Gаbrielle SMITH; Elijah Smith, minor children of Glen Smith, by their mother Cheri Janine Smith, widow of Glen Smith; Cheri Janine Smith, widow of Glen Smith, Plaintiffs-Appellees, v. John CUPP, Individually and as Sheriff of Hamilton County, Tennessee, Defendant, Marty Dunn, Individually and as Deputy Sheriff of Hamilton County, Tennessee, Defendant-Appellant.
No. 04-5783
United States Court of Appeals, Sixth Circuit
Argued: March 15, 2005. Decided and Filed: Dec. 2, 2005.
430 F.3d 766
No doubt, Congress‘s decision has placed the Air Show in a difficult situation, but “equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Id. at 307, 113 S.Ct. 2096. “The Constitution presumes that ... even improvident decisions will eventuаlly be rectified by the democratic process,” Vance, 440 U.S. at 97, 99 S.Ct. 939, and, to the extent this is such a decision, there is no reason to doubt that the Air Show will not be able to obtain relief through the legislature rather than the courts.
IV.
For these reasons, we deny the petition for review.
Before: MERRITT and ROGERS, Circuit Judges; DUPLANTIER, District Judge.*
ROGERS, J., delivered the opinion of the court, in which DUPLANTIER, D.J., joined. MERRITT, J. (p. 777), delivered a separate opinion concurring except as to Section II.A. on jurisdiction.
OPINION
ROGERS, Circuit Judge.
Deputy Sheriff Marty Dunn appeals the district court‘s denial of his motion for summary judgment based on the defense of qualified immunity. On April 28, 2002, Dunn shot and killed Glen Smith, an arrestee who had gained control of Dunn‘s police cruiser. The district court denied Dunn qualified immunity. Because Smith‘s right not to be seized by deadly force when fleeing arrest was clearly established at the time he was killed, we affirm the district court‘s denial of summary judgment.
I.
On April 27-28, 2002, Deputy Sheriff Marty Dunn was on patrol in north Hamilton County, Tennessee. During his shift, Dunn responded to a report of harassing telephone calls being received at the home of Janice Quarles, the mother of plaintiff-appellee Cheri Smith. Cheri Smith was living with Quarles at the time because she was separated from her husband, the decedent Glen Smith. Dunn spoke with Quarles about the calls and left.
Later in his shift, Dunn coincidentally observed Glen Smith driving erratically. Dunn initiated a traffic stop and had Smith perform several field sobriety tests. Although Dunn believed that Smith had been drinking, he came to the conclusion that Smith was not so impaired as to justify an arrest. Consequently, Dunn suggested that Smith find a friend to pick him up, and Smith left his car in the parking lot of an adjacent McDonald‘s restaurant.
Later that evening, Dunn responded to another report from Quarles‘s home concerning harassing telephone calls. In this second encounter, Quarles told Dunn that some of the calls had been recorded by the answering machine, and that she recognized Smith‘s voice and heard the name “Dustin” in the background. Dunn listened to some of these recordings and
Dunn left Quarles‘s home and went by the McDonald‘s parking lot where he had left Smith earlier. Dunn observed that Smith‘s car was still in the lot; however, the car had been moved to a different spot, and Dunn saw a man that looked like Smith get into another car parked nearby. Dunn approached the second vehicle and spotted Smith in the backseat. Dunn questioned the driver of the vehicle, Kate Smith (Smith‘s sister), and another passenger, Dustin Craig, and these persons indicated that Glen Smith had used Craig‘s cell phone to make several calls from a Waffle House restaurant. At this point, Dunn proceeded to arrest Smith for making harassing telephone calls in Dunn‘s presence.
Pursuant to thе arrest, Dunn advised Smith of his Miranda rights, cuffed Smith‘s hands behind his back, double-locked the handcuffs, put Smith in the back seat of Dunn‘s police cruiser, and secured the seat belt around Smith. Additionally, Dunn patted Smith down to be sure that he did not have any weapons or other contraband. Dunn also called for a tow truck to pick up Smith‘s car. During this period of time, Smith was cooperative with Officer Dunn. However, Dunn did believe Smith to be somewhat impaired. Dunn left the engine running to provide air conditioning. Unfortunately, Dunn‘s police cruiser was not equipped with a security partition separating the front seat from the back seat. When Dunn left the vehicle to talk to the tow truck driver, named Richard Rutherford, Smith climbed into the front seat and took control of Dunn‘s cruiser. The facts from this point forward are heavily disputed. The Supreme Court and this court have repeatedly held, however, “that a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court‘s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); see also Carter v. City of Detroit, 408 F.3d 305, 309 (6th Cir.2005). Accordingly, although we note the presence of disputes, we take the facts in a light most favorable to the plaintiffs, the family of Glen Smith. The district court carefully set out the differing versions of events leading to Smith‘s death.
[W]hen the wrecker arrived Dunn got out of the patrol car to speak to its driver, Richard Rutherford, and fill out the necessary paperwork to have Smith‘s vehicle towed. During this time, Smith was left unsupervised in the patrol car with the engine running and the keys in the ignition.
As they were going about the business of preparing Smith‘s car to be towed, both Dunn and Rutherford claim they heard the patrol car being placed into gear and turned to see Smith had made his way into the front seat and was now behind the wheel of the vehicle. Because Dunn had left the dome light in the patrol car on, Dunn claims he was able to сlearly see Smith “looking directly at him” while Rutherford claims he could see Smith “in the driver‘s seat turning the steering wheel.” Dunn asserts he heard tires squealing and the sound of hard acceleration. Rutherford does not believe the patrol car “went into a pe[e]l out,” but does confirm Smith “floorboarded” the accelerator.
Rutherford states his immediate reaction was to move backwards and around to the front of Smith‘s vehicle while Dunn claims he [Rutherford] ran in the opposite direction towards the McDonald‘s restaurant. Rutherford asserts Dunn ran towards the moving patrol car with his firearm drawn and recalls thinking he “was fixing to watch Officer Dunn get run over.” Rutherford claims Smith was turning the patrol car to the left, but stated he was not sure whether Smith‘s swerve to the left was for the purpose of redirecting the car at Dunn or following the roadway around the building (and presumably out of the parking lot). Dunn claims he and Rutherford were standing not more than a vehicle‘s length from [the patrol car‘s] original position and that Smith was clearly trying to run him and Rutherford over rather than attempting to leave the parking lot. Dunn claims Smith “rapidly accelerated directly at [him] and Rutherford” and, “fearing for his life and that of Mr. Rutherford,” he “drew his gun and fired four times in rapid succession at Smith.” According to Dunn, three of the shots hit the car, the fourth hit Smith “above the left ear,” and the patrol car “shot past [Officer] Dunn barely missing him and ran off the parking lot and collided with a tree.” Plaintiffs, however, contend Dunn was not acting in self-defense and fired at least the final, fatal shot after the car had passed by Dunn. Plaintiffs claim the fatal shot entered through the driver‘s side window of the patrol car and struck [Smith] in the ear. For his part, Rutherford recalls Dunn firing “three or four” shots in rapid succession from a position near the drive-thru lane as “the vehicle was going by him.” Dunn appears to concede that he fired while the patrol car was passing him, but claims he did so while jumping out оf the direct path of the vehicle. Rutherford did indicate Dunn was moving out of the way of the passing patrol car as he fired and, at least at one point, Rutherford believed Dunn had actually been hit by the vehicle.
Smith v. Cupp, No. 1:03-CV-139, slip op. at 5-7 (E.D.Tenn. Apr.22, 2004).
In short, Dunn essentially argues that Smith directed the cruiser at him and Rutherford, or at least Dunn perceived the events in this manner, and that he shot Smith in self-defense as the cruiser was bearing down on them. Dunn continues to argue this version of facts on appeal. The plaintiffs, on the other hand, describe a scene where Smith was merely trying to flee in the cruiser and Dunn purposefully shot Smith under circumstances of no threat to Dunn or othеrs. In addition to the testimony of Rutherford and Dunn described above, the plaintiffs point to the autopsy report as proof that all of the shots were fired either after the cruiser had passed Dunn or, at the very earliest, while the cruiser was passing Dunn with the officer on the driver-side of the vehicle. The autopsy report described the path of the fatal gunshot; the bullet entered “into the left ear ..., direction left to right, slightly back to front, and downward, passing through the left ear” (emphasis added). Finally, the plaintiffs provided evidence that Dunn lied when describing his overall description of events. Another officer responding to the scene reported that Dunn stated immediately after the shooting that Smith had gone for Dunn‘s gun. This statement has essentially been shown to be a lie, as Dunn stated in deposition that Smith was left sitting in the police cruiser with the windows rolled up, and Dunn has since abandoned any argument that his
On April 23, 2003, Smith‘s minor children and widow filed suit against Sheriff John Cupp and Deputy Sheriff Dunn, both individually and in their official capacities, pursuant to
On May 5, 2004, Dunn filed a motion to supplement the record and to request that the district court reconsider its order denying Dunn‘s motion for summary judgment. Anticipating that Dunn would file an interlocutory appeal on the excessive force claim, the plaintiffs sought certification for an immediate appeal with respect to the district court‘s dismissal of the plaintiffs’ deliberate indifference claims. On May 26, 2002, while these motions were pending, Dunn filed a notice of appeal to this court. The district court ultimately denied the plaintiffs’ motion to certify, granted Dunn‘s motion to supplement the record, and denied Dunn‘s motion for reconsideration. This appeal followed.
II.
A. Jurisdiction
This court has jurisdiction to hear Dunn‘s appeal notwithstanding his failure to concede—for purposes of this interlocutory appeal—disputed facts that are favorable to the plaintiff. It is clear that this court is without jurisdiction to review any argument that depends upon a dispute of facts. “A defendant who is denied qualified immunity may file an interlocutory appeal with this Court only if that appeal involves the abstract or pure legal issue of whether the facts alleged by the plaintiff constitute a violation of clearly еstablished constitutional law.” Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir.1998).
Dunn has therefore made two2 main arguments; and this court has jurisdiction to hear Dunn‘s purely legal argument. If, “aside from the impermissible arguments regarding disputes of fact, the defendant also raises ‘the purely legal question of whether the facts alleged ... support a claim of violation of clearly established law,’ then there is an issue over which this court has jurisdiction. Therefore, this court can ignore the defendant‘s attempts to dispute the facts and nonetheless resolve the legal issue, obviating the need to dismiss the entire appeal for lack of jurisdiction.” Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir.2005) (quoting Berryman, 150 F.3d at 562 (internal quotation omitted)); see also Phelps v. Coy, 286 F.3d 295, 298 (6th Cir.2002) (“Where ... the legal issues are discrete from the factual disputes, we may exercise our jurisdiction to resolve the legal issues only.“); cf. Fultz v. Whittaker, 88 Fed. Appx. 896, 897 (6th Cir. Feb.24, 2004) (recognizing that exercise of appellate jurisdiction would be proper over issue of law even if that issue was presented only as an alternative to an argument concerning the facts).
The Supreme Court has found no error in this approach. In Johnson, the petitioners argued that it was unworkable for the Court to decide that issues of law were immediately appealable but not issues of disputed fact. The argument was that a defendant could easily tack on a reviewable claim to an unreviewable claim and thus gain review. Johnson, 515 U.S. at 318, 115 S.Ct. 2151. The Court addressed this concern not by saying that jurisdiction would be lacking over the entire appeal, but rather by expressing confidence in the courts of appeals’ ability to determine when it would be inappropriate to exercise pendent appellate jurisdiction over the factual dispute. Id. The Supreme Court‘s analysis clearly contemplates that an appellate court would have jurisdiction over the issue of law even when paired with an issue of disputed fact,
B. Qualified Immunity
The district court properly denied Dunn‘s motion for summary judgment based on the defense of qualified immunity. The issue is close, given the very short period of time in which Dunn had to react. However, the facts, taken in the light most favorable to the plaintiffs, demonstrate that Dunn‘s use of deadly force violated Smith‘s constitutional rights. The particular right at issue was clearly established. Thus, Dunn is not entitled to qualified immunity.
The United States Supreme Court has mandated the use of the following analysis when ruling on a defendant‘s claim of qualified immunity. See Saucier v. Katz, 533 U.S. 194, 200-201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). “[T]he first inquiry must be whether a constitutional right would have been violated on the facts alleged; second, assuming the violation is established, the question whether the right was clearly established must be considered ....” Id. at 200, 121 S.Ct. 2151.3 The answer to both inquiries is yes.
1. Constitutional Violation
The plaintiffs have put forward sufficient evidence to show that Dunn‘s actions violated Smith‘s constitutional rights. According to the plaintiffs’ evidence, Dunn shot Smith after the police cruiser was past Dunn and there was no immediate danger to anyone in the vicinity. Dunn‘s use of force was made even more unreasonable by the fact that Smith had been cooperative up to this point, and was arrested for the nonviolent offence of making harassing рhone calls. Although there was some danger to the public from Smith‘s driving off in a stolen police car, the danger presented by Smith was not so grave as to justify the use of deadly force.
If the facts are taken in the light most favorable to the plaintiffs, no person at the scene was ever in danger. A reasonable jury could conclude that Dunn did not fire as the vehicle was bearing down on him in fear of his life. Instead, a jury could conclude that Dunn fired as he ran toward the driver side of the car after the car passed him. Rutherford states that Smith was driving the patrol car toward the exit of the parking lot, and Officer Dunn was running to block the exit. Of course, Officer Dunn is constitutionally permitted to put himself in a dangerous position in order to effectuate an arrest. The problem is that, even though Officer Dunn was trying to get between the patrol car and the exit, the evidence permits a finding that a reasonable officer in Dunn‘s position would not have perceived danger to anyone at the scene. Dunn relies heavily on Rutherford‘s statement that at the moment when car went into gear Rutherford “thought [he] was fixing to watch Officer Dunn get run over.” JA 312. Yet, at the moment that Rutherford felt Dunn was “fixing to get run over,” the car was merely being placed into gear. A jury could reasonably cоnclude that Rutherford really meant that the car was pointed east, in both Rutherford and Dunn‘s general direction. The “fixing to get run over” statement must be read in context with Rutherford‘s later contradictory statement that Dunn “was not in front of the vehicle” when Dunn ran “toward the patrol car” and then fired at Smith.
Even viewing the events in the heat of the moment, without 20/20 hindsight, a jury could conclude that a reasonable officer in Dunn‘s position was never in any danger. Officer Dunn‘s decision was certainly a “split-second judgment” in a circumstance that was “tense, uncertain, and rapidly evolving.” Graham, 490 U.S. at 397, 109 S.Ct. 1865. Rutherford said that Dunn was “running towards the patrol car,” and Rutherford‘s diagram shоws that Dunn took “four or five steps” towards the left side of the patrol car. The evidence would support a jury finding that Dunn was never in the line of flight based on Rutherford‘s statement that Dunn “was not in front of the vehicle” when he fired on it. The autopsy report that shows the bullet entered the back of Smith‘s head, behind his ear, at a slightly back-to-front angle. This report indicates that the police cruiser was likely past Dunn as he fired. Thus, it provides further evidence to support a jury decision that a reasonable officer in Dunn‘s position would not have felt he was in danger and had the opportunity to choose not to use deadly force to protect himself or others. Rutherford stated he was in no danger. The record does not establish the presence of any bystander other than Rutherford whose physical safety could have been endangered by Smith‘s actions.
Thus although events developed rapidly, under plaintiffs’ version of the facts this is not a case where a dangerous situation evolved quickly to a safe one before the
Although this circuit‘s previous cases give substantial deference to an officer‘s decision to shoot a unarmed suspect in a car chase, the officer must have reason to believe that the car presents an imminent danger. In Smith v. Freland, this court held that a police officer was justified in using deadly force to stop a suspect from continuing his dangerous flight after the suspect had twice attempted to ram a police cruiser and, having been cornered, turned and sped back up a street endangering a number of officers attempting to stop him. 954 F.2d 343, 347 (6th Cir.1992). In Scott v. Clay County, a car that had nearly hit an unmarked рolice car at 85 miles per hour was cornered and suddenly accelerated toward an officer. 205 F.3d 867, 872 (6th Cir.2000). The officer in Scott did not violate the suspect‘s
Though Smith could have used the police cruiser to injure or kill Officer Dunn, under the plaintiffs’ version of the facts he was not doing so when Dunn shot him or even before Dunn shot him. Although Smith had possession of a dangerous “weapon,” he was not threatening the lives of those around him with it when he was fatally shot. This type of situation does not present “a perceived serious threat of physical harm to the officer or others in the area from the perspective of a reasonable officer.” Sample v. Bailey, 409 F.3d 689, 697 (6th Cir.2005). A jury would therefore be entitled to determine that Officer Dunn‘s use of force was unreasonable and accordingly unconstitutional.
2. Clearly Established Right
It is clearly established constitutionаl law that an officer cannot shoot a
Brosseau v. Haugen does not preclude this court from finding the right at issue was clearly established because the Brosseau Court said that undisputed facts showed that the shooting officer believed the suspect had a gun and was fearful for officers in the immediate area. 543 U.S. 194, 125 S.Ct. 596, 597-99, 160 L.Ed.2d 583 (2004). Brosseau is instructive on what makes law “clearly established” in a case where an officer shoots a suspect fleeing in a car. Brosseau held that the two major excessive force cases, Tennessee v. Garner and Graham v. Connor, did not clearly establish the existence of the right alleged to have been violated in Brosseau. 125 S.Ct. at 599. The Brosseau Court reasoned that the rule from Tennessee v. Garner did not apply because of the substantial risk of danger. Id. at 600. In this case, the plaintiff‘s facts show there was no danger.
The absence of any Garner preconditions to the use of deadly force makes this an “obvious” case and distinguishes it from Brosseau. In Brosseau, the Supreme Court reversed the denial of qualified immunity to an officer sued for Fourth Amendment violations under
The facts in Brosseau are not comparable to those in this case. In the light most favorable to Smith, there is no comparable evidence that Dunn had cause to believe that Smith posed an immediate risk of death or serious danger to Dunn, Rutherford, or nearby citizens. Smith was being arrested for a making harassing phone calls, not a crime involving the infliction or threatened infliction of serious physical harm. Graham, 490 U.S. at 396, 109 S.Ct. 1865. Unlike the situation in Brosseau, Smith and Dunn never struggled, Smith never displayed any violent tendencies, and the facts support a finding that a reasonable officer in Dunn‘s position would not have perceived danger to anyone at the scene. The fact that this case is very different from Brosseau permits the conclusion that Garner, by itself, clearly establishes the right at issue.
Smith‘s case is an obvious case where Tennessee v. Garner clearly establishes the law. “General statements of the law” are capable of giving clear and fair warning to officers even where “the very action in question has [not] previously
III.
The judgment of the district court is AFFIRMED.
MERRITT, Circuit Judge, concurring.
I concur in the Court‘s opinion except for Section II.A on jurisdiction. The case is primarily a factual dispute, and the jury should apply the “clearly established law” to the facts developed at trial before wе review the case.
James R. HUSVAR, Sidney B. Gutzwiller, Robert V. Caruso, and Ronald W. Barnett, individually and as the representatives of the plaintiff class, Plaintiffs-Appellants, v. Michel RAPOPORT, William A. Marquard, Thomas R. Wall, and Robert A. Young III, Defendants-Appellees.
No. 01-4254
United States Court of Appeals, Sixth Circuit.
Argued: May 7, 2003. Decided and Filed: Oct. 3, 2005. Rehearing En Banc Denied Dec. 9, 2005.