Zulock v. Shures

441 F. App'x 294
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 22, 2010
DocketNo. 08-4664
StatusPublished
Cited by17 cases

This text of 441 F. App'x 294 (Zulock v. Shures) 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
Zulock v. Shures, 441 F. App'x 294 (6th Cir. 2010).

Opinion

OPINION

McKEAGUE, Circuit Judge.

Joseph Zulock sued Police Officer Thomas Shures, Detective Frank Hensley, and the City of Middletown, Ohio, pursuant to both 42 U.S.C. § 1983 and Ohio law after Shures shot Joseph Zulock while investigating whether Zulock had been involved in a “hit-skip” car accident. The district court granted summary judgment to the defendants on many of the claims, but — despite Shures’s argument that he was protected from suit by qualified immunity — denied Shures’s motion for summary judgment as to Zulock’s claims for excessive force and illegal arrest. We now affirm.

I.

On May 8, 2006, Joseph Zulock was involved in a minor traffic accident. While Zulock drove away without stopping, the other driver provided the license plate number of the fleeing vehicle (along with a description of the vehicle and of the driver) to Thomas Shures, a patrol officer for the Middletown Police Department who had been dispatched to investigate the accident. Shures used the license number to identify Zulock as the owner of the vehicle and to find Zulock’s address, at 608 Young Street in Middletown. Zulock, meanwhile, who had been drinking at the Eagles Lodge in Springboro, Ohio until around 7:00 PM, had arrived back at the house, informed his mother, Mabel Zulock, that the police might come looking for him, and begun to make some food. Shures in turn arrived at Zulock’s address at approximately 8:30 PM, where he found Zulock’s car, with the engine still warm, parked in the street. Shures then walked onto the porch, opened the swinging screen door, and knocked on the front door of the house.

The house at 608 Young Street, which was owned by Mabel Zulock, is a two-story single-family residence. The house is fronted by a raised porch; the entry, which includes both a screen door and an interior wooden door, is on the left side of the porch as one faces the house. The screen door swings open and out to the right; the interior door opens inward to the right. There is dispute as to whether [296]*296the screen door swings shut and latches automatically. Inside the front door is a foyer, and just beyond the foyer is the open passageway to the kitchen. A built-in counter with cabinets runs along the back wall. As one stands in the foyer and faces the back wall of the kitchen, one sees a kitchen table on the left side of the kitchen and a stove on the right. The foyer is 13 feet, 7 inches deep. The distance from the front door to the point at the back of the kitchen where the cabinets meet the floor is 24 feet, 2 inches.

After Shures knocked, Mabel Zulock opened the door. Shures asked for Zu-lock, and Mabel Zulock either told Shures that Zulock was her son and the owner of the vehicle, or else motioned to the kitchen in the back of the house. Shures either remained in the doorway or (in his own version) entered the house without permission, walking by Mabel Zulock to do so. Given the layout of the house, Shures, regardless of whether he was standing in the doorway or had entered the house, could see through the foyer directly into the kitchen, where the 6 foot 4 inch, 225 pound Zulock was standing holding a 10-inch serrated bread knife with a forked tip. It is as this point that Shures’s version of events and Zulock’s version of events begin to diverge.

A. Shures’s Version of Events

According to Shures, who did not initially see the knife when he first spotted Zulock, he said “Sir I need you to step outside of the house here so I can talk to you about the car accident that occurred earlier today.” (R. 37 Ex. 2, Crim. Trial Tr. (CTT) 76.) Zulock turned toward Shures, and Shures noticed that Zulock was carrying the knife. Zulock pointed the knife at Shures and replied “Fuck you.” Shures then placed his hand on his gun and, in a “command type voice,” ordered Zulock to drop the knife. Zulock responded aggressively, turning to face Shures, squaring up his shoulders and body and lowering his head; Zulock “was kind of looking out from underneath his eyebrows and just had sort of a menacing disposition.” (CTT 77-78.)

Shures testified that at this point he was approximately 10-12 feet from Zulock, who was still in the kitchen. (Shures had been trained that, as a general rule, in facing an individual armed with a knife he needed at least twenty-one feet between himself and the knife-armed assailant in order to have time to draw his weapon from its holster and fire two bullets.) Shures drew his firearm and held it down by his side, and again commanded Zulock to drop the knife; in response, Zulock said “Fuck you, motherfucker. Kill me.” Shures pulled Mabel Zulock onto the porch and out of the way, pointed his weapon at Zulock, and repeated yet again his command for Zu-lock to drop the knife. Zulock finally complied, and placed the knife on the kitchen table.

Once Zulock had put down the knife, Shures ordered Zulock to come closer to the entrance to the house so that Shures could secure Zulock. Zulock complied, but “was still being a little bit combative” and was “trying to argue with” him, and was saying “something about making a sandwich or something along those lines.” (CTT 85-86) “[H]e seemed angry and had his jaw clenched and his brow furrowed,” Shures later testified. (CTT 86.) Shures “had [Zulock] turn around, face away from [Shures], and place his hands on top of his head.” (CTT 81.) At this point, Zulock was “probably about a foot, foot and a half away at the most.” (R. 36 Ex. 1, Suppress. Hr’g Tr. (SHT) 16.) Not more than “a second or two” passed between the time Zulock put down the knife and the [297]*297time Shures stood behind Zulock while Zulock placed his hands on top of his head.

As Shures placed his weapon in its holster and began to withdraw his handcuffs in order to secure Zulock, Zulock said “Fuck this,” “ran back over to the table to where the knife was, grabbed the knife in his right hand and with the blade projecting out of the bottom of his fist, turned towards [Shures] and charged at [Shures].” (CTT 82-83.) As Shures testified during the preliminary hearing to determine whether Shures had probable cause to arrest Zulock for felony assault, “[a]s I approached him to secure him in my handcuffs, he ran back over grabbed the knife, lifted it over his head and came at me with it.” (R. 35 Ex. 1, Prelim. Hr’g Tr. (PHT) 3-4.) Shures took three steps backward toward the front door, and then, as Zulock continued to charge, Shures fired three shots, hitting Zulock once. “[Zulock] kept coming towards me after those shots,” Shures testified. “And it wasn’t until I fired the third round that he was knocked off balance and fell down.” (CTT 106.) According to Shures, “less than a second” elapsed from the moment Zulock said “Fuck this” until Shures shot Zulock. Zulock fell to the ground on his back; Office Shures called for a paramedic and, securing Zulock’s hands with the handcuffs, placed Zulock under arrest for felony assault on a police officer — though he did not tell Zulock that was why he was being arrested.

B. Zulock’s Version of Events

Joseph Zulock’s version of events differs from Shures’s in several critical respects. According to Zulock, when Shures entered 608 Young Street, Zulock was standing in the kitchen, probably 12 to 15 feet (but perhaps 18-20 feet) away from the front door, using a knife to open a package of hot dogs. “I was cooking, getting ready to cook,” Zulock later recounted.

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Cite This Page — Counsel Stack

Bluebook (online)
441 F. App'x 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zulock-v-shures-ca6-2010.