Pamela Hanson v. City of Fairview Park, Ohio

349 F. App'x 70
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 20, 2009
Docket08-4238
StatusUnpublished
Cited by7 cases

This text of 349 F. App'x 70 (Pamela Hanson v. City of Fairview Park, Ohio) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pamela Hanson v. City of Fairview Park, Ohio, 349 F. App'x 70 (6th Cir. 2009).

Opinions

KENNEDY, Circuit Judge.

Officer John Brewer, a police officer for the city of Fairview Park, Ohio, appeals the district court’s denial of his motion for summary judgment on the grounds of qualified immunity. Officer Brewer was dispatched to the Hanson home based on information that the male householder was “out of control” and “trashing the [Hanson’s] house.” In the course of investigating what was going on at the Hanson home, Officer Brewer shot Scott Hanson three times, killing him. Scott’s wife, Pamela Hanson, brought this action against Officer Brewer pursuant to 42 U.S.C. § 1983, claiming that defendant violated her husband’s Fourth Amendment right to be free from excessive force. Defendant Brewer sought summary judgment, claiming that on the undisputed facts, he was entitled to qualified immunity for his use of deadly force. The district court held that there were material issues of fact as to what occurred that night and denied the motion for summary judgment. Because we find that the district court, in denying defendant’s motion, properly determined that genuine issues of material fact remained as to the events that led to Scott Hanson’s death, we DISMISS the present appeal for lack of jurisdiction.

BACKGROUND

This ease involves conflicting accounts of an incident that began with defendant Officer Brewer responding to a 911 call and resulted in Officer Brewer shooting and killing the husband of plaintiff Pamela Hanson. Relevant to this appeal are the events that occurred immediately prior to Scott Hanson’s death. At 6:15 on the evening of the shooting, Officer Brewer responded to a radio dispatch stating that there was “a male out of control trashing the house” at Hanson’s address. Upon arriving at the Hansons’ home, Officer Brewer testified that he saw a PT Cruiser “smashed into the house” and that a car had been driven through the garage door. Hearing noise coming from the garage, he walked toward the garage and found Mr. Hanson “walking back and forth like he’s agitated,” and, with two golf clubs, “beating something like a workbench.” The officer testified that he then called out to Mr. Hanson, and “as soon as he sees me he starts to come directly towards me.” Officer Brewer testified that, though he ordered Mr. Hanson repeatedly to stop, Hanson “charged” toward him, walking “briskly” with two golf clubs in his hands. Officer Brewer testified that Hanson then raised the clubs above his head and said “I’m coming for you.” Officer Brewer retreated toward the street. He testified that, feeling trapped by the crashed PT [72]*72Cruiser and unable to safely retreat further, he fired his weapon three times, killing Mr. Hanson.

The district court found that this testimony differed materially from the testimony of Shirley Cooney, the Hansons’ neighbor who, along with her husband, Marty Cooney, witnessed the incident from her home across the street. In a statement Shirley Cooney provided shortly following the incident, she stated that she did not see whether or not Hanson was armed with golf clubs when he approached Brewer. At her later deposition, however, she testified that she did not see anything in Hanson’s hands when he came into her view as he retreated toward the street. While she agreed in that deposition that Mr. Hanson had approached Officer Brewer “briskly,” she stated that Mr. Hanson’s “hands were at his side” as he advanced toward Officer Brewer. Her husband Marty Cooney, both in his statement that night and in his deposition, indicated he was unable to see anything in Scott’s hands, explaining that “it is dark in that area because of the trees.”

The district court found that the discrepancy as to whether or not Mr. Hanson used golf clubs in threatening Officer Brewer was relevant in analyzing the reasonableness of Officer Brewer’s use of deadly force. In addition, the district court found that “controlling issues” of material fact remained as to whether Mr. Hanson was walking toward Officer Brewer with the golf clubs raised at the time he was shot and whether the officer’s opportunity to retreat was obstructed by the PT Cruiser. In light of these remaining issues of material fact, the district court denied summary judgment and qualified immunity to defendant.

On appeal, defendant argues that this Court has jurisdiction of this interlocutory appeal pursuant to the “collateral order doctrine” found in 28 U.S.C. § 1292. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Pursuant to this doctrine, he argues, our Court has jurisdiction over interlocutory appeals where the denial of summary judgment was based on qualified immunity. Id. On the merits, defendant first argues that the district court improperly imposed an “implicit duty to retreat” on Officer Brewer in considering whether his use of force was unreasonable and thus in violation of the Fourth Amendment. Second, defendant argues that the district court erred as a matter of law when it considered witness Shirley Cooney’s deposition testimony in concluding that a material issue of fact indeed remained as to whether or not Mr. Hanson was actually using golf clubs to threaten Officer Brewer at the time Mr. Hanson was shot. The clubs were found near his body after the shooting.

In response, plaintiff argues that because the district court’s denial of summary judgment was based on the existence of genuine issues of material fact rather than on purely legal issues, our Court lacks jurisdiction over this interlocutory appeal. See Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). In addition, plaintiff argues that even if our Court does have jurisdiction, we should affirm the district court’s denial of summary judgment because material issues of fact remain as to the incident that resulted in Hanson’s death.

ANALYSIS

The Supreme Court has held that where an order denying qualified immunity turns on a pure question of law, it may be appealed immediately. Mitchell, 472 U.S. at 511, 105 S.Ct. 2806. The Court has also held, however, that where the order turns on the existence of material issues of fact, it is not immediately appealable. Johnson, [73]*73515 U.S. at 319, 115 S.Ct. 2151. In Johnson, a district court denied several police officers’ motion for summary judgment on a plaintiffs § 1983 claim alleging excessive force. Id. The basis for the denial was the determination that material issues of fact existed as to the officers’ roles in the alleged beating. Id. On appeal, the Supreme Court held that the Seventh Circuit’s dismissal of the appeal for lack of jurisdiction was proper because “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.” Id. at 319, 115 S.Ct. 2151.

In this case, the district court’s denial of the summary judgment motion filed by defendant claiming qualified immunity was clearly based on a determination that material factual disputes remained. Regarding the affirmative defense of qualified immunity asserted by defendant, the court stated:

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