RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0188P (6th Cir.) File Name: 00a0188p.06
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________
; BERTHA BOYD, Plaintiff-Appellee, No. 99-3234 v. > MATTHEW BAEPPLER; DAVID Defendants-Appellants. WILSMAN,
1 Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 98-00047—Paul R. Matia, Chief District Judge. Argued: February 4, 2000 Decided and Filed: June 6, 2000 Before: WELLFORD, BATCHELDER, and DAUGHTREY, Circuit Judges. _________________ COUNSEL ARGUED: Thomas J. Kaiser, CITY OF CLEVELAND LAW DEPARTMENT, OFFICE OF DIRECTOR OF LAW, Cleveland, Ohio, for Appellants. Jaye M. Schlachet, Cleveland, Ohio, for Appellee. ON BRIEF: Jennifer Sorce, ASSISTANT DIRECTOR OF LAW, Cleveland, Ohio, for
1 2 Boyd v. Baeppler, et al. No. 99-3234
Appellants. Jaye M. Schlachet, Cleveland, Ohio, for Appellee. WELLFORD, J., delivered the opinion of the court, in which BATCHELDER, J., joined. DAUGHTREY, J. (pp. 19-22), delivered a separate dissenting opinion. _________________ OPINION _________________ HARRY W. WELLFORD, Circuit Judge. Plaintiff Bertha Boyd, administratrix of the estate of decedent Adolph Boyd, Jr. (“Boyd”), filed a 42 U.S.C. § 1983 action against Cleveland police officers Matthew Baeppler and David Wilsman, police chief Rocco Pollutro, and the City of Cleveland, asserting constitutional claims arising out of the shooting death of Boyd. The case was removed from state court to the federal district court. Subsequently, defendants moved for summary judgment, which plaintiff opposed. The district court denied defendants’ motion for summary judgment with respect to officers Baeppler and Wilsman and reserved judgment as to defendants Pollutro and the City of Cleveland, concluding that: Based upon the evidence presented by plaintiff, the Court finds that genuine issues of fact exist as to whether the amount of force used by the offices was justified. . . . A genuine issue of fact exists as to whether it was objectively reasonable to use deadly force where (1) a suspect is running away from the officers in an attempt to escape; (2) the officers did not witness the suspect fire the weapon; and (3) no verified proof exists as to whether the suspect committed a crime. Defendants had moved for judgment on the accompanying state law claims and the district court indicated that it would not decide the state claims on their merits but would dismiss 22 Boyd v. Baeppler, et al. No. 99-3234 No. 99-3234 Boyd v. Baeppler, et al. 3
this court of a panel “arrogating unto itself the role of them without prejudice “upon the resolution of the federal resolving on appeal the factual disputes presented by a claims.” qualified immunity defense in a § 1983 action.” Scott v. Clay County, 205 F.3d 867, 881 (6th Cir. 2000) (Clay, J., I. JURISDICTION dissenting) (citing Claybrook v. Birchwell, 199 F.3d 350, 359- 60 (6th Cir. 2000)). Because I believe that the record Regarding this court’s jurisdiction over an interlocutory supports the district court’s conclusion that genuine disputes appeal from a denial of summary judgment based on qualified remain regarding whether the defendants’ conduct was immunity, we recently stated: reasonable, I therefore dissent. A district court’s order denying summary judgment that is based on qualified immunity and turns on an issue of law is immediately appealable as a final judgment under the collateral order doctrine. However, as this court has previously explained, “[u]nder the doctrine of Johnson v. Jones, [515 U.S. 304 (1995),] this court cannot review on interlocutory appeal a district court’s determination that a genuine issue of fact exists for trial, but we retain jurisdiction over the legal question of qualified immunity, i.e., whether a given set of facts violates clearly established law.” We review de novo the district court’s denial of qualified immunity. Hoard v. Sizemore, 198 F.3d 205, 211 (6th Cir. 1999) (citations omitted). Plaintiff contends we lack jurisdiction, because the district court denied summary judgment to defendants on qualified immunity upon finding “that genuine issues of fact exist” as to the use of deadly force. Defendants argue, however, that the “genuine issues of fact, found by the district court are not genuine and material, and that this appeal presents purely legal questions based on essentially uncontroverted material facts.” Specifically, defendants assert that the district court: erroneously applied a fleeing felon analysis, and misidentified the governmental interest at stake in this self defense case. The facts cited by the District Court as precluding summary judgment under its erroneous analysis are not relevant to a self defense inquiry, where the government interests at stake are the lives of police officers. In this regard, Appellants [defendants] do not dispute the facts identified by the District Court as the 4 Boyd v. Baeppler, et al. No. 99-3234 No. 99-3234 Boyd v. Baeppler, et al. 21
basis for the denial of summary judgment because those autopsy, that, even while paralyzed, Boyd was “still fully able facts are not material to the relevant qualified immunity to move his upper extremities, including his head, arms, and issues in this case. torso.” The plaintiff challenges this assertion with the expert testimony of Dr. Howard Tucker, whose reading of the We agree, and therefore, as we shall explain, we believe autopsy report supported his conclusion that scapular muscles that the district court’s assertion that there were genuine issue on both sides of Boyd’s body and both Boyd’s arms were hit of material fact does not destroy the appealability of its by bullets, and thus “impaired from a functional standpoint.” qualified immunity ruling under the circumstances set forth. Tucker admittedly did not know if these wounds were caused by either Wilsman’s or Baeppler’s shots, but stated that even Denial of summary judgment often includes a without the wounds to Boyd’s arms and scapulae “there was determination that there are controverted issues of severe impairment of ability to turn and with medical material fact . . . and Johnson surely does not mean that probability Mr. Boyd could not assume a defined posture every such denial of summary judgment is which would signal his intent and capability to return fire” nonappealable. from his prone position. * * * * * * The majority dismisses Dr. Tucker’s testimony as based on mere probabilities, and any conclusions a jury might reach Johnson permits petitioner to claim on appeal that all of from it as mere speculation. In so doing, the majority again the conduct which the District Court deemed sufficiently makes a determination as to which evidence it finds most supported for purposes of summary judgment met the credible, and thus again wrongfully assumes the role of Harlow [v. Fitzgerald, 457 U.S. 800 (1982)] standard of factfinder. To my mind, this is a classic battle of the medical “objective legal reasonableness.” experts, the outcome of which we must leave to the jury to decide at trial. Doctors Challener and Tucker, working from Turner v. Scott, 119 F.3d 425, 428 (6th Cir. 1997) (quoting the same medical data, reach contrary results as to Adolph Behrens v. Pelletier, 516 U.S. 299, 312, 313 (1996). We Boyd’s ability to even appear to aim a gun at the defendants determined in Turner that we had jurisdiction over purely from his prone position. In this case, it should be the task of legal questions despite a district court’s order stating that the jury, and not this court, to weigh the testimony of the genuine issues of material fact existed; “[i]f it were otherwise medical experts and determine which is more credible, and a district court could always insulate its qualified immunity thus decide if Boyd could have presented a risk to the officers rulings from interlocutory review by mouthing the appropriate making each of Baeppler’s last shots, from the first to the shibboleth.” 199 F.3d at 428. Defendants assert that seventh, objectively reasonable. Cf. Russo v. City of “whether Boyd had committed a crime, fired shots, or was Cincinnati, 953 F.2d 1036, 1047 (6th Cir. 1992) (stating, in running away are irrelevant to the reasonableness of both context of qualified immunity defense to § 1983 failure to Officer Wilsman’s and Office Baeppler’s reactions to the train claim, that “we do not believe the opinions of experts are threats with which they were faced.” Again, we agree. The to be given no weight . . . . [r]eliance on expert testimony is issues in this case are whether Boyd posed a threat to officers particularly appropriate where, as here, the conclusions rest Wilsman and Baeppler and, if so, whether their use of force directly upon the expert’s review of materials provided by the in response was reasonable. The district court made no City itself”). finding that there remained in dispute facts material to those Today the majority holds otherwise, and its decision issues. Nonetheless, we will review the record to decide continues the unfortunate trend noted by other members of 20 Boyd v. Baeppler, et al. No. 99-3234 No. 99-3234 Boyd v. Baeppler, et al. 5
brandish a weapon during their meeting. Were Boyd alive to whether, as plaintiff maintains, we lack jurisdiction under the supplement the trace evidence with his version of events, I district court’s decision, or otherwise, as defendants assert. imagine we would be more likely to find genuine issues of material fact as to whether any use of deadly force by either Witness, Steve J. Arvai, submitted an affidavit stating that Wilsman or Baeppler was objectively reasonable. on April 14, 1997, around 11:10 or 11:15 p.m., he heard a gunshot from his home and looked out the window and saw Even were I to join my colleagues in assuming the truth of a black male armed and walking west on Buckeye near East the defendants’ version of their initial interaction with Adolph 122nd. Arvai stated that the male was about six feet tall, Boyd, I could not join their reversal of the district court’s wore a dark blue jacket, blue jeans and white tennis shoes and decision as to officer Baeppler. I reach this conclusion after appeared to be holding a dark colored automatic. Arvai added reviewing carefully the sequence of the alleged series of that he saw the man point the gun at three people outside of interactions between Boyd and the officers. According to the Wendy’s but that he then lost sight of him.1 In any event, defendants, as Boyd approached them officer Baeppler Arvai promptly called the police operator and reported his ordered him to freeze; instead of stopping, however, Boyd ran observations. This evidence was undisputed. across Buckeye Road and into a driveway. While Boyd ran, he pointed his gun at Baeppler, who then fired three or four Defendant police officers Baeppler and Wilsman submitted rounds of ammunition at Boyd. Boyd continued running affidavits to the effect that on the night in question, they were away from the officers and then brought his right arm and on duty together, Baeppler driving the police car, and that hand across his chest and under his left armpit and pointed his shortly after Arvai’s call, they were called to respond to a weapon at Wilsman. Wilsman then fired one round of “Code One” emergency radio dispatch which indicated that ammunition from his shotgun, which caused Boyd to fall to there was a male with a gun in the area of East 120th and the ground. The autopsy report on Boyd’s death stated that Buckeye Road, who met the general description given by one pellet from this shotgun blast lodged at Adolph Boyd’s Arvai. Defendants proceeded to the area and Wilsman T9 vertebrae; according to Cuyahoga County coroner Dr. notified radio headquarters of their arrival. As they Robert Challener, this pellet caused immedate paralysis of approached East 119th and Buckeye, Baeppler and Wilsman Boyd’s lower extremities. “heard a broadcast from Officer Zbikowski that he had just The defendants then claim that, after Boyd fell with his seen the male, that the male was armed with a gun, and that stomach and face to the ground and while the officers the male was running towards us.” approached him, Boyd pulled his upper torso up from the ground and brought his right hand, still holding the weapon, There is no dispute but that this was the information across his shoulders and pointed it at Officer Wilsman, furnished these two defendant officers: a dangerous and twisting to the left to do so. At that point, Officer Baeppler emergency situation on Cleveland public streets at a time near fired his weapon at Boyd seven more times until Boyd finally midnight involving an armed man who had reportedly fired fully collapsed. shots, potentially endangering others in the area. Defendant Baeppler claims that Boyd’s continued movement while paralyzed on the ground, including the twisting of his upper torso and continued display of his 1 firearm, made shooting Boyd seven times an objectively A later police check of that area’s “curb, gutter, and sidewalk for possible shell casing” met with negative results. A street sweeper did go reasonable use of force in self defense. Baeppler supports this up Buckeye Road right after this incident and may have destroyed any assertion with Dr. Challener’s testimony, based on the evidence that was in the street at this location. 6 Boyd v. Baeppler, et al. No. 99-3234 No. 99-3234 Boyd v. Baeppler, et al. 19
Baeppler and Wilsman testified that they then saw Boyd, ________________ who sufficiently met the description given them and was in the immediate area reported, running toward them with a gun DISSENT in hand. Baeppler stopped the marked police car in the ________________ intersection of Buckeye Road and East 119th Street, and both exited with their weapons drawn, Wilsman with a shotgun. Both officers testified that they ordered Boyd to stop and MARTHA CRAIG DAUGHTREY, Circuit Judge, identified themselves as police, although it seems clear to us dissenting. The majority awards summary judgment to that this should have been obvious to anyone present at the officers Baeppler and Wilsman because it finds, as a matter of time. law, that Adolph Boyd posed a threat to their safety that made the use of deadly force objectively reasonable. In so doing, Cleveland police officers Zbikowski and Nabowski, who the majority discounts the plaintiff’s evidence suggesting the also arrived on the scene pursuant to the police broadcast, existence of genuine issues of material fact that should, under testified that at Buckeye and East 120th Street they saw a Johnson v. Jones, 515 U.S. 304 (1995), preclude our assertion person matching the description given of the suspect walking of jurisdiction here. Because I believe that our court lacks west on Buckeye and into a parking lot and that he was armed jurisdiction to decide this appeal, at the very least as to with a gun. Zbikowski added that the suspect ran down defendant Baeppler, and therefore that our decision today Buckeye and that he reported his information on his car radio. preempts the jury’s role in deciding the sufficiency of the Both of these officers also drew their weapons when they plaintiff’s evidence, see Behrens v. Pelletier, 516 U.S. 299, observed the suspect at close range. 313 (1996), I must respectfully dissent. Boyd did not stop, as ordered, nor did he drop the gun In some sense, the majority’s analysis of the immediate which had been observed in his hand by a disinterested circumstances of Adolph Boyd’s death necessarily makes a witness and by four different police officers at close range. determination as to the credibility of Baeppler and Wilsman, We do not deem it to be a genuine issue of disputed fact that the only surviving eyewitnesses to the events, something the Boyd was the suspect so observed and that he was armed. We law of this court forbids us to do while deciding a summary therefore do not give credence to Boyd’s counsel’s contention judgment motion. See, e.g., Cain v. Nesbitt, 156 F.3d 669, that since forensic testing after Boyd’s death was either 672 (6th Cir. 1998). The majority accepts the officers’ inconclusive or negative as to whether Boyd had held or fired rendition of their interactions with Boyd as fact: that Boyd a weapon, a genuine issue remained regarding whether Boyd ran toward them and then away from them, that he was had carried, pointed, or fired the gun that five persons carrying a gun while he ran, and that he pointed the gun testified that he held in his hand when they observed him that towards them while running. Adolph Boyd is, of course, unable to contest the truth of these highlighted facts; the plaintiff here, Bertha Boyd, presents an alternate scenario, one that necessarily lacks the specificity Adolph’s testimony would have lent his case. The plaintiff’s counternarrative clearly states one fact, however: that Adolph Boyd was not carrying a gun. She supports this assertion with trace evidence collected by the Cuyahoga County Coroner’s Office that is inconsistent with his carrying a gun the night of April 14. No one other than the defendants saw Adolph 18 Boyd v. Baeppler, et al. No. 99-3234 No. 99-3234 Boyd v. Baeppler, et al. 7
plaintiff’s version of events. There was no conflict of expert fateful night.2 The district court indicated no genuine dispute witnesses in Adams. In a comparable qualified immunity as to whether Boyd was armed. situation, we stated: The district court made the following brief factual findings At the summary judgment stage, whether the legal that are pertinent at this juncture: violation alleged was clearly established at the time of the incident, as well as whether a genuine issue of 1. There was reported to the police that an material fact exists as to whether the alleged violation “African-American male had allegedly fired a occurred, are questions of law for the court. gun.” Russo v. City of Cincinnati, 953 F.2d 1036, 1043 (6th Cir. 2. A description of the suspect was furnished, and 1992) (citing Dominque v. Telb, 831 F.2d 673, 677 (6th Cir. “[t]his man turned out to be decedent Adolph 1987)). Boyd.” Behrens v. Pelletier, 516 U.S. 299 (1996), also cited by the 3. “Boyd received several fatal shots that dissent, is certainly not controlling in this case. Behrens effectuated his death.” stands for the proposition that defendants asserting the defense of qualified immunity are not limited to one 4. Officer Wilsman fired only one shot with his interlocutory appeal. See id. We simply do not have that shotgun “that led to Boyd’s death.” issue in this case. Unlike the dissent, we see no relevance to the majority opinion in Claybrook v. Birchwell, 199 F.3d 350 5. Officer Baeppler fired at least six additional (6th Cir. 2000), in which the court granted summary judgment shots, and “thirteen (13) entrance wounds were to defendant police officers alleged to have violated the discovered.” plaintiffs’ substantive due process rights, an issue clearly distinct from the one confronting us here. 6. The officers “assert that Boyd possessed a weapon, and he aimed or pointed the weapon in Accordingly, we REVERSE the decision of the district the direction of the officers.” No officer court and grant the qualified immunity claims of both witnessed “Boyd fire a weapon.” defendants. 7. Baeppler and Wilsman “pursue[d] Boyd on foot,” after he ignored their order to stop, and Baeppler fired the first shorts at Boyd, but it is unclear whether any of those shots hit the target.
2 In plaintiff’s brief, Baeppler’s claim that he first saw Boyd with a black object in his hand was dismissed as “incredible.” (Pl.’s Br. at 9.) Counsel speculated, we believe unfairly and without justification, that the police manufactured the contention that Boyd was armed, because the gun found at the scene was not traced to Boyd, and identifiable prints were not produced. 8 Boyd v. Baeppler, et al. No. 99-3234 No. 99-3234 Boyd v. Baeppler, et al. 17
8. “The shotgun blast” fired by Wilsman, who extremity and axillary wounds there was severe claimed that Boyd was pointing his weapon at impairment of ability to turn and with medical him, wounded and felled Boyd. probability Mr. Boyd could not assume a defined posture which would signal his intent and capability to return fire The district court further conceded that “[a] fact is at that point. ‘material’ only if its resolution will affect the outcome of the controversy.” It is put more precisely, however, in Anderson (Emphasis added.) In sum, Dr. Tucker made assumptions v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986): about the sequence of shots and the pathways of the bullets and concluded, not within a reasonable degree of medical As to materiality, the substantive law will identify certainty, but only “with probability,” that a more likely which facts are material. Only disputes over facts that scenario was that Boyd was unable to lift his torso and twist might affect the outcome of the suit under the governing to threaten officer Wilsman a second time. Nowhere does Dr. law will properly preclude the entry of summary Tucker point to any forensic evidence that proves what shot(s) judgment. Factual disputes that are irrelevant or rendered Boyd unable to lift and twist his torso, or at what unnecessary will not be counted. See generally 10A C. point during the sequence of events the critical shot(s) hit Wright, A. Miller, & M. Kane, Federal Practice and Boyd. Procedure § 2725, pp. 93-95 (1983). This materiality inquiry is independent of and separate from the question The speculation of plaintiff’s expert is not sufficient of the incorporation of the evidentiary standard into the evidence to create a genuine issue of material fact. In view of summary judgment determination. That is, while the the uncontroverted evidence in support of the testimony of materiality determination rests on the substantive law, it both officers Baeppler and Wilsman, any jury conclusion to is the substantive law’s identification of which facts are the contrary would necessarily be founded on mere critical and which facts are irrelevant that governs. speculation, not on the evidence. Therefore, we REVERSE the denial of summary judgment for both officers Baeppler As we have already indicated, the issue before us in this and Wilsman and find as fact that Boyd, as perceived by case is not whether3 Boyd presented these officers with a reasonable police officers in the circumstances presented here, Tennessee v. Garner fleeing felon situation--the situation as was armed and remained an imminent threat and a danger to which the district court found that there remained genuine until he finally dropped his weapon after officer Baeppler issues of disputed fact--but rather, whether Boyd presented an fired his last shots. immediate threat to these officers to which they reacted with an unreasonable degree of force. We now review what the In assessing the weight of expert testimony, we do not district court identified as “genuine” issues of fact to resort to a credibility determination. Rather, we conclude that determine whether these disputed facts are material to the the coroner’s report is a clear medical statement not based issues before us. upon mere probabilities. We conclude that Dr. Tucker’s report, which was based upon probabilities only, was essentially a matter of speculation. Adams v. Metiva, 31 F.3d 375 (6th Cir. 1994), cited by the dissent, is clearly distinguishable from this case. Adams involved a confrontation and encounter between an unarmed person and police with several independent eyewitnesses supporting the 3 471 U.S. 1 (1985). 16 Boyd v. Baeppler, et al. No. 99-3234 No. 99-3234 Boyd v. Baeppler, et al. 9
officer Baeppler fired seven more rounds at Boyd until Boyd 1. Was Boyd running away from the officers in an dropped his weapon. attempt to escape? We are of the view also that the forensic evidence also At first blush, it might appear that the district court made a supports the police officers’ rendition of the event. The finding that there was a genuine issue of fact as to whether coroner specifically testified that he could conclude, “within Boyd was fleeing the officers in an attempt to escape. In fact, a reasonable degree of medical certainty,” that “the wounds the district court assumed that Boyd was fleeing, and this may Adolph Boyd sustained to his back . . . are consistent with have been what caused it to apply the Tennessee v. Garner Officers Baeppler’s and Wilsman’s description immediately analysis. However, the issue that is material here is not prior to Officer Wilsman’s discharge of the shotgun;” and that whether Boyd was fleeing, but whether Boyd pointed his the pellet that caused the injury to Boyd’s spinal cord “caused weapon at the officers and thus posed an immediate threat to immediate paralysis of the lower extremities only. He was them. The district court did not address this issue at all. still fully able to move his upper extremities, including his From what has been previously stated, it is clear that when head, arms and torso.” (Emphasis added.) Furthermore, the first observed by the police officers, Boyd was running state’s forensic evidence plainly indicates that neither the toward the officers, gun in hand. Each of the four officers, in sequence nor the exact direction of the shots could be response to that observation, drew his or her weapon, not in determined by an examination of Boyd’s body, and the any attempt to pursue or chase Boyd but to confront a coroner testified that the coroner’s office did not undertake situation fraught with danger. An independent witness had any type of analysis of the musculature and/or nerve damage reported that he heard gunshots, and then saw Boyd armed inflicted by the shots. and pointing the gun at people outside a public restaurant. The police recognized Boyd as the suspect in the area in The only inconsistent “evidence” relied upon by the dissent which4 he had been observed and in which he apparently is found in the report of plaintiff’s expert, Dr. Tucker, who lived. The police themselves independently confirmed that did not examine Boyd’s body, but only reviewed the state’s Boyd was armed but none saw or heard him fire a shot. autopsy report. This autopsy report was the sole basis for his Defendants ordered Boyd to stop, identifying themselves. conclusion that Boyd might not have been able to turn and They testified that Boyd pointed the gun at them and ignored point his weapon after officer Wilsman’s shot landed. Dr. their commands to stop. As he moved away, Boyd allegedly Tucker’s opinion, however, did not definitively conclude that continued to point the gun at the officers. At the outset, then, it would have been impossible for Boyd to raise himself up on Boyd was not running away from the officers. As the officers his arms to aim his weapon again. Dr. Tucker opined, confronted him, he ignored their orders and allegedly “[s]ince the entire spine from the neck to coccyx works as a continued to point his gun at them as he attempted to flee. unit, rational movements are very limited throughout the spine.” (Emphasis added.) Dr. Tucker further speculated: 2. Did Boyd fire the weapon? Thus one can postulate with medical probability that Whether Boyd actually fired the weapon is wholly both arms were impaired from a functional standpoint by immaterial here. The issue is whether or not he threatened to bullet wounds. . . . Admittedly we do not know if these do so. It was reported to the officers that Boyd had probably upper extremity and axillary bullet wounds were suffered before or after the alleged turning toward police officer. . . . However with probability even without these 4 Plaintiff’s brief indicates that Boyd had an apartment in the immediate area of Buckeye Road. 10 Boyd v. Baeppler, et al. No. 99-3234 No. 99-3234 Boyd v. Baeppler, et al. 15
fired the gun and had pointed it at innocent observers at the are overborne by objective proof that Boyd was armed, or scene when observed. They saw Boyd with gun in hand as reasonably perceived to be armed, by the police. did the independent witness. No officer testified that he or she saw Boyd fire the weapon. We deem this, however, as For the reasons indicated, we REVERSE the decision of something other than a genuine and material issue of fact. the district court as to defendant Wilsman. We find him That the defendants did not see or hear Boyd fire the weapon entitled to summary judgment based on qualified immunity does not affect whether the police officers, acting reasonably with respect to his firing one shot from his shotgun at Boyd under the circumstances known to them, acted in defense of under the essentially uncontested material facts. We find as their own safety and the safety of officers through the use of fact that Boyd was armed and could be considered an deadly force. imminent threat and a danger to a reasonable police officer and to his partner in Wilsman’s circumstances. 3. Did Boyd commit a crime? III. LIABILITY OF BAEPPLER Again, this is wholly immaterial to the issue of whether Boyd presented a threat to officers Wilsman and Baeppler. If, Much of our prior discussion applies to defendant Baeppler, indeed, Boyd fired his gun at other people or even pointed his particularly as to his initial shots that may or may not have gun at them, then he may have committed a crime. No one, struck Boyd. Certainly, these shots neither immobilized Boyd however, much less the police, charged or claimed that Boyd nor incapacitated him. Boyd remained on the loose, had just committed a crime when the police confronted him. apparently still armed, and potentially dangerous. We The police never purported to treat him as a fleeing felon concede that the question of qualified immunity as to suspect. They confronted him as a dangerous armed man who defendant Baeppler is more difficult, especially since ignored their reasonable command to stop. That command Baeppler fired multiple shots that contributed to bringing obviously included the direction to stop pointing his gun at about Boyd’s death. The question of law on this case is them, and this, too, was ignored. clear—it is about the conduct of police acting in self-defense, not about pursuit of a fleeing felon or suspect, reasonably The principal issue in Tennessee v. Garner, 471 U.S. 1 thought to be armed and dangerous. (1985), involved the use of deadly force by police in pursuit of an unarmed minor burglar (a “non-violent suspec[t]”) was All of the eyewitness evidence in the record is consistent not before the court with respect to these defendants claiming with the police officers’ recitation of the events that qualified immunity. Garner, 471 U.S. at 10. Garner also surrounded the shooting. Unfortunately, officers Wilsman described the suspect victim as a “nondangerous fleeing and Baeppler, and not Boyd, were the only ones available to suspec[t].” Id. at 11. That was not the factual situation testify about the shooting. Their statements taken during the presented to the court with respect to these defendants police investigation, their deposition testimony and their claiming qualified immunity. The question, rather, from affidavits all tell the same consistent story. They testified that Garner is this: they identified themselves as police officers and ordered Boyd to stop; Boyd continued to flee with his weapon in hand; Where the officer has probable cause to believe that the officer Baeppler fired three to four rounds at Boyd, but Boyd suspect poses a threat of serious physical harm, either to responded by turning and pointing his weapon at officer the officer or to others, it is not constitutionally Wilsman; officer Wilsman fired one shotgun blast and Boyd unreasonable to prevent escape by using deadly force. fell face forward onto the ground; Boyd lifted his torso and Thus, if the suspect threatens the officer with a weapon turned to point his weapon again at officer Wilsman; finally, 14 Boyd v. Baeppler, et al. No. 99-3234 No. 99-3234 Boyd v. Baeppler, et al. 11
plaintiff, supports our view that officer Wilsman is entitled to5 or there is probable cause to believe that he has qualified immunity for his part in the encounter in question. committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be Our decision as to defendants and their qualified immunity used if necessary to prevent escape, and if, where is also supported by the statement from Smith v. Freland, 954 feasible, some warning has been given. F.2d 343, 347 (6th Cir. 1992), that Id. at 11, 12. Thus, under Graham, we must avoid substituting our personal notions of proper police procedure for the We note also that in Garner the complaint under 42 U.S.C. instantaneous decision of the officer at the scene. We § 1983 had been dismissed against the individual police must never allow the theoretical, sanitized world of our officers actually involved in the shooting. Id. at 22. The imagination to replace the dangerous and complex world dissent in Garner made special mention of “the difficult, that policemen face every day. What constitutes split-second decisions police officers must make.” Id. at 23. “reasonable” action may seem quite different to someone The case, according to the dissent, fell within “‘the rubric of facing a possible assailant than to someone analyzing the police conduct . . . necessarily [involving] swift action question at leisure. predicated upon the on-the-spot observations of the officers on the beat.’” Id. at 26 (quoting Terry v. Ohio, 392 U.S. 1, 20 Id. (citing Graham v. Connor, 490 U.S. 386, 396-97 (1989)). (1968)). The main points that distinguish Garner from this See also, in a somewhat comparable situation, Bell v. City of case are that the suspect in Garner was (1) deemed to be East Cleveland, No. 96-3801, 1997 WL 640116 (6th Cir. Oct. unarmed; (2) non-violent; (3) non-dangerous; (4) a minor; 14, 1997) (unpublished). With respect to our grants of and (5) the suspect did anything but confront the police. qualified immunity, contrary to assertions of the dissent, we do not base our opinion upon conflicting factual contentions The inquiry in § 1983 actions against a police officer for or credibility determinations. The testimony of both unlawful or unconstitutional use of force is an objective one defendant police officers is supported by objective and based upon the “information possessed” by the police officer reasonable evidence. The eyewitness testimony of a number involved. Anderson v. Creighton, 483 U.S. 635, 641 (1987). of persons and the broadcasts to the defendants support a It involves what a reasonable police officer would believe to conclusion that the deceased was armed, even that he had be lawful based upon the information then possessed, not probably fired his weapon. Plaintiff’s “counternarrative” in what the officers subjectively may have believed. See id. In her brief that Boyd was not carrying a gun, in our view, is not the case before us here, the question is whether reasonable based upon substantial and material evidence. See Bell, 1997 officers in the position of officers Wilsman and Baeppler WL 640116. The various tests (fingerprint, residue, and would have believed that it was lawful under the firearm trace) are inconclusive under the circumstances and circumstances to use the same degree of force used by those officers. We have already reviewed the information upon which the officers initially acted, some based upon the officers’ personal observation. We view the scene and 5 activity from the perspective, then, of the reasonable police Hopkins v. Andaya, 958 F.2d 881 (9th Cir. 1992), also relied upon officer at the scene based on reports and information received by plaintiff, involved a police encounter with an unarmed man. We do not deem it pertinent, nor do we consider Martin v. Heideman, 106 F.3d and what he has observed. See Graham v. Conner, 490 U.S. 1308 (6th Cir. 1997), to be relevant to the factual circumstances of this case. 12 Boyd v. Baeppler, et al. No. 99-3234 No. 99-3234 Boyd v. Baeppler, et al. 13
386 (1989); Scott v. Clay County, ___ F.3d ___, No. 98-6157, was “a semi-automatic.” Boyd “appeared to fit the 2000 WL 228300 (6th Cir. Mar. 1, 2000). description given” Wilsman for a male “supposed to be shooting.” Wilsman’s affidavit was consistent with his II. LIABILITY OF WILSMAN statement and response to questions, but it added that before he fired, he “feared for [his] own life, the life of [his] partner, Wilsman fired one shot from his shotgun which “propelled and others. . . .” Plaintiff concedes in her brief that “it is Boyd towards the ground.” No one, including plaintiff’s unknown whether any of Baeppler’s earlier shots struck expert, testified or contended that Wilsman’s shot was the Boyd.” It was unknown to Wilsman, who heard shots, deadly force that brought about Boyd’s death. The question whether Baeppler, Boyd, or perhaps some one else had fired in Wilsman’s case, then, is whether he used “a degree of force these shots. Plaintiff describes Wilsman’s stated observations that was unreasonable under the circumstances and in of Boyd’s pointing his gun at him while running as incredible. violation of decedent’s rights,” not whether he himself was (Pl.’s Br. at 12.) Most of the plaintiff’s brief, however, is guilty of administering deadly force, and whether he acted in directed at officer Baeppler and his actions. concert with Baeppler in administering deadly force. We do make all reasonable and justifiable inferences in In our view, from the perspective of Wilsman, based upon favor of plaintiff, the non-movant. Anderson v. Liberty the information available to him and the circumstances from Lobby, 477 U.S. 242, 255 (1986). This is not, however, his viewpoint at the time he fired the single shot, we believe insofar as officer Wilsman is concerned, a case as to whether that he was entitled to qualified immunity, and we therefore he used deadly force or excessive force to capture a fleeing REVERSE the denial of summary judgment in this regard. felon, or a suspect attempting to escape. As to Wilsman, it is His contemporaneous report indicated an emergency call to a case of whether he acted reasonably in response to a the scene at about 11:30 p.m. “for a male with a gun, dangerous, split-second encounter late at night with an armed shooting.” Other police reported seeing the suspect “running man reported to have been shooting the gun he had in hand . . . with a gun in his hand,” and Wilsman then saw Boyd pointed at the officer. “running towards me . . . with a gun in his right hand.” Wilsman, in uniform, yelled “stop, police,” and Boyd Plaintiff relies upon Russo v. City of Cincinnati, 953 F.2d disregarded the warning, proceeding “diagonally across 1036 (6th Cir. 1992), but that case held that in the § 1983 Buckeye.” Wilsman “turned to run around the squad car to claim, qualified immunity context, “plaintiff must present cut him off.” While running on this mission, Wilsman “heard ‘evidence sufficient to create a genuine issue as to whether the a couple of shots.” He then saw Boyd “still running . . . defendant in fact’” violated “clearly established law” in taking looked back at us . . . pointed his gun . . . back at us.” As the action he did. “Whether a genuine issue of material fact Wilsman saw it, Boyd “pointed the gun at me . . . right at my exists” is a question of law. Id. at 1043. In Russo, we head, I could see down the barrel, and I thought I was a emphasized that we must “look to the ‘facts and goner.” Wilsman then fired the shotgun at Boyd, and Boyd circumstances of each particular case . . . whether the suspect went down, gun still in hand. Wilsman approached Boyd pose[d] an immediate threat to the safety of the officers or telling him to drop the gun. Again, Boyd ignored that others, and whether he [was] . . . attempting to evade arrest by command. Wilsman did not fire again, but his partner, flight.’” Id. at 1044. We believe Ford v. Childers, 855 F.2d Baeppler–threatened–fired additional shots at closer range. 1271, 1275-76 (7th Cir. 1988) (en banc), also cited by Wilsman did not know when he fired at Boyd, whether the latter had fired his own pistol at them which Wilsman thought