Dorothea Gravely v. John Madden

MERRITT, J., delivered the opinion of the court, in which BOGGS, J., joined. KENNEDY, J. (pp. 350-53), delivered a separate opinion concurring in the result.

OPINION

MERRITT, Circuit Judge.

Defendant John Madden, an Ohio corrections officer, appeals an order denying his motion for summary judgment on qualified immunity grounds in this civil rights action arising out of his use of deadly force in apprehending an escaped felon. The District Court rejected Madden’s claim of qualified immunity after concluding that there is “a version of the facts from which a jury could conclude that the use of force was not objectively reasonable, and the objectively reasonable standard has been well-established in the law at least since Tennessee v. Gamer, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 was decided in 1985.” Madden argues that the District Court improperly employed Garner’s Fourth Amendment analysis in denying his qualified immunity claim and instead should have applied the Eighth Amendment, which he contends allowed the use of deadly force under the circumstances. For the reasons briefly stated below, we conclude that under the applicable Eighth Amendment standard, Madden’s use of force was reasonable as a matter of law. He is therefore entitled to qualified immunity. Accordingly, we vacate the District Court’s order and remand for the entry of summary judgment in favor of Madden.

On June 25,1987, David Gravely, a prisoner at the Pickaway Correctional Institute in Orient, Ohio, escaped from a minimum security prison farm detail. Four days later, Madden and other law enforcement personnel raided a residence where they determined Gravely was visiting a friend. Officer Madden and another corrections officer were stationed on either side of the rear landing of the building as other officers initiated the raid through the front door. Both had their service revolvers drawn. Madden was wearing street clothes but had his badge displayed. The other officer was wearing a standard corrections department uniform and also had his badge displayed. When Gravely stepped through the back door and onto the porch, both officers stepped back from the landing and into the light. Madden observed that Gravely had an object in his hand. Madden and the other officer ordered Gravely to freeze and give himself up. Gravely leaped off the landing and ran past the officers. Madden and the other officer again told Gravely to stop, but he ignored them and turned to run away. Madden then fired a single shot, which struck Gravely in the back, fatally injuring him. After Madden and the other officer approached Gravely, they discovered a butcher knife partially beneath Gravely’s leg. The knife was apparently the object Gravely had in his hand when he left the building. Although Madden testified that he did not believe Gravely posed an immediate threat when he fired the shot, he believed that he had no other way to prevent Gravely’s escape. Madden understood that an administrative regulation in effect at the time authorized him to use deadly force to apprehend an escaped prisoner.

The plaintiff, Dorothea Gravely, brought suit under 42 U.S.C. § 1983 as the administrator of David Gravely’s estate, asserting that Madden’s use of deadly force violated Gravely’s rights under the Fourth, Eighth, and Fourteenth Amendments. The District Court denied the parties’ cross motions for summary judgment, and Madden appealed the court’s denial of his motion for summary judgment on the basis of qualified immunity. A previous panel of this Court denied the plaintiff's motion to dismiss the appeal for lack of jurisdiction. Gravely v. Madden, No. 96-4395 (6th Cir. March 21, 1997).

Madden asks this Court to reverse the District Court’s denial of his motion for summary judgment seeking qualified immunity from the plaintiff’s § 1983 claim. In order to establish his entitlement to qualified immunity, Madden must first show that he was acting within the scope of his discretionary authority when the incident occurred. See Wegener v. City of Covington, 933 F.2d 390, 392 (6th Cir.1991) (per curiam) (although plaintiff carries ultimate burden of proving that defendant is not immune, defendant bears initial burden of showing he was acting within scope of discretionary authority at time of incident in question). The plaintiff argues that in 1987 Madden, as a correctional officer, lacked the authority to engage in efforts to recapture an escaped inmate. In support of this argument, she points out that until 1994 there was no statute on the books explicitly authorizing corrections officers to apprehend escaped inmates. See Ohio Rev. Code § 5120.48 (1994).¹ The plaintiff reasons that the enactment of a provision in 1994 conferring this authority on corrections officers establishes that they did not possess it before that time. We are not persuaded by this argument. Section 5145.21 of the Ohio Revised Code, as enacted in 1953, required the warden of the state penitentiary to “arrest and again commit to the penitentiary a convict who escapes ... and is found at large____” Ohio Rev.Code § 5145.21 (1953), simultaneously repealed and amended by 1994 Ohio Laws H 571 (effective Oct. 6, 1994). Pursuant to § 5145.21 and related provisions, the state department of rehabilitation and correction promulgated a number of regulations that clearly contemplated the involvement of corrections officers in the apprehension of escaped inmates. See, e.g., Ohio Admin. Code § 5120-9-01 (1984) (authorizing the use of force where reasonably necessary to apprehend an escaped inmate). Some of these regulations were relied on for years before the enactment of § 5120.48 in 1994, and it is clear that § 5120.48 simply codified authority that already existed. Hence, we reject the plaintiff’s assertion that Madden was acting outside his discretionary authority at the time of the incident.

Because it is clear Madden was acting within his discretionary power when he engaged in efforts to apprehend Gravely, Madden is entitled to qualified immunity unless the plaintiff establishes that Gravely’s right to be free from the application of deadly force was so clearly established at the time of the shooting that a reasonable official in Madden’s position would have clearly understood that he was under an affirmative duty to have refrained from using such force. Williams v. Bass, 63 F.3d 483, 486 (6th Cir.1995). Put another way, the question of whether Madden is protected by qualified immunity turns on the objective reasonableness of his actions, assessed in light of the legal rules that were clearly established at the time they were taken and based on the facts available to him. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982); Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987). The District Court in this case concluded that at the time of Gravely’s death it was clearly established under Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), that a law enforcement officer could not use deadly force to apprehend a fleeing felon unless it was “necessary to prevent the escape” and the officer had “probable cause to believe that the suspect pose[d] a significant threat of serious physical harm, either to the officer or to others.” Id. at 11, 105 S.Ct. at 1701. Although Gravely was armed with a knife when he ran from the house, Madden later testified that he did not believe Gravely posed a significant threat of harm to anyone. Madden Dep. at 72-73, J.A. at 89-90. Under the Gamer standard there might be some question as to whether Madden’s actions were objectively reasonable. Gamer does not, however, provide the relevant standard in this case.

While it was clear in 1987 that Tennessee v. Gamer governed the use of excessive force by law enforcement officers on free citizens, it was not clearly established that Gamer applied in excessive force cases involving escaped convicts. The use of excessive force to recapture an escaped convict creates a different problem than the use of force to apprehend a nonviolent fleeing felony suspect. The Fourth Amendment is not triggered anew by attempts at recapture because the convict has already been “seized,” tried, convicted, and incarcerated. In addition, the historical reasons we provided in our opinion in Garner v. Memphis Police Dept., 710 F.2d 240, 243-45 (6th Cir.1983), aff'd, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1, for the rule against deadly force on a free citizen not convicted and incarcerated do not apply with respect to escaped convicts. Recognizing this distinction, the Supreme Court in Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), stated that the Eighth Amendment’s Cruel and Unusual Punishment Clause, rather -than the Fourth Amendment or the Due Process Clause of the Fourteenth Amendment, provides the rule for deciding excessive force claims by “those convicted of crimes” because, with respect to such persons, “the State has [already] complied with the constitutional guarantees traditionally associated with criminal prosecutions.” Id. at 318, 106 S.Ct. at 1083-84 (citations omitted); see also Graham v. Connor, 490 U.S. 386, 395 n. 10, 109 S.Ct. 1865, 1871 n. 10, 104 L.Ed.2d 443 (1989) (“After conviction, the Eighth Amendment ‘serves as the primary source of substantive protection ... in cases ... where the deliberate use of force is challenged as excessive and unjustified.’ ”) (quoting Whitley, 475 U.S. at 327, 106 S.Ct. at 1088). The Whitley case made it clear that the legal status of the victim of the excessive force determines whether the Fourth, the Eighth, or the Fourteenth Amendment governs Ms excessive force claims.

It was clearly established well before 1987 that after conviction, a person such as Gravely enjoyed the protection against cruel and unusual punishment afforded by the Eight Amendment. It was also clear that tMs protection included the right to be free from the imposition of unnecessary and wanton pain and suffering by corrections officers. See Whitley, 475 U.S. at 320-21, 106 S.Ct. at 1084-85; Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 1873 n. 16, 60 L.Ed.2d 447 (1979). In the context of restoring order on prison grounds, the Supreme Court explained that the question of whether the defendant’s actions “inflicted unnecessary and wanton pain and suffering ultimately turns on ‘whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’ ” Whitley, 475 U.S. at 320-21, 106 S.Ct. at 1085 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973)). In Whitley the Court identified some of the factors from which inferences of wantonness or knowing willingness with respect to the unjustified infliction of harm can be drawn: “the need for the application of force, the relationship between the need and the amount of force that was used, [and] the extent of the injury inflicted.” Whitley, 475 U.S. at 321, 106 S.Ct. at 1085 (quoting Glick, 481 F.2d at 1033). The Court stated further that factors such as “the extent of the threat to safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts known to them, and any efforts made to temper the severity of a forceftd response” are also relevant to the analysis. Whitley, 475 U.S. at 321, 106 S.Ct. at 1085.

Although Whitley involved the use of deadly force during the suppression of a prison riot, the factors relied on by the Court in that context are also relevant in evaluating the use of force in the apprehension of an escaped felon. Applying these factors in the present ease, and viewing the evidence in the light most favorable to the plaintiff, we conclude that a reasonable officer in Madden’s position may well have deemed it permissible to use deadly force under the circumstances. The plaintiff has presented no evidence tending to show that Madden fired Ms weapon maliciously or sadistically for the purpose of inflicting harm on Gravely. Rather, the evidence establishes that Madden used deadly force in a good faith attempt to prevent the escape of an armed felon who had twice evaded capture. He fired Ms weapon oMy after Gravely had ignored repeated warnings to stop and give Mmself up. There is no indication that Gravely would have abandoned Ms attempt to escape if Madden had fired a warning shot. Simply put, there is notMng in the record contradicting Madden’s claim that Gravely would have escaped but for his use of deadly force or Madden’s assertion that he fired at Gravely for the sole purpose of preventing Ms escape. Under the circumstances, Madden’s conduct cannot be said to have violated David Gravely’s right to be free from cruel and unusual pumshment.

The plaintiff suggests that Madden’s use of force violated an administrative regulation in effect at the time of the shooting and that this violation defeats Madden’s claim of immunity. The regulation in question, § 5120-9-01(F)(5) of the OMo Administrative Code, wMch was promulgated in 1984, permits a corrections officer to use deadly force when the officer reasonably believes that such force is the least force necessary to prevent escape or to apprehend an escapee. Madden submitted an affidavit stating that at the time he shot Gravely, he believed Gravely would have escaped absent the use of deadly force, and the plaintiff submitted no evidence suggesting otherwise. Even if Madden’s use of force violated the regulation, however, he would still be entitled to qualified immumty. The regulation in question does not create a substantive right that gives rise to a cause of action for damages. Rather, it provides a guideline for corrections officers with respect to the use of force. This guideline turns on the observations and conclusions of the individual officer. As such, violation of the regulation alone would not render Madden liable to suit for damages. See Davis v. Scherer, 468 U.S. 183, 194 & n. 12, 104 S.Ct. 3012, 3019 & n. 12, 82 L.Ed.2d 139 (1984) (officials sued for constitutional violations do not lose their qualified immunity simply because their conduct violates some statutory or administrative provision; rather, they become liable for damages where there is a clear violation of statutory rights that give rise to cause of action for damages); Washington v. Starke, 855 F.2d 346, 349-50 (6th Cir.1988) (regulation that turns on observations and conclusions of individual officer does not create substantive right that destroys qualified immunity).

Finally, the plaintiff contends that if § 5120-9-01(F)(5) of the Ohio Administrative Code authorized Madden’s use of deadly force, the regulation itself is unconstitutional. We have already held that Madden’s conduct did not violate Gravely’s right to be free from cruel and unusual punishment. For the same reasons, we reject the plaintiffs argument with respect to the constitutional validity of the regulation.

For the reasons stated, we VACATE the District Court order and REMAND the ease for the entry of summary judgment in favor of the defendant.

1 . Section 5120.48 reads as follows:

Assignment and Deployment of Staff to Apprehend Escaped Prisoners

If a prisoner escapes from a state correctional institution, the managing officer of the institution, after consultation with and upon the advice of appropriate law enforcement officials, shall assign and deploy into the community appropriate staff persons necessary to apprehend the prisoner. Correctional officers and officials may carry firearms when required in the discharge of their duties in apprehending, taking into custody, or transporting to a place of confinement a prisoner who has escaped from a state correctional institution.