Latits Ex Rel. Estate of Latits v. Phillips

NOT RECOMMENDED FOR PUBLICATION

File Name: 14a0629n.06

No. 13-2432 FILED

Aug 13, 2014

DEBORAH S. HUNT, Clerk

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DEBBIE JEAN LATITS, as Personal Representative )

of the Estate of Laszlo John Latits, Deceased, )

)

Plaintiff-Appellee, )

ON APPEAL FROM THE

)

UNITED STATES DISTRICT

v. )

COURT FOR THE EASTERN

)

DISTRICT OF MICHIGAN

LOWELL PHILLIPS, Police Officer for the City of )

Ferndale, )

OPINION

)

Defendant-Appellant. )

BEFORE: CLAY and STRANCH, Circuit Judges; BLACK, District Judge.*

STRANCH, Circuit Judge. Debbie Jean Latits filed suit under 42 U.S.C. § 1983

alleging that City of Ferndale Police Officer Lowell Phillips violated the Fourth Amendment

when he fatally shot her husband, Laszlo John Latits, at the conclusion of a vehicle chase. The

district court denied Officer Phillips’s motion for judgment on the pleadings on various grounds,

including qualified immunity, see Fed. R. Civ. P. 12(c), and Officer Phillips filed this

interlocutory appeal seeking reversal of the district court’s decision. We DISMISS the appeal

for lack of jurisdiction.

The parties agree we should review de novo the district court’s decision to deny the

Rule 12(c) motion for judgment on the pleadings. See Kottmyer v. Maas, 436 F.3d 684, 689 (6th

*

The Honorable Timothy Black, United States District Judge for the Southern District of

Ohio, sitting by designation.

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Latits v. Phillips

Cir. 2006). We must accept as true the well-pleaded factual allegations of the complaint and

construe the facts in the light most favorable to the plaintiff. Reilly v. Vadlamudi, 680 F.3d 617,

622 (6th Cir. 2012). The complaint alleges the following facts.

In the early morning hours of June 24, 2010, Laszlo Latits was stopped by one or more

Ferndale police officers for a minor traffic violation. Latits did not possess a weapon. When

Officer Jaklic pointed a pistol at Latits’s head from point blank range, Latits fled in his vehicle,

but he did not drive at an excessive rate of speed. Three Ferndale police officers pursued him

even though he had committed, at most, a civil infraction or a misdemeanor in their presence.

He was not suspected of any felony offenses prior to the pursuit, and there were no felony

warrants for his arrest.

The police pursuit began in the vicinity of 8 Mile Road and Livernois and ended in the

vicinity of State Fair and Woodward in Detroit. Officer Wurm began ramming Latits’s car when

Latits turned northbound on Woodward. The chase ended when Officer Phillips rammed Latits’s

car and pushed it across three lanes of traffic and onto the corner of State Fair and Woodward.

Officer Phillips got out of his car and ran near the passenger door of Latits’s car. Latits began

backing up at low speed. Officer Phillips drew his pistol, turned, and ran after Latits’s car.

Latits did not try to hit Officer Phillips with his car; rather, he backed away in an arc that curved

away from the officer. Officer Phillips then fired seven shots, at least three of them after Latits

had already backed all the way past Officer Phillips. Three shots hit Latits—two in the chest and

one in the arm. Officer Phillips was in no danger when he shot Latits. He was not protecting

another officer or anyone else from imminent serious bodily injury at the time he used his

weapon. Latits did not present an imminent threat to the officers before or at the time he was

shot. Latits was transported to Beaumont Hospital where he was pronounced dead.

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Whether Officer Phillips is entitled to qualified immunity on these facts turns on the

objective legal reasonableness of his discretionary conduct in light of clearly established law.

See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We ask whether he violated a constitutional

right and whether that right was clearly established at the time of the alleged conduct. Wood v.

Moss, 134 S. Ct. 2056, 2066–67 (2014). A district court’s denial of qualified immunity, to the

extent it turns on a pure issue of law, is an appealable “final decision” within the meaning of

28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Gregory v. City of

Louisville, 444 F.3d 725, 742 (6th Cir. 2006). For purposes of interlocutory appeal, however,

Officer Phillips must concede the most favorable view of the facts for the plaintiff. See Quigley

v. Thai, 707 F.3d 675, 680 (6th Cir. 2013); Estate of Carter v. City of Detroit, 408 F.3d 305,

309–10 (6th Cir. 2005).

In his briefs and oral argument, Officer Phillips steadfastly refused to concede the most

favorable view of the facts for the plaintiff. Ignoring completely the plaintiff’s factual

allegations pled in federal court, he contends that we must apply the facts found by the Michigan

Court of Appeals at an earlier stage of this litigation when that court granted his defense of

governmental immunity to the plaintiff’s state-law claim of assault and battery. See Latits v.

Phillips, 826 N.W.2d 190 (Mich. Ct. App. 2012). He insists that the same facts compel us to

grant him qualified immunity on the Fourth Amendment claim.

Officer Phillips either misunderstands or chooses to disregard our case law. Because he

does not accept the plaintiff’s allegations for purposes of this appeal and insists on using an

entirely different version of the facts more favorable to him, we lack jurisdiction to resolve the

qualified immunity question in this interlocutory appeal. See Gregory, 444 F.3d at 743 (citing

Johnson v. Jones, 515 U.S. 304, 313 (1995)). Officer Phillips has made no effort to demonstrate

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that, under the facts alleged by the plaintiff, he did not violate the deceased’s Fourth Amendment

rights or that he is entitled to qualified immunity due to a lack of clearly established law. See

Plumhoff v. Rickard, 134 S. Ct. 2012, 2016–17 (2014) (holding in police shooting case decided

on summary judgment that officer did not violate deceased motorist’s Fourth Amendment rights

and alternatively, was entitled to qualified immunity).

Officer Phillips also asserts that he is entitled to judgment on the pleadings under the

doctrines of collateral estoppel, the law of the case, and Rooker-Feldman. He does not point us,

however, to any published case in which we have held that we possess appellate jurisdiction to

review a district court’s rulings on these doctrines when they are raised in an interlocutory

qualified immunity appeal. Because we lack jurisdiction to decide the qualified immunity

question, we are not inclined to decide whether we have jurisdiction to consider these other

claims on interlocutory appeal.

Even if we had jurisdiction, we would nonetheless reject each claim as without merit.

Officer Phillips cannot show the existence of a prior valid and final judgment entered in state

court to warrant the application of collateral estoppel. See Pac. Employers Ins. Co. v. Sav-A-Lot

of Winchester, 291 F.3d 392, 399 (6th Cir. 2002). The law of the case doctrine does not apply

because the Michigan Court of Appeals decided a state-law issue distinct from the Fourth

Amendment issue presented to the federal courts. Cf. Westside Mothers v. Olszewski, 454 F.3d

532, 538 (6th Cir. 2006). The Rooker-Feldman doctrine is inapplicable because the plaintiff

does not complain of any injury caused to her by an adverse state court judgment; rather, her

Fourth Amendment claim targets the alleged wrongdoing of Officer Phillips. See Exxon Mobil

Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).

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Finally, Latits requests an award of sanctions against the defendant. Federal Rule of

Appellate Procedure 38 provides: “If a court of appeals determines that an appeal is frivolous, it

may, after a separately filed motion or notice from the court and reasonable opportunity to

respond, award just damages and single or double costs.” In briefing and at oral argument,

defense counsel resolutely refused to follow our case law. This appeal, moreover, appears to

have been interposed for the purpose of delay. Although the appeal is frivolous and the question

of sanctions is close, we decline at this time to award Rule 38 sanctions as requested by the

plaintiff.

For the reasons stated, we DISMISS the appeal for lack of appellate jurisdiction.

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