William Cass v. City of Dayton

RECOMMENDED FOR FULL-TEXT PUBLICATION

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

File Name: 14a0257p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

WILLIAM O. CASS, Administrator of the Estate of ┐

Derrick J. Jordan, │

Plaintiff-Appellant, │

│ No. 13-4409

│

v. >

│

│

CITY OF DAYTON; DAYTON POLICE DEPARTMENT; │

DAVID HOUSE; JOHN DOE, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Southern District of Ohio at Dayton.

No. 3:12-cv-00248—Timothy S. Black, District Judge.

Argued: August 8, 2014

Decided and Filed: October 16, 2014

Before: GIBBONS and McKEAGUE, Circuit Judges; LAWSON, District Judge.*

_________________

COUNSEL

ARGUED: Matthew C. Schultz, BRANNON & ASSOCIATES, Dayton, Ohio, for Appellant.

Kelly M. Schroeder, FREUND, FREEZE & ARNOLD, Dayton, Ohio, for Appellees. ON

BRIEF: Matthew C. Schultz, Dwight D. Brannon, BRANNON & ASSOCIATES, Dayton,

Ohio, for Appellant. Kelly M. Schroeder, Neil F. Freund, FREUND, FREEZE & ARNOLD,

Dayton, Ohio, for Appellees.

*

The Honorable David M. Lawson, United States District Judge for the Eastern District of Michigan, sitting

by designation.

1

No. 13-4409 Cass v. City of Dayton, et al. Page 2

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OPINION

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JULIA SMITH GIBBONS, Circuit Judge. After a “buy-bust” operation took an

unexpected turn, Detective David House of the Dayton City Police Department shot and killed

Derrick Jordan. Jordan, not the intended target of the bullet, sat in the front passenger seat of a

vehicle that, moments before the shot was fired, had been driven into two officers in an attempt

to escape. Jordan’s estate brought suit under 42 U.S.C. § 1983, alleging that House used

excessive force in violation of the Fourth Amendment and that the City failed to train and

supervise its employees adequately. Jordan’s estate also asserted claims under Ohio law. The

district court awarded summary judgment to the defendants on all claims and Jordan’s estate

appeals. For the following reasons, we affirm.

I.

This case arises out of a May 16, 2008, “buy-bust” operation orchestrated by Detective

James Mullins of the Dayton Police Department Special Investigations Division Drug Unit. The

operation was based on information received from a confidential informant, who was to purchase

an ounce of crack cocaine from Robert Moore.

That evening, Mullins briefed the following team members on the operation: Sergeant

Mark Spiers, Sergeant Brian Johns, Detective David House, Detective Keith Coberly, Detective

Dennis Murphy, Detective Doug Hall, Detective Joe St. Clair, Detective Tommy Harshman,

Officer Mark Ponichtera, Officer Ron Velez, and Officer Tom Oney. Mullins advised the team

that the informant had ordered an ounce of crack cocaine, that Moore was a known drug dealer,

and that Moore was known to be armed with a gun. Mullins explained that it was to be a two-

part operation. The first part called for officers to arrest Moore following a traffic stop. If that

was unsuccessful, Mullins would take the informant to the Econo Lodge on Edwin C. Moses

Blvd. where the officers would arrest Moore after he sold the crack cocaine to the informant.

Mullins advised that the team was to move in and “take down” Moore once the informant gave a

No. 13-4409 Cass v. City of Dayton, et al. Page 3

visual signal to confirm that Moore was actually there to make the deal. The first part of the plan

was unsuccessful so the officers turned to the second.

The Dayton Econo Lodge is a U-shaped building with an overhang that juts out along the

east side. It faces Edwin C. Moses, and an access road runs between that street and the hotel.

The road provides access to a McDonald’s (to the west of the Econo Lodge), a Wendy’s (to the

east of the Econo Lodge), and a BP gas station (further to the east of the Econo Lodge).

Detective House arrived in the vicinity of the motel at approximately 7:15 pm in an unmarked

City of Dayton vehicle. After twice moving his car, House parked near the McDonald’s drive-

through to the west of the Econo Lodge with a view of the informant.

Not long after House parked, Detective Knight came on the radio and informed the team

that Moore was arriving in a blue Ford Taurus and that there were three or four occupants in the

vehicle. Shortly thereafter, the Taurus stopped under the overhang and made contact with the

informant. Satisfied that Moore was there to complete the deal, the informant made the signal

and then turned to walk toward the hotel. Mullins instructed the team to “move in.” The plan

was to surround the Taurus while Moore was still in front of the Econo Lodge waiting for the

informant to return.

It was at this point that the plan went awry and the situation began to escalate. Instead of

waiting for the informant, the Taurus drove through the Econo Lodge parking lot at “normal

speed,” westbound, in the direction of House and the McDonald’s. Believing that if he

continued with the original plan the vehicle would simply drive around him, House positioned

his car in the exit that led from the Econo Lodge parking lot onto Edwin C. Moses. After

partially blocking the exit, House got out of his vehicle and walked toward the Taurus as it came

to a stop in front of him. At about the same time, Detective St. Clair, with Sergeant Johns,

parked alongside his car, leaving about one car’s length between the two. Because the signal had

been given, House believed that the other detectives would converge on the Taurus.

The Taurus came to a stop approximately 30 feet from House’s vehicle, giving House a

clear view of the driver and passenger and the driver a clear view of him. House, wearing his

badge and his Dayton Police utility vest with “Police” written in reflective lettering, approached

the Taurus from the front with his gun drawn, yelling “Dayton Police. Stop the car.” St. Clair

No. 13-4409 Cass v. City of Dayton, et al. Page 4

did the same. When House was approximately ten feet from the stopped Taurus, the driver of

the car, later identified as Charles Stargell, “punched the gas” and accelerated.1 House ran to the

left. Realizing he could not avoid being hit, House put his hands on the hood of the Taurus and

jumped in the air to ensure that the car would not drive over his body. The Taurus struck House

in the right leg as he rolled across the hood to the passenger side of the vehicle. The impact

carried House in the direction from which he came, and he landed facing the same direction as

the Taurus, which continued to accelerate.

Almost immediately after the car struck House, it struck St. Clair in the hand, prompting

him to discharge his weapon. At that point, House did not know where St. Clair was or even that

St. Clair had been the one to fire the shot. Nevertheless, based on the fact that House had last

seen St. Clair behind him, House believed that St. Clair had fired the shot and had done so in

self-defense. In fact, St. Clair was on the opposite side of the vehicle near the rear driver’s-side

door and testified that he discharged his weapon accidentally.

Within a matter of seconds after being hit, House turned to the left, in close proximity to

the passenger-side front window, looked through the sight on his gun at the driver of the Taurus,

and fired a single shot. House testified that the only person he could see through the sight was

the driver, Stargell; he did not see the person in the front passenger seat. He testified that he took

the shot in the belief that he was protecting St. Clair, Johns, Detective Murphy, and Officer

Ponichtera, as well as officers and civilians who might have been seriously injured had the car

continued on. The bullet struck and killed Derrick Jordan, the front-seat passenger. The Taurus

continued between House’s and St. Clair’s cars, through the McDonald’s parking lot, eventually

crashing into a tree.

The City of Dayton Police Department charged House and St. Clair with two violations

of the City’s firearms policy. General Order 3.03-5, Use of Firearms, provides that “An officer

will not discharge firearms from or at a moving vehicle unless they reasonably believe that such

an action is in defense of human life.” Subsection (a) provides that “Officers must use tactical

positioning of their vehicles and tactical vehicle approaches in order to minimize the danger

1

There is a dispute as to whether the vehicle accelerated directly at House, or whether the driver turned the

wheel left and accelerated at St. Clair. Regardless, the vehicle hit both officers.

No. 13-4409 Cass v. City of Dayton, et al. Page 5

presented by occupied vehicles.” Subsection (b) provides that “Officers must not deliberately

place themselves in the path of a moving vehicle. An officer will attempt to move from the path

of the motor vehicle and/or seek cover when possible.” The two officers were found not guilty

of violating subsection (a) and guilty of violating subsection (b), presumably for approaching the

Taurus from the front. House was given a 24-hour suspension.

William Cass, Jr., as administrator of Jordan’s estate, brought suit against the City of

Dayton, the Dayton Police Department, Detective House, and a John Doe defendant in the

Montgomery County, Ohio, court of common pleas. Cass asserted claims under 42 U.S.C.

§ 1983, alleging that House violated Jordan’s Fourth Amendment rights and that the City could

be held liable under Monell v. Department of Social Services of the City of New York, 436 U.S.

658 (1978). Cass also asserted claims under Ohio law. The defendants removed the suit to the

United States District Court for the Southern District of Ohio, and the district court awarded

summary judgment to the defendants on all of Cass’s claims. The district court held that House

did not violate Jordan’s Fourth Amendment rights because House’s use of force was not

objectively unreasonable under the circumstances. In the alternative, the district court held that

House was entitled to qualified immunity because Jordan’s constitutional rights were not clearly

established. On the Monell claim, the district court rejected Cass’s contention that the police

department’s after-the-fact failure to discipline House adequately (in the plaintiff’s eyes)

established a causal nexus between the alleged constitutional violation and the City’s actions.

The court also granted House statutory immunity on the state-law claims. Cass timely appealed.

II.

We review a district court’s grant of summary judgment de novo. See Dixon v. Univ. of

Toledo, 702 F.3d 269, 273 (6th Cir. 2012). Summary judgment is proper where no genuine issue

of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c). In considering a motion for summary judgment, we construe all reasonable

inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986).

Cass asserts that summary judgment was improper under Tolan v. Cotton, which held that

where material facts are disputed—when, for example, there is contradictory testimony

No. 13-4409 Cass v. City of Dayton, et al. Page 6

concerning a fact—a court must resolve that dispute in favor of the nonmoving party at the

summary judgment stage. 134 S. Ct. 1861, 1866–68 (2014). Unlike in Tolan, the material facts

in this case are not disputed; this dispute centers on whether those facts, when viewed in Cass’s

favor, amount to a violation of Jordan’s clearly established constitutional rights. This type of

dispute is apt for disposition at summary judgment because the only question is whether the

defendants were entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Plumhoff

v. Rickard, 134 S. Ct. 2012, 2020–24 (2014).

A.

We begin with the § 1983 claims against House in his personal capacity2 to which House

asserted a qualified immunity defense. “‘[G]overnment officials performing discretionary

functions generally are shielded from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person would

have known.’” Binay v. Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010) (alteration in original)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The purpose of such immunity is to

protect officials from “undue interference with their duties and from potentially disabling threats

of liability.” Harlow, 457 U.S. at 806. To ensure robust protection, qualified immunity protects

“all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,

475 U.S. 335, 341 (1986).

There are two general steps to the qualified immunity analysis. The court must determine

whether “the facts alleged show the officer’s conduct violated a constitutional right” and whether

that right was “clearly established.” Saucier v. Katz, 553 U.S. 194, 201–02 (2001).3 Cass asserts

that the district court erred at both steps of the qualified immunity analysis—that the district

court erred in concluding that Jordan’s rights were not violated and that House did not violate

2

Cass did not specify whether the claim was brought against House in his individual or official capacity.

House did not object on that basis and there is no question that House had “sufficient notice” that he was being sued

in his individual capacity, Moore v. City of Harriman, 272 F.3d 769, 773 (6th Cir. 2001) (en banc), particularly

since he asserted a qualified immunity defense, Shepherd v. Wellman, 313 F.3d 963, 968 (6th Cir. 2002).

3

This court has at times applied a third step in its qualified immunity analysis. A court must determine

“whether the plaintiff has offered sufficient evidence ‘to indicate that what the official allegedly did was objectively

unreasonable in light of the clearly established constitutional rights.’” Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.

2003) (quoting Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999)). In the instant case, this objective

reasonableness test collapses into the Fourth Amendment inquiry.

No. 13-4409 Cass v. City of Dayton, et al. Page 7

clearly established law. We reach only Cass’s first argument. See Pearson v. Callahan,

555 U.S. 223, 236 (2009).

Although Jordan was not the intended target of House’s bullet, Cass’s claim on his behalf

is properly assessed under the Fourth Amendment. See Fisher v. City of Memphis, 234 F.3d 312,

318–19 (6th Cir. 2000). The Fourth Amendment’s prohibition against unreasonable seizures

prohibits the use of excessive force against free citizens. Id. (citing Graham v. Connor, 490 U.S.

386, 395 (1989)). The test is one of objective reasonableness: “[T]he 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. We

assess “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,” id. (citing Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)), among other case-

specific factors. See Ciminillo v. Streicher, 434 F.3d 466, 467 (6th Cir. 2006). In short, we ask

whether the officer’s use of force was objectively reasonable in light of the totality of the

circumstances as they would have appeared to a “reasonable officer on the scene, rather than

with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.

Tennessee v. Garner provides the starting point for assessing the use of deadly force

against fleeing felony suspects. There, the Supreme Court held that the Fourth Amendment does

not permit a police officer to “seize an unarmed, nondangerous suspect by shooting him dead.”

471 U.S. at 11. At the same time, “[w]here the officer has probable cause to believe that the

suspect poses a threat of serious physical harm, either to the officer or to others, it is not

constitutionally unreasonable to prevent escape by using deadly force.” Id.

Since Garner, we have applied a consistent framework in assessing deadly-force claims

involving vehicular flight. Although each case is tethered to its specific factual context, the

critical question is typically whether the officer has “reason to believe that the [fleeing] car

presents an imminent danger” to “officers and members of the public in the area.” Smith v.

Cupp, 430 F. 3d 766, 775 (6th Cir. 2005). An officer is justified in using deadly force against “a

driver who objectively appears ready to drive into an officer or bystander with his car.” Hermiz

v. City of Southfield, 484 F. App’x 13, 16 (6th Cir. 2012) (citing Brosseau v. Haugen, 543 U.S.

No. 13-4409 Cass v. City of Dayton, et al. Page 8

194, 197–200 (2004)). But, as a general matter, an officer may not use deadly force “once the

car moves away, leaving the officer and bystanders in a position of safety.” Id.; see also, e.g.,

Murray-Ruhl v. Passinault, 246 F. App’x 338, 344–46 (6th Cir. 2011); Estate of Kirby v. Duva,

530 F. 3d 475, 482–83 (6th Cir. 2008); Sigley v. City of Parma Heights, 437 F.3d 527, 535–36

(6th Cir. 2006); Cupp, 430 F.3d at 774–75. An officer may, however, continue to fire at a

fleeing vehicle even when no one is in the vehicle’s direct path when “the officer’s prior

interactions with the driver suggest that the driver will continue to endanger others with his car.”

Hermiz, 484 F. App’x at 16; see, e.g., Scott v. Clay Cnty., 205 F. 3d 867, 877 (6th Cir. 2000);

Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992). In Cupp, we explained:

In [Scott and Freland], there was no question that the lives of the officers, or the

lives of both the officers and members of the public in the area, were endangered

by the fleeing suspects. Each suspect demonstrated multiple times that he either

was willing to injure an officer that got in the way of escape or was willing to

persist in extremely reckless behavior that threatened the lives of all those around.

The officers reacted with deadly force only after an extended interaction between

police and the suspect proved that the suspect was likely to continue to threaten

the lives of those around him in his attempt to escape.

430 F.3d at 775.

Finally, because the “calculus of reasonableness” allows for the fact that police officers

must often “make split-second judgments—in circumstances that are tense, uncertain, and

rapidly evolving,” Graham, 397 U.S. at 397—an officer does not violate the Fourth Amendment

where, although ultimately wrong in his or her assessment of the circumstances, “a dangerous

situation evolved quickly to a safe one before the police officer had a chance to realize the

change.” See Cupp, 430 F.3d at 774–75.

Applying this framework, and cognizant that the ultimate question is one of objective

reasonableness, we find that House did not use excessive force. As House approached the

stopped Taurus, clearly signaling his status as a City police officer, Stargell accelerated. Despite

House’s evasive maneuver, House was struck in the leg as he rolled across the hood of the

Taurus. Almost immediately after being hit, House heard St. Clair fire his weapon. Based on his

assessment of the scene, he believed that St. Clair had fired in self-defense and that Johns and

Murphy were also at risk of being struck by the vehicle. It was only at this point—after he

No. 13-4409 Cass v. City of Dayton, et al. Page 9

himself had been hit by the Taurus and had heard St. Clair discharge his weapon in what House

believed was self-defense—that he attempted to stop the Taurus by shooting at the driver. These

facts are not contested in the record. Based on the fact that Stargell had demonstrated that “he

either was willing to injure an officer that got in the way of escape or was willing to persist in

extremely reckless behavior that threatened the lives of all those around,” Smith, 430 F.3d at 775,

and based on House’s professional assessment of what can only be described as a “tense,

uncertain, and rapidly evolving” situation, Graham, 397 U.S. at 397, House’s use of deadly force

was objectively reasonable.

Cass disagrees. He asserts that because House landed facing in the same direction as the

Taurus, he should have known that St. Clair was not in immediate danger. But “[i]t is not that

easy, particularly in the context of the lightning-quick evolution of this encounter.” Hocker v.

Pikeville City Police Dep’t, 738 F.3d 150, 155 (6th Cir. 2013). House needed to make a split-

second judgment, which he did based on his understanding of the scene and his professional

training. Cass would have the court substitute its judgment for House’s, but the reasonableness

inquiry accounts for the fact that officers on the scene must act quickly based on their

professional judgment and the facts and circumstances as they then appear. Graham, 490 U.S. at

396.

Quite apart from the fact that House reasonably believed St. Clair to be in the direct path

of the Taurus, Cass’s argument lacks merit. His argument hinges on the proposition that St.

Clair in particular and none of the other officers more generally were in the Taurus’s direct path

when House used deadly force. But the inquiry is not nearly so narrow. The question is whether

House reasonably believed that the lives and safety of both officers and members of the public

“in the area” were in imminent danger. Cupp, 430 F.3d at 775. Indeed, this court and the

Supreme Court have looked beyond the immediate scene where the driver, like Stargell, “had

proven he would do almost anything to avoid capture.” Freland, 954 F.2d at 347 (noting that,

based on suspect’s prior interactions with officers, fleeing suspect could have entered

neighboring house hoping to take hostages); Plumhoff, 134 S. Ct. at 2021 (noting that, based on

suspect’s prior interactions with officers, it was reasonable to believe that the suspect would

resume his flight and pose a deadly threat to others on the road).

No. 13-4409 Cass v. City of Dayton, et al. Page 10

In this case, we look no further than the immediate vicinity. Although the Taurus had

struck two officers, Cass suggests that the coast was clear for the car to proceed unmolested

despite the presence of other officers to effect the arrest. This, of course, was not how the

situation appeared in real time. Informed by his knowledge of the circumstances and of police

tactics, House reasonably understood that Stargell, in his quest to escape, posed a continuing risk

to the other officers present in the immediate vicinity, including Johns and Murphy. Moreover,

those officers were not required to step aside and let the Taurus escape, particularly after it had

struck two of their fellow officers. See id. at 2021–22; Cupp, 430 F.3d at 774. In short, “[w]hile

it may be easy for [Cass] to say that each officer was safe once the officer was no longer in the

direct path of [the Taurus], no reasonable officer would say that the night’s peril had ended at

that point.” Hocker, 738 F.3d at 155. Stargell remained behind the wheel, other officers were on

the scene, and Stargell had demonstrated a willingness to injure officers trying to prevent him

from fleeing.

Cass also makes much of the fact that House violated Dayton Police Department policy

by placing himself in the Taurus’s path. But “[t]he Supreme Court has been cautious to draw a

distinction between behavior that violates a statutory or constitutional right and behavior that

violates an administrative procedure of the agency for which the officials work.” Cooper v.

Cnty. of Washtenaw, 222 F. App’x 459, 468 (6th Cir. 2007). House’s alleged violations of City

policy do not change our conclusion that he did not act objectively unreasonably under the

circumstances. See Freland, 954 F.2d at 347–48.

Finally, Cass asserts that the district court erred in rejecting his contention that House

fired the shot out of revenge. In a Fourth Amendment excessive force case, however, the

officer’s “underlying intent or motivation” is immaterial—the only question is “whether the

officer’s actions were ‘objectively reasonable’ in light of the facts and circumstances” then

prevailing. Graham, 490 U.S. at 397.

B.

Because Jordan was not deprived of a constitutional right, Cass cannot prevail on a claim

against the municipality predicated on the same alleged constitutional injury. Scott, 205 F. 3d at

879.

No. 13-4409 Cass v. City of Dayton, et al. Page 11

C.

Cass’s state-law claims against House are foreclosed by the fact that House did not act

unreasonably. See Burdine v. Sandusky Cnty., 524 F. App’x 164, 171 (6th Cir. 2013). Section

2744.03 of the Ohio Revised Code immunizes employees of a political subdivision from civil

liability for injuries allegedly caused by conduct undertaken in connection with governmental

functions unless the “employee’s acts or omissions were manifestly outside the scope of the

employee’s employment or official responsibilities” or the “employee’s acts or omissions were

with malicious purpose, in bad faith, or in a wanton or reckless manner.” Ohio Rev. Code

§ 2744.03(A)(6). Cass does not assert that House acted outside the scope of his employment

and, having failed to demonstrate that House’s conduct was objectively unreasonable, he cannot

demonstrate that House acted with malicious purpose, in bad faith, or in a wanton or reckless

manner. See Chappell v. City of Cleveland, 585 F.3d 901, 916 n.3 (6th Cir. 2009).

III.

For the foregoing reasons, we affirm.