Ontha v. Rutherford Cnty TN , 222 F. App'x 498 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0195n.06
Filed: March 13, 2007
No. 05-6556
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BOUNTYNER ONTHA and NALY
ONTHA, Individually and on Behalf of
PHOUTTHASEN TOMMY ONTHA,
Plaintiffs/Appellees, ON APPEAL FROM THE
UNITED STATES DISTRICT
v. COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE
RUTHERFORD COUNTY, TENNESSEE
and RICHARD M. EMSLIE,
Defendants,
and
SHERIFF TRUMAN L. JONES, JR. and
RANDY D. MORROW,
Defendants/Appellants.
__________________________________/
Before: BOGGS, Chief Judge; COLE, Circuit Judge; and ROSEN, District Judge.*
ROSEN, District Judge.
I. INTRODUCTION
Plaintiffs/Appellees Bountyner Ontha and Naly Ontha brought this suit in March
*
The Honorable Gerald E. Rosen, United States District Judge for the Eastern District of
Michigan, sitting by designation.
of 2004 in the United States District Court for the Middle District of Tennessee, asserting
federal claims under 42 U.S.C. § 1983 and state-law claims arising out of the death of
their son, Phoutthasen Tommy Ontha (“Tommy Ontha”), after he was struck by a police
car. The two officers in the patrol car at the time, Defendant Rutherford County Sheriff’s
Deputy Richard M. Emslie and Defendant/Appellant Sheriff’s Deputy Randy D.
Morrow, were pursuing Tommy Ontha in the mistaken belief that he was the individual
named in several outstanding felony warrants. Apart from these two sheriff’s deputies,
Plaintiffs have named as defendants Rutherford County, Tennessee and the Rutherford
County Sheriff, Defendant/Appellant Truman L. Jones, Jr., who is sued in both his
individual and official capacities.
In the present appeal, Sheriff Jones and Deputy Sheriff Morrow challenge the
district court’s determination that they are not entitled to qualified immunity. Sheriff
Jones contends that he had no personal involvement in the incident that resulted in
Tommy Ontha’s death, and that the stringent standard for the imposition of supervisory
liability has not been met here. Deputy Morrow, for his part, cites the undisputed fact
that he was only a passenger, and not the driver, of the patrol car that struck Tommy
Ontha, and he argues that he lacked sufficient means or opportunity to prevent this harm.
We agree — and, indeed, Plaintiffs/Appellees seemingly concede — that the § 1983
claims against Sheriff Jones in his individual capacity cannot go forward. We further
conclude that Deputy Morrow is entitled to qualified immunity as to one, but not both, of
2
the two excessive force claims asserted against him. Accordingly, we affirm in part,
reverse in part, and remand for further proceedings.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Incidents Leading up to the Death of Tommy Ontha
On March 18, 2003, Defendant Rutherford County Sheriff’s Deputy Richard M.
Emslie was informed by his supervisor, Sergeant Judy Greene, about four outstanding
felony warrants for an Asian male named Tony Kanjanabout. Deputy Emslie was further
advised that Kanjanabout was known to travel in a white compact car, that he was
believed to be employed at O’Charley’s Restaurant in Murfreesboro, Tennessee, and that
he sometimes stayed in one of the units at the Greenland Drive Apartments in
Murfreesboro. Deputy Emslie also was provided with a photograph and physical
description of Kanjanabout.
After confirming with the restaurant manager that Kanjanabout worked at
O’Charley’s, Deputy Emslie and his partner, Defendant/Appellant Sheriff’s Deputy
Randy D. Morrow, drove to the parking lot of the Greenland Drive Apartments in an
unmarked patrol car and set up surveillance in an attempt to locate Kanjanabout. Deputy
Emslie drove the patrol car, with Deputy Morrow in the front passenger seat. After about
twenty or thirty minutes, the deputies observed a white compact car pull into the parking
lot and an Asian male — later determined to be Tommy Ontha — emerge from this
vehicle.
3
Upon determining that this person appeared to match the description and
photograph of Tony Kanjanabout, Deputy Emslie decided to drive his patrol car closer to
the white vehicle in an effort to confirm that this individual was, in fact, Kanjanabout.
As he did so, Tommy Ontha got back into the white car and began to drive out of the
parking lot. According to Deputy Emslie, he activated the patrol car’s lights and gave a
short burst of its siren to get the attention of the white vehicle’s driver, but Tommy Ontha
accelerated his car and turned onto Greenland Drive. In response, Deputy Emslie
activated the police car’s siren and pursued Ontha’s vehicle, traveling about a mile
before Ontha drove his car back into the parking lot of the Greenland Drive Apartments.
The events, and their sequence, following Ontha’s return to the parking lot remain
in dispute. According to Deputy Emslie, he stopped the patrol car about two car lengths
behind Ontha’s vehicle, and Deputy Morrow then exited the police car and began giving
verbal commands to Ontha. Deputy Emslie further asserts that Ontha briefly emerged
from his car, but then quickly got back into the vehicle, closed the door, and accelerated
his car in reverse, forcing Deputy Morrow to jump back inside the patrol car to avoid
being hit by Ontha’s oncoming vehicle. In contrast, a resident of the Greenland Drive
Apartments, Bobbie Ann Harris, testified that she did not observe either Ontha or the
deputies exit their vehicles at any time during this incident.
While still driving in reverse, Ontha pulled out of the parking lot and turned left
into the eastbound lane of Greenland Drive, as though he intended to travel down the
4
road in reverse in a westerly direction. In pursuit of Ontha’s vehicle, Deputy Emslie also
drove his patrol car out onto Greenland Drive. According to Deputy Emslie, he did so by
traveling in reverse out of the parking lot and making a right turn in reverse, so that his
patrol car was facing the front of Ontha’s vehicle. Two eyewitnesses, Ms. Harris and
Gerald McElroy, have testified differently, however, stating that the patrol car was
traveling forward, and not in reverse, as it emerged from the parking lot.
In Deputy Emslie’s account of what transpired next, he anticipated that Tommy
Ontha would continue to drive his car in reverse down Greenland Drive, so he put the
patrol car in “Drive” and began accelerating in the direction of Ontha’s vehicle. As the
patrol car picked up speed, however, Ontha suddenly stopped his car, and Deputy Emslie
reacted by turning his steering wheel to the right and applying his brakes in an effort to
avoid hitting Ontha’s vehicle. Upon narrowly avoiding an impact with Ontha’s car,
Deputy Emslie caught a brief glimpse of Ontha outside his vehicle as the patrol car
skidded into a telephone pole. It was only after hitting the telephone pole that Deputy
Emslie became aware that Tommy Ontha had been struck by the patrol car.
Again, the testimony of eyewitness Gerald McElroy differs markedly from Deputy
Emslie’s recollection of this incident. According to McElroy, shortly after Ontha backed
his car onto Greenland Drive, and while the patrol car still remained in the parking lot,
Ontha emerged from his vehicle and began traveling on foot. McElroy testified that the
patrol car — moving forward and not in reverse — pulled out of the parking lot,
5
maneuvered slowly around Ontha’s vehicle, and then began to accelerate. As the police
car reached a speed of perhaps five to fifteen miles per hour, it caught up to and struck
Ontha as he was running away. In McElroy’s view, it appeared that the patrol car was
“chasing” Ontha, seemingly making no effort to brake or steer away before striking him.
(McElroy Dep. at 47, 108-10, J.A. at 363, 369-71.) As the police car made contact with
Ontha, McElroy heard the vehicle’s brakes and saw it slide into a telephone pole, with
Ontha pinned between the hood of the car and the pole. In all, McElroy estimated that
about six or seven seconds passed between the time that the patrol car left the parking lot
and the time that it struck Ontha. (Id. at 40-41, J.A. at 356-57.)
Deputy Emslie was injured in the collision with the telephone pole and remained
in the patrol car. Deputy Morrow, however, exited the car and approached Ontha,
discovering that he was still alive and conscious, but that he was moaning and evidently
in considerable pain. According to eyewitness Bobbie Ann Harris, the deputy who
emerged from the patrol car took Ontha by the collar and pulled him onto to the grass by
the side of the road, with Ontha moaning in pain and the deputy reportedly saying, “Boy,
can’t you speak English?” (Harris Dep. at 17-19, J.A. at 291-93.) After receiving
emergency medical treatment at the scene, Ontha was taken by ambulance to the
Vanderbilt University Medical Center, where he died about three hours later.
B. Procedural Background
Plaintiffs/Appellees Bountyner and Naly Ontha, the parents of Tommy Ontha,
6
commenced this action on March 17, 2004 in the United States District Court for the
Middle District of Tennessee, asserting federal claims under 42 U.S.C. § 1983 against
Rutherford County, Sheriff Truman L. Jones, Jr., and Sheriff’s Deputies Emslie and
Morrow, as well as state-law claims against Deputies Emslie and Morrow. Following a
period of discovery, Defendants moved for summary judgment in their favor, based in
part upon their contention that the individual defendants were shielded from liability
under § 1983 by the doctrine of qualified immunity.
The district court denied Defendants’ motion in an order dated August 23, 2005.
(See District Court 8/23/2005 Order, J.A. at 396-99.) As to the individual Defendants’
appeal to qualified immunity, the court found that issues of material fact precluded an
award of summary judgment on this ground. (See id. at 2-3, J.A. at 397-98.) The court
further concluded that the evidence was sufficient to sustain a § 1983 claim against
Rutherford County, and that, in light of the County’s continued presence as a party, any §
1983 claims against the remaining Defendants in their official capacities should be
dismissed. (See id. at 3, J.A. at 398.)1 Defendants Jones and Morrow now appeal,
asserting that the district court erred in denying their claim of qualified immunity.
1
In response to Defendants’ subsequent motion for reconsideration, the district court
largely adhered to this ruling, but agreed that no punitive damages could be recovered from the
County.
7
III. ANALYSIS
A. The Court Has Jurisdiction over This Appeal.
Before turning to the merits, we first must satisfy ourselves of our power to
consider the issues raised by Sheriff Jones and Deputy Sheriff Morrow in this
interlocutory appeal. See Crockett v. Cumberland College, 316 F.3d 571, 577 (6th Cir.
2003). Although interlocutory appeals “are the exception, not the rule,” Johnson v.
Jones, 515 U.S. 304, 309, 115 S. Ct. 2151, 2154 (1995), we have recognized that “a
denial of summary judgment based on a legal determination that qualified immunity is
inappropriate is immediately appealable as a collateral order.” Crockett, 316 F.3d at 578.
In this case, then, we have jurisdiction to the extent that the district court’s denial of
qualified immunity “turns on an issue of law,” but not “insofar as [the district court’s]
order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for
trial.” Sheets v. Mullins, 287 F.3d 581, 585 (6th Cir. 2002) (internal quotation marks and
citations omitted).
Ordinarily, we expect a defendant to expedite our jurisdictional inquiry by
“conced[ing] to the facts as alleged by the plaintiff and discuss[ing] only the legal issues
raised by the case.” Sheets, 287 F.3d at 585. Here, unfortunately, the recitation of facts
in Defendants’ initial brief on appeal cites exclusively to Defendants’ own affidavits,
without even acknowledging the existence of eyewitness testimony that contradicts
Defendants’ account in certain respects. Since the district court cited this eyewitness
8
testimony in determining that issues of fact precluded an award of qualified immunity, it
would appear that our jurisdiction over this appeal is open to serious question.
Upon careful review of the parties’ briefs and the record, however, we conclude
that Defendants have identified issues of law that are suitable for resolution on
interlocutory appeal. Initially, we note that we are not bound by the district court’s
characterization of its ruling as resting upon the existence of issues of fact. See Estate of
Carter v. City of Detroit, 408 F.3d 305, 309 (6th Cir. 2005); Dickerson v. McClellan, 101
F.3d 1151, 1156-57 (6th Cir. 1996). Rather, we may still reach and decide “purely legal
question[s]” bearing upon Defendants’ entitlement to qualified immunity, so long as the
factual disputes noted by the district court are “immaterial” to this determination.
Dickerson, 101 F.3d at 1157; see also Estate of Carter, 408 F.3d at 310 (explaining that
we may disregard a defendant’s “impermissible arguments regarding disputes of fact” so
long as the defendant also raises questions of law). To be sure, Defendants’ initial brief
on appeal is not as helpful as it could have been in explaining why the issues of fact
identified by the district court are not material to the questions of law they seek to present
for our consideration. Defendants have ameliorated this concern in their reply brief,
however, supplying an overdue concession that there are disputed facts in the record but
arguing that these disputes are immaterial to their entitlement to qualified immunity.
Under these circumstances, we are satisfied that we may inquire whether, viewing the
record in a light most favorable to Plaintiffs, the district court properly denied summary
9
judgment to Defendants on grounds of qualified immunity.
B. The Standards Governing Our Qualified Immunity Inquiry
Under familiar principles, government officials such as the Defendants/Appellants
here, Sheriff Jones and Deputy Sheriff Morrow, are shielded from liability for damages
under 42 U.S.C. § 1983 “insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). This qualified
immunity inquiry entails two steps. As a “threshold question,” we must ask whether the
facts, viewed in a light most favorable to the plaintiff, “show the officer’s conduct
violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151,
2156 (2001); see also Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). If so, “the
next, sequential step is to ask whether the right was clearly established” — that is, “[t]he
contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Saucier, 533 U.S. at 201-02, 121 S.
Ct. at 2156 (internal quotation marks and citation omitted); see also Burchett, 310 F.3d at
942. We review de novo the district court’s denial of Defendants’ motion for summary
judgment on the ground of qualified immunity. Dickerson, 101 F.3d at 1157.
C. Sheriff Jones Is Entitled to Qualified Immunity as to the Claims Asserted
Against Him in His Individual Capacity.
Turning first to Plaintiffs’ § 1983 claims against Sheriff Jones in his individual
capacity, all are agreed that Sheriff Jones had no direct personal involvement in the
10
events surrounding the death of Tommy Ontha on March 18, 2003. Rather, Plaintiffs’
claims against the sheriff may go forward, if at all, only under a theory of supervisory
liability. In his present appeal, Sheriff Jones argues that Plaintiffs have failed to muster
sufficient evidence to meet this stringent standard of liability. We agree.
We have explained that Ҥ 1983 liability must be based on more than respondeat
superior, or the right to control employees.” Shehee v. Luttrell, 199 F.3d 295, 300 (6th
Cir. 1999), cert. denied, 530 U.S. 1264 (2000). “Thus, a supervisory official’s failure to
supervise, control or train the offending individual is not actionable unless the supervisor
either encouraged the specific incident of misconduct or in some other way directly
participated in it.” Shehee, 199 F.3d at 300 (internal quotation marks and citation
omitted). “At a minimum a plaintiff must show that the official at least implicitly
authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the
offending officers.” 199 F.3d at 300 (internal quotation marks and citation omitted).
To the extent that Plaintiffs even assert that this standard of supervisory liability
can be met here,2 they evidently contend that Sheriff Jones implicitly authorized the
alleged misconduct of Deputies Emslie and Morrow by failing to properly train these
deputies regarding the appropriate use of force and, more particularly, the
inappropriateness of using a patrol car to strike or seize an individual. As Plaintiffs point
2
Notably, after citing the correct standards for the imposition of supervisory liability,
Plaintiffs then assert in their brief on appeal that “Sheriff Jones should remain as a Defendant in
his official capacity.” (Plaintiffs/Appellees’ Br. at 33 (emphasis added).)
11
out, Sheriff Jones acknowledged in his affidavit that the Rutherford County Sheriff’s
Office “does not have a written policy specifically prohibiting” the use of a patrol car to
strike a person who is fleeing on foot. (Jones Aff. at ¶ 6, J.A. at 121.) Plaintiffs posit
that this lack of training served as implicit authorization of or knowing acquiescence in
Deputy Emslie’s allegedly inappropriate use of his patrol car to chase and strike Tommy
Ontha as he attempted to flee.
Yet, to establish supervisory liability, it is not enough to point after the fact to a
particular sort of training which, if provided, might have prevented the harm suffered in a
given case. Rather, such liability attaches only if a constitutional violation is “part of a
pattern” of misconduct, or “where there is essentially a complete failure to train the
police force, or training that is so reckless or grossly negligent that future police
misconduct is almost inevitable or would properly be characterized as substantially
certain to occur.” Hays v. Jefferson County, 668 F.2d 869, 874 (6th Cir.) (citations
omitted), cert. denied, 459 U.S. 833 (1982). Only in such circumstances can it be said
that a supervisor’s liability rests upon “active unconstitutional behavior,” as opposed to
“a mere failure to act.” Shehee, 199 F.3d at 300 (internal quotation marks and citation
omitted).
In this case, Plaintiffs do not contend that Deputy Emslie’s purported misuse of
his patrol car was part of a pattern of comparable violations, as opposed to an isolated
occurrence. Neither have Plaintiffs suggested any basis for us to conclude that the tragic
12
events of this case were an “almost inevitable” or “substantially certain” byproduct of a
lack of training as to the proper operation of a patrol car when pursuing an individual
traveling on foot. Rather, Sheriff Jones states without contradiction that “we have never
had an instance where a Rutherford County Sheriff’s deputy intentionally struck a person
with his or her patrol car,” and that he is “not aware of a problem or trend in the law
enforcement community regarding law enforcement officers using their vehicles to
intentionally strike fleeing suspects or other persons on foot.” (Jones Aff. at ¶ 6, J.A. at
121.) Under this record, we find as a matter of law that Plaintiffs cannot sustain their §
1983 claims against Sheriff Jones in his individual capacity.3
D. Deputy Morrow Is Entitled to Qualified Immunity as to One, But Not Both,
of the § 1983 Claims Asserted Against Him.
Turning next to Plaintiffs’ § 1983 claims against Deputy Sheriff Morrow, there is,
once again, no dispute that Deputy Morrow was not driving the patrol car that struck
Tommy Ontha, but was merely a passenger in this vehicle. Deputy Morrow further
states, without contradiction, that he and Deputy Emslie did not discuss or debate any
3
As noted earlier, Plaintiffs argue that Sheriff Jones “should remain as a Defendant in his
official capacity,” (Plaintiffs/Appellees’ Br. at 33), and they cite the district court as having so
ruled. Yet, the district court held precisely the opposite in its August 23, 2005 order, stating that
“with the County as a Defendant, the individual Defendants should remain in this action only in
their individual capacities.” (8/23/2005 Order at 3, J.A. at 398.) Just as we cannot consider on
interlocutory appeal whether the district court properly allowed Plaintiffs’ § 1983 claims against
Rutherford County to go forward, see Crockett, supra, 316 F.3d at 578-79, we also lack
jurisdiction to consider whether the district court properly dismissed the § 1983 claims against
Sheriff Jones in his official capacity. Accordingly, we must decline Plaintiffs’ invitation to
weigh in on this issue.
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possible courses of action as Deputy Emslie drove the patrol car out of the Greenland
Drive Apartments parking lot and began to pursue Ontha. Under these circumstances,
Deputy Morrow argues that he cannot be held liable for any excessive force that Deputy
Emslie might have inflicted through his operation of the patrol car. We agree, but find
that Deputy Morrow remains subject to liability for the excessive force he allegedly
employed as Ontha lay on the ground after being struck by the patrol car.
As Defendants acknowledge, and as the district court recognized, a patrol car can
be an instrument of force through which an individual is “seized” within the meaning of
the Fourth Amendment. See, e.g., Brower v. County of Inyo, 489 U.S. 593, 597, 109 S.
Ct. 1378, 1381 (1989); Galas v. McKee, 801 F.2d 200, 203 (6th Cir. 1986); Harris v.
Coweta County, 433 F.3d 807, 812-13 (11th Cir. 2005), cert. granted, 127 S. Ct. 468(2006). Accordingly, the degree of force used to effect such a seizure must be
reasonable. See Graham v. Connor, 490 U.S. 386, 395-96, 109 S. Ct. 1865, 1871
(1989); Burchett, 310 F.3d at 944. This is precisely the theory of liability Plaintiffs have
advanced against Deputy Emslie in this case — namely, that he deliberately and
unreasonably used a police car to pursue and strike Tommy Ontha as he was fleeing on
foot.
Plaintiffs’ theory of liability as to Deputy Morrow necessarily rests upon a
different legal footing. In order to hold Deputy Morrow liable for the excessive force
allegedly inflicted upon Tommy Ontha by the patrol car, Plaintiffs “must prove that he
14
(1) actively participated in the use of excessive force, (2) supervised the officer who used
excessive force, or (3) owed the victim a duty of protection against the use of excessive
force.” Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997). As a passenger in the patrol
car, Deputy Morrow did not actively participate in the alleged use of the vehicle as an
instrument of excessive force, and Plaintiffs do not contend otherwise. Neither is there
any evidence that Deputy Morrow exercised any supervisory authority over Deputy
Emslie; to the contrary, it appears that Deputy Emslie possessed a degree of authority
over Deputy Morrow.
Accordingly, Deputy Morrow can be held liable for the force inflicted by the
patrol car only if he owed Tommy Ontha a duty of protection against the use of such
force. “Generally speaking, a police officer who fails to act to prevent the use of
excessive force may be held liable when (1) the officer observed or had reason to know
that excessive force would be or was being used, and (2) the officer had both the
opportunity and the means to prevent the harm from occurring.” Turner, 119 F.3d at
429. Citing the account of eyewitness Gerald McElroy, Plaintiffs argue that this standard
is satisfied here, where Deputy Morrow purportedly had a six- or seven-second window
of opportunity to perceive that Deputy Emslie was aiming and accelerating the patrol car
at Tommy Ontha and to take action to thwart this allegedly unlawful pursuit.
We cannot agree. To be sure, from the eyewitness testimony that Deputy Emslie
slowly maneuvered the patrol car around Ontha’s vehicle and then accelerated toward
15
Ontha as he fled on foot, one could reasonably conclude that Deputy Emslie’s actions
were deliberate rather than accidental. But further inferences are required to charge
Deputy Morrow with liability for this sequence of events. In particular, there must be a
basis for concluding (i) that Deputy Morrow perceived that Deputy Emslie had embarked
on an effort to inflict force upon Ontha with the patrol car, and (ii) that he had the means
and opportunity to thwart this effort. Moreover, in order to avert the harm to Ontha,
Deputy Morrow would have had to both glean the nature of Deputy Emslie’s actions and
decide upon and implement preventative measures within a short time span of six to
seven seconds.
We are unaware of any case law, nor have Plaintiffs cited any, that has recognized
a duty of protection under such circumstances. To the contrary, the courts have been
unwilling to impose a duty to intervene where, as here, an entire incident unfolds “in a
matter of seconds.” Gaudreault v. Municipality of Salem, 923 F.2d 203, 207 n.3 (1st Cir.
1990), cert. denied, 500 U.S. 956 (1991); see also O’Neill v. Krzeminski, 839 F.2d 9, 11-
12 (2d Cir. 1988) (finding that the three blows suffered by the plaintiff “were struck in
such rapid succession that [a nearby police officer] had no realistic opportunity to
attempt to prevent them,” and that “[t]his was not an episode of sufficient duration to
support a conclusion that an officer who stood by without trying to assist the victim
became a tacit collaborator”); Fultz v. Whittaker, 261 F. Supp.2d 767, 780 (W.D. Ky.
2003) (declining to hold an officer liable for a failure to intervene where “[e]veryone
16
agrees that the events happened in a matter of seconds”); Todhunter v. Swan, No. 05-
74934, 2006 WL 3454796, at *7 (E.D. Mich. Nov. 29, 2006) (finding that a “rapid
sequence” of events “afforded [the defendant sheriff’s deputy] no opportunity to
intervene”). Where we have recognized such a duty, in contrast, the underlying episode
of excessive force has spanned a sufficient period of time for a nearby defendant to both
perceive what was happening and intercede to stop it. See, e.g., Durham v. Nu’Man, 97
F.3d 862, 868 (6th Cir. 1996) (reversing an award of summary judgment in a case where
a beating “lasted approximately ten minutes” and the defendant nurse “watched the
beating unfold on her monitor from the nurse’s station, and then from the doorway of . . .
the room where the beating took place”), cert. denied, 520 U.S. 1157 (1997).
Under this case law, even if Deputy Emslie had announced his allegedly
malevolent intentions as he began to accelerate the patrol car, it is doubtful that Deputy
Morrow could be found to have had a realistic opportunity to intervene and prevent harm
from befalling Tommy Ontha. Within a span of a few short seconds, Deputy Morrow
would have had to identify and employ some reasonable (and safe) means of dissuading
or otherwise preventing Deputy Emslie from steering the patrol car toward a fleeing
suspect. Given the inherent dangers of interfering with the driver of a moving vehicle,
this alone would have been a daunting task. Yet, because Deputy Emslie did not
announce his intentions, Deputy Morrow also would have been required, in this same
short time span, to ascertain that his fellow deputy was not merely pursuing a fleeing
17
suspect in a reasonable and appropriate fashion, but instead was intentionally or
recklessly pursuing a course of action that was likely to inflict harm upon Tommy Ontha
unless he interceded. We are unwilling, under these circumstances, to impose upon
Deputy Morrow the duty to intervene and protect Tommy Ontha from the excessive force
that Deputy Emslie allegedly inflicted with the patrol car.
Moreover, given the absence of any case law that has imposed a duty of protection
under even roughly analogous circumstances, we readily conclude that Deputy Morrow’s
failure to intervene did not violate clearly established law. As explained, the pertinent
decisions make it clear that a police officer cannot stand idly by if he observes the use of
excessive force and has the means and opportunity to prevent it. See Turner, 119 F.3d at
425; Durham, 97 F.3d at 868. Yet, none of these rulings can be read as requiring that a
police officer, in a matter of seconds, both determine that a fellow officer is about to use
excessive force and identify a means to prevent it. Accordingly, at the time of the
incident at issue here, it would not have been evident to a reasonable officer in
Defendant Morrow’s position that he was obligated to taken action to prevent Deputy
Emslie from allegedly using the patrol car to inflict excessive force upon Tommy Ontha.
It follows that Defendant Morrow is entitled to qualified immunity as to Plaintiffs’ claim
that he breached a duty of protection.
Nonetheless, Plaintiffs have identified a second possible basis for charging
Deputy Morrow with liability under § 1983. In particular, they cite the testimony of
18
eyewitness Bobbie Ann Harris that, after Tommy Ontha had been struck by the police
car, a sheriff’s deputy emerged from the car, took Ontha by the collar, and pulled him
onto to the grass by the side of the road, with Ontha moaning in pain and the deputy
reportedly saying, “Boy, can’t you speak English?” (Harris Dep. at 17-19, J.A. at 291-
93.) Because Ontha had been thoroughly neutralized by the impact of the patrol car, and
presumably did not pose any threat to the deputies or anyone else on the scene, Plaintiffs
contend that any use of force by Deputy Morrow to drag him to the curb was excessive
under the circumstances. See Phelps v. Coy, 286 F.3d 295, 301-02 (6th Cir. 2002), cert.
denied, 537 U.S. 1104 (2003).
Beyond denying that this incident occurred, Deputy Morrow argues that the “only
reasonable inference” from the eyewitness’s testimony is that he “was pulling [Ontha]
out of the roadway for [his own] safety.” (Defendants/Appellants’ Reply Br. at 15.) Yet,
this is hardly the only reasonable inference that could be drawn from this evidence,
particularly where there is no indication that Ontha faced any danger if he had been left
at the side of the road until emergency medical personnel arrived at the scene. Moreover,
while Defendants claim that Plaintiffs have failed to produce the requisite evidence of
physical injury resulting from Deputy Morrow’s actions, see Lyons v. City of Xenia, 417
F.3d 565, 575-76 (6th Cir. 2005), the eyewitness who recounted this incident testified
that Tommy Ontha “holler[ed]” and “moan[ed]” in pain as the sheriff’s deputy pulled
him onto the grass. (Harris Dep. at 18, J.A. at 292.) These outstanding issues of material
19
fact preclude us from reviewing this aspect of the district court’s denial of qualified
immunity to Deputy Morrow.4
IV. CONCLUSION
For the reasons set forth above, we reverse the district court’s denial of qualified
immunity to Defendant/Appellant Jones, affirm in part and reverse in part the district
court’s denial of qualified immunity to Defendant/Appellant Morrow, and remand for
further proceedings in accordance with this opinion.
4
In addition to challenging the district court’s denial of qualified immunity, Defendants
Jones and Morrow also contend that the state-law claims asserted against them are subject to
dismissal under the Tennessee Governmental Tort Liability Act (“TGTLA”). In Defendants’
view, a provision of the TGTLA, Tenn. Code Ann. § 29-20-307, mandates that the Tennessee
circuit courts have exclusive jurisdiction over these claims, such that a federal district court
should — and perhaps even must — decline to exercise supplemental jurisdiction over such
claims. See Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000) (finding that, through
this provision, “the Tennessee legislature expressed a clear preference that TGTLA claims be
handled by its own state courts”). But cf. Brown v. City of Memphis, 440 F. Supp.2d 868, 876-78
(W.D. Tenn. 2006) (opining that this provision merely factors into, but does not control, a federal
district court’s discretionary decision whether to exercise supplemental jurisdiction over such
claims).
We decline to reach this issue in this interlocutory appeal. Initially, we note the absence
of any indication in Plaintiffs’ complaint that they have asserted any state-law claims against
Sheriff Jones. As to the question whether the district court should exercise supplemental
jurisdiction over the state-law claims asserted against Deputy Morrow, we do not view this issue
as sufficiently related to or inextricably intertwined with the issue over which we unquestionably
have jurisdiction — namely, the availability of qualified immunity — to warrant the exercise of
pendent appellate jurisdiction. See Summers v. Leis, 368 F.3d 881, 889-90 (6th Cir. 2004).
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