Lewis v. Adams County ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0292n.06
Filed: April 26, 2007
No. 06-3893
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
THERESA LEWIS, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
ADAMS COUNTY, et al. ) SOUTHERN DISTRICT OF OHIO
)
Defendants-Appellees. )
Before: DAUGHTREY and ROGERS, Circuit Judges; OBERDORFER, District Judge.*
OBERDORFER, District Judge. On July 9, 2002, Everett Lewis was shot and killed by
the police in Adams County, Ohio. His wife, Theresa Lewis, on her own behalf and as
administrator of his estate, filed suit in federal district court alleging that the use of deadly force
against Lewis violated the Fourth, Fifth, Sixth and Eighth Amendments to the United States
Constitution and various state laws. Finding no constitutional violations, the district court
granted summary judgment for the defendants on all of the federal claims and dismissed the
remaining state law claims without prejudice. The plaintiff now appeals, challenging only the
district court’s grant of summary judgment on the Fourth Amendment claims and its dependent
*
The Honorable Louis F. Oberdorfer, United States District Court Judge for the District
of Columbia, sitting by designation.
dismissal of the state law claims. Because no rational juror could find that the defendant-
officers’ use of deadly force violated the decedent’s Fourth Amendment rights, we affirm the
district court's grant of summary judgment.
I. BACKGROUND
A. Facts
Up to a point, the facts in this case are not in dispute. The events leading up to Lewis’s
shooting began on the morning of July 9, 2002. At approximately 7:30 that morning, Lewis, who
lived at 1111 Barrackman Road, drove over to David Copher’s house, who lived at 510
Barrackman Road, and asked Copher to make a telephone call for him because Lewis did not
have phone service at the time. (Although Copher and Lewis were “neighbors,” the area was
rural and the houses were not within sight of each other.) Lewis asked Copher to call Baxla
Tractor Sales, where Lewis worked, and to tell them that he would not be at work that day.
Lewis also told Copher that he was getting a divorce.
Rather than calling Baxla Tractor Sales, Copher decided that he would stop by there and
relay Lewis’s message while he was in town running other errands. Copher left his residence at
around 8:00 a.m. and returned home some time between 11:00 a.m. and 11:30 a.m. At
approximately 12:00 p.m., Lewis showed up again.
Hearing Lewis’s truck pull up outside the house, Copher went out onto to his porch to see
what Lewis wanted. According to Copher, Lewis raised his hands, motioned Copher back away
from his truck, and said, “I shot the mother f-----s. They’re laying in the yard dead. . . . Dial 911.
. . . Dave, don’t come near the truck.” JA 407. When Copher asked whom Lewis had shot,
Lewis responded, according to Copher, “The mother f-----s that are moving the stuff out of my
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house and her.” JA 414. Copher thought “her” was Lewis’s wife, Teresa. Copher later testified
at his deposition that Lewis’s “eyes were red and his speech was like he had done it.” JA 407.
In response to Lewis’s request to Copher to call 911 and to report what Lewis had just
told Copher, Copher told Lewis he would do so. Lewis then left, telling Copher that he was
going back to his house. Through his window, Copher saw Lewis drive his orange Dodge truck
to the end of Copher’s driveway and turn right onto Barrackman road, which was the direction
back toward Lewis’s house.
At approximately 12:36 p.m., Copher called 911 and had the following conversation with
the dispatcher there:
Copher: Yes ma’am my name is David Copher and Everett Lewis just
cam[e] up here and said that he has 2 victims uh 2 victims up there
where he lives at I guess he shot ‘em or somethin.
Dispatcher: Two victims?
Copher: That’s what he told me to say.
Dispatcher: What’s his name?
Copher: Everett Lewis lives out there on Barrackman Road.
...
Dispatcher: He shot ‘em
Copher: He said he did, he told me not to come up near the truck.
Dispatcher: Where’s he at now?
Copher: He just left, he’s driving an orange and white Dodge pick up truck, looks
like (I can’t make it out) but I don’t know. He’s been going through a
divorce type thing.
Dispatcher: Ok did he say he was going back to the . . .
3
Copher: He said he was going to try to work something out. I don’t know what
he’s going to do. He’s driving slow so apparently he’s going back up
there. I don’t know, he shot ‘em I guess. I don’t know what to do go over
there or stay here.
...
Dispatcher: Sir, did he go back toward his house or which way did he go?
Copher: Yeah he said he was goin back toward his house so he just told me to call
911.
Dispatcher: You don’t happen to know his phone number or anything else do ya?
Copher: His phone been disconnected.
Dispatcher: Disconnected.
Copher: I let him use my phone yesterday to call the Sheriff he said something
about getting a restraining order.
Dispatcher: Ok, and did he say who he shot?
Copher: He didn’t say anything he just said he had two victims laying on the
ground so I don’t know what . . .
Dispatcher: Ok we’ll get somebody right up there.
JA 661-63. After receiving Copher’s call, the dispatcher immediately alerted the police and
officers were sent to Lewis’s house to investigate.
Copher then had a second conversation with a 911 dispatcher that was not transcribed.
During that conversation, Lewis reappeared at Copher’s house. He asked Copher whether he had
called 911 and whether the police were coming. He also told Copher that he had hostages in his
house, and he warned Copher that no one should come within 100 yards of the house. Lewis was
yelling, appeared to have been drinking, and appeared “mad at something.” Although the
dispatcher could not understand exactly what Lewis was saying, she could hear that he “was
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agitated” and sounded angry. JA 529. Lewis then left again. As he left, the wheels on his truck
were spinning and throwing gravel. Copher relayed to the 911 dispatcher that Lewis had told
him there were three hostages in the house and that no one should come within 100 yards of the
house.
At approximately 1:05 p.m. Copher had his third conversation with a 911 dispatcher,
during which the following exchange occurred:
Copher: The first time he showed up he was kinda calm about it. The
second time he was kinda pissed so apparently he said he’s got
three of them in the house.
Dispatcher: Adams County to 14 be advised he had stated that there was three
at the house.
(background noise)
Dispatcher: These were the three victims or just three people?
Copher: The first time he said there’s two victims in the yard.
Dispatcher: Two in the yard?
Copher: and I said what happened he said I shot ‘em
Dispatcher: Ok hang on
Copher: Then he said, he came back the second time and said I’ve got three
of them in the house and anybody who comes within 100 yards I’m
gonna shoot ‘em.
Dispatcher: Ok hang on one second . . . Adams County to 14
14 - 14
Dispatcher: Be advised there was two in the yard shot and then he comes back
and the guy said three in the house.
(Background noise)
5
Dispatcher: Be advised he had three in the house this is from the 911 caller.
Dispatcher: 100 yards
Copher: He said don’t come ya know once your in the driveway or get up in the
driveway or apparently he can get a shot out I don’t know
Dispatcher: Ok but how far is that?
Copher: Well he said don’t come within 100 yards of the house.
Dispatcher: Ok . . . Adams County to 14 be advised 100 yards of the residence.
Copher: He has guns there he’s a deer hunter.
Dispatcher: He has several guns.
Copher: Uh I know he’s I’ve heard a shot gun that he had. I don’t know what he
shot ‘em with but I was in the house so he does deer (noise)
Dispatcher: Yeah but he does have weapons, he is a hunter. He does have weapons.
He is a hunter.
....
JA 663-64.
During and after each conversation with Copher, the dispatchers relayed the additional
information he was reporting to the police. After Copher reported that Lewis claimed to have
hostages and was threatening serious consequences to anyone who came within 100 yards of the
house, the responding officers were told not to approach the residence or Lewis himself until
other officers arrived at the scene. One officer, Detective Jeffrey A. McCarty, told the 911
dispatcher to get the Special Response Team to the location.
Ultimately, seven Adams County police officers responded and headed to 1111
Barrackman Road, Lewis’s home address: Sheriff Kermit G. Howard, Deputy John Sheeley,
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Detective Jeffrey A. McCarty, Deputy Benjamin Mathias, Deputy Shawn D. Cooley, Deputy
Richard L. DeMint, and Chief Deputy Harry Bowman. Deputy Sheeley was the first officer on
the scene. As instructed, he stopped on Barrackman Road about one-third of a mile away from
the end of the driveway and waited for other officers to arrive. Because it was a long driveway
(approximately 400 yards) and there was a rise in the driveway between the house and the road,
the house itself was not visible from the road. While Deputy Sheely was waiting for other
officers to arrive, he saw Lewis’s orange pickup truck approaching from the other direction, turn
into the driveway and head toward the house.
Once other police officers began to arrive, they moved to where the driveway met
Barrackman Road, planning to await the arrival of a SWAT team and/or a hostage negotiator
before taking any further action. In the meantime, Deputy Sheeley drove to an adjacent property,
hoping to find a point from which to observe the Lewis property. By climbing up on a fence and
using binoculars, he was able to see the top half of the front door of Lewis’s house and about one
foot of the top of Lewis’s pickup truck, but he could not see the yard. While Sheeley was
watching, Lewis emerged from the house, got into his pickup truck, did three “donuts” in the
yard, and then began driving down the driveway toward Barrackman Road. Sheeley radioed this
information to the officers gathered at the end of the driveway and then headed back there
himself.
Lewis stopped his truck before he got to the end of the driveway. He got out and,
standing behind the door of the truck, began yelling at the officers. The officers could not
understand what he was saying. Lewis then reached into his truck and pulled out a rifle and
pointed it at the officers through the driver’s door window. The officers ordered Lewis to drop
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his rifle and get on the ground, but he refused. Instead, Lewis got back into his truck and began
backing up rapidly toward his house.
When Lewis starting backing up, the officers got into their vehicles and pursued him.
Detective McCarty and Deputy DeMint were in the lead vehicle, followed by Deputies Cooley
and Mathias in a second, larger vehicle. Neither car was able to get around Lewis’s truck to stop
him before he got back to the house because of the dust created by his vehicle. When these four
officers arrived at the house, virtually simultaneously, Lewis was already out of his truck. He
was rapidly sidestepping from his truck to the porch, holding his rifle low and pointing it at the
officers as he moved across the yard. The officers got out of their cars and ordered Lewis to put
his rifle down, but he ignored the orders and continued moving toward the porch of his house.
Precisely what happened next is disputed. According to the defendants (and the district
court), Lewis got onto his porch, backed up toward the door of the house, and grabbed the door
knob as if to enter. He then stopped and aimed his rifle directly at the officers. According to the
plaintiff, whether or not Lewis was actually on the porch when he was shot, and whether or not
Lewis was actually pointing his rifle at the officers at the time he was trying to enter the house
are disputed facts.1
What happened next is not disputed. All four officers on the scene – Detective McCarty,
Deputy Cooley, Deputy Mathias, and Deputy DeMint – fired (virtually simultaneously) at Lewis.
After Lewis fell to his knees, Deputy Cooley ran up onto the porch and moved Lewis away from
his gun, while another officer took possession of the gun. Lewis made no other sounds or
1
The plaintiff’s attorney’s suggestion at oral argument that there is a genuine issue as to
whether Lewis actually had a gun simply because there is no crime scene picture of him holding
a gun borders on frivolous in light of the substantial record evidence to the contrary.
8
movements after he was shot. Following the shooting, some of the officers entered the house
looking for hostages, but none were found. The officers also searched the premises for shooting
victims, but found none. Medical help for Lewis was called, but he died from his wounds. The
other officers arrived on the scene after Lewis had been shot.
Two bullets hit Lewis. The trajectory of the fatal gunshot wound was from back to front,
right to left, and slightly downward, with the entrance in the right lateral chest and the projectile
recovered in the left breast soft tissue. The other gunshot entrance wound was in the left buttock
with the trajectory from back to front without significant lateral or vertical deviation. It was not
possible to determine from which gun any particular bullet was fired. Lewis never fired his
weapon.
In the immediate aftermath of the shooting, there was an investigation. While the
investigation team made a number of apparent errors, none are material to the issues raised on
appeal.
B. Procedural History
Following Lewis’s death, his wife Teresa, on her own behalf and as the administrator of
his estate, filed the pending complaint in federal district court for the Southern District of Ohio,
alleging that the officers’ use of deadly force violated Lewis’s rights under the Fourth, Fifth,
Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Ohio law. She
named as defendants six Adams County police officers (in their individual and official
capacities): Sheriff Howard, Detective McCarty, and Deputies Mathias, Cooley, DeMint, and
9
Sheeley2; Adams County; the Adams County Sheriff’s Department; and the three Adams County
Commissioners (in their official capacities).
The district court granted the defendants’ motion for summary judgment. Concluding
that Lewis’s Fourth Amendment rights were not violated because the officers’ use of deadly
force was “‘objectively reasonable’ in light of the facts and circumstances confronting them,” the
district court dismissed the Fourth Amendment excessive force claims against all of the
defendants.3 It also ruled that the Fifth, Sixth, and Eighth Amendments were “clearly
inapplicable” to the case. Having resolved all the federal claims in favor of the defendants, the
district court dismissed the state law claims without prejudice, pursuant to 28 U.S.C. § 1367(c).
The plaintiff filed the instant appeal, challenging the district court’s grant of summary
judgment for the defendants on the Fourth Amendment excessive force claims and, should it
succeed in reversing summary judgment on those claims, seeking reinstatement of its state law
claims.
II. LEGAL PRINCIPLES
A. Summary Judgment Standard
We review de novo the district court's grant of summary judgment. See Ciminillo v.
Streicher, 434 F.3d 461, 464 (6th Cir. 2006). Summary judgment is permitted “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
2
For reasons that are not immediately apparent from the record, she did not name Chief
Deputy Bowman as a defendant.
3
The district court’s other reasons for dismissing the Fourth Amendment claims against
these defendants are not relevant given our agreement with the district court that there was no
underlying Fourth Amendment violation.
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any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue is “genuine . . . if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A fact is “material” if the dispute over it
might affect the outcome of the lawsuit under the governing law. Id. In determining whether
there are genuine issues of material fact, the evidence of the nonmovant is to be believed and all
justifiable inferences are to be drawn in its favor. Id.
B. Fourth Amendment Excessive Force Claim
The Fourth Amendment guarantees that “[t]he right of the people to be secure in their
persons . . . against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const.
Amend. IV. Under the Fourth Amendment, “the ‘reasonableness’ of a particular seizure depends
not only on when it is made, but also on how it is carried out.” Graham v. Connor, 490 U.S. 386,
395 (1989) (citing Tennessee v. Garner, 471 U.S. 1, 7-8 (1985); St. John v. Hickey, 411 F.3d
762, 771 (6th Cir. 2005). “The ‘reasonableness’ inquiry in an excessive force case is an
objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of
the facts and circumstances confronting them, without regard to their underlying intent or
motivation.” Graham, 490 U.S. at 397. The Supreme Court in Graham instructed reviewing
courts to consider various factors in evaluating excessive force claims. St. John v. Hickey, 411
F.3d at 771. The reasonableness inquiry “requires careful attention to the facts and
circumstances of each particular case, including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396 (citing
11
Garner, 471 U.S. at 8-9). “[T]he ultimate question is ‘whether the totality of the circumstances
justifies a particular sort of seizure.’” St. John v. Hickey, 411 F.3d at 771 (quoting Graham, 490
U.S. at 396). In resolving this question, the court must “carefully balance the nature of the
intrusion on the [individual’s] Fourth Amendment rights against ‘the countervailing
governmental interests at stake.’” Id. (quoting Garner, 471 U.S. at 8). The Sixth Circuit has
noted that “‘[t]his 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.’”
Id. (quoting Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002)). Finally, whether the force
used was reasonable must be judged from the perspective of a reasonable police officer on the
scene. Graham, 490 U.S. at 396.
With respect to the use of deadly force, certain specific rules apply. For example, “the
Fourth Amendment prohibits a police officer’s use of deadly force to seize an unarmed,
non-dangerous suspect.” Sample v. Bailey, 409 F.3d 689, 696 (6th Cir. 2005) (citing Garner,
471 U.S. at 11). Rather, the use of deadly force is only constitutionally permissible 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 . . . .” Garner, 471 U.S. at 11; see also Sample, 409 F.3d at 697 (noting
that “only in rare instances may an officer seize a suspect by use of deadly force” (internal
quotations omitted)).
III. DISCUSSION
In the present case, the plaintiff contends that the defendants deprived Lewis of his Fourth
Amendment rights by using excessive (deadly) force against him, resulting in his death. The
district court concluded that the shooting of Lewis was reasonable because Lewis posed an
12
immediate threat to the officers and to the hostages the officers believed were inside the
residence. It explained its decision as follows:
Taken in the light most favorable to plaintiff, the facts alleged do not show that
the defendant officers’ conduct violated Everett Lewis’s Fourth Amendment
rights. The officers’ actions in shooting Lewis were ‘objectively reasonable’ in
light of the facts and circumstances confronting them. It had been reported to the
officers, but not verified, that Lewis had shot two individuals and had three
hostages in his house; Lewis posed an immediate threat to the safety of the
officers or others since he was armed with a rifle that he had aimed at the officers
and appeared willing to use; and Lewis was attempting to flee from the officers
and enter his residence when they shot him. The officers were therefore
confronted with a rapidly evolving and highly volatile situation that required them
to use their judgment on-the-spot, without the benefit of consultation and the
verification of information provided by the police dispatchers. Neither the court
nor a jury can, with the benefit of hindsight, adjudge the actions of these officers
in dealing with an armed individual who posed a threat to the safety of both the
officers and possibly to individuals being held hostage to have been unreasonable.
Dist. Ct. Op. at 18-19 (JA 39-40).
On appeal, the plaintiff argues that the district court erred in granting summary judgment
for the defendants on the Fourth Amendment excessive force claims because it ignored
“conflicting evidence concerning how Mr. Lewis died,” and failed to “construe the facts most
strongly in favor of the [plaintiff],” leading it to conclude erroneously that the individual officers
did not use excessive force when they shot at and killed Lewis. Rather, the plaintiff asserts, the
facts and physical evidence, viewed in their entirety and in the proper light, suggest (and a
reasonable jury could conclude) that shooting Lewis was unreasonable. For the reasons
explained below, we disagree.
A. Did the District Court’s Analysis Ignore Conflicting Evidence?
The plaintiff contends that the district court’s analysis ignored material conflicting
evidence, in particular an affidavit from the plaintiff’s expert forensic witness, Mr. Larry Dehus,
13
opining that the physical evidence in the case was not consistent with the individual officers’
statements as to how the shooting occurred. In relevant part, Dehus’s affidavit states:
For Mr. Lewis’s wounds to have occurred while he was standing on the front
porch, he would had to have been facing the northwest corner of the porch at the
time they[sic] side wound was inflicted and would had to have been facing the
front door at the time the wound to the buttocks was inflicted. Therefore, his back
would have been towards the officers based upon their reported locations and the
location of the fired cartridge casings. Diagram # 1 shows the probable trajectory
of the bullet that struck Mr. Lewis in the right side and his position at the time of
that shot. Diagram # 2 shows the probable trajectory of the bullet that struck Mr.
Lewis in the left buttocks and his position at the time he was struck by that bullet.
Considering these positions, it is the opinion of this examiner that it is highly
unlikely that Mr. Lewis could have been pointing the rifle at the deputies at the
time that they discharged their weapons.
JA at 198-99 (emphasis added). Dehus also opined that based on the trajectory of the bullets,
“Either Mr. Lewis was not on the porch when this shot was fired or the deputies were firing from
an extremely high position.” JA 197.
The plaintiff argues that the Dehus affidavit creates genuine issues as to three facts – (1)
whether or not Lewis was facing the officers at the time the officers fired; (2) whether or not
Lewis was pointing his rifle at the officers at the time the officers fired; and (3) whether or not
Lewis was on the porch at the time the officers fired – and that these are material disputes,
thereby precluding summary judgment on the question whether the officers used excessive force
against Lewis. We will consider first whether the Dehus affidavit creates a genuine issue as to
any of these facts and then consider whether, if it does, that disputed fact is material.
1. Is there a genuine issue as to whether Lewis was facing the officers?
The plaintiff argues that the Dehus affidavit calls into question the officers’ testimony
that Lewis was facing them when they fired. There are two problems with the plaintiff’s
14
argument. First, it supposes that there is testimony from the officers that Lewis was facing them
when they fired their guns. However, as the district court noted and as a review of the officers’
testimony confirms, the officers did not testify that Lewis was facing them, but rather that the
upper portion of his body was turned toward them. See, e.g., McCarty Aff., JA 250-51 (“His face
was also turned to his right and he was looking directly at us. The anterior portion of his body
was about 90 degrees turned away from us to our right.”). Thus, there is no “conflict” between
the Dehus affidavit and the officers’ testimony. Second, the defendants do not contend that
Lewis was facing them when they fired. Rather, they “agree” with the Dehus affidavit that at the
time the shots were fired the front of Lewis’s body was facing the northwest corner of the porch
– not directly facing the officers. Def. Br. at 32. And they took the same position before the
district court. See Dist. Ct. Op. at 19-20 (JA 39-40) (“defendants do not allege, and have not
presented any evidence to suggest, that Lewis was standing with his body facing the officers
when they shot him”). Accordingly, the district court did not ignore conflicting evidence, but
rather correctly recognized that there was no conflict between the Dehus affidavit and the
officers’ testimony on this point and, therefore, no “issue.”
2. Is there a genuine issue as to whether Lewis was pointing his rifle at the
officers?
The plaintiff argues that the Dehus affidavit also calls into question the officers’
testimony that Lewis was pointing his rifle at them when they fired and that this conflict creates a
genuine issue of material fact, precluding summary judgment. In this instance, there is a clear
conflict between the officers’ testimony (all of whom testified that Lewis raised his arm and
pointed his rifle directly at them) and the Dehus affidavit which states that, in his opinion, it is
15
“highly unlikely that Mr. Lewis could have been pointing the rifle at the deputies at the time that
they discharged their weapons.” The district court recognized that Dehus’s affidavit conflicted
with the officers’ testimony, but concluded that it alone was “insufficient to create an issue for
the trier of fact as to whether plaintiff was pointing his rifle at the officers when they fired at
him” in the face of the consistent deposition testimony from all of the officers at the scene and
the opinion of the medical examiner that the physical evidence was consistent with the officers’
testimony. Dist. Ct. Op. at 18 (JA 38).
As noted previously, an issue is “genuine” if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party. Liberty Lobby, 477 U.S. at 248. The court
determines whether sufficient evidence has been presented to make the issue of fact a proper jury
question, but does not weigh the evidence, judge the credibility of witnesses, or determine the
truth of the matter. Id. at 249; Weaver v. Shadoan, 340 F.3d 398, 405 (6th Cir. 2003). The
standard for summary judgment mirrors the standard for directed verdict. Anderson, 477 U.S. at
250. A court must decide “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Id. at 251-52. If a court concludes a fair-minded jury could not return a verdict in favor of the
nonmoving party based on the evidence presented, it may enter a summary judgment. Id.;
Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
The question on appeal is whether the district court properly determined that even though
there was a dispute over whether Lewis was pointing his gun at the officers, there was not
enough evidence from the plaintiff to send that issue to the jury or whether the district court
improperly “weighed” the evidence on summary judgment. We agree with the district court that
16
the plaintiff did not submit enough evidence to get to a jury on the issue of whether Lewis was
pointing his rifle at the officers. One expert’s opinion that it is “highly unlikely” that Lewis was
pointing his rifle at the officers in the face of the consistent deposition testimony from all of the
officers at the scene and the opinion of the medical examiner that the physical evidence was
consistent with the officers’ testimony is simply not enough to take that issue to a jury. Cf.
DeMerrell v. City of Cheboygan, 206 Fed. Appx. 418, 427 (6th Cir. 2006) (holding that a single
expert report speculating that the facts might be different than reported was not sufficient to
create a genuine issue of material fact); Boyd v. Baeppler, 215 F.3d 594, 603 (6th Cir. 2000)
(same).
3. Is there a genuine issue as to whether Lewis was on the porch when he was
shot?
The plaintiff also argues that the Dehus affidavit creates a genuine issue as to whether
Lewis was on the porch when he was shot. The district court rejected that exact argument,
explaining its reasoning as follows:
Those present at the scene all placed Lewis on the porch at the time he was shot,
and their accounts are consistent with the fact that the blood found at the scene
was on the porch. Accordingly, a reasonable fact-finder could not discount the
officers’ testimony that Lewis was on the porch about to enter his house when
they fired based only on Mr. Dehus’s conjectural opinion that either plaintiff was
not on the porch when one of the two shots struck him or the officers were firing
from an extremely high position.
Dist. Ct. Op. at 18-19 (JA 38-39). In this instance, the district court’s conclusion is clearly
correct. Given that all of the blood was on the porch, we do not see how a reasonable jury could
conclude that Lewis was not himself on the porch at the time he was shot.
4. If there is a genuine issue, is the dispute material?
17
As explained above, we are not persuaded that the district court overlooked any “genuine
issues.” Even if the dispute over whether Lewis was pointing his gun at the officers were a
“genuine issue,” the question would remain whether that dispute is material. That is, assuming
the truth of the plaintiff’s version of the facts, would it lead to the conclusion that the officers
used excessive force? As explained below, we do not believe that it would.
B. Did the District Court Fail To Construe Evidence in the Plaintiff’s Favor?
The plaintiff also contends that the district court failed to construe the evidence in her
favor and that this failure led to the erroneous conclusion that the use of deadly force was
justified. Specifically, she faults the district court for concluding that the following two facts
were immaterial to the lawfulness of the decision to use deadly force: (1) the individual officers’
failure to verify, in her words, the “preposterous” telephone calls by David Copher; and (2) again
in her words, the “indiscriminate” shooting into Lewis’s residence.
1. Did the district court fail to construe the evidence in the plaintiff’s favor
when it concluded that the failure to verify Copher’s 911 report was
“immaterial”?
The district court concluded that the failure to verify Copher’s telephone calls was
“immaterial . . . given the . . . circumstances that confronted the officers after they responded to
the call.” Dist. Ct. Op. at 23 (JA 43). The plaintiff argues that if the district court had properly
construed the evidence in her favor, it would have concluded that the officers’ failure to verify
was material because these were “ludicrous” phone calls from a paranoid schizophrenic.
The primary problem with the plaintiff’s argument is that it assumes facts for which there
is absolutely no evidentiary support. Throughout her brief, the plaintiff refers to Copher as a
“paranoid schizophrenic.” However, the plaintiff has not identified, and we have not found, any
18
record evidence to support the plaintiff’s suggestion that Copher’s condition was or should have
been “known” to the 911 dispatchers and/or the police officers at the scene, thereby alerting them
to the possibility that he was not accurately reporting what Lewis told him. Indeed, there is
deposition testimony to the contrary. See, e.g., Howard Dep. at 71-72 (JA 474). Thus, although
the plaintiff suggests that the issue is whether the police should verify a report of murders and
hostage-taking from a known paranoid schizophrenic before using deadly force, the facts of the
present case do not actually raise that question and, accordingly, we will not attempt to answer it
here.4
The plaintiff also faults the district court for not mentioning the opinion of her police
practices expert, Ken Katsaris, that the failure to verify Copher’s call rendered the application of
deadly force “unquestionably objectively unreasonable and excessive.” Pl. Br. at 25. However,
an expert opinion that merely expresses a legal conclusion is properly ignored. See DeMerrell,
206 Fed. Appx. at 426.
Accordingly, we conclude that the district court did not fail to construe the facts in the
plaintiffs’ favor in terms of evaluating the materiality of the failure to verify Copher’s 911 report.
2. Did the district court fail to construe the evidence in the plaintiff’s favor
when it concluded that the “indiscriminate” shooting was immaterial?
4
We note that current law holds only that it is a “relevant factor” in evaluating the
reasonableness of an officer’s conduct in a direct encounter that the officer knows that person
with whom the encounter is occurring is “experiencing some sort of mental or emotional
difficulty.” See, e.g., Griffith v. Coburn, 473 F.3d 650, 658 (6th Cir. 2007); see also Champion
v. Outlook Nashville, Inc., 380 F.3d 893, 904 (6th Cir. 2004) (“It cannot be forgotten that the
police were confronting an individual whom they knew to be mentally ill or retarded, even
though the Officers may not have known the full extent of [his] autism and his unresponsiveness.
The diminished capacity of an unarmed detainee must be taken into account when assessing the
amount of force exerted.”).
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In relevant part, the bullet damage was as follows:
[T]he front of the house had several possible gunshot holes. . . . Several gunshot
holes were observed on the south, west and east walls. One projectile was
observed on [the] floor in front of [the] middle bedroom door. A second
projectile was observed on [the] bed in [the] first or master bedroom.
...
The front of the residence contained approximately eight round[s] in the front
gable and facing. One round entered the right side of the front porch to the left of
the bedroom window. The screen door had gunshot hole[s] in the lower portion
of the door and one to the left side of the screen door frame. Search inside
residence revealed several gunshot holes in the south and west wall[s]. The
screen door glass had shattered from gunshots. . . . [O]ne round [removed] from
west wall and another round had entered south wall and exited the house into the
side yard.
JA 198.
The district court concluded that “the facts that shots were fired into the house when the
officers’[sic] fired at Lewis does not, however, call into question the reasonableness of the
officers’ use of deadly force against Lewis.” JA 39. On appeal, the plaintiff argues that the court
should have considered the bullet damage because “the number and location of the shots that
penetrated the residence directly counters [the officers’] claim that they believed the residence
was occupied.” Rather, she maintains, it is evidence that the officers “did not truly believe
hostages remained in the residence.” Pl. Br. at 32. And absent a risk to hostages, the use of
deadly force to prevent Lewis from entering his own house was unlawful. The plaintiff’s theory
is supported by the Dehus affidavit, which states that “[i]f the deputies were concerned about the
safety of hostages within the interior of the house, that was not displayed when a large number of
shots were fired into the house.” JA 198. However, the evidence that the officers actually and
reasonably believed that Lewis had hostages is substantial, including Copher’s multiple 911
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calls, the absence of any obvious reason to doubt the truth of Copher’s report, the deposition
testimony of all of the officers, and the fact that all of the officers fired at once. In order for a
jury to believe the inference that the plaintiff suggests it could draw from the bullet damage, it
would have to also believe that all of the officers were lying and that they simultaneously and
without conversation all knew that there weren’t any hostages but decided to fire anyway.
Although the plaintiff is entitled to have all reasonable inferences drawn in her favor, to infer
from the bullet locations that the officers were shooting indiscriminately and, therefore, that they
didn’t really believe that there were hostages inside, is simply not a reasonable inference given
the other evidence in the record. Accordingly, we conclude that the district court did not fail to
construe the bullet evidence in the plaintiff’s favor when it concluded that it was “immaterial.”
C. Under the totality of the circumstances was the shooting of Lewis objectively
reasonable?
The plaintiff’s bottom line is that the district court erred in concluding based on the
undisputed facts and as a matter of law that the use of deadly force was objectively reasonable.
Of the various specific challenges the plaintiff makes to the district court’s analysis (discussed
above), we have found none to be meritorious. The question remains whether taking the
uncontroverted facts as stated by the district court and drawing all plausible inferences in the
plaintiff’s favor, whether the shooting was objectively reasonable – that is, did the officers have
probable cause to believe that Lewis posed a serious threat of injury to the police officers or
others?
What the officers knew at the time was: that there had been a 911 report by Copher that
Lewis had claimed to have killed two people and to have three others held as hostages in his
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house; that Lewis had recently separated from his wife and that she had taken all of his children;
that he had been trying to get a restraining order against his wife that morning; that he had left his
house in his pickup truck, driven partway down his driveway toward the police, gotten out of his
car and pointed the gun at them; that while out of his car in the driveway he had ignored police
instructions to put down his gun and surrender; that he had gotten back into his car and backed
up to his house, exited the car carrying his gun and scurried back onto his porch, apparently
trying to reenter his house through the screen door; that while moving from his truck to the porch
door, he ignored police instructions (again) to put down his gun and surrender; that he pointed
his gun at them; that the police had no reason not to believe that Copher was not accurately
reporting what Lewis told him to tell the 911 dispatcher; and that the only reason the police
might have doubted the veracity of Lewis’s claim at the time was that they did not see any dead
bodies in the yard. Given these circumstances, we conclude that the officers’ actions were
objectively reasonable.
As noted above, the plaintiff contends that the district court erred in treating as
“uncontroverted” the fact that Lewis pointed his gun at the officers. But even if Lewis did not
point his gun at the officers (or if we assume that there is a genuine issue as to that fact), the
outcome would not change. If Lewis was not pointing his gun at the officers, the immediate
danger to them is arguably diminished. But see Livermore v. Lubelan, 476 F.3d 397, 405 (6th
Cir. 2007) (“Even assuming that [the suspect] was not aiming his rifle at the [light-armored
vehicle] when he was shot, we nonetheless conclude that [the police officer who shot him] had
probable cause to believe that [the suspect] posed a serious threat to the officers in the [light-
armored vehicle] . . . due to his proximity to the [light-armored vehicle] while armed with a rifle,
22
his prior violent behavior, and his continued refusal to surrender and face arrest.”) Moreover, in
the present case the officers had another basis for shooting – to protect the hostages they believed
Lewis held inside the house. Ultimately, police in the circumstances could have reasonably
believed that there were hostages in the house, that Lewis would shoot them if he could, and that
application of deadly force to Lewis was the last clear chance to save them. The fact that there
turned out not to be any hostages is immaterial. As long as the evidence supports the conclusion
that the officers had probable cause to believe that Lewis posed a serious threat of injury to
hostages, the shooting was justified. See, e.g., Untalan v. City of Lorain, 430 F.3d 312 (6th Cir.
2005) (no Fourth Amendment violation where an officer reasonably, though perhaps incorrectly
in hindsight, perceives an immediate and serious threat from the suspect).
Our conclusion here is consistent with two recent Sixth Circuit cases where the court
found no Fourth Amendment violation. In the first, Livermore, which is cited above, the suspect
was on his own property, armed, and refusing to surrender to the police (he had emerged from his
residence after setting it on fire). The police attempted to confront him by entering onto his
property in a light-armored vehicle. In order to have radio communication, two of the three
officers in the vehicle had to partially emerge, exposing themselves to danger. The officers in the
vehicle could not see the suspect due to darkness and smoke. A police-stationed sniper 150 yards
away saw the suspect pointing his gun at the vehicle and tracking it as it moved. Believing that
the exposed officers were in danger, the sniper fired and killed the suspect. The district court
denied the defendants’ motion for summary judgment, but this court reversed, concluding that
the sniper’s use of deadly force against the suspect was objectively reasonable, even if the
suspect was not actually pointing his gun at the officers. In the second, DeMerrell v. City of
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Cheboygan (also cited above), the suspect was intoxicated, agitated, waving a gun around and
inviting the officers to shoot him. The officer who shot and killed the suspect fired after the
suspect pointed the gun at him and took a few steps in the officer’s direction. The other officers
on the scene did not fire, although they testified that they were about to. It turned out that the
suspect only had a pellet gun. The district court concluded, and this Court affirmed, that there
was no Fourth Amendment violation.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s grant of summary judgment for
all defendants.
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