NOT RECOMMENDED FOR PUBLICATION File Name: 21a0421n.06
Case Nos. 20-1003/1222
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
NELDA KELLOM, Individually and as ) Personal Representative of the Estate of ) FILED Sep 03, 2021 TERRANCE KELLOM, Deceased; ) DEBORAH S. HUNT, Clerk LAWANDA KELLOM, TERRELL ) KELLOM, KEVIN KELLOM, and TERIA ) KELLOM, Individually; JANAY WILLIAMS, ) as personal representative of Terrance ) Kellom’s two minor children, son, T.D.K., and ) ON APPEAL FROM THE UNITED daughter, T.D.K., ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF Plaintiffs-Appellants, ) MICHIGAN v. ) ) MITCHELL QUINN, Immigration and ) Customs Enforcement Agent; UNITED ) STATES OF AMERICA, ) Defendants-Appellees (20-1003/1222), ) ) DARELL FITZGERALD and TREVA ) EATON, individually and in their official ) capacities as Detroit Police Officers; CITY OF ) DETROIT, MICHIGAN; JAMES E. CRAIG, ) in his official capacity, jointly and severally, ) ) Defendants-Appellees (20-1003). ) .
BEFORE: SILER, MOORE, and THAPAR, Circuit Judges.
THAPAR, Circuit Judge. This case involves the fatal shooting of Terrance Kellom during
an attempted arrest. A jury decided that the shooting was justified. But Kellom’s estate and family Case Nos. 20-1003/1222, Kellom, et al. v. Quinn, et al.
now challenge various pre-trial rulings by the district court, plus evidentiary rulings at trial. We
affirm in part, reverse in part, and remand some issues to the district court.
I.
Terrance Kellom had outstanding arrest warrants for armed robbery and unlawful
possession of a firearm. So law enforcement deployed a federal task force to find him. As part of
their search, task force members visited the home of Kellom’s girlfriend. She told them that
Kellom had recently shattered her car windows with a hammer and threatened to burn down her
house. She also told police that Kellom was living at his father’s house and described his car.
Officer Treva Eaton, a Detroit police officer and member of the federal task force, went to
Kellom’s father’s house to conduct surveillance. She observed Kellom’s car in the driveway and
watched him come in and out of the house. Having located Kellom, the task force set up outside
the house to arrest him.
Officer Darell Fitzgerald, another Detroit police officer on the federal task force, knocked
on the front door. When Kellom’s father answered, Fitzgerald explained that Kellom had
outstanding warrants and that police were there to make an arrest. Fitzgerald continued to speak
with Kellom’s father while other officers began searching for Kellom inside the home. A task
force member found Kellom in the upstairs attic, identified himself as law enforcement, and
ordered Kellom to show his hands. Kellom did not comply. Instead, he warned the officer that he
had a gun and that the police would “have to kill [him].” R. 234, Pg. ID 5296. The officer radioed
for backup.
Agent Mitchell Quinn, an Immigration and Customs Enforcement officer and a third
member of the federal task force, heard the call for assistance and entered the home. Meanwhile,
officers upstairs observed Kellom attempting to escape through the attic’s floor with a hammer.
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Quinn positioned himself in a first-floor hallway beneath the attic where he thought Kellom would
land. When Kellom eventually breached the attic’s floor, he fell into a bedroom off the hallway
near Quinn. Quinn heard the fall, but his view inside the bedroom was obstructed. So he drew his
service pistol and began stepping backward.
Moments later, Kellom exited the bedroom with the hammer raised above his head and
started towards Quinn. Quinn fired once, hitting Kellom, but Kellom continued to advance. Quinn
tripped while stepping back, firing several more shots as he fell, and Kellom collapsed forward
onto the floor. Kellom died from his injuries.
Kellom’s estate and family sued. Their complaint raised four counts: (1) a Bivens claim
against Quinn, Eaton, and Fitzgerald for excessive force in violation of the Fourth Amendment;1
(2) a federal civil rights claim against Eaton and Fitzgerald for excessive force in violation of the
Fourteenth Amendment; (3) a federal civil rights conspiracy claim against Quinn, Eaton, and
Fitzgerald alleging a cover-up of the events leading to Kellom’s death; and (4) a state-law tort
claim for wrongful death against Quinn, Eaton, and Fitzgerald.
About three weeks after filing the complaint, the Estate filed an administrative claim for
damages with the federal agency in charge of the task force. The agency denied the claim.
After the administrative claim was denied, the Estate amended its complaint. The amended
complaint added Kellom’s father and other family members as plaintiffs and raised some new
claims. Among other changes, the amended complaint added a state-law claim for intentional
infliction of emotional distress against Eaton, Fitzgerald, and the United States, a state-law
wrongful death claim against the United States, and a Fourth Amendment claim for unlawful
1 See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
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search. The plaintiffs also raised a municipal liability claim against the City of Detroit and various
Detroit officers.
The district court dismissed every claim before trial except the excessive force claim
against Quinn. A jury found that Quinn’s actions were justified. Now on appeal, the plaintiffs
challenge the district court’s dismissal of some claims. They also challenge various evidentiary
rulings at trial. We address each issue in turn.
II.
FTCA Claims. We review de novo the district court’s dismissal of the plaintiffs’ tort claims
for lack of jurisdiction. Jackson v. United States, 751 F.3d 712, 716 (6th Cir. 2014).
Under the doctrine of sovereign immunity, courts lack jurisdiction to hear claims for
damages against the United States. FDIC v. Meyer, 510 U.S. 471, 475 (1994). The only exception
is where the government specifically consents to suit by waiving sovereign immunity. The
government did just that when it passed the Federal Tort Claims Act (FTCA), which waives the
government’s immunity from certain state-law tort claims. See 28 U.S.C. § 1346(b).
But there’s a catch. Before plaintiffs can sue a federal employee, the FTCA requires them
to exhaust administrative remedies. See McNeil v. United States, 508 U.S. 106, 112 (1993). That
means plaintiffs must first present their damages claim to the relevant governmental agency and
pursue that claim until the agency renders a final decision. 28 U.S.C. § 2675(a). If the agency
doesn’t resolve the claim to the party’s satisfaction within six months, the plaintiffs can bring a
lawsuit. Id.
Not all plaintiffs must follow this rule: The exhaustion requirement applies only to suits
against a federal employee acting within the scope of her employment. If a federal employee
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commits a tort outside the scope of her employment, she is no different than any other defendant
and a plaintiff can sue the employee without going to her agency first.
The problem for plaintiffs is that it’s not always clear whether a defendant is a federal
employee, and if she is, whether the tort occurred within the scope of her employment. So how
does a plaintiff know to exhaust?
As an initial matter, plaintiffs must always exhaust if they allege in their complaint that a
defendant is a federal employee acting within the scope of her employment. For all other plaintiffs,
the Westfall Act provides some guidance. Under the Westfall Act, the Attorney General can
certify that a defendant was a federal employee acting within the scope of her employment. That
makes the FTCA the exclusive remedy for the torts that occurred, and it shields the employee from
personal liability. It also puts the plaintiffs on notice that they must exhaust administrative
remedies before filing a lawsuit.
What if the Attorney General certifies after the plaintiffs have already filed suit? Under
the FTCA and the Westfall Act, the court must dismiss the case against the employees. And the
plaintiffs can try again by suing the United States after exhausting. But the plaintiffs’ second
attempt must “institute” an “action.” 28 U.S.C. § 2675(a).
The plaintiffs here allege that Quinn, Eaton, and Fitzgerald committed torts in the scope of
their federal employment. Thus, under the FTCA, the plaintiffs had to exhaust their administrative
claims before filing a lawsuit. But the plaintiffs filed suit first. So the district court dismissed the
plaintiffs’ FTCA claims for lack of jurisdiction.
Under long-standing Sixth Circuit precedent, that made sense: We’ve previously held that
the FTCA’s exhaustion requirement is jurisdictional. See Exec. Jet Aviation, Inc. v. United States,
507 F.2d 508, 514–15 (6th Cir. 1974). But while this appeal was pending, the Sixth Circuit
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changed course and held that failure to exhaust under the FTCA does not deprive a court of
jurisdiction. Copen v. United States, 3 F.4th 875 (6th Cir. 2021). To be sure, Copen dealt with a
different aspect of the FTCA’s exhaustion requirement. The court in Copen considered the
FTCA’s requirement that a plaintiff specify the dollar amount he seeks to recover in his
administrative claim, while the plaintiffs here failed to make any administrative claim at all before
filing suit. Compare 28 U.S.C. § 2675(b), with id. § 2675(a). But Copen’s reasoning is still
instructive. In Copen, we followed the Supreme Court’s instruction to look for a clear statement
by Congress before treating a statutory requirement as a jurisdictional rule. 3 F.4th at 880–81
(citing Arbaugh v. Y&H Corp., 546 U.S. 500, 515–16 (2006)). The FTCA’s dollar-amount
requirement does not explicitly limit our jurisdiction. So we held that failure to satisfy it does not
deprive us of jurisdiction. Id. at 882.
The same is true here. The FTCA’s provision requiring plaintiffs to first file an
administrative claim does not say anything about a court’s jurisdiction. So consistent with Copen,
failure to satisfy that requirement does not deprive a court of jurisdiction.
Because the exhaustion requirement is not jurisdictional, the procedural history in this case
matters. When the United States moved for summary judgment based on lack of jurisdiction, the
plaintiffs responded that the government’s motion was untimely. Of course, that wouldn’t matter
if the failure to institute a new action had deprived the court of jurisdiction. Jurisdictional rules
limit a court’s power to hear a case, and they cannot be forfeited or waived. So a party can seek
dismissal for jurisdictional defects at any point in the litigation. But claim-processing rules like
this one are not jurisdictional and don’t always mandate dismissal. See Henderson v. Shinseki,
562 U.S. 428, 435 (2011). Moreover, the government’s motion was filed after the Estate had
exhausted its administrative remedies and had filed an unopposed amended complaint. Thus, if
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the government’s motion was truly too late, that could have consequences. We will leave it for
the district court to decide in the first instance whether to excuse any delay and whether the
amended complaint filed post-exhaustion cures any defect.
Municipal Liability Claim. The plaintiffs next claim that the City of Detroit and its police
chief (in his official capacity) violated Kellom’s federal rights by, among other things, failing to
properly train and supervise their officers. See Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S.
658 (1978). To make out a claim for municipal liability, a plaintiff must show “(1) that a violation
of a federal right took place, (2) that the defendants acted under color of state law, and (3) that a
municipality’s policy or custom caused that violation to happen.” Bright v. Gallia Cnty., 753 F.3d
639, 660 (6th Cir. 2014) (citation omitted). Here, the plaintiffs’ municipal liability claim fails at
step two: Kellom died during a federal law enforcement operation, so the individual defendants
acted under color of federal, not state, law. See Burley v. Gagacki, 729 F.3d 610, 619 (6th Cir.
2013). Since the plaintiffs failed to show a necessary element of their municipal liability claim,
we affirm summary judgment on that claim.
Fourth Amendment Claim. We next consider the plaintiffs’ claim that Quinn, Eaton, and
Fitzgerald violated the Fourth Amendment by entering their home to arrest Kellom without a
search warrant or consent. The district court disagreed and granted summary judgment for the
defendants. We affirm.
When police have an arrest warrant, they may enter a home upon reasonable belief that
(1) it is the residence of the subject of the arrest warrant, and (2) the subject is present. El Bey v.
Roop, 530 F.3d 407, 416 (6th Cir. 2008). That rule applies even if someone else owns the home.
Id. at 415–16. So long as police reasonably believe that the suspect lives there and is present, an
arrest warrant will suffice. Thus, to avoid summary judgment, the plaintiffs must point to evidence
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that would allow a jury to conclude that Quinn, Eaton, and Fitzgerald did not reasonably believe
that Kellom lived in his father’s home or was present when they entered to make the arrest. See
id. at 418–19.
The plaintiffs haven’t done that. Instead, they point to evidence that the task force visited
two other homes before they eventually found Kellom at his father’s house. But that does nothing
to raise a fact dispute over whether police reasonably believed Kellom lived there. The first place
the task force looked was the residence Kellom listed on his prison records. When they didn’t find
him there, the task force went to Kellom’s girlfriend’s house. She told police that Kellom was
living at his father’s house and provided a detailed description of his car. The task force then
surveilled his father’s house, saw Kellom’s car, and observed Kellom coming in and out of the
house. That’s enough for the police to form a reasonable belief that Kellom lived there and was
there when they entered. See, e.g., Harris v. Smith, 390 F. App’x 577, 579 (7th Cir. 2010) (finding
reasonable belief on similar facts). And the plaintiffs cite no evidence, and make no argument, for
why a jury might see it differently in this case. Thus, the district court did not err in granting
summary judgment on the plaintiffs’ Fourth Amendment claim.
Evidentiary Rulings. Finally, the plaintiffs challenge several evidentiary rulings from
Quinn’s excessive-force trial. We review these evidentiary rulings for abuse of discretion. See
Frye v. CSX Transp., Inc., 933 F.3d 591, 598 (6th Cir. 2019).
We start by laying out the pertinent rules of evidence. First, testimony that recounts another
person’s out-of-court statements is excludable on hearsay grounds if it is offered to prove that the
out-of-court statements are true. Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 378 (6th Cir.
2009). But that testimony is admissible if offered for a different purpose—for example, to show
the effect of the statements on the listener. Id. at 379. Second, testimony is irrelevant, and thus
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excludable, if it lacks “the slightest probative worth” in resolving the case. United States v.
Whittington, 455 F.3d 736, 739 (6th Cir. 2006) (cleaned up). Third, relevant testimony may be
excluded if its probative value is “substantially outweighed by the danger of unfair prejudice.” Id.
(cleaned up). And finally, relevant testimony that is “needlessly cumulative” may be excluded.
Ayers v. City of Cleveland, 773 F.3d 161, 169 (6th Cir. 2014).
The plaintiffs here contest the district court’s decisions: (1) to allow task force members
to recount statements by Kellom’s girlfriend that Kellom had recently acted violently and
threatened future violent acts; (2) to allow task force members to testify to the facts underlying
Kellom’s arrest warrants; and (3) to limit the plaintiffs’ counsel’s cross-examination of Quinn.
Their arguments are unavailing.
Start with the testimony concerning Kellom’s girlfriend. The plaintiffs argue that the
district court should have excluded as hearsay all testimony by task force members relaying
statements made by Kellom’s girlfriend. But as the trial judge explained, that testimony was not
offered to prove that what Kellom’s girlfriend said was true—namely, that Kellom had recently
destroyed her car and threatened to burn down her house. Instead, that testimony was offered to
show the effect on the task force members: Leading up to the attempted arrest, the task force
members believed Kellom had recently engaged in violent behavior. That is a proper, non-hearsay
purpose. So the district court did not abuse its discretion by allowing the testimony.
Nor did it err by rejecting the plaintiffs’ relevancy objection to that same testimony. The
jury’s task was to determine whether Quinn’s actions were objectively reasonable under all of the
circumstances surrounding his use of force. See Graham v. Connor, 490 U.S. 386, 397 (1989).
Information that Kellom had recently engaged in violent behavior would inform a reasonable
officer standing in Quinn’s shoes on whether and how much force was necessary. And though
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other task force members also testified to Kellom’s girlfriend’s statements, their testimony could
help the jury decide whether Quinn’s actions were reasonable because these officers told Quinn
what they learned prior to the shooting. And their testimony is also relevant for a second reason:
It corroborated Quinn’s account. See United States v. Flores, 488 F. App’x 68, 71 (6th Cir. 2012).
Allowing the testimony for those purposes was not an abuse of discretion.
For their part, the plaintiffs respond that even if the task force members’ testimony was
relevant to Quinn’s state of mind, and thus admissible, the testimony was still needlessly
cumulative. We disagree. Just because multiple witnesses testify to the same facts does not make
the testimony impermissibly cumulative. Ayers, 773 F.3d at 169–70. Rather, the plaintiffs must
establish that the duplicative evidence confused or misled the jury or otherwise adversely affected
their case. See id. They didn’t, so we defer to the district court’s ruling.
The plaintiffs next attack the district court’s decision to allow task force members to testify
to the facts underlying Kellom’s arrest warrants. They claim that testimony is unfairly prejudicial
and impermissible character evidence. But that misunderstands character evidence. Evidence of
prior bad acts is excludable as character evidence only if it is used to show that a person acted in
accord with his criminal past. Fed. R. Evid. 404(a)(1), (b)(1). Here, Quinn’s defense offered that
testimony for a different purpose: To explain the basis of the arrest warrant and to show what a
reasonable officer would have known going into the operation to arrest Kellom. So the district
court did not err in allowing the testimony.
One evidentiary challenge remains. The plaintiffs argue that the district court erred by
stopping plaintiffs’ counsel from asking Quinn if he thought Kellom was attempting to escape
when Quinn fired the fatal shots. The district court excluded the question since plaintiffs’ counsel
had asked, and received answers to, that line of questioning “four and five times.” R. 235, Pg. ID
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5502–05. The district court’s decision was within its discretion. District courts have broad
authority to conduct trials in a way that ensures fairness to both sides. And that includes the
authority to stop lawyers from repeatedly asking the same question. We will not disturb the district
court’s decision on appeal.
Sanctions Order. Finally, the plaintiffs contend that the district court erred by sanctioning
their attorney for violating a protective order. We review a district court’s imposition of sanctions
for an abuse of discretion. Rolex Watch U.S.A., Inc. v. Crowley, 74 F.3d 716, 721 (6th Cir. 1996).
At the outset of this case, the parties drafted and stipulated to a protective order limiting
the public dissemination of discovery materials and other related records. The scope of the
protective order is broad. It governs the “production and disclosure of any documents,
electronically stored information, materials, things, discovery material (including responses to
interrogatories, depositions, and requests to admit), materials filed with the Court, or testimony in
this action.” R. 29, Pg. ID 232. The order states that the parties “shall not disclose” covered
information “to any person unless the disclosure is reasonably and in good faith calculated to aid
in the preparation and/or prosecution of this case.” Id., Pg. ID 233.
After entry of the protective order, the plaintiffs’ attorney disclosed discovery materials to
the public on two occasions. First, he participated in a televised interview where he described the
contents of Fitzgerald’s deposition and provided photographs and other documents to reporters.2
Second, he held a press conference where he discussed and criticized the deposition testimony of
another officer involved in Kellom’s case.
2 When the district court asked the plaintiffs’ counsel whether he disclosed the documents, counsel said that he did not know. The district court did not find that response credible. See R. 127, Pg. ID 3062 n.1.
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The district court concluded these disclosures violated the protective order and ordered the
plaintiffs’ attorney to pay $2,000 as a sanction. In reviewing that ruling, we must determine
whether the material disclosed by the plaintiffs’ attorney is covered by the protective order.
The protective order is not a model of clarity. For example, paragraph 5 states that “[a]ny
discovery materials disclosed to plaintiff under this order shall be used only to prepare for and to
prosecute this action.” R. 29, Pg. ID 234 (emphasis added). Yet paragraph 6 states that “[a]
disclosing party shall only designate records as subject to this order that the disclosing party
reasonably believes warrant such treatment . . . .” Id. So it’s not clear whether the parties agreed
to restrict the dissemination of materials that were not specifically designated. What is clear,
however, is that designated materials may not be disclosed. But from the record, we cannot
determine if the sanctions were imposed because the attorney disclosed designated materials. If
he did, sanctions are appropriate. If not, the district court must answer the harder question:
whether the best reading of the protective order bars disclosure of materials not specifically
designated under paragraph 6. Thus, we vacate the district court’s sanctions order and remand for
fact-finding on the nature of the materials the plaintiffs’ attorney disclosed and such further
proceedings as are appropriate.
III.
Having considered the plaintiffs’ many objections to the district court’s rulings, we remand
the FTCA claims, affirm in part, and vacate the sanctions order.
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