Onofre Lopez v. City of Cleveland ( 2015 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0625n.06
No. 14-4277
FILED
Sep 04, 2015
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ONOFRE LOPEZ, )
)
Plaintiff-Appellant, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE
CITY OF CLEVELAND, et al., )
NORTHERN DISTRICT OF
)
OHIO
Defendants-Appellees. )
)
)
OPINION
BEFORE: BOGGS and DONALD, Circuit Judges; and QUIST, District Judge.*
QUIST, District Judge.
Cleveland police officers shot and killed Illuminado Lopez during a confrontation in
which Lopez refused to drop a machete. Lopez’s brother, acting as the Administrator of Lopez’s
estate, sued the City of Cleveland and the five officers who shot at Lopez,1 asserting
constitutional claims under 42 U.S.C. § 1983 and supplemental claims under Ohio law. After the
parties conducted discovery, the district court entered summary judgment in favor of Defendants,
concluding that Defendant Officers acted reasonably in using deadly force because Lopez
*
The Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.
1
The named officers are David Schramm, Amy Milner, Amy Carraway, Donato Daugenti, and
Michael Tankersley.
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Lopez v. City of Cleveland, et al.
presented an imminent threat of serious harm to someone. Because we hold that there are
disputed issues of material fact regarding whether Lopez posed a significant threat to others, we
reverse the judgment of the district court.
I.
During the evening of July 29, 2011, Lopez was visiting his friend, Maria Cruz, at her
home. Lopez’s sisters, Melba Cartagena (Melba) and Adelaida Pla, lived in the two houses on
either side of the building where Cruz lived. At some point, Lopez got into an argument with
Melba’s son, Samuel Cartagena (Samuel), and used a baseball bat to break the windows in
Samuel’s car. Melba called the police in response to Lopez’s actions.
Schramm and Milner heard a radio dispatch that an individual was threatening a family
member and had a bat, and these officers were the first to arrive on the scene. The officers found
Lopez sitting in the middle of the street with a beer bottle. At some point shortly thereafter, the
officers noticed that Lopez was holding a machete, and they ordered him to drop it. When Lopez
refused to comply, Milner shot Lopez with a taser. The taser did not affect Lopez, however, who
removed the taser probes from his body. The officers then drew their firearms and radioed for
backup.
Shortly thereafter, Carraway, Daugenti, and Tankersley arrived on the scene. The
officers tased Lopez two more times, but the tasers had no effect, and Lopez cut the taser wires
with his machete. At some point, Lopez moved from the street to the sidewalk in front of Cruz’s
house. The officers continued to shout at Lopez to drop the machete.
From this point on, the facts are in dispute. Pla testified that when Lopez reached the
sidewalk, she approached him and asked him to drop the machete. During that time, she yelled
to the officers that she was Lopez’s sister, that he was sick, and that she could calm him down
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and get the machete from him. At some point, however, she grew tired of shouting and walked
toward her house. Lopez then shouted at Pla to take the machete from him, and she walked
toward him, again shouting that she would get the machete. Pla testified that when she reached a
point about seven feet from Lopez, he turned to his right, in her direction, with the machete at his
side. At that point, the officers began to fire.
Melba and her son, Noel Cartagena (Noel), both described the moments preceding the
shooting differently than Pla. Melba testified that Lopez brought the machete over his head as if
he were about to harm himself, and then turned to his left, in the direction of Melba, and asked
Melba if that was the way she wanted him to die. Defendant Officers then began shooting.
Similarly, Noel testified that Lopez said he was going to stab himself if the officers did not shoot
him, and then he brought the machete above his head, toward himself. Noel stated that Lopez
was facing the officers, however, and did not turn toward either the right or left.
Defendant Officers all testified that they did not know who Pla was at the time of the
shooting. They also testified that Lopez raised the machete above his head and turned toward
Pla immediately before shooting, although their exact descriptions of these final moments varied
slightly. Schramm testified that Lopez brought the machete over his head and turned the upper
part of his body toward Pla. Similarly, Daugenti testified that Lopez raised the machete over his
head while facing forward and then turned toward Pla, who was running toward Lopez. Milner
testified that Pla got within five feet of Lopez, and that Lopez turned toward Pla and raised the
machete over his head. Tankersley testified that Lopez turned toward Pla with the machete held
over his head and made a gesture like he was swinging it at her. Finally, Carraway testified that
Pla ran toward Lopez, and that Lopez raised the machete above his head in a threatening manner
and turned toward her.
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Officers on the scene fired at Lopez, and three bullets struck him. Plaintiff’s forensic
pathologist, Werner Spitz, M.D., testified that the wounds indicated that Lopez was shot from the
front and did not support a conclusion that Lopez had his arms stretched above his head or that
he was turned toward the right.
Plaintiff filed this action alleging that Defendants violated Lopez’s Fourth Amendment
right to be free from excessive force, as well as various Ohio laws. After the district court
dismissed some of Plaintiff’s state-law claims against Defendant City of Cleveland, the parties
proceeded to discovery. Following discovery, the district court granted Defendants’ motion for
summary judgment on the remaining claims, holding that Defendant Officers did not violate
Lopez’s Fourth Amendment rights. On that basis, the district court concluded that Defendant
Officers were entitled to qualified immunity and immunity under Ohio law and dismissed the
claims against Defendant City of Cleveland.
II.
We review a district court’s grant of summary judgment de novo. Sigley v. City of Parma
Heights, 437 F.3d 527, 532 (6th Cir. 2006). Summary judgment is appropriate only if “the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In making that determination, a court
must view the evidence ‘in the light most favorable to the opposing party.’” Tolan v. Cotton,
134 S. Ct. 1861, 1866 (2014) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).
However, “[o]nly disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
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“In resolving questions of qualified immunity at summary judgment, courts engage in a
two-pronged inquiry.” Tolan, 134 S. Ct. at 1865. Under the first prong, a court must determine
whether “the facts, ‘[t]aken in the light most favorable to the party asserting the injury, . . . show
the officer’s conduct violated a [federal] right [.]’” Id. (quoting Saucier v. Katz, 533 U.S. 194,
201 (2001)). Under the second prong, a court must determine whether the right was “clearly
established” at the time of the alleged violation. Id. at 1866. “[U]nder either prong, courts may
not resolve genuine disputes of fact in favor of the party seeking summary judgment.” Id. This
is “an application of the more general rule that a ‘judge’s function’ at summary judgment is not
‘to weigh the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.’” Id. (quoting Anderson, 477 U.S. at 249).
III.
On appeal, Plaintiff argues that the district court improperly granted summary judgment
because there are genuine disputes of material fact regarding whether Defendant Officers used
excessive force in shooting Lopez and whether they were entitled to immunity under Ohio law.
A. Fourth Amendment Excessive Force
“[A]ll claims that law enforcement have used excessive force—deadly or not—in the
course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed
under the Fourth Amendment and its ‘reasonableness’ standard . . . .” Graham v. Connor, 490
U.S. 386, 395 (1989). The Supreme Court has explained that the use of deadly force is
reasonable only if “the officer has probable cause to believe that the suspect poses a threat of
serious physical harm, either to the officer or to others . . . .” Tennessee v. Garner, 471 U.S. 1,
11 (1985). In evaluating an excessive force claim, “[t]he ‘reasonableness’ of a particular use of
force must be judged from the perspective of a reasonable officer on the scene, rather than with
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the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. Moreover, “[t]he calculus of
reasonableness must embody allowance for the fact that police officers are often forced to make
split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about
the amount of force that is necessary in a particular situation.” Id. at 396-37. As such, the
reasonableness standard “contains a built-in measure of deference to the officer’s on-the-spot
judgment about the level of force necessary in light of the circumstances of the particular case.”
Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002).
The Court has identified three non-exhaustive factors for lower courts to consider in
determining the reasonableness of a police officer’s use of force: (1) the severity of the crime at
issue; (2) whether the suspect posed an immediate threat to the safety of the officer or others; and
(3) whether the suspect actively resisted arrest or attempted to evade arrest by flight. Graham,
490 U.S. at 396. Nonetheless, the ultimate inquiry is “whether the totality of the circumstances”
justified the use of force. Livermore v. Lubelan, 476 F.3d 397, 404 (6th Cir. 2007) (internal
quotation marks omitted).
The central issue in this appeal is whether, viewing the evidence in the light most
favorable to Lopez, Defendant Officers had probable cause to believe that Lopez posed a serious
risk of harm to the officers or others. Defendant Officers testified uniformly that they believed
that Pla was in imminent danger at the time they fired at Lopez. It is impossible to determine
whether this belief was reasonable, however, without resolving factual disputes in the record.
These factual disputes are material because they concern the nature of any movement that
Lopez may have made just before the shooting. While Defendant Officers testified that Lopez
raised the machete and turned toward Pla, other witnesses described the events differently. Pla
stated that Lopez turned toward her with the machete held at his side, while Melba recalled that
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Lopez raised the machete and turned away from Pla (and toward Melba). Noel stated that Lopez
never turned in either direction, but remained facing the officers. Moreover, Melba and Noel
each testified that Lopez made statements indicating an intent to commit suicide and raised the
machete as though intending to harm himself.
Defendants suggest that the force used was not excessive based on Chappell v. City of
Cleveland, 585 F.3d 901 (6th Cir. 2009). However, the circumstances of Lopez’s shooting,
when viewed in the light most favorable to Plaintiff, are materially different than those presented
in Chappell. Although both cases involved a suspect who refused to drop a knife, the
circumstances in Chappell presented a far more immediate threat of danger. In that case, there
was undisputed evidence that the suspect was moving quickly toward officers with a knife held
high, and “had closed to within five to seven feet in a dark, cluttered, enclosed space.” Id. at
911. Moreover, the officers “were backed up against a wall in the small bedroom and there was
no ready means of retreat or escape.” Id. Thus, the court found that if the officers had hesitated
even a second, they would have been within arm’s reach of the suspect and vulnerable to serious
injury. Id.
In this case, by contrast, the parties dispute whether Lopez made any movement at all
toward Pla. Viewing the facts in the light most favorable to Plaintiff, Lopez turned his body
away from Pla as she was moving toward him. Moreover, there is evidence that he did not raise
the machete at all, or raised it in a way that indicated only that he intended to harm himself. In
other words, there is a dispute of fact as to whether Lopez made any movement in those final
moments that could reasonably be interpreted as threatening Pla.
“This Court has established that summary judgment is inappropriate where there are
contentious factual disputes over the reasonableness of the use of deadly force.” Sova v. City of
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Mt. Pleasant, 142 F.3d 898, 903 (6th Cir. 1998). Thus, where the reasonableness of the officers’
use of force depends on which version of the facts one accepts, “the jury, not the judge, must
determine liability.” Id. In this case, there are contentious factual disputes about the nature of
Lopez’s movements just before the shooting. Those disputes go to the heart of whether it was
reasonable for Defendant Officers to use deadly force. Because the reasonableness of their
actions depends on which version of the facts one accepts, the question must go to the jury.
Accordingly, we reverse the district court’s grant of summary judgment to Defendant Officers on
Plaintiff’s Fourth Amendment claim.2
B. Municipal Liability
A plaintiff seeking to hold a municipality liable for its officers’ conduct must
demonstrate “(1) that a constitutional violation occurred; and (2) that the [municipality] is
responsible for that violation.” Graham v. Cnty. of Washtenaw, 358 F.3d 377, 382 (6th Cir.
2004) (internal quotation marks omitted). The district court dismissed Plaintiff’s § 1983 claim
against Defendant City of Cleveland based on its conclusion that no constitutional violation
occurred. Given our holding as to that issue, we also reverse the district court’s holding on
municipal liability and remand for further consideration in light of these proceedings.
2
In light of its holding that there was no constitutional violation, the district court did not
analyze the “clearly established” prong of the qualified-immunity analysis, and Defendants have
made no argument regarding that prong on appeal. Nonetheless, we note that the law was clearly
established that officers could not use deadly force unless they had probable cause to believe that
an individual posed a serious risk of harm to officers or others. See Ciminillo v. Streicher,
434 F.3d 461, 468 (6th Cir. 2006). Because there are disputes of fact that go directly to that
issue, Defendant Officers could not establish that they were entitled to qualified immunity based
on the “clearly established” prong. See Tolan, 134 S. Ct. at 1865-66 (explaining that a court may
not resolve disputes of fact under either prong of the qualified immunity analysis).
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C. State Law Claims
The district court held that because Defendant Officers did not use excessive force, they
were entitled to immunity under state law. In light of our holding regarding the use of excessive
force, we reverse the district court’s holding on this issue and remand for the district court to
determine the issue of immunity under state law.
IV. CONCLUSION
For the foregoing reasons, we REVERSE the judgment of the district court and
REMAND for proceedings consistent with this opinion.
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