Charles Hocker v. Pikeville City Police Dep't

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0349p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant, -

CHARLES RUSSELL HOCKER,

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No. 13-5341

v.

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PIKEVILLE CITY POLICE DEPARTMENT;

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ADDISON BAISDEN and CHADWICK

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BRANHAM, in their individual and official

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Defendants-Appellees. N

capacities,

Appeal from the United States District Court

for the Eastern District of Kentucky at Pikeville.

No. 7:11-cv-00122—Edward B. Atkins, Magistrate Judge.

Argued: October 10, 2013

Decided and Filed: December 17, 2013

Before: BOGGS and SUTTON, Circuit Judges; CLELAND, District Judge.*

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COUNSEL

ARGUED: Katherine L. MacPherson, Grand Rapids, Michigan, for Appellant. Russell

H. Davis, Jr., BAIRD AND BAIRD, Pikeville, Kentucky, for Appellees. ON BRIEF:

Katherine L. MacPherson, Grand Rapids, Michigan, for Appellant. Russell H. Davis,

Jr., BAIRD AND BAIRD, Pikeville, Kentucky, for Appellees.

*

The Honorable Robert H. Cleland, United States District Judge for the Eastern District of

Michigan, sitting by designation.

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No. 13-5341 Hocker v. Pikeville City Police Dep’t Page 2

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OPINION

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SUTTON, Circuit Judge. A heavily intoxicated, possibly suicidal Charles

Hocker led two Pikeville police cruisers on a nighttime, lights-off, high-speed chase for

seven miles before pulling onto a darkened gravel road. A lot happened in the next few

seconds. Officers Addison Baisden and Chadwick Branham exited their cruisers with

guns drawn and ordered Hocker to show his hands and turn off his car. Maybe Hocker

heard the commands; maybe he didn’t. But no matter what Hocker heard, what he did

next is beyond dispute: He put his vehicle in reverse—accelerating quickly enough to

spin his tires—and rammed one of the two cruisers, moving it thirty feet. Baisden and

Branham opened fire on Hocker’s vehicle. Once the shooting ended, they forcibly

removed a severely wounded Hocker from his car. After pleading guilty to two counts

of wanton endangerment in the first degree, one count of fleeing or evading police in the

first degree, and one count of driving under the influence, Hocker sued the officers under

42 U.S.C. § 1983, claiming excessive force. The district court granted qualified

immunity to the officers and rejected the claims against the other defendants in the case:

the City of Pikeville and its police department. We affirm.

I.

After getting off work on August 13, 2010, Hocker drank a six-pack of

Budweiser “Tall Boy” beers, and at approximately 10:30 pm he drove to the home of his

on-again, off-again girlfriend Jessica Batten. A protective order, however, directed

Hocker not to go to Batten’s house. Batten called 911, reporting that Hocker was

“highly intoxicated” and “suicidal” and that he had just left her home in a red Honda.

Officers Baisden and Branham saw a red Honda Prelude with its headlights off

speed past their two police cruisers. Hocker admits that the lights of his Prelude were

off, that he was traveling between 70 and 80 miles per hour, and that he passed at least

one civilian vehicle on the winding, narrow Hurricane Road. The officers gave chase.

No. 13-5341 Hocker v. Pikeville City Police Dep’t Page 3

Hocker denies seeing or hearing the officers—neither the headlights nor the red-and-blue

flashing lights nor the sirens of the two police cars directly behind him—during the

seven-mile pursuit. After driving this way for six minutes or so, Hocker admits that he

pulled off the main road into a gravel driveway and stopped.

Hocker’s version of the next 25 seconds goes like this. He thought he was alone

on the gravel road, and he claims to have grabbed a CD from his backseat, put it in, and

turned the volume up before attempting to back out of the driveway. The engine on his

Prelude allegedly has a throttle defect that causes it to accelerate to 4,000 RPMs on its

own, so the car shot backwards when he put it in reverse, possibly spinning gravel and

most definitely running into Baisden’s cruiser. Hocker thought he had hit a telephone

pole, not a police cruiser, and the last thing he remembers is hearing shots (and possibly

feeling one round hit his left side) before blacking out.

Officers Baisden and Branham add a few undisputed facts and another

perspective on these 25 seconds. After the three vehicles stopped on the gravel road,

Baisden and Branham turned off their sirens and exited their cruisers. Baisden “post[ed]

up” next to his cruiser, positioning himself between the cruiser’s body and his open

driver’s side door, and he ordered Hocker to show his hands and step out of his vehicle.

R. 33 at 8. Branham’s cruiser was parked somewhere to Baisden’s right, but Branham

moved on foot to his left to join Baisden. The collision between the Prelude and

Baisden’s cruiser caused Baisden’s open door to swing closed, temporarily trapping his

arm. Baisden was forced to backpedal as Hocker’s Prelude pushed the cruiser some

thirty feet toward a ditch. Seeing that Baisden was trapped and backpedaling—and

backpedaling himself to avoid “the vehicle coming back on [him]”—Branham decided

he “had to do something.” R. 36 at 10–11. He moved further to his left to avoid

Baisden’s vehicle, and, once he had an angle on Hocker’s car, Branham opened fire.

Baisden soon freed himself from the door and fired shots at the Prelude as well. Where

exactly Baisden and Branham stood when they fired their weapons is not clear, but based

on the location of the spent shell casings recovered at the scene, it seems that the officers

fired from positions to the left of Baisden’s cruiser and Hocker’s Prelude.

No. 13-5341 Hocker v. Pikeville City Police Dep’t Page 4

In all, the officers fired twenty shots at Hocker’s vehicle, hitting Hocker nine

times. Hocker blacked out shortly after the shooting started and vaguely remembers

“somebody grabbing [him].” R. 35 at 34. When the shooting stopped, the officers

opened Hocker’s door and ordered him out of the vehicle. When Hocker did not

comply, the officers reached into the vehicle and pulled him out, Branham grabbing

Hocker’s left arm, and Baisden grabbing Hocker’s right, “which was still grasping the

steering wheel.” R. 33 at 40. After the officers removed Hocker from the car, they

handcuffed him and waited for additional police officers and medical personnel to arrive.

Hocker was stabilized at a Pikeville medical center and transported to a West Virginia

hospital for additional treatment, where he woke up with “bruises all over [his] neck.”

R. 35 at 35.

A Pike County grand jury indicted Hocker for two counts of attempted murder,

one count of fleeing or evading police in the first degree, one count of operating a motor

vehicle while intoxicated, and one count of being a persistent felony offender in the first

degree. Before trial, Hocker pleaded guilty to two counts of wanton endangerment in

the first degree, one count of fleeing or evading police in the first degree, and one count

of driving under the influence. The court sentenced Hocker to ten years in prison.

In August 2011, Hocker filed a lawsuit against Baisden, Branham, the City of

Pikeville and its police department under § 1983, alleging violations of the Fourth (and

Fourteenth) Amendment as well as several state laws. The district court granted

summary judgment for the defendants on all the federal claims and dismissed the state-

law claims without prejudice.

II.

The facts of this chase, seizure and use of force provide a partial explanation for

the district court’s decision to reject Hocker’s excessive-force claims against the officers

under the Fourth Amendment. The legal test for piercing the qualified immunity of

officers protecting the public safety provides a complete one. Unless the officers’

conduct violated Hocker’s constitutional rights, and unless Supreme Court or Sixth

No. 13-5341 Hocker v. Pikeville City Police Dep’t Page 5

Circuit case law clearly established those constitutional rights at the time of the incident,

the court must grant immunity to the officers. Hocker fails the first prong because he

cannot show a constitutional violation.

No doubt the use of deadly force by police officers is a serious matter and ought

to be avoided—but not at all costs and not in all situations. The question is why and to

what end the police deployed the force. Two cases capture the point, one finding a

Fourth Amendment violation, one not. Tennessee v. Garner, 471 U.S. 1 (1985),

considered whether an officer could prevent an unarmed felon’s escape by shooting him.

In holding that he could not, the Court applied the Fourth Amendment reasonableness

test to find that deadly “force may not be used unless it is necessary to prevent the

escape [of an apparently unarmed suspected felon] and the officer has probable cause to

believe that the suspect poses a significant threat of death or serious physical injury to

the officer or others.” Id. at 3. Scott v. Harris, 550 U.S. 372, 383–86 (2007), followed

this path. It applied the same Fourth Amendment reasonableness standard to grant relief

to a police officer who had ended a high-speed chase by running the suspect’s vehicle

off the road.

Gauged by this reasonableness standard, the officers did not use excessive force.

Heavily intoxicated and possibly suicidal, Hocker led Baisden and Branham on a high-

speed (70 to 80 miles per hour), nighttime chase (without his headlights on) down a

winding back road, imperiling the safety of anyone driving in Hocker’s vicinity.

Hocker’s guilty plea confirms as much. He pleaded guilty to two counts of wanton

endangerment in the first degree, meaning that he “engage[d] in conduct which creates

a substantial danger of death or serious physical injury to another person.” Ky. Rev.

Stat. § 508.060(1). What happened next—after Hocker mercifully stopped—confirmed

the reasonableness of the officers’ use of their weapons. Hocker rammed Baisden’s

cruiser while Baisden was standing behind the cruiser’s open door, pushing the car thirty

feet. The collision temporarily trapped Baisden’s arm between the door and the body

of the cruiser. Branham was forced to backpedal to avoid Baisden’s sliding cruiser, at

one point using his left arm to keep the cruiser away from him. Only after these direct

No. 13-5341 Hocker v. Pikeville City Police Dep’t Page 6

risks to their own safety did both officers fire at Hocker’s vehicle. The officers’

responses to the escalating risks created by Hocker’s actions are precisely the kinds of

“split-second judgments—in circumstances that are tense, uncertain, and rapidly

evolving”—that they may, sometimes must, take in the line of duty. Graham v. Connor,

490 U.S. 386, 397; see Garner, 471 U.S. at 20.

In addition to Garner and Scott, Sixth Circuit case law supports this use of force.

Consider Smith v. Freland, 954 F.2d 343 (6th Cir. 1992). An officer chased a suspect

at high speed, eventually cornering the suspect’s vehicle on a lawn on a residential street.

Attempting to remove the suspect from his car, the officer left his cruiser and moved

around the cruiser’s rear. As he did so, the suspect sped forward and smashed into the

cruiser. When the suspect tried to maneuver past the damaged cruiser and escape, the

officer shot and killed the suspect. Id. at 344. We held that the officer’s use of deadly

force was reasonable, even though the officer himself was never in immediate danger

and even though the use of force arguably violated police policy. See id. at 347–48.

Consider, too, Williams v. City of Grosse Pointe Park, 496 F.3d 482 (6th Cir. 2007).

Two police cruisers boxed in a fleeing vehicle. The plaintiff put his vehicle in reverse,

colliding with the cruiser to his rear. One officer on foot approached the driver’s side

window of the plaintiff’s vehicle and was knocked down when the vehicle accelerated

away. The second officer fired several shots at the escaping vehicle, striking the plaintiff

in the neck and paralyzing him. Id. at 484. The officer’s use of deadly force, we held,

was objectively reasonable. Id. at 486.

Hocker argues that this approach fails to look at the facts in the most favorable

light to him. Yet it makes no difference that Hocker may not have intended to hurt the

officers, that he may not have known the officers were trailing him, and that he may not

have heard the officers insist he exit the car. The question is not Hocker’s state of mind.

It is whether a reasonable officer could perceive Hocker’s actions as so dangerous as to

warrant the force used. Hocker’s un-communicated intent in driving the way he did in

short has nothing to do with it.

No. 13-5341 Hocker v. Pikeville City Police Dep’t Page 7

Hocker adds that, by the time Baisden and Branham fired at his vehicle, neither

one of them was in harm’s way, eliminating any need to use lethal force against him.

It is not that easy, particularly in the context of the lightning-quick evolution of this

encounter. It is undisputed that neither officer knew where the other one was when they

began firing. That one officer was safe does not mean the other one was. This reality

by itself justified the officers’ conduct. While it may be easy for Hocker to say that each

officer was safe once the officer was no longer in the direct path of Hocker’s vehicle, no

reasonable officer would say that the night’s peril had ended at that point. Hocker

remained in the car, and for the prior ten minutes or so—from the officers’ reasonable

perspective—had put others, including most recently the officers, in harm’s way with

his car. What in that short time span would leave anyone with the impression that

Hocker no longer presented a threat to their safety? He remained in the car, and the car

engine remained on. Only Hocker’s self-restraint stood in the way of further threats to

their safety. From the officers’ reasonable perspective, the peril remained.

Hocker maintains that, whenever an officer fires at the driver’s side of a moving

(and potentially departing) vehicle, he acts unreasonably. But this is an invention. No

case adopts such a per se rule. If there is a per se rule in this area, it is that the “totality

of the circumstances” governs every case. Garner, 471 U.S. at 8–9. Hocker’s three

case citations say nothing to the contrary. One case never reached the reasonableness

question. See Sigley v. City of Parma Heights, 437 F.3d 527, 536 (6th Cir. 2006). In the

other two cases, the court acknowledged that there are many factors at play when

deciding the reasonableness of an officer’s use of deadly force, including not just

“whether the suspect poses an immediate threat to the safety of the officers or others,”

but also “the severity of the crime at issue,” “whether [the suspect] is actively resisting

arrest or attempting to evade arrest by flight,” Smith v. Cupp, 430 F.3d 766, 774 (6th

Cir. 2005), and whether the officers “had sufficient time . . . to assess the situation

before” using deadly force, Estate of Kirby v. Duva, 530 F.3d 475, 482 (6th Cir. 2008).

Just so here. For the reasons just given, the officers acted reasonably as a matter of law

based on these considerations.

No. 13-5341 Hocker v. Pikeville City Police Dep’t Page 8

The evidence supplied by Hocker’s proposed expert witness—a three-page

affidavit to the effect that deadly force was unnecessary—does not alter this conclusion.

There is some dispute as an initial matter whether this testimony made it into the record.

Defendants filed a motion to exclude this testimony, arguing that it did not meet several

district-court requirements (the testimony did not indicate the expert’s qualifications, and

the expert’s name was not disclosed by the court-ordered deadline), but the court issued

its opinion before ruling on the motion. Because the district court discussed the expert

report, we see no harm in doing the same.

Hocker’s expert concludes that the officers’ use of force was “premature and

. . . not justifiable” because Hocker had not committed anything more than a class A

misdemeanor and because typical police training would counsel against the use of such

force. R. 42-14 at 3. The expert’s first premise is wrong. Hocker pled guilty to wanton

endangerment in the first degree and fleeing or evading in the first degree, class D

felonies all. See Ky. Rev. Stat. §§ 508.060(2), 520.095(2). Having witnessed Hocker’s

class D felonies during the chase and having been subjected to Hocker’s endangerment

to them during the ramming incident, the officers surely did not act prematurely in

bringing the encounter to a halt. The expert’s second premise is also wrong. That

deadly force from time to time violates standard police training does not by itself answer

the liability question. In a § 1983 case, “the issue is whether [the officers] violated the

Constitution, not whether [they] should be disciplined by the local police force.” Smith,

954 F.3d at 347. The key assumption of the expert is that the officers were safe once

they moved out from behind his car. But that assumes Hocker was finished using his

Honda Prelude as a weapon. The officers had a reasonable basis for assuming he was

not.

Nor did the officers use excessive force when they removed Hocker from the

vehicle. As with the lethal-force inquiry, we look at the objective reasonableness of the

officer’s conduct in light of the facts and circumstances at the scene, 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

No. 13-5341 Hocker v. Pikeville City Police Dep’t Page 9

arrest by flight.” Graham, 490 U.S. at 396. And as with the lethal-force analysis,

Hocker comes up short—for many of the same reasons.

After drawing all reasonable inferences in Hocker’s favor, the undisputed facts

show that Baisden and Branham acted reasonably in removing Hocker from the car.

When the officers approached Hocker’s vehicle, they opened the door and found a

wounded man screaming profanities and grasping the steering wheel. Hocker did not

comply with the officers’ commands to exit the vehicle, and as a result they forcibly

removed him from the car.

Hocker’s contrary arguments are unconvincing. He relies on Martin v. City of

Broadview Heights, 712 F.3d 951 (6th Cir. 2013), but it offers him no aid. Four police

officers tackled, punched, choked, kneeled on and handcuffed a naked individual who

had entered (and left) an apartment, who was “speaking quickly and nonsensically,” and

who bit one of the responding officers on the knuckle. Id. at 954–55, 958. The young

man died after the confrontation. Id. at 955. The use of lethal force in response to the

one (biting an officer’s knuckle) offers no meaningful parallel to the other (ramming an

officer’s cruiser with a vehicle after a high-speed chase). A more useful parallel is

provided by Blosser v. Gilbert, 422 F. App’x 453 (6th Cir. 2011), which found it

objectively reasonable for two police officers—who had followed the plaintiff in a high-

speed chase—to forcibly pull the plaintiff from his vehicle, “slam[]” him onto his back

on the hood of a police car, and secure him by executing several arm-twisting

maneuvers. Id. at 455, 458. The “dangerousness” of the plaintiff’s driving and his

“disregard for safety and willingness to use his vehicle as a weapon” justified the

officers’ belief that the plaintiff posed a continuing, immediate threat to their safety and

the safety of others. Id. at 458; see also Dunn v. Matatall, 549 F.3d 348, 353–55 (6th

Cir. 2008) (forcibly removing a suspect from his vehicle following a high-speed chase

does not violate the Fourth Amendment).

Nor does Diane Meade’s testimony require a different outcome. If one reviewed

only Hocker’s opening brief, one might wonder if Baisden and Branham crossed the

excessive-force line when removing Hocker from his vehicle. It says that Hocker was

No. 13-5341 Hocker v. Pikeville City Police Dep’t Page 10

“dragged . . . out of the car . . . punch[ed] and kick[ed] . . . while he continued to bleed

profusely from his gunshot wounds.” App. Br. at 16. But this is not a fair reading of

Meade’s testimony. Far from “dragg[ing]” Hocker out of the vehicle, Meade testifies

that she never saw Hocker outside the car. See R. 38 at 40. And Meade expressly

disavows seeing anybody kick Hocker. Instead, Meade’s testimony says only that she

saw two officers standing on either side of Hocker’s open driver’s side door “pulling,”

see, e.g., id. at 43, “grabbing,” see, e.g., id. at 42, 43, and “hitting,” see, e.g., id. at 44,

Hocker. Other uncontroverted testimony puts these actions in context. Baisden states

that Hocker was “still grasping the steering wheel,” despite being ordered to exit the

vehicle, R. 33 at 40; Branham states that Hocker was screaming profanities at the

officers; both officers say that they had to use some force to remove Hocker from his

vehicle; and Hocker says that he might “vaguely remember somebody grabbing” him,

but he isn’t sure, R. 35 at 34–35. These descriptions do not suffice to establish a

cognizable claim of excessive force, much less a clearly established one.

Hocker claims that two pictures show he obtained bruises on his neck from the

encounter. While Hocker doesn’t remember anything that happened after the shooting,

he speculates that the bruises came from being “grabbed . . . out of the car by [his] neck”

or “choke[d] . . . on the ground.” Id. at 35. But his supposition of how he obtained the

bruises does not create a genuine dispute of material fact that supports his claim. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The pictures show only faint

bruises obtained at some point during the encounter—not why or how they occurred.

No jury could reasonably find a Fourth Amendment violation based on this self-serving

interpretation of the evidence by someone who did not remember what had happened.

Hocker adds that video clips recorded by an onlooker in the incident’s aftermath

might have shown “the beating.” App. Br. at 28. But the only evidence in the record

belies this claim. According to the testimony of Detective Jason Merlo, the Kentucky

State Police officer who investigated the incident, a local man approached the crime

scene at some point after the incident with a cell phone or video recording device in

hand. The man took videos of the crime scene, but Merlo gave the man a choice: either

No. 13-5341 Hocker v. Pikeville City Police Dep’t Page 11

consent to the deletion of the videos, or the recorder could be taken into evidence. The

man allowed the videos to be deleted. Hocker claims that the district court should have

issued a spoliation instruction in any future trial as a result. But such instructions are

only appropriate where “the destroyed evidence [is] relevant to the party’s claim or

defense.” Jennings v. Bradley, 419 F. App’x 594, 599 (6th Cir. 2011). And we fail to

see how video recordings of the post-chase, post-collision, post-shooting, post-

apprehension, post-everything crime scene bear on Hocker’s Fourth Amendment claims.

They do not suffice to take the case to a jury.

III.

Hocker filed direct and indirect claims against Pikeville and its police

department: direct, because several counts in Hocker’s complaint allege government

liability for the actions of its police officers; and indirect, because Hocker brought claims

against Baisden and Branham in their official capacities, which is just “another way of

pleading an action against [the] entity of which [the] officer is an agent.” Kentucky v.

Graham, 473 U.S. 159, 165–66 (1985). The district court properly rejected these claims

as a matter of law for one basic reason: No constitutional violation occurred. See City

of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam).

IV.

For these reasons, we affirm.