*1 Before: MOORE, CLAY, and READLER, Circuit Judges.
_________________
COUNSEL ARGUED: Richard J. Perez, PEREZ LAW, Willoughby, Ohio, for Appellants. Timothy T. Reid, MANSOUR GAVIN LPA, Cleveland, Ohio, for Appellees. ON BRIEF: Richard J. Perez, PEREZ LAW, Willoughby, Ohio, Leslie S. Johns, MARTINEZ LAW FIRM, Willoughby, Ohio, for Appellants. Timothy T. Reid, MANSOUR GAVIN LPA, Cleveland, Ohio, for Appellees.
CLAY, J., delivered the opinion of the court in which MOORE, J., joined. READLER, J.
(pp. 32–56), delivered a separate dissenting opinion.
_________________
OPINION
_________________ CLAY, Circuit Judge. On February 8, 2017, Defendant Deputy Matthew Johns (“Johns”), a deputy sheriff for Defendant Ashtabula County (collectively “Defendants”), shot and killed Vincent Palma (“Palma”), a mentally ill individual, while responding to a 9-1-1 call about a family dispute over a television remote. Palma’s family members (“Plaintiffs”) sued Defendants under 42 U.S.C. § 1983 and various state tort laws. The district court granted summary judgment to Defendants on all claims. For the reasons set forth below, we REVERSE the district court’s order granting Defendants’ motion for summary judgment and REMAND for further proceedings consistent with this opinion.
BACKGROUND
On February 8, 2017, Johns shot and killed Palma after responding to a 9-1-1 call at the
Palma home, where Palma lived with his father, Salvatore, his stepmother, Melissa, and his
stepsister. Although some facts are undisputed, each witness recounted a different version of
events. At this stage, we must view the facts in the light most favorable to Plaintiffs and draw all
reasonable inferences in their favor,
Wright v. City of Euclid
,
I. Deputy Johns’ Statements
On February 8, 2017—a cold winter day in Geneva, Ohio—Johns responded to a 9-1-1 call at the Palmas’ home. The 9-1-1 dispatcher told Johns of an “unwanted person,” Vincent Palma, at the house. Johns knew that Palma “had been unhappy with the TV show that was on TV and that he had broken the television remote.” (Matthew Johns Dep., R. 50-1, Page ID #732.) Dispatch also told Johns that Palma was a “Code 76,” meaning Palma suffered from mental health issues. ( Id. ) Johns did not know that Palma was bipolar and schizophrenic. While en route to the Palma house, Johns saw Palma’s driver license and knew that Palma was the subject of the call. Before arriving, Johns removed his weapon from his ankle holster because he anticipated that he might need it.
Johns pulled up to the house and parked his patrol car in the Palmas’ driveway, about forty to fifty feet away from the house. Johns saw Palma standing outside on the porch with a hood up over his head and his hands in his pockets, which immediately “concerned” Johns. ( Id. at Page ID ##740–41, #744.) Johns got out of his car and loudly greeted Palma before walking about ten to fifteen feet towards the house. Palma did not respond. Johns tried greeting Palma two more times, but Palma did not respond. When Johns was standing ten to fifteen feet in front of his car, and about thirty feet from where Palma was on the porch, Palma came down the porch stairs and began walking towards Johns. Johns described Palma’s walk as “determined” and “aggressive.” ( Id. at Page ID #776; Johns Aff., R. 46-2, Page ID #571, #574.) But Palma “wasn’t walking at a fast pace.” (Johns Dep., R. 50-1, Page ID #776.)
Johns repeatedly told Palma to stop walking and to take his hands out of his pockets, but Palma did not respond and continued approaching Johns. When Palma got within twenty to twenty-five feet of Johns, Johns started backing up towards the passenger side of his patrol car. Palma’s parents, who had come outside, told Palma to “Just stop” and “[d]o what [Johns] says to do.” ( Id. at Page ID #768.) Johns radioed for backup; calling a “Code 10.” ( Id. at Page ID #769, #771.) Code 10 means “intermediate” priority. ( Id. at Page ID ##771–72.) In more serious situations, officers would call a “Code 44.” ( Id. )
After retreating backwards towards the side of his patrol car, Johns pulled out his taser. Johns warned Palma he would use his taser if Palma did not stop approaching. Palma did not stop and Johns tased him. The taser had little impact, and Palma kept walking towards Johns, so Johns tased him again. This time Palma fell to the ground and landed in a puddle on the driver’s side of Johns’ patrol car, near the front bumper. Palma fell onto his side with his back facing Johns. Johns told Palma to rollover and show his hands. They were six to ten feet apart at this point. Johns took a few steps towards Palma, but he stopped when Palma did not respond to commands. Johns called for backup again, asking them to “step up” their response. ( Id. at Page ID #797.) As Palma got up from the ground, Johns tased him a third time. This time Johns saw Palma use one hand to pull out the taser probes. Johns did not see a weapon or any other object in Palma’s visible hand, and he did not know where Palma’s other hand was. After Palma pulled out the probes, Johns holstered his taser.
Palma got up and started walking towards Johns, and Johns continued retreating backwards across the driveway. Palma was still not responding to commands. Johns then pulled out his baton. He raised it over his head and prepared to strike Palma with it, but Johns did not use it because Palma momentarily turned away from Johns and looked back towards his parents. A moment later, Palma turned back around and started walking towards Johns again. Johns said that Palma had a “crazed look on his face,” and that Palma’s “appearance, demeanor, and behavior told [him] that [Palma] was not going to stop.” (Johns Aff., R. 46-2, Page ID #576.) Johns kept retreating by walking backwards up a hill on the Palmas’ lawn. It was muddy, and at one point Johns’ boot slipped as he backed up the hill. After he almost fell, Johns believed that Palma’s “intention was to physically reach [him], assault [him], and perhaps obtain [his] weapon.” ( Id. at Page ID #576.)
Johns continued to tell Palma to stop and warned him that “this is how people get shot.” (Johns Dep., R. 50-1, Page ID #842.) Palma was about six to seven feet away at this point. Johns then unholstered his gun and pointed it at Palma while still retreating. Palma did not stop. After Palma took about ten more steps, Johns shot him. Johns first shot at Palma’s leg “in an attempt not to kill [Palma] but to stop him.” ( Id. at Page ID #857.) After the first shot, Palma continued to walk towards Johns, so Johns fired again, this time aiming for Palma’s “[c]enter mass.” ( Id. at Page ID #858.) Johns continued shooting until, after several shots, Palma “leaned over at the waist” and got “down on the ground” in “a bear crawl stance.” ( Id. at Page ID #859.) While Palma was in this stance, Palma “lunge[d]” at Johns, so Johns continued shooting. ( Id. at Page ID #860, #863.) Johns shot at Palma until “the moment that [Palma] no longer came towards [him].” ( Id. at Page ID #857.)
Throughout the entire encounter, Palma never said anything to Johns, he never reached out towards Johns, and he never verbally threatened Johns. Palma did not raise his fists or make any threatening gestures. But because Palma did not respond to commands, and kept walking towards Johns, Johns believed the situation “was more than a friendly encounter.” ( Id. at Page ID #854.) Backup arrived shortly after the shooting. Johns then approached Palma and searched him. Palma was unarmed.
II. Salvatore Palma’s Statements
Salvatore Palma, Jr. (“Salvatore”), Vincent Palma’s father, recounted many of the same facts. However, he remembered the taser applications differently. As Palma approached Johns, Johns was yelling “stop walking, I’ll tase you.” (Salvatore Palma Dep., R. 50-5, Page ID #1034.) Palma did not stop and Johns tased him from “across the hood of the car to the other side.” ( Id. ) Salvatore reported seeing Palma convulsing on the ground “for minutes” after Johns tased Palma twice. ( Id. at Page ID #1046.) Eventually, Salvatore saw Palma get up and pull the taser wires out. Palma then looked back at his father as Johns pulled out his firearm and warned Palma that he would shoot.
Palma then turned back around and continued walking towards Johns, Johns continued to retreat, and Johns repeatedly ordered Palma to stop. Johns then shot some “warning shot[s].” ( Id. at Page ID #1038.) After those shots, Palma “didn’t keep approaching. He was still standing there.” ( Id. at Page ID #1042.) Salvatore said that Palma never got within ten feet of Johns.
III. Melissa Palma’s Statements
Melissa Palma (“Melissa”), Vincent Palma’s stepmother, also saw the encounter. She had called 9-1-1 that day after Palma took the remote out of his sister’s hands. She told the dispatcher that she wanted Palma removed from her house and that Palma had “mental issues.” (Melissa Palma Dep., R. 50-6, Page ID #1165.) Melissa testified that she told the police that Palma was unarmed. However, it is unclear when she said this and whether she shared this information with Johns before the shooting.
Melissa’s written statement, on the day of the incident, generally mirrored Johns’ account:
Police came. [Palma] went downstairs to police. Police told him to stop, he kept going to police. Police said, stop, again. I’m going to taser you. [Palma] kept going after cop. Cop tased him. He fell to ground. [Palma] got up, went after cop again. Cop told him to get on ground. [Palma] would not. Cop told him he was going to shoot him, but [Palma] kept going to cop. The cop shot by his feet, but [Palma] still came after cop. Cop told him to get on ground. [Palma] did not listen, so cop shot him couple more times.
( Id. ) But in her deposition, she said that she had misspoken in her written statement and that after Johns tased Palma, Palma got up and began walking towards the house. She only heard Johns tell Palma to stop a couple of times. Melissa also gave more detail in her deposition. She said that Palma was on the ground for two to three minutes after Johns tased him, and that, after the tasing, Palma “didn’t come after the cop.” ( Id. at Page ID #1159.) Rather “when he got tased, . . . [Palma] got up and started going to the house, the officer was going towards him. [Palma] was facing the other way, going towards the house.” ( Id. at Page ID #1174.)
At some point after the taser, but before Johns shot Palma, Palma was “walking towards the end of the road.” ( Id. at Page ID #1170.) She said that Palma stopped walking whenever Johns stopped, and neither Johns nor Palma was moving when Johns shot at Palma’s feet. Johns and Palma were ten to fifteen feet apart at that time. The encounter lasted around eight to ten minutes.
IV. Other Evidence
The dispatcher’s records give their own timeline. They show that Johns arrived on the scene at 3:36 P.M. Johns requested backup—radioing a Code 10—at 3:39 P.M. Johns reported shooting Palma just eighteen seconds later. Within two and a half minutes after arriving on the scene, Johns shot Palma. But Johns testified that these times, which are entered by the dispatcher in real time as Johns calls them in, are “often delayed,” meaning that the time entered does not always reflect the time of the officer’s report. (Johns Dep., R. 50-1, Page ID #832.)
The record also contained forensic evidence about Palma’s gunshot wounds. Johns fired twelve shots. Nine of the bullets hit Palma: one in his head, one in his shoulder, two in his chest, one in his abdomen, two in his arms, and two in his legs. According to the autopsy report, four bullets entered Palma’s body at a “downward” angle. (Autopsy Rep., R. 50-3, Page ID ##947–50.) Two entered from “back to front.” ( Id. at Page ID #947.) Plaintiffs’ expert, relying on the autopsy, concluded that Palma “was either on the ground, possibly in a fetal position and/or on his hands/knees and/or crawling when he was shot by Dep[uty] Johns.” (Expert Rep., R. 50-2, Page ID #932.)
V. Procedural Background
Plaintiffs, family members of Vincent Palma, sued Deputy Johns and Ashtabula County
for damages under 42 U.S.C. § 1983 and various Ohio tort laws. Plaintiffs sued Johns in his
individual capacity under § 1983 alleging that Johns violated Palma’s constitutional rights by
using excessive force, and they brought a claim under
Monell v. Dep’t of Soc. Servs. of New
York
, 436 U.S. 658 (1978), against Ashtabula County for failure to supervise and train Johns.
Plaintiffs also brought state tort claims. Defendants filed a motion for summary judgment on all
claims, which the district court granted.
Palma v. Johns
, No. 18-cv-294,
DISCUSSION
I. Standard of Review
We review
de novo
a district court’s decision granting summary judgment on qualified
immunity grounds.
Burgess
,
II. Analysis
Johns claims that the doctrine of qualified immunity shields Defendants against all of Plaintiffs’ claims. The district court agreed and granted Defendants’ motion for summary judgment. Palma , 2021 WL 798405, at *3–*5. We disagree. The record contains genuine disputes of material fact that preclude summary judgment at this stage.
While the defendant “bears the burden of pleading” a qualified immunity defense, “[t]he
ultimate burden of proof is on the plaintiff to show that the defendant is not entitled to qualified
immunity.”
Estate of Hill v. Miracle
, 853 F.3d 306, 312 (6th Cir. 2017) (quoting
Sheets v.
Mullins
, 287 F.3d 581, 586 (6th Cir. 2002)). “The doctrine of qualified immunity protects
government officials ‘from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.’”
Rafferty
,
We “ask two questions in evaluating whether a law-enforcement officer is entitled to
qualified immunity on an excessive-force claim: ‘(1) whether the officer violated the plaintiff’s
constitutional rights under the Fourth Amendment; and (2) whether that constitutional right was
clearly established at the time of the incident.’”
Estate of Hill
,
A. Constitutional Violation
“The Fourth Amendment’s prohibition against unreasonable seizures protects citizens
from excessive use of force by law enforcement officers.”
Godawa
,
The use of force “must be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.”
Graham
, 490 U.S. at 396. And we
recognize “that police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.”
Mullins v. Cyranek
,
When considering the “totality of the circumstances,” the Supreme Court has articulated
three factors as a starting point: “(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 he is actively
resisting arrest or attempting to evade arrest by flight.’”
Estate of Hill
,
Where “a plaintiff claims that excessive force was used multiple times, ‘the court must
segment the incident into its constituent parts and consider the officer’s entitlement to qualified
immunity at each step along the way.’”
Wright
,
1. Taser Applications
Officers may use non-lethal force—such as tasers or pepper spray—if they have an
“objective justification” for doing so.
Gaddis v. Redford Twp.
, 364 F.3d 763, 774 (6th Cir.
2004). Specifically, officers may use a taser if a person is “particularly violent or physically
resistant, so as to endanger responders.”
Estate of Erwin v. Greene Cnty.
,
Indeed, officers may tase a person who actively resists arrest,
Rudlaff v. Gillispie
,
Even so, recognizing that the complaint clearly stated an excessive force claim based on the tasings, the
district court addressed this claim and concluded that all three taser applications were reasonable.
Palma
, 2021 WL
798405, at *3 (citing
Sheffey v. City of Covington
,
show his hands unless he had some other reason to fear for his safety. See Rudlaff , 791 F.3d at 642 (reasonable to tase man who was “verbally defiant,” “swung his arms in the officer’s direction,” and “refused to give [the officer] his hands”).
Palma never physically resisted. However, the parties agree that Palma ignored Johns’
orders to stop moving and take his hands out of his pockets. Even so, this defiance, alone,
cannot justify Johns’ decision to tase Palma.
See Wright
,
Moreover, Plaintiffs dispute key facts about the tasing. Salvatore said that Johns and Palma were separated by Johns’ patrol car and that Johns “tased [Palma] across the hood of the car to the other side.” (S. Palma Dep., R. 50-5, Page ID #1034.) This conflicts with Johns’ narrative that Palma was walking straight towards him in a way that was immediately threatening. In this situation, tasing Palma while he and Johns were separated by a physical barrier would be unreasonable.
Other evidence contradicts Johns’ reports that the taser was ineffective on Palma, thus undermining the reasonableness of Johns’ decision to tase Palma multiple times. Palma fell to the ground after the second taser application. Salvatore saw Palma convulsing on the ground “for minutes” after Johns tased Palma the second time. ( Id. at Page ID #1046.) Melissa similarly saw Palma on the ground for two to three minutes after Johns tased him. If Palma fell to the ground for several minutes after the second tasing, then Johns could not justify the third taser application, as he had ample time to reassess the situation and react with less force. See Gambrel v. Knox Cnty. , — F.4th —, No. 20-6027, 2022 WL 369348, at *9 (6th Cir. Feb. 8, 2022) (continued use of force unreasonable if the person is on the ground for an extended period of time during which officers “could have handcuffed him at any time while he remained on the ground”).
The parties also dispute where Palma was in relation to Johns and what Palma was doing
when Johns applied the taser for the third time. In her deposition, Melissa testified that Palma
stood up after the second taser application and “started going back to the house.” (M. Palma
Dep., R. 50-6, Page ID #1157.) She said that Palma was not walking towards Johns.
Admittedly, Melissa gave a different statement to officers on the scene immediately after the
shooting, where she said that Palma stood up after the second taser and again began approaching
Johns. Relying
solely
on Melissa’s on-the-scene written statement (and ignoring her deposition
testimony), the dissent concludes that the third taser application was reasonable because Palma
was walking towards Johns even after the first and second taser applications. The dissent goes as
far as questioning Melissa’s credibility, highlighting that her deposition testimony was given
only “after retaining counsel and filing a civil damages suit against Officer Johns.” (
Infra
Dissent at 37.) But whether one statement is more reliable than another is a credibility question
that is not for this Court to decide.
See Godawa
,
In her deposition, Melissa explained that her on-the-scene statement was wrong. The police took Melissa and Salvatore’s written statements shortly after the shooting while the bullet- ridden Palma was still laying in the yard. As Melissa explained, she was just “trying to leave” when she gave her on-the-scene statement. (M. Palma Dep., R. 50-6, Page ID #1157.) After unjustifiably opining on the reliability of Melissa’s different statements, the dissent chooses to ignore portions of her deposition testimony. It finds that, based solely on Melissa’s written on- the-scene statement, this material fact—whether Palma was approaching Johns when Johns applied the taser for the third time—is undisputed. This approach is antithetical to our summary judgment standard; courts cannot choose which statements are credible and then build an “undisputed” record based on those credibility determinations. See Gambrel , — F.4th —, 2022 WL 369348, at *7 (explicitly rejecting the approach taken by the dissent here).
Accepting the facts most favorable to Plaintiffs, the tasings amounted to excessive force, and Defendants were not entitled to summary judgment on this issue.
2. Shootings
“A police officer may not seize an unarmed, nondangerous suspect by shooting him
dead.”
Tennessee v. Garner
, 471 U.S. 1, 11 (1985). When an officer uses
deadly
force, that
force is unreasonable unless “the officer has probable cause to believe that the suspect poses a
threat of serious physical harm, either to the officer or to others.”
Id.
“[T]he threat factor is ‘a
minimum requirement for the use of deadly force.’”
Jacobs
,
When considering whether an officer reasonably believed that a person posed an
imminent threat of serious bodily harm, courts must consider the totality of the circumstances.
Here, certain factual considerations are particularly relevant, though none is dispositive and this
list is not exhaustive: (1) why the officer was called to the scene,
see Graham
,
a. Reason for Police Response
When officers respond to an ongoing crime, or set out to arrest a suspect, they may have
some reason to fear for their safety or the safety of others based on the nature of the crime.
See
Graham
,
Although Johns seemingly believed that he was walking into a volatile situation—indeed
he unholstered his gun even before arriving on the scene—this subjective belief was not factually
supported. Johns responded to a call about an unwanted person on the Palma property who had
gotten into a fight with his sister over the TV remote.
[2]
Johns was not responding to a crime.
Before arriving, Johns saw Palma’s driver’s license and knew that Palma was the unwanted
person. When he arrived, Johns saw Palma standing outside of the house by himself. Even if
Johns believed that removing an unwanted person may involve some inherent danger, the
unwanted person—Palma—was already isolated and away from the home. Thus, the facts do not
support Johns’ belief that he was walking into a high-risk situation. This factor therefore cuts
against Johns’ argument that Palma posed an imminent threat of serious physical harm.
See
Woodcock
,
b. Presence of a Weapon
“[A]n officer need not face the business end of a gun to use deadly force.”
Jacobs
915 F.3d at 1040 (citing
Thomas
, 854 F.3d at 366). The stronger the evidence showing that a
person is armed, the more likely the use of lethal force is reasonable.
See Bouggess
, 482 F.3d at
891 n.5 (citing
Dickerson
,
Nobody told Johns that Palma was armed. Melissa allegedly told Johns that Palma was unarmed —though the record does not indicate whether she said this before or after the shooting. Dispatch did not tell Johns that Palma might be armed or was threatening to use a weapon, even though dispatch otherwise gave Johns several details about the scene at the Palma house—a sibling dispute over a TV remote control and a mentally ill person on the premises. While these facts do not require the conclusion that Johns knew Palma was unarmed, a jury could reasonably infer that, had there been any reason to believe Palma was armed at the time, the 9-1-1 caller would have disclosed this fact and that dispatch would have shared this information.
Once on the scene, Johns admits that he never saw Palma holding any object, let alone a firearm or other weapon. As it turned out, Palma was unarmed. But Johns may not have known this, and, at the time, Johns was “concerned” that he could not see Palma’s hands. (Johns Dep., R. 50-1, Page ID #744.) Our decision in Woodcock is instructive here. 679 F. App’x 419. In that case, the officers responded to the scene after a man, Harrison, called 9-1-1 and said that he wanted to kill his brother. Id. at 420. The officers found Harrison standing on a railroad track with his left hand reaching into the rear waistband of his pants. Id. at 421. Officers repeatedly told Harrison to show his hands, but he did not acknowledge or comply with the order. Id. After warning Harrison that they would shoot, Harrison still refused to comply, and officers shot him. Id. We found that this disobedience and suspicious hand placement did not give the officers probable cause to believe that Harrison posed an imminent threat because, while the officers “may have thought that Harrison had a gun, . . . Harrison never gave [the officers] reason to think that he would use it imminently.” Id. at 424–25. Like the officers in Woodcock , Johns’ only reason to suspect that Palma may have been armed was that he had his hands in his pockets and refused to show them.
The fact that Johns could not see Palma’s hands would not lead a reasonable officer to
believe he was in imminent danger.
See id.
As we explained in
Woodcock
, even if the person’s
hands are not visible—and even if he appears to be suspiciously reaching for something in his
clothing—these facts would not lead a reasonable officer to believe that the person posed an
immediate threat of serious harm.
Id.
;
see also Graves v. Malone
,
c. Disobedience and Threatening Behavior
When a person does not act “aggressive[ly]” towards an officer, that fact undermines the
officer’s claim that the person presented an immediate threat of serious bodily harm.
Stewart v.
City of Euclid
, 970 F.3d 667, 673–74 (6th Cir. 2020). Additionally, “the mere failure of a
citizen—not arrested for any crime—to follow the officer’s commands does not give a law
enforcement official authority to put the citizen in handcuffs,” let alone to
use lethal force
against him.
Wright
,
Many undisputed facts show that Palma was not acting aggressively towards Johns. Johns admits that Palma “wasn’t walking at a fast pace” when Palma approached him. (Johns Dep., R. 50-1, Page ID #776.) Palma was silent throughout the entire encounter, and he never verbally threatened Johns. Nor did Palma ever make any physically threatening gestures, like raising his fists.
On the other hand, the parties agree that Palma walked towards Johns at different points during the encounter and agree that Palma refused to comply with several orders to stop and show his hands. Although Johns says that Palma walked toward him in an “aggressive” and “determined” fashion, ( id. ; Johns Aff., R. 46-2, Page ID #571, #574), Palma’s parents never characterized Palma’s walk in this way. If there were ironclad evidence controverting the Palmas’ version of the facts, perhaps we could accept Johns’ characterization of Palma’s walk as aggressive. See Mitchell v. Schlabach , 864 F.3d 416 (6th Cir. 2017) (granting summary judgment only because dashcam footage undisputedly showed suspect aggressively charging at the officer after crashing his car during a high-speed car chase). But because we lack the undisputed dashcam footage that uncontrovertibly established the sequence of events in Mitchell for the purpose of deciding a summary judgment motion, we must believe the Palmas’ characterization of the events of the day. The dissent incorrectly believes that Mitchell should decide this case. The suspect in Mitchell , however, presented an objectively greater risk of harm. After leading officers on a high-speed car chase through residential neighborhoods, the suspect exited the car and “began to charge” at the officer “at more than a walking pace.” Mitchell , 864 F.3d at 421–22. And, as the suspect charged at the officer, he shouted that the officer would “have to ‘f---ing shoot him.’” Id. at 422. Even if this case were on point, the Court in Mitchell noted that its only basis for affirming summary judgment was the dashcam footage that showed “most of the relevant events from a helpful angle.” Id. at 424. Had the “case turned on [the officer’s] after-the-fact testimony,” rather than the video footage, then “summary judgment would likely have been inappropriate.” Id.
Moreover, as
Mitchell
itself made clear, deadly force is not justified “whenever a suspect
charges at an officer or defies an order.”
Id.
In the instant case, a jury could reject Johns’
characterizations and conclude that Palma’s walk was neither aggressive nor threatening.
See
Jacobs
,
Johns also says that Palma was walking towards him when he first shot Palma, but Melissa saw Johns shoot at Palma while both Palma and Johns were stopped. Even if Palma were walking when Johns shot, this would not necessarily give Johns probable cause to believe Palma posed an imminent threat. See id. And if Palma was not walking towards Johns when Johns fired the first shots, as we must accept at this stage, then this factor shows that Palma did not pose an imminent threat at the moment Johns decided to shoot.
d. Distance Between the Officer and the Person
While the distance between the officer and the person is less significant when the person
is armed and aiming a firearm at the officers,
see DeMerrell
,
Johns said he was concerned that Palma would “physically reach him, assault him, and perhaps obtain [his] weapon.” (Johns Aff., R. 46-2, Page ID #576.) According to Johns, Palma got within six or seven feet of Johns. But, according to Melissa, Palma never got close enough to reach Johns. She said that Palma and Johns were always ten to fifteen feet apart. If Palma was ten to fifteen feet away from Johns, and was not moving when Johns shot him, then Palma did not pose an imminent threat of harm, especially because Johns never saw a weapon.
e. Duration of the Encounter
“The fact that a situation ‘unfolds quickly’ is not alone sufficient to justify the application
of deadly force, but it is a factor that weighs in favor of a finding of reasonableness when it
accompanies a credible threat to the safety of an officer or the public.”
Mitchell
,
If the incident lasted eight to ten minutes, then the amount of time Johns had to react to
Palma would not justify his use of lethal force.
See Untalan
, 430 F.3d at 316 (indicating that
deadly force is less reasonable when officers have ten minutes to assess and react to a situation).
Admittedly, officers often face rapidly evolving situations where they must make “split-second
judgment[s].”
Graham
,
f. Mental Health Conditions
When assessing an excessive force claim, “[t]he totality of the circumstances includes
‘the fact that at the time of the . . . struggle, the defendant officers had reason to believe that [the
person] was . . . mentally unstable.’”
Roell
, 870 F.3d at 482 (quoting
Landis v. Baker
, 297 F.
App’x 453, 465 (6th Cir. 2008)). While true that this factor is only relevant if Johns knew about
Palma’s mental illness,
see Simmonds
,
As Johns correctly point outs, an officer is not absolutely barred from using lethal force
on mentally ill individuals.
See Reich
, 945 F.3d at 979. But only in extreme cases have we
found that an officer reasonably used lethal force against a mentally ill person. In every case that
Johns cites, the officers used lethal force against a mentally ill person who was
armed
and
threatening
officers.
See Gaddis
,
Johns knew that Palma was a “Code 76,” meaning he was mentally ill, and he knew that he was responding to a domestic dispute over a remote control. (Johns Dep., R. 50-1, Page ID #823.) A reasonable officer would take these facts into account when assessing whether Palma posed a threat. If a person who is not suffering from mental illness acts in a way that is objectively threatening, an officer may believe that the person poses an imminent danger because their actions—under normal circumstances—convey hostility towards the officer. But if the officer knows that person is suffering from some mental illness, the officer must consider this fact and respond accordingly. See Gambrel , — F.4th —, 2022 WL 369348, at *9 (citing Studdard v. Shelby Cnty. , 934 F.3d 478, 480–82 (6th Cir. 2019)). Stated differently, behavior that ordinarily seems threatening may present a lower risk of harm if the officer has reason to believe that the behavior is a symptom of a mental condition. See generally Graves , 810 F. App’x at 417, 423 (lethal shooting unreasonable even when mentally ill man ignored officers’ commands and continued “staring vacantly ahead”). Here, Palma’s unresponsiveness was consistent with his mental illness, thus undermining Johns’ belief that it was threatening. This is especially true because Palma was silent and made no physically threatening gestures.
The dissent agrees that officers can and should consider a person’s mental state when
analyzing the amount of risk that they face. But the dissent says that this factor will
always
support the use of force. It believes that people with known mental illnesses inherently “pose[] a
heightened
risk,” therefore giving officers probable cause to believe that they face a risk of
imminent harm, and goes as far as to say that the use of force, including lethal force, is more
easily justified even if officers are merely conducting a wellness check because “a mentally ill
individual in the midst of a psychotic break will not respond to reason, or to anything other than
force.” (
Infra
Dissent at 43 (emphasis in original) (quoting
Vos v. City of Newport Beach
,
But police routinely respond to non-criminal mental health calls and wellness
checks.
See
Black’s Law Dictionary,
What is a Police Welfare Check?
, available at
https://thelawdictionary.org/article/what-is-a-police-welfare-check/. Accordingly, under this
Court’s precedent, officers should use their training and expertise in crisis management to
determine whether and how to de-escalate a situation before resorting to force.
See Martin
Furthermore, Palma’s mental illness is relevant when considering whether Johns used
excessive
force. “The diminished capacity of an unarmed [person] must be taken into account
when assessing
the amount of force exerted
.”
Roell
, 870 F.3d at 482 (quoting
Champion
g. Readily Available Alternatives
Plaintiffs argue that “Johns failed to use readily available alternatives to avoid the
encounter with [Palma] and avoid shooting and killing him.” (Pls.’ Br. at 8.) Specifically, they
argue that Johns had the opportunity to use less than lethal force—his baton—and that Johns
could have easily removed himself from the situation. Generally, an officer is not precluded
from using deadly force even if his own “poor planning or bad tactics” unnecessarily escalated
the situation.
Reich
, 945 F.3d at 978 (citing
Livermore
, 476 F.3d at 407). However,
“[s]ometimes, the time or space available to an officer may mean that the reasonable thing to do
is monitor the suspect, issue a warning, or take cover.”
Thomas
, 854 F.3d at 366–67 (citing
Dickerson
,
Depending on the severity and immediacy of the threat and any potential risk to public safety posed by an officer’s delayed action, it may be appropriate for an officer to retreat or await backup when encountering a mentally disturbed individual. It may also be appropriate for the officer to attempt to de-escalate an encounter to eliminate the need for force or to reduce the amount of force necessary to control an individual.
Johnson
,
When Johns arrived on the scene, the threat of the unwanted person was neither severe nor immediate. See id. While Johns apparently thought that he was walking into a volatile situation—so much so that he preemptively unholstered his gun while driving to the scene—this akin to those involving an armed mentally ill person. Similarly, in Simmonds , 682 F.3d at 445, we affirmed the district court’s decision finding that the officers had qualified immunity after they shot and killed a mentally ill man because officers had ample reason to believe the man was armed: he was threatening to kill his family members, his family told officers he owned multiple guns, the man shouted “I have a gun,” and the man pulled out a “silver object” and pointed it towards officers. Although the man in Simmonds was actually unarmed, officers had every reason to believe he had a gun. See id.
was hardly the scene he found when he arrived. By that time, Palma was already outside of the home and isolated from the rest of his family.
According to the dissent, the situation on the scene was so dire that any failure to intervene or await backup would have amounted to a “dereliction of duty.” ( Infra Dissent at 44.) In its view, had Johns not taken immediate action, he would have been “leaving the family to fend for themselves” against “an unwelcome intruder.” ( Id. ) This was hardly the case. When Johns pulled into the driveway, he saw Palma standing alone on the front porch with his hood up and his hands in his pockets. With Palma—the unwanted person—already having departed from the house, no one was in immediate danger and Johns had time to further assess the scene. It must be remembered that the police were called to the scene only because of a family dispute over a TV remote control. Johns should have waited for backup before engaging with a mentally ill man who posed no immediate threat to anyone.
Even after engaging with Palma, Johns still could not use force that was “grossly
disproportionate to the need.”
Martin
,
h. Balancing All Factors While each of these factual considerations is distinct, none can be considered standing alone. Altogether, the facts, viewed in the light most favorable to Plaintiffs, raise a triable issue as to the reasonableness of Johns’ decision to use lethal force. Defendants focus primarily on Palma’s disobedience; Palma purportedly kept walking towards Johns and refused to show his hands. But equally important is that Johns knew Palma was mentally ill; Palma did not commit any crime before Johns arrived; he did not threaten Johns; he did not make any threatening gestures, like raising his fists; and he did not visibly brandish a weapon. Palma walked towards Johns at a normal pace—and it is the jury’s job to decide whether this was “aggressive,” as Johns said. After tasing Palma, Johns saw one of Palma’s hands, but still did not see any weapons. According to Melissa, the encounter lasted eight to ten minutes and, even while approaching Johns, Palma never got within ten to fifteen feet of Johns. Under these circumstances, Johns lacked probable cause to believe that Palma posed an imminent threat of serious bodily harm.
Defendants point to an Eleventh Circuit opinion that they believe is “directly on point.”
(Defs.’ Br. at 27 (citing
Martinez v. City of Pembroke Pines
,
In fact, we have found triable issues as to the officer’s reasonableness even when officers
faced more threatening situations. For example, in
Bouggess
, we held that the officer was not
entitled to summary judgment because the officer “offered only a hunch, a crack deal, a hand-to-
hand struggle, and a ‘look in [the person’s] eyes’ to support his claim that his choice to shoot
[the person] . . . was reasonable under the Fourth Amendment.” 482 F.3d at 892. In
Jones v.
Sandusky County
,
3. Continued Shooting
Finally, Plaintiffs argue that, even if the tasing and initial shooting were reasonable,
Johns acted unreasonably by continuing to shoot at Palma with a second volley of shots. Once
an officer eliminates the imminent threat, any continued use of force is unreasonable.
See
Dickerson
, 101 F.3d at 1162 n.9;
Margeson
, 579 F. App’x at 471–72. Plaintiffs rely on
Margeson
to argue that shooting Palma nine times—including several shots after Palma fell to
the ground—was unreasonable. As Plaintiffs note, the number of shots fired is certainly
relevant, but it is not dispositive.
Margeson
,
The parties dispute whether Johns subdued Palma after the first few gunshots. Johns
claims that Palma “lunge[d]” at him after Palma bent forward in a “bear crawl” stance. (Johns
Dep., R. 50-1, Page ID #860, ##862–63.) At this point Johns could clearly see both of Palma’s
hands. But Salvatore disputes this description of events. He said that, after the first shots, Palma
“didn’t keep approaching. He was still standing there.” (S. Palma Dep., R. 50-5, Page ID
#1042.) Similarly, the autopsy report indicates that Palma did not get back up and move towards
Johns. Four of Palma’s gunshot wounds were inflicted by bullets entering his body at a
“downward” angle. (Autopsy Rep., R. 50-3, Page ID ##947–50.) And two bullets entered from
“back to front.” (
Id.
at Page ID #947.) Plaintiffs’ expert noted that the pattern of the gunshot
wounds on Palma’s body indicated that “Palma was either on the ground, possibly in a fetal
position and/or on his hands/knees and/or crawling when he was shot by Dep[uty] Johns.”
(Expert Rep., R. 50-2, Page ID #932.)
[5]
“These factual disputes are material because they
concern the nature of any movement that [Palma] may have made just before the shooting.”
Lopez v. City of Cleveland
,
B. Clearly Established
Having found that there were constitutional violations, we turn to the second prong of the
qualified immunity inquiry—whether that constitutional right was clearly established.
[6]
As a
starting point, Palma had a clearly established right to be free from excessive force.
See
Godawa
, 798 F.3d at 463. While this general right is well known, the right at issue is not
defined at such “a high level of generality.”
Id.
at 467 (quoting
Plumhoff v. Rickard
, 572 U.S.
765, 779 (2014)). Rather, “the clearly established law must be ‘particularized.’”
White
, 137 S.
Ct. at 552 (quoting
Anderson v. Creighton
, 483 U.S. 635, 640 (1987)). When determining
whether a particular right is clearly established, courts “ask whether it would have been clear to a
reasonable officer that the alleged conduct ‘was unlawful in the situation he confronted.’”
Ziglar
v. Abbasi
, 137 S. Ct. 1843, 1867 (2017) (quoting
Saucier v. Katz
, 533 U.S. 194, 202 (2001)).
“[T]his is not to say that an official action is protected by qualified immunity unless the very
action in question has previously been held unlawful, but it is to say that in the light of pre-
existing law the unlawfulness must be apparent.”
Anderson
,
First, “‘the gratuitous or excessive use of a taser’ violates a clearly established
constitutional right.”
Goodwin v. City of Painesville
,
Second, “it is axiomatic that individuals have a clearly established right not to be shot
absent ‘probable cause to believe that [they] pose[] a threat of serious physical harm.’”
Mullins
Further bolstering this conclusion, many of our cases have found that lethal force was
unreasonable even when officers faced objectively
more
threatening circumstances.
See Jacobs
,
915 F.3d at 1041 (unreasonable to shoot a man who reached for a gun in his waistband and
shouted at officers before turning away from them);
Russo v. City of Cincinnati
,
Finally, “[w]e have held repeatedly that the use of force after a suspect has been
incapacitated or neutralized is excessive as a matter of law.”
Baker v. City of Hamilton
, 471 F.3d
601, 607 (6th Cir. 2006) (citing
Shreve
,
CONCLUSION
Plaintiffs raise genuine disputes of material fact that bear on whether Deputy Johns violated Vincent Palma’s clearly established constitutional rights. Therefore, we REVERSE the district court’s order granting Defendants’ motion for summary judgment and REMAND for further proceedings consistent with this opinion.
_________________
DISSENT
_________________ CHAD A. READLER, Circuit Judge, dissenting. If one were unsure about the power a circuit court can wield, this case is a blunt example. With two circuit judges in agreement, a majority opinion can run roughshod over a well-reasoned opinion by an experienced and dispassionate district court judge. It can selectively amplify arguments barely made by the parties and can willfully resurrect others long ago abandoned. And, perhaps most striking of all, it can entirely ignore our Court’s prior decisions as well as those from the Supreme Court, comforted by the knowledge that few decisions garner review beyond the appellate panel stage.
Consider the following: Although the Palmas themselves failed to argue the point, the majority opinion zealously reads into the Fourth Amendment a purportedly clearly established command that categorically prohibits police officers from using lethal force save for when an individual brandishes a weapon, is within ten feet of the officer, or physically strikes the officer. That dim view whittles down the highly fact-specific concept of probable cause to a grossly over-simplified nub and ignores myriad other ways in which a person can demonstrate significantly threatening behavior to an officer. It likewise ignores abundant precedent confirming why the district court was correct in granting qualified immunity. Even when viewed with a generous eye, the majority opinion’s rule has little precedent to justify it, let alone precedent that is clearly established.
If this case represented a mine run example of jurists elevating personal views over precedent, one might forgive the consequences. But this is no mine run case. For in beating a new path in Fourth Amendment jurisprudence, the majority opinion dramatically—and dangerously—limits the ways in which officers can protect themselves during threatening encounters. By the majority opinion’s logic, an officer may not act too soon, for fear of engaging in excessive force. But he also may not wait too long. For if he does, the majority opinion reasons, that proves the threat posed to the officer was not immediate, rendering the officer’s actions excessive. And while the officer waits (and hopefully remains unharmed), he must attempt alternative uses of force. Unless, of course, that alternative is a taser. Yet all of this goes out the window, we learn, if the officer knows the individual has some vague mental health issue. While the majority opinion ties its holding to the individual’s mental health status, it never explains how an officer is to respond to a threatening individual believed to be suffering from mental distress, short of advising officers to hide in their cars rather than intervene in a potentially hostile situation. Instead, the majority opinion erects a seemingly insurmountable standard to justify an officer’s use of force in encounters with a person suffering mental distress. Doing so effectively bars a grant of qualified immunity if the officer is generally aware an individual faces such challenges. That is not how we have previously interpreted the Fourth Amendment. Nor, for even more obvious reasons, is it reflective of a clearly established rule in our Circuit.
For the responsible officer looking to us for direction on permissible uses of force, the majority opinion offers only confusion. And, no doubt, grave trepidation. After all, save for extreme circumstances where a person seemingly is striking an officer or brandishing a weapon, the majority opinion would leave officers with an impossible dilemma, where protecting one’s personal safety almost invariably leads to personal liability. That dilemma not only piles onto the already difficult task faced by law enforcement, but it also flouts background principles underlying our Fourth Amendment excessive force jurisprudence. See Nieves v. Bartlett , 139 S. Ct. 1715, 1725 (2019) (“Police officers conduct approximately 29,000 arrests every day—a dangerous task that requires making quick decisions in ‘circumstances that are tense, uncertain, and rapidly evolving.’” (citation omitted)); Colorado v. Bertine , 479 U.S. 367, 372 (1987) (noting that “guard[ing] the police from danger” is a “strong governmental interest[]” underlying Fourth Amendment jurisprudence); Beech v. Melancon , 465 F.2d 425, 426 (6th Cir. 1972) (McCree, J., concurring) (“[C]ourts should not second-guess police officers who, faced with making split-second decisions, reasonably and in good faith believe that their lives . . . would be endangered if they refrain from employing deadly force.”).
There is one point upon which we can all agree: Vincent’s shooting was a tragic episode. As a legal matter, however, Officer Johns’s use of force was constitutional. And even assuming it was not, a straightforward application of qualified immunity shields Officer Johns from civil liability. I would therefore affirm the grant of summary judgment.
I.
A. Before turning to the law on excessive force, a few words about the facts of this case. Time and again, the majority opinion cites what it describes as disputed material facts as a basis for denying qualified immunity to Officer Johns. Sure, there are some differences between the stories given by Officer Johns and by the Palmas. That is virtually always the case in these sorts of disputes. But those quibbles do not stop us from taking as true the version of material events most favorable to the Palmas.
Here, a clear picture unfolds. Vincent Palma, a 26-year-old man, got into a fight with his stepsister over the television remote. Melissa, Vincent’s stepmother, called the police and asked them to remove Vincent, indicating that he had “mental issues.” Officer Matthew Johns, a police officer for the Ashtabula County Sheriff’s Department, was assigned to respond to Melissa’s 911 call. When Officer Johns arrived at the Palmas’ home, he knew that “there was an unwanted subject at the residence” who “had broken the television remote” and “was 76,” a code indicating the individual had unspecified “mental issues.”
The relevant events unfolded against the backdrop of a cold, damp February day in Northeast Ohio. Officer Johns parked about halfway up the driveway at the Palmas’ home, approximately 60 to 70 feet from the front door. It was clear from Officer Johns’s uniform, badge, and cruiser that he was a Sherriff’s Department officer. As he exited his police cruiser, Officer Johns saw Vincent walking down the front porch steps with his sweatshirt hood pulled up and his hands in his pockets. Officer Johns waved and called out to Vincent. He asked Vincent, “Hey, how are you doing? Hey, how is it going?” Vincent did not respond. Instead, he walked toward Officer Johns’s police cruiser. As Vincent approached the cruiser, Officer Johns walked around to the front of the vehicle. He called out to Vincent several times, saying “Hey, how is it going.” Vincent did not respond.
Officer Johns instructed Vincent to stop and show his hands. Vincent did not comply. Instead, he continued to walk toward Officer Johns silently, his hands in his pockets. At this point, Officer Johns began to retreat, walking backward toward the passenger side of his cruiser while repeating his orders to Vincent to stop and show his hands. Vincent ignored those instructions and continued to walk toward the cruiser. Officer Johns warned Vincent that if he did not stop, Officer Johns would tase him. Ignoring that warning, Vincent, in the words of his father, Salvatore, “kept coming at the officer.” Melissa described the situation in a similar vein: Vincent continued “going after” Officer Johns. At that point, Melissa and Salvatore, standing at a distance on their front porch, yelled at Vincent to stop. But he did not respond. Nor did he obey. So Officer Johns deployed his taser, launching the probes at Vincent from across the cruiser’s front hood.
The first taser application did not stop Vincent. He remained standing and, in Salvatore’s words, “kept coming at” Officer Johns. Officer Johns applied the taser for a second time. Vincent fell to the ground on his side, facing away from Officer Johns. Vincent’s hands were not visible. While Vincent lay on the ground, Officer Johns ordered him “to roll onto his stomach and show [Officer Johns] his hands.” Again, Vincent did not comply. Instead, he stood up and, according to the Palmas, “continued towards” and “went after [Officer Johns] again.” Officer Johns applied the taser a third time. Vincent took one hand out of his pocket, grabbed the taser wire and probes, and pulled them out of his skin. Vincent paused for a moment, and then, in Melissa’s words, “kept going to” Officer Johns, who walked backward, away from his cruiser and up a muddy hill, while ordering Vincent to stop.
Officer Johns unholstered his firearm. He warned Vincent that if he did not stop, Officer Johns would shoot. Just as before, Vincent did not comply with Officer Johns’s commands. Officer Johns fired into the ground near Vincent’s feet. In the seconds that followed, there is a question of whether Vincent stood still. But all agree that he did not move away or show his hands. So Officer Johns aimed at Vincent’s “center mass” and fired several times. Vincent “leaned over at the waist,” with his hands and feet on the ground. When Vincent, according to Salvatore, “tr[ied] to get back up,” Officer Johns continued to shoot, hitting Vincent a total of nine times, until Vincent stopped coming toward him. From the time Officer Johns arrived at the Palmas’ home until the final shot, Vincent remained silent.
B. All of this reveals very little in terms of disputed fact and, in truth, offers a record ripe for a grant of summary judgment. But the majority opinion has other ideas. It laces its recitation of the facts with purportedly disputed material issues, seemingly to draw into question the district court’s assessment of the case. But some of these issues are not disputed, some are immaterial, and some are neither disputed nor material. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”).
Take, for example, the facts surrounding Officer Johns’s use of the taser. There is no
dispute as to whether the men were separated by the front hood of the car. And any dispute
would be immaterial because even from the other side of the cruiser’s front hood, Officer Johns’s
safety was at risk, with Vincent able to reach Officer Johns in a matter of seconds.
See Chappell
v. City of Cleveland
, 585 F.3d 901, 911 (6th Cir. 2009) (noting that whether a person was
“separated” from officers is only relevant if the barrier posed an impediment to the person
reaching the officer);
Reich v. City of Elizabethtown
,
Nor is it a material consideration that Officer Johns described Vincent’s walk as “aggressive” and “determined” while Salvatore and Melissa, who remained on the front porch looking at Vincent’s back, “never characterized [it] in this way.” Supra , at 18. Generally speaking, the adjectives used to describe a person walking toward an officer are immaterial to the reasonableness analysis. See Chappell , 585 F.3d at 911 (“[T]he semantic difference between ‘charging’ and ‘moving quickly toward’ is immaterial.”). And even accepting the Palmas’ coloring of the events, it is undisputed that Vincent refused to obey Officer Johns’s commands to stop and show his hands, and that he continued to pursue Officer Johns up a hill and across the Palmas’ front yard after being tased three times, after being warned that Officer Johns would shoot, and after being shot.
Whether Vincent was walking toward Officer Johns when he shot Vincent is also
immaterial. The Palmas stated immediately after the incident that Vincent was walking toward
Officer Johns but later testified—after retaining counsel and filing a civil damages suit against
Officer Johns—that Vincent paused after Officer Johns fired toward his feet. Accepting the
Palmas’ revised description of events, any pause by Vincent is immaterial to the reasonableness
analysis.
See Reich
, 945 F.3d at 979–80 (“But even including [the plaintiff’s] view that [the
decedent]” turned around and took several steps away from the officers, “the officers’ conduct
was still objectively reasonable . . . .”). Whether Officer Johns and Vincent were six feet apart,
as Officer Johns said, or ten to 15 feet apart, according to Melissa, is likewise immaterial. After
all, “[a]n assailant can close [a 25 to 36 foot] distance in a second or two,” and we do not require
a person to be within a “strike zone” to render the officer’s use of force reasonable.
See id.
at
982. And whether the entire duration of the encounter was “pretty short” in Officer Johns’s
words, or eight to ten minutes as Melissa claims, is irrelevant as well. Our inquiry into the
reasonableness of the force used “focus[es] on the ‘split-second judgments’ made immediately
before the officer used allegedly excessive force” and does not discount those split-second
judgments if they result from an escalating series of events.
Livermore ex rel. Rohm v. Lubelan
Finally, there is no dispute that Vincent tried to stand up and move toward Officer Johns after being shot. In an attempt to muddy the water, the majority opinion highlights Salvatore’s statement that Vincent “didn’t keep approaching. He was still standing there.” Supra , at 27. But Salvatore made that statement in response to a question about Vincent’s actions after Officer Johns fired toward the ground (not, as the majority opinion suggests, after Officer Johns shot Vincent). Ultimately, whether we label Vincent’s actions as a “lunge” or more simply as an attempt to stand up and move toward Officer Johns is immaterial. See Chappell , 585 F.3d at 911. To the same end, the autopsy’s and expert reports’ indication that some of the bullets were fired at a downward angle matches the parties’ statements that Officer Johns shot at Vincent as he attempted to get up.
At bottom, the crucial and undisputed facts are these: Officer Johns, having been notified of a domestic disturbance by someone with unspecified mental health issues, arrived at the scene, found an individual who repeatedly refused to obey commands and kept walking toward the officer, refusing to remove his hands from his pockets. Having applied the taser multiple times to try to stop Vincent from advancing, and with the distance between them closing, Officer Johns finally resorted to lethal force.
II.
With this understanding of the undisputed factual background in mind, the indisputable
conclusion is that Officer Johns’s uses of force were reasonable, and thus constitutional under
the Fourth Amendment, as the district court concluded.
See Graham v. Connor
,
A. I begin with the lone issue raised by the Palmas in the district court: Officer Johns’s
decision to fire his gun at Vincent. The Fourth Amendment prohibits only
unreasonable
seizures. U.S. C ONST . amend. IV. With that standard in mind, we evaluate Officer Johns’s use
of lethal force by asking, based on the totality of the circumstances, whether Officer Johns had
“probable cause to believe the suspect present[ed] an immediate threat of serious physical harm
to the officer or others.”
Studdard v. Shelby County
,
1. These events are much like those we encountered in Mitchell v. Schlabach , where we affirmed summary judgment on the basis of qualified immunity. 864 F.3d 416, 423 (6th Cir. 2017). There, like here, Mitchell walked toward the officer as the officer backed away. The officer ordered Mitchell to stop and pointed his gun at Mitchell. Id. at 419, 421–22. The distance between the officer and Mitchell was at most 21 feet (farther than that between Vincent and Officer Johns), and, based on video footage, we concluded that whatever the precise distance between the two was, Mitchell could close the gap in a matter of seconds. Id. at 423 & n.2. Mitchell, like Vincent, continued “toward [the officer]” after he was shot, justifying the second shot. Id. at 422. And the officer, like Officer Johns, stopped shooting once Mitchell stopped trying to continue after the officer. Id.
The majority opinion and I agree that
Mitchell
(which, again, affirmed a grant of
qualified immunity) is controlling authority. That consensus should make affirming here a
straightforward matter. Not so for the majority opinion, which somehow reads
Mitchell
as
requiring us to
deny
qualified immunity to Officer Johns. That is an odd conclusion when one
considers that
Mitchell
deemed the officer’s use of force there not excessive.
Id.
at 423, 426.
True,
Mitchell
acknowledged that it did “not stand for the proposition that deadly force is
reasonable or proper whenever a suspect charges an officer or defies an order.”
Id.
at 424. But
such force was reasonable on the facts presented there, facts that largely mirror today’s case.
And attempting to distinguish today’s case from
Mitchell
on the grounds that this case “turn[s]
on [Officer Johns’s] after-the-fact testimony” is but one more attempt to ignore the obvious: we
can easily affirm summary judgment on the Palmas’ descriptions of the encounter alone.
Supra
at 18 (quoting
Mitchell
,
2. So how can the majority opinion reach a contrary conclusion here? In part by shifting
the burden of proof. Time and again, the majority opinion faults Officer Johns for failing to
show that he reasonably believed Vincent posed an imminent threat of serious physical harm.
See supra
, at 15 (“This factor therefore cuts against [Officer] Johns’[s] argument that Palma
posed an imminent threat of serious physical harm.”);
supra
, at 17 (“Thus, this factor does not
support [Officer] Johns’[s] qualified immunity defense.”);
supra
, at 19 (“[A]ccording to
[Officer] Johns, merely walking towards an officer while defying orders gives the officer
probable cause to fear for his safety and justifies the use of deadly force. We have expressly
rejected this argument.”);
supra
, at 23 (“[W]e have never held that
shooting
a mentally ill person
was reasonable when the officers had little reason to suspect that the person was armed.”). And
it is quick to point to factual differences between this case and those cited by Officer Johns
(while forgiving the Palmas for the same failing).
See supra
, at 21 (“In every case that [Officer]
Johns cites, the officers used lethal force against a mentally ill person who was
armed
and
threatening
officers.”);
supra
, at 26 (describing a case Officer Johns cites to as “not directly on
point at all” (internal quotation marks omitted). The majority opinion’s approach, however, is
contrary to controlling authority placing the burden on the Palmas to show a clearly established
constitutional violation.
See Williams v. Maurer
,
3. Having improperly shifted the burden of proof, the majority opinion then compounds
that error by evaluating Officer Johns’s conduct against the backdrop of a moving legal target. It
proposes three legal standards. One proffered framework is the
Estate of Hill
factors. That
framework, however, is mentioned once, and then never raised again, much less applied to the
facts of this case. Another is the traditional
Graham
three-factor approach, which, after being
introduced by the majority opinion, likewise goes by the wayside. Ultimately, the majority
opinion settles on a framework consisting of seven other “factors” of its choosing, all of which
the majority opinion believes weigh in favor of the Palmas. But why or how those factors relate
to each other is left unsaid. To the extent a cited case addressed one of the majority opinion’s
factors, it did not concern the others. Analyzing each factor in a silo ignores the “totality of the
circumstances” that confronted Officer Johns, a point the majority opinion concedes.
Garner
a. In truth, the cases cited by the majority opinion rejected virtually all seven of its factors as grounds for denying an officer qualified immunity. Starting with the first of those seven factors, the majority opinion emphasizes that Vincent committed no crime on the day he confronted Officer Johns. An individual’s commission of a crime, of course, is not a prerequisite to finding probable cause that he posed a threat to the officer. See Boyd v. Baeppler , 215 F.3d 594, 600 (6th Cir. 2000) (holding that whether the individual committed a crime prior to the use of force was “wholly immaterial to the issue of whether [the individual] presented a threat to [the] officers”). But more to the point, that fact is largely irrelevant in light of the reality that Melissa called the police and asked them to remove Vincent because he had fought with his stepsister and refused to leave the Palmas’ home, giving Officer Johns reason to believe Vincent posed a threat. See Simmonds v. Genesee County , 682 F.3d 438, 441, 444–46 (6th Cir. 2012) (holding that officers’ use of lethal force was reasonable where the decedent had not committed a crime because the decedent posed a threat of serious harm to the officers). Recasting this threatening scene as merely “a wellness check” only confirms the lengths the majority opinion will go to achieve today’s result. Supra , at 15 .
b. The majority opinion next notes that Vincent was unarmed. For two reasons, that fact
fails to establish that Officer Johns acted unreasonably. First, Officer Johns did not know that
Vincent was unarmed at the time, and we do not use “the 20/20 vision of hindsight” to judge an
officer’s use of force.
Graham
,
c. The at most 15-foot distance between Vincent and Officer Johns at the time of the
shooting also does not render Officer Johns’s use of force unreasonable. That is true both
because “[a]n assailant can close [a 25 to 36 foot] distance in a second or two,” and because
there is no required minimum distance for lethal force to be justified.
Reich
,
d. The amount of time between Officer Johns’s arrival and the shooting is irrelevant.
See Livermore
,
e. With respect to Vincent’s mental health status, the same excessive force standard
applies regardless of his mental condition.
See Roell v. Hamilton County
,
With a singular focus on a one-off line in
Roell
, the majority opinion reads into the
Fourth Amendment a rule that Officer Johns lacked probable cause to believe Vincent posed a
serious threat to him because Officer Johns failed to “take into account” Vincent’s mental health
status.
Supra
, at 21 (citing
Roell
, 870 F.3d at 482)
.
Yet
Roell
affirmed a grant of qualified
immunity for officers who used force against a person with a known mental health
condition who “presented an immediate threat” to the safety of the officers and others. 870 F.3d
at 481–82, 486–87. To be sure, where a person with a known mental illness poses no threat to an
officer, it is difficult to imagine how that individual justifiably could be subjected to lethal force.
See, e.g.
,
Graves v. Malone
, 810 F. App’x 414, 422–23 (6th Cir. 2020) (holding use of lethal
force was unreasonable against a man with a mental illness who was sitting stationary in a
bathtub with his legs dangling over the side of the tub). By the same token, when a person does
pose a threat to an officer, the officer’s use of force is reasonable, irrespective of the person’s
mental health status.
See supra
, at 21 (citing
Rucinski
,
Equally unconvincing is the majority opinion’s assertion that Vincent’s “unresponsiveness was consistent with his mental illness,” thus requiring Officer Johns to react differently. Supra , at 22. As a threshold matter, unresponsiveness suggests an individual who will not obey commands, which, to my mind, raises the threat level, not lowers it. At the very least, when assessing the threat posed to an officer, those who cannot obey an officer are functionally equivalent to those who will not. Yet even taking the majority opinion on its own terms, it cites no medical or legal authority to support its assertion; this bare conclusion amounts to little more than an uninformed medical diagnosis from two jurists. Federal judges have many attributes, but mental health expertise, it is fair to say, is unlikely to be one of them. The same goes for police officers. Without medical degrees, officers rely on their training and experience in reacting to each situation as it arises, assessing whether a person poses a serious threat to the officers’ personal safety based on the totality of the circumstances. We should not undermine that judgment with arm-chair mental health assessments.
One final point on the issue of mental health deserves emphasis. The majority opinion
characterizes Vincent’s mental health status as a kind of mitigating circumstance, one that
required a heightened standard of probable cause before Officer Johns could use lethal force. Of
course, the majority opinion fails to back the point with supporting case law. And whatever
standard the majority opinion would impose on Officer Johns, that does not change the fact that a
reasonable officer in Officer Johns’s position could have fairly believed that Vincent’s mental
health issue meant that Vincent posed a
heightened
risk. Those who suffer from mental illness
may well behave more unpredictably than those who do not.
See Vos v. City of Newport Beach
f. Nor can the Palmas survive summary judgment solely by showing that Officer Johns could have used non-lethal force to avoid shooting Vincent. As precedent makes clear, the
existence of alternative measures does not render an officer’s use of force unreasonable.
City &
County of San Francisco v. Sheehan
,
g. The majority opinion repeatedly emphasizes what
did not
happen in this case rather
than what
did
. For instance, the majority opinion highlights cases where we found the use of
force to be reasonable, and granted either qualified immunity or summary judgment for the
officer, because the officer in question faced more threatening circumstances than those present
here.
See supra
, at 15–16, 23–24 n.4 (citing
Simmonds
,
No more convincing is the majority opinion’s invocation of three opinions from the other
end of the legal spectrum, that is, cases where we denied qualified immunity in supposedly
“more threatening situations.”
Supra
, at 26–27. Those cases make for poor analogies. In two of
them, the person (unlike Vincent) was walking away from the officer at the time of the shooting.
Zulock v. Shures
,
4. Finally, the majority opinion would consider the last shots Officer Johns fired—when
Vincent was trying to stand up and continue after Officer Johns—as a separate use of force from
the shots fired when Vincent was still standing. This approach turns the objective
reasonableness analysis—where “each search or seizure that is alleged to be unconstitutional” is
“separately” considered,
County of Los Angeles v. Mendez
,
5. All things considered, the majority opinion simply “substitut[es] [its] personal notions
of proper police procedure for the instantaneous decision of the officer at the scene.”
Smith v.
Freland
,
B. Much the same is true as to the Palmas’ assertion that Officer Johns engaged in excessive force by tasing Vincent.
1. Consider first that the Palmas did not make that argument in the district court at
summary judgment. Confirming as much, counsel conceded its forfeiture during oral argument
in this Court. Oral Argument at 03:16–03:30,
Palma v. Ashtabula County
, No. 21-3315 (Dec.
10, 2021), https://www.opn.ca6.uscourts.gov/internet/court_audio/aud1.php (“We didn’t argue
that the force was excessive at [summary judgment] on the taser.”). The Palmas took the same
concessionary approach in their reply brief in this Court by failing to respond to Officer Johns’s
recognition of the Palmas’ forfeiture in the district court. All of this should end the matter.
See
Greco v. Livingston County
,
But why be troubled by the Palmas’ Triple Crown of concessions? Not when this appeal,
the majority opinion appears to believe, is the “exceptional case[]” where forfeiture should be
excused.
Scottsdale Ins. Co. v. Flowers
, 513 F.3d 546, 552 (6th Cir. 2008) (citation omitted).
Truth be told, there is nothing exceptional about the circumstances of the Palmas’ forfeiture. Far
from it, in fact. The Palmas’ taser claim presents a classic example of forfeiture: the Palmas’
claim before the district court was premised on a single argument (Officer Johns’s use of lethal
force was unreasonable); the district court rejected that argument and granted summary judgment
for Officer Johns; and then the Palmas, on appeal, raised “a better case fashioned after [the]
district court’s unfavorable order”—that Officer Johns’s use of the taser was unreasonable.
Barner v. Pilkington N. Am., Inc.
,
Nothing in the majority opinion justifies a different outcome. The majority opinion
provides three reasons to forgive forfeiture: the amended complaint referenced the use of force
from tasing, the district court addressed tasing, and the parties briefed the issue on appeal. But
similar grounds have not convinced thoughtful judges to overlook our forfeiture doctrine in
previous cases.
See Scottsdale
,
Nor is the Palmas’ amended complaint a basis for forgiving forfeiture. For starters, it did not in fact allege that Officer Johns’s use of the taser was excessive force; at most, it offered a general observation, one unconnected to their excessive force claim, that Officer Johns’s “use of the taser was unjustified and reckless use of force.” True, the Palmas’ amended complaint does raise Officer Johns’s use of non-deadly force as to their state law assault and battery claim. But as to their federal § 1983 claim, the amended complaint is silent.
Transforming a bare assertion into a second legal theory, and then holding that the newly
crafted theory survives summary judgment, as does the majority opinion, has us playing the roles
of both advocate and adjudicator, something we understandably are loath to do.
See McCalvin v.
Yukins
,
Equally unavailing is the majority opinion’s contention that defendants did not move for
summary judgment on the tasing claim. That assertion is difficult to square with the language in
defendants’ motion for summary judgment where they asked the district court to “grant summary
judgment to Defendants in this matter, and dismiss this action.” It is also hard to reconcile with
the district court’s assessment, which viewed the motion as dispositive; after granting the
motion, the district court “terminated and dismissed [the case].” If, as the majority opinion
seems to suggest, defendants’ motion only sought partial summary judgment, we would lack
jurisdiction to hear the Palmas’ appeal. After all, ordinarily a “district court’s order granting
partial
summary judgment does not amount to a final decision.”
Trayling v. St. Joseph Cnty.
Emp. Chapter of Local 2955
,
2. If preserved, the Palmas’ excessive force argument nonetheless fails. To determine if
an officer’s conduct violated the Fourth Amendment’s prohibition on unreasonable force, we ask
“whether the totality of the circumstances justifies a particular level of force.”
Coffey v. Carroll
As already discussed, the undisputed facts reveal that Officer Johns reasonably believed
Vincent posed an immediate threat to his safety. Vincent, whose fight with his stepsister led his
parents to ask law enforcement to remove him from their home, was, in the words of Melissa,
“going after” Officer Johns, walking silently toward him with his hands in his pockets and
ignoring Officer Johns’s repeated orders to stop and show his hands as well as Officer Johns’s
warning that he would tase Vincent. Only then did Officer Johns deploy and apply the taser—“a
reasonable response to a threat of immediate harm when a suspect disobeys police orders and
may be armed.”
Kapuscinski v. City of Gibraltar
,
This was not, in other words, a “mere failure to follow orders,” as the majority opinion
describes the encounter.
Supra
, at 12. That view turns a blind eye to other aspects of the
confrontation. Vincent’s disobedience also included walking silently toward Officer Johns with
his hands in his pockets. And the order Vincent disobeyed was to stop the behavior that gave
Officer Johns reason to believe Vincent posed a threat. Though absent from the majority
opinion, the first taser application did not stop Vincent from walking toward Officer Johns, and
after being tased for the second time, Vincent stood up and, as Melissa said, “went after [Officer
Johns] again.” Vincent’s conduct easily distinguishes this case from
Wright v. City of Euclid
and
Gambrel v. Knox County
, cases on which the majority opinion relies in its attempt to show why
Officer Johns’s use of the taser was unreasonable. In
Wright
, unlike here, the officer tased a
person who had complied with the officer’s orders to turn off his car and put his hands up, yet
was unable to comply with the officer’s order to exit the car because of his medical issues.
III.
Assuming, for purposes of argument, that the Palmas’ claims satisfy the first step of
qualified immunity, they wildly fail the second. Step two’s legal framework is familiar.
“Qualified immunity attaches when an official’s conduct ‘does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’”
White v.
Pauly
,
Yet standing at that fork, the Palmas proceeded down neither path. Officer Johns’s assertion of qualified immunity obligated the Palmas to explain why Officer Johns’s conduct— either the tasing or the shooting—violated clearly established law. See Jacobs v. Alam , 915 F.3d 1028, 1039 (6th Cir. 2019) (“A plaintiff bears the burden of showing that a defendant is not entitled to qualified immunity.”) On appeal, however, they left those questions largely unanswered. Here again, the Palmas’ litigating decisions should spell the end of the case.
Enter the majority opinion. Once again, it comes to aid the Palmas, both crafting an
argument on the Palmas’ behalf—this time, that Officer Johns violated clearly established law—
and then evaluating that argument. And, unsurprisingly, the majority opinion agrees with the
argument it advocates. This approach is as disrespectful to the legal process as it is
unprecedented.
Cf. United States v. Sineneng-Smith
,
In a situation like this, where the district court did not consider a potentially case-
dispositive issue, the ordinary and more prudent practice is to remand the matter to the district
court for further consideration.
See, e.g.
,
Haywood v. Hough
,
Were it appropriate for the clearly established inquiry to make its debut on appeal,
Officer Johns’s conduct did not violate clearly established law. The Palmas effectively concede
that there is no on-point, controlling case law prohibiting Officer Johns’s conduct. In their
appellate briefing, the Palmas confessed that “there is no Sixth Circuit precedent directly on
point with the facts of this case.” They likewise failed to cite to any on point Supreme Court
decision. Those concessions foreclose this manner of overcoming qualified immunity.
See
Arrington-Bey v. City of Bedford Heights
,
In the absence of a controlling, on-point case, the Palmas are left to show that this is the
rare, “obvious” case where the general excessive force standard articulated in
Graham
and
Garner
clearly established the law.
See Rivas-Villegas
, 142 S. Ct. at 8. But the Palmas
essentially concede this argument too. After all, they describe their case in their brief as one
involving “factually nuanced questions,” not obvious and blatant misconduct.
Cf. Taylor v.
Riojas
, 141 S. Ct. 52, 53 (2020) (per curiam) (defining an obvious case as one where “no
reasonable . . . officer could have concluded that” the defendants’ behavior was constitutionally
permissible);
Hope v. Pelzer
, 536 U.S. 730, 745 (2002) (defining an obvious case as one with
“obvious cruelty inherent in” the officers’ conduct). With the Palmas having failed to offer any
manner of argument that Officer Johns violated any clearly established law, we must affirm the
judgment of the district court.
See Rivas-Villegas
, 142 S. Ct. at 8;
see also Thomas v. City of
Columbus
,
That surely would be the result in most cases. But not here, we learn. Unwilling to
accept the Palmas’ concessions, the majority opinion takes it upon itself to show that Officer
Johns violated clearly established law. Setting aside the procedural oddities of the referees
taking shots for one team, none of the majority opinion’s cases clearly establishes that Officer
Johns’s uses of force were unreasonable. Several of the majority opinion’s cases were decided
after the shooting, meaning that they “could not have given fair notice to [Officer Johns] and are
of no use in the clearly established inquiry.”
Brosseau v. Haugen
,
Particularly troubling, once again, is the majority opinion’s continued reliance on
Vincent’s mental health status as grounds to deny qualified immunity. Simply put, the majority
opinion identifies no case that would have put Officer Johns on notice that Vincent’s unspecified
mental health condition made his use of lethal force unconstitutional despite the threat of
imminent harm that Vincent posed.
Graves
is not such a case—it was decided after the
encounter between Officer Johns and Vincent and, at any event, involved a man with a mental
illness who was trapped in a bathtub and “stationary, staring straight ahead, not making eye
contact with anyone.”
No more compelling is the majority opinion’s reliance on the general excessive force
standard in
Graham
,
Garner
, and their progeny. To the majority opinion’s mind, those decisions
clearly established Vincent’s right to be free from Officer Johns’s uses of force. But that would
be so, at most, only if this case were an “obvious” one, that is, where “no reasonable . . . officer
could have concluded that” Officer Johns’s use of force was constitutional.
Taylor
, 141 S. Ct. at
53;
see also Rivas-Villegas
,
Nor can one accept the majority opinion’s formulations of the purported rights at issue. It
does so in the following ways. One, that there is a clearly established right to be from “the
gratuitous or excessive use of a taser.”
Supra
, at 29 (quoting
Goodwin v. City of Painesville
, 781
F.3d 314, 327 (6th Cir. 2015)). And two, “that individuals have a clearly established right not to
be shot absent ‘probable cause to believe that [they] pose[] a threat of serious physical harm.’”
Supra
, at 29 (quoting
Mullins
,
To refute this straightforward conclusion, the majority opinion invokes our recent
decision in
Gambrel
. But there, unlike here, the plaintiff “‘identif[ied] a case’ . . . with
‘materially’ indistinguishable facts.” — F.4th —,
Otherwise, the majority opinion essentially duplicates its analysis as to whether a Fourth
Amendment violation occurred when it addresses the separate clearly established prong. That
approach, however, eviscerates the two-step qualified immunity inquiry.
See Hagans v. Franklin
Cnty. Sheriff’s Off.
,
The majority opinion, of course, has some company of its own. But it is not respectable
company to keep. By my count, the Supreme Court has summarily reversed our sister circuits at
least ten times in as many years for incorrectly analyzing the clearly established prong.
See
Rivas-Villegas
, 142 S. Ct. 4;
City of Tahlequah v. Bond
, 142 S. Ct. 9 (2021) (per curiam);
Emmons
,
At day’s end, qualified immunity “protects ‘all but the plainly incompetent or those who
knowingly violate the law.’”
Wesby
,
Notes
[1]
Defendants argue that Plaintiffs waived this claim by failing to raise it in their opposition to summary
judgment. The dissent agrees. While it is true that Plaintiffs’ opposition to summary judgment did not address their
claim that Johns’ use of the taser was excessive, the real problem is that Defendants did not identify this claim in
their motion for summary judgment. Plaintiffs’ Amended Complaint expressly stated that “Defendant, Matthew
Johns’ use of the taser was [an] unjustified and reckless use of force.” (Am. Compl., R. 23, Page ID #133.)
Although moving for summary judgment on all of Plaintiffs’ claims, Defendants ignored this portion of the
complaint and only argued against Plaintiffs’ excessive
lethal
force claim. Unsurprisingly, Plaintiffs used their
opposition brief to address only those claims that Defendants identified and argued in their motion for summary
judgment—thus Plaintiffs also focused on the use of lethal force.
Generally, at the summary judgment stage, the non-moving party can forfeit an argument if they fail to
respond to the
moving party’s arguments
.
See Doughty v. Dep’t of Developmental Servs. STS
,
[2]
While Defendants describe Palma’s prior mental health hospitalizations and run-ins with police, none of
these facts were known to Johns and are thus irrelevant here.
See Simmonds
,
[3] To be clear, even if Johns shot Palma eighteen seconds after he called for backup, that short amount of time would not automatically justify his use of force as a split-second judgment. Lethal force may have been justified only if the encounter lasted eighteen seconds and if the undisputed facts suggested that Palma’s behavior constituted a threat at that time.
[4]
Only twice have we said it was reasonable to shoot a mentally ill person who turned out to be unarmed. In
both instances, however, officers had ample reason to believe that the suspect was armed with either a gun or an
explosive device. Thus, these cases are more akin to those involving lethal force against a visibly armed mentally ill
person. First, in
Beans v. City of Massilon
,
[5] The parties dispute whether the expert’s testimony can create a genuine dispute of material fact. But even without the expert’s opinion, Johns does not deny that he could now see Palma’s hands and that Palma was hunched over after the first round of shots. Even considering only these undisputed facts, a jury could find that Palma no longer posed a threat and that the second round of shots was unreasonable.
[6]
Because the district court found that Johns did not violate the Fourth Amendment, it did not reach this
prong,
see Palma
, 2021 WL 798405, at *3–*4, and the parties have not thoroughly argued the issue on appeal
beyond Plaintiffs’ broad statements that Palma has a clearly established right to be free from excessive force.
However, whether the law is clearly established presents a purely legal question that we need not leave to the district
court to resolve.
See Gossman v. Allen
,