split-second judgments — in circumstances that are tеnse, uncertain, and rapidly evolving— about the amount of force that is necessary in a particular situation.”
Mullins,
Because it is undisputed that the crime of breaking and entering into a bank while armed — not to mention assaulting an officer with a knife — is sufficiently severe to support the use of force, the first factor weighs in Rendon’s favor. Accordingly, we turn to the second factor and evaluate the threat posed by Clay. We measure the reasonableness of the force used at a partiсular time based on an “objective assessment of the danger a suspect poses at that moment.” Bouggess v. Mattingly,
“[Qualified immunity is available only where officers make split-second decisions in the face of serious physical threats to themselvés and others.” Mullins,
In the time since the district court issued its decision, we decided two cases clarifying Sixth Circuit law with regard to the reasonableness of deadly force. See, e.g., Mullins,
Mullins was “not a case where ‘a jury could conclude that [the officer] was not in any danger in the first place.’ ” Id. at 767 (quoting Smith,
We also explained in Mullins that “[о]ur reasoning applies equally to both shots” fired by the officer. Id. at 768. The second shot “came within the time frame in which a reasonable officer could have acted under the perception that [the suspect] was still armed.” Id. (citing Untalan,
Turning to this case, once the relevant facts are determined and all reasonable inferences are drawn in favor of the plaintiff, “the question whether the [offiсer]’s actions were objectively unreasonable is a ‘pure question of law.’ ” Chappell,
But that is not all the record shows. The officers were in a confined space (a small room in a dark bank) with Clay. The second shot occurred just after Clay unquestionably did pose a threat by slashing at Rendon with a knife, and the second shot occurred very shortly after the first. Whether Clay slumped forward or backward following the first shot, there was no clear or unmistakable surrender, or any other action that would compellingly show that the threat had abated. Moreover, Clay’s assault with the knife — a knife she produced unexpectedly from inside her coat — occurred after the officers had subdued and apparently disarmed her of her scissors from her first assault, and-was accompanied by her misleading pleas of “I’m sorry, I’m sоrry.” Taking all of the record facts into account, Rendon was justified in remaining apprehensive of further deception and threat from Clay. Thus, it was not unreasonable for Officer Rendon to continue using deadly force.
The district court found that there was a genuine dispute as to whether Clay continued to pose a threat of serious physical harm after Officer Rendon’s first shot. Fair enough, but the question before us is not whether Clay stopped posing a threat in the short time between shots, viewed in the “sanitized world of our imagination.” Dickerson,
The third factor — whether the suspect was actively resisting arrest — follows the second and also favors Rendon: Clay was actively resisting arrest right up to the first shot, and it was certainly reasonable for Officer Rendon to expect her to continue to do so.
Based on the record evidence, it was not unreasonable for Rendon to perceive Clay as still posing a threat when he fired the second shot, even if he was ultimately mistaken in making a split-second assessment. We therefore hold that Rendon’s use of deadly force was not objectively unreasonable under the circumstances and that no constitutional violation occurred.
B
The “clearly established” prong of the qualified immunity test bolsters our conclusion. The’ Supreme Court has “repeatedly told courts ... not to define clearly established law at a high level of generality.” Mullenix,
Despite this clear direction from the Supreme Court, the district court primarily relied on the general rule that deadly force is unreasonable “where the suspect poses no immediate threat to the officer and no threat to others.” Rush,
As the Supreme Court reiterated in Mullenix, “[t]he gеneral principle that deadly force requires a sufficient threat hardly settles this matter.”
IV
The death of Ms. Clay is a tragedy, a death that, with the benefit of hindsight, may have been avoided. Yet this case also highlights the fact that police work is dangerous work. In recognition of this dangerousness, the doctrine of qualified immunity operates to protect officers from civil liability, even for mistakes of judgment, so long as their actions are not shown to have been objectively unreasonable. Applying this doctrine to the undisputed facts of this case under controlling case law leads us to conclude that Officer Rendon’s firing of two shots in quick succession was not a constitutional violation. And, in any event, a constitutional right to be free from such a use of force was not clearly established. For the reasons set forth above, we REVERSE the district court’s denial of Officer Rendon’s motion for summary judgment and REMAND to the district court for entry of judgment in favor of Officer Rendon.
Notes
. While the dissent would leave this question for the jury, the Supreme Court has 1're-jected] the argument that the question of objective rеasonableness is 'a question of fact best reserved for a jury.’ ” Dunn v. Matatall,
. Mullins itself cannot be used to determine whether the right was clearly established because it was decided well after the events leading to this case, but the cases cited in Mullins were all decided before 2011 and therefore apply.
Dissenting Opinion
dissenting.
Derrinesha Clay was 17 years old at the time of her death. The district court found that when police officers first discovered Clay — “a very small woman at approximately 125 pounds and 5'4" in height” — hiding in a storage closet and holding a pair of scissors, Clay “was frantic, shaking, and saying ‘I’m sorry, I’m sorry.’” Rush v. City of Lansing, No. 13-CV-1317,
The district court denied Officer Rendon qualified immunity based on these facts, holding that a reasonable jury could “conclude that Defendant Rendon’s shot to Ms. Clay’s head was unreasonable because she was on her knees, she had already been shot in the stomach, and she was no longer resisting.” Id. at *8 (emphasis added). I
Qualified immunity is designed to balance “the need to hold public officials accountable when they exercise power irresponsibly” against “the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v, Callahan, 555 U.S. 223, 231,
Our circuit has held that “whether the use of deadly force at a particular moment is reasonable depends primarily on objective assessment of the danger a suspect poses at that moment[,]” and that such an “assessment requires asking whether the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Bouggess v. Mattingly,
With respect to the first factor, it is undisputed that the crime of breaking and entering into a bank while armed is sufficiently severe to support the use of force. The second and third factors, however, are a different story. As the district court observed with respect to the second factor, there is at least “a genuine dispute [regarding] whether Ms. Clay” — who was on her knees more than an arm’s length away from Rendon — “continued to pose a threat of serious physical harm after Defendant Rendon shot her in the stomach.” Rush,
As for the second step of our qualified immunity analysis — whether the right at issue was clearly established at the time of the alleged violation — we have long held that “an action’s unlawfulness can be apparent from direct holdings, from specific examples described as prohibited, or from the general reasoning that a court employs.” Feathers v. Aey,
Finally, our circuit recognizes that in the “typical” qualified immunity case, “we defer to the district court’s factual determinations” and “ideally ... look no further than the district court’s opinion for the facts and inferences cited expressly therein.” DiLuzio v. Vill. of Yorkville,