Ruby Sheffey v. City of Covington

564 F. App'x 783
Court of Appeals for the Sixth Circuit·Decided April 28, 2014·No. 12-5109·Unpublished·Cited by 25 cases

Opinions

FREDERICK P. STAMP, JR., Senior District Judge.

Plaintiff-appellant, Ruby Sheffey (“Shef-fey”), appeals the opinion and judgment of the United States District Court for the Eastern District of Kentucky (“district court”) granting summary judgment in favor of the defendants/appellees Ron Allen (“Allen”), Robert Bacon (“Bacon”), Eric Higgins (“Higgins”), Steve Bohman (“Boh-[785] man”), and Sergeant William Webster (‘Webster”) (collectively “the responding officers”) and dismissing Sheffey’s federal civil-rights claims against them, claims which she filed in her capacity as executor of the estate of her son, Leroy Hughes (“Mr. Hughes”). On appeal, Sheffey argues that the district court erred in finding that the responding officers were entitled to qualified immunity relating to her allegations against them. For the reasons stated below, we affirm.

I. Background

This civil action arises from an incident occurring on December 3, 2008, in Coving-ton, Kentucky, which resulted in the death of Leroy Hughes.1 On that Wednesday afternoon, Mr. Hughes, who at the time was fifty-two years old, stood six feet six inches tall, and weighed 410 pounds, was walking down a residential street located in the vicinity of two elementary schools. A witness who observed Mr. Hughes noticed him carrying a handgun and quickly placing the handgun in one pocket and clips and ammunition in a separate pocket upon the approach of a bus. The witness, believing that this behavior was abnormal and suspicious, called 911 to report a suspicious subject. Police then responded to the call, but did not find anyone matching the description given by the witness.2 The same witness subsequently called 911 a second time, after noticing officers passing Mr. Hughes without stopping, to report that Mr. Hughes was now walking in the vicinity of two local elementary schools,' and that responding officers would find him on the sidewalk in the school zone. At around 11:00 a.m., the responding officers arrived at the scene and, having received a report that Mr. Hughes was armed with a concealed weapon and was acting suspiciously in a school zone, attempted to stop Mr. Hughes.

Officer Allen was the first responding officer to locate Mr. Hughes. Officer Allen stopped his vehicle, opened his car door, and, standing behind the door for cover, drew his gun and ordered Mr. Hughes to the ground. Mr. Hughes ignored Officer Allen’s orders, and instead shuffled back and forth on his feet and moved his hands around the area of his waistband, repeating the word “dynamite.” Based upon this reaction to his commands, Officer Allen informed the dispatcher that Mr. Hughes was noncompliant, and that he was possibly a “Signal 2,” which means that he was either intoxicated or mentally disturbed.3 Around this same time, Officer Bacon, who had arrived at the scene contemporaneously to Officer Allen and had parked his vehicle behind Officer Al[786] len’s, drew his gun and also began to issue commands to Mr. Hughes.

Officers Bohman and Higgins then arrived at the scene and began to provide backup for Officers Allen and Bacon and clear the crowd of individuals and vehicles that had formed. Officer Allen then lowered his voice and began to approach Mr. Hughes, continuing to command him, verbally and with hand signals, to show his hands and get onto the ground. Officer Bacon offered backup to Officer Allen as he approached Mr. Hughes, who continued to react to the officers’ commands as he originally had, by rocking on his feet, moving his hands around the area of his waistband, and repeating the word “dynamite.” At Officer Allen’s direction, Officer Bacon reholstered his firearm and removed his taser in anticipation of a less-than-lethal-force confrontation. As the officers approached, Mr. Hughes said, “fuck it, I’m out of here” and began to walk toward Officer Bacon. Accounts differ as to whether or not Mr. Hughes had his hands clenched as he approached Officer Bacon, but all accounts agree that he began to move to either approach Officer Bacon or to attempt to flee. Officer Bacon then, at the same time that Officer Allen directed him to do so, deployed his taser in probe mode, striking Mr. Hughes in the upper left shoulder/chest area. Witnesses agree that Mr. Hughes did not react to the deployment of the taser, except to say “ouch” and to reach to remove the probes.4 Id. at *14. Mr. Hughes continued to approach Officer Bacon and, upon instruction from Officer Allen, Officer Bacon cycled the ta-ser and attempted to utilize the device a second time through the prongs already deployed. After the second attempt also failed, Officer Bacon dropped his taser, believing it to be ineffective against Mr. Hughes.

Mr. Hughes next reached into his pocket and threw a box of ammunition at Officer Allen, saying “fuck it, it’s not loaded.” Officer Higgins, at this time, fired his taser in probe mode twice into Mr. Hughes’s back, which action, again, had little effect on Mr. Hughes, aside from causing him to turn to look at Officer Higgins. However, even as Mr. Hughes turned to face Officer Higgins, he continued to reach for his waistband, and Officer Higgins warned the other officers of this. As Mr. Hughes turned to look at Officer Higgins, the other officers present decided to use the opportunity of Mr. Hughes’s diverted attention to take him to the ground by force. After a struggle, the officers successfully forced Mr. Hughes to the ground and ordered him to put his hands behind his back. When Mr. Hughes refused to comply with this command, the officers on the scene began what would prove to be a roughly five-minute struggle to gain control of Mr. Hughes and place him in handcuffs.

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Ruby Sheffey v. City of Covington, 564 F. App'x 783 (6th Cir. 2014).

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