Harris Ex Rel. the Estate of Jkhary Craft v. Lasseigne

RECOMMENDED FOR FULL-TEXT PUBLICATION

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

File Name: 15a0020p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

NICOLE HARRIS, Personal Representative of the ┐

Estate of Jkhary Craft, Deceased, │

Plaintiff-Appellee, │

│ No. 14-1033

│

v. >

│

│

EDWARD LASSEIGNE, in his individual capacity, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:12-cv-13763—George C. Steeh, District Judge.

Argued: January 14, 2015

Decided and Filed: February 4, 2015

Before: COLE, Chief Judge; KETHLEDGE, Circuit Judge; and OLIVER, District Judge.*

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COUNSEL

ARGUED: Marcelyn A. Stepanski, JOHNSON, ROSATI, SCHULTZ & JOPPICH, P.C.,

Farmington Hills, Michigan, for Appellant. Paul W. Broschay, LAW OFFICE OF PAUL W.

BROSCHAY, Detroit, Michigan, for Appellee. ON BRIEF: Marcelyn A. Stepanski,

JOHNSON, ROSATI, SCHULTZ & JOPPICH, P.C., Farmington Hills, Michigan, for Appellant.

Paul W. Broschay, LAW OFFICE OF PAUL W. BROSCHAY, Detroit, Michigan, for Appellee.

*

The Honorable Solomon Oliver, Jr., Chief United States District Judge for the Northern District of Ohio,

sitting by designation.

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No. 14-1033 Harris v. Lasseigne Page 2

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OPINION

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OLIVER, District Judge. In this civil rights action under 42 U.S.C. § 1983 and Michigan

law, Defendant-Appellant Edward Lasseigne (“Lasseigne” or “Defendant”) appeals the order of

the district court denying him summary judgment based on qualified immunity and governmental

immunity. The district court found a genuine issue of material fact regarding whether Lasseigne

used excessive force in the shooting death of Jkhary Craft (“Craft”). Lasseigne argues on appeal

that no genuine dispute of material fact exists as to whether his actions were reasonable under the

circumstances according to both federal and state law. For the following reasons, we DISMISS

Lasseigne’s appeal of the district court’s denial of summary judgment based on qualified

immunity for lack of jurisdiction, AFFIRM the district court’s denial of governmental

immunity, and REMAND this action to the district court for further action consistent with this

opinion.

I. BACKGROUND

On August 27, 2009, Lasseigne, a police officer for the City of Pontiac, Michigan, shot

and killed Craft, a fourteen-year-old male. Many of the following facts are not in dispute. The

events of that day were set in motion by a 911 caller, stating that he had observed males in the

neighborhood with guns. The dispatch center contacted Pontiac police officers to notify them

that persons with guns were walking west on Ypsilanti Avenue. At this time, Officer Andrew

Miller (“Miller”) was driving a marked Chevy Tahoe police vehicle and Lasseigne was riding in

the passenger seat when they heard the dispatch. Officers Shawn Werner (“Werner”) and

Michael Daves (“Daves”) were driving in a separate marked Chevy Tahoe police vehicle.

Lasseigne and Miller observed Craft walking down Ypsilanti while Werner and Daves

approached Craft from another direction. Werner stated that he motioned for Craft to come

toward him, but Craft turned away and tugged at the waistband of his pants. Lasseigne and

Miller also stated that they saw Craft pull at the waistband of his pants. According to Lasseigne,

Craft “appeared to have a long bulge in his pants.” (Lasseigne Dep. at 52:5-6, Apr. 10, 2013,

No. 14-1033 Harris v. Lasseigne Page 3

Dist. Ct. Dkt. No. 40-2, Ex. A.) Lasseigne stated that Craft pulled a gun out of his pants and

took off running. The officers observed Craft running between two homes on Ypsilanti toward a

wooded area. Miller also said that he saw a gun in Craft’s hand as he ran. Miller and Lasseigne

drove behind Craft, while Werner and Daves followed on foot. All officers stated that Lasseigne

yelled to Craft to drop his weapon. Miller drove the Chevy Tahoe in front of a fence that

separated the Ypsilanti Avenue backyards from a wooded area, in effect trapping Craft between

the Chevy Tahoe and the fence. In doing so, the Chevy Tahoe made contact with Craft’s person.

Here, the parties’ accounts diverge. According to Lasseigne, Craft next leveled the

weapon, a shotgun, and pointed it at him and Miller, who were about three to four feet away

from Craft. Lasseigne maintains that he feared for his and Miller’s lives. He then fired one shot,

hitting Craft in the chest, but thought he may have missed. Werner, Daves, and Lasseigne stated

in deposition that Craft was holding the shotgun when he was shot. Werner and Daves recalled

that they saw Craft throw the shotgun over the fence after he was shot, while Miller and

Lasseigne did not see this. Lasseigne surmised that he may have taken his eyes off of Craft for a

second and Miller stated that his view of Craft must have been obstructed. The officers stated

that they witnessed Craft say, “you shot me,” and pull his t-shirt away from his body before

slumping over. Miller moved his vehicle and Craft fell to the ground. He was pronounced dead

at the scene. The shotgun was found on the other side of the fence.

Karl Harris, who lived next door to the house where the shooting occurred, maintained in

an affidavit to have looked out of his doorwall window toward his neighbor’s backyard

immediately after hearing the gunshot. He claimed to have witnessed a police officer climb over

his neighbor’s fence and pick up the shotgun. He stated that if the gun had been thrown over the

fence at any point after the gunshot, he would have seen it. He later clarified in his deposition

testimony that he was looking out the window about two seconds after he heard the gunshot.

Craft’s mother Nicole Harris (“Plaintiff”) was appointed the personal representative of

his estate and filed a wrongful death lawsuit, alleging Section 1983 claims and state law claims

against Lasseigne, Miller, the City of Pontiac, and the former and current Emergency Managers

for the City of Pontiac. The district court entered judgment for the City of Pontiac and the

Emergency Managers as to all claims without opposition from Plaintiff. The district court also

No. 14-1033 Harris v. Lasseigne Page 4

granted summary judgment for Miller, finding that Miller’s actions did not constitute excessive

force when he contacted Craft with his vehicle. However, the district court denied Lasseigne’s

motion for summary judgment, finding that he was not entitled to qualified immunity or

governmental immunity under Michigan law because there was a genuine dispute regarding

whether Craft was holding the shotgun when he was shot. The court ultimately found that

several pieces of evidence created a genuine issue of material fact regarding whether Lasseigne

used excessive force. It concluded that a jury should hear Karl Harris’s account. Further, the

court stated as follows regarding other evidence in support of Plaintiff’s claim:

In addition, plaintiff points to the fact that Craft was shot only once, which she

posits as inconsistent with officer training protocol and common sense, both of

which would call for multiple shots in the face of imminent danger. Plaintiff also

highlights still shots from the police video which depict Craft pinned–at least to

some extent–to the fence. This brings into question Craft’s ability to move, or

“swing” a weapon during the events in question. Plaintiff also relies on the

undisputed fact that the weapon did not have any blood on it, while both the fence

and vehicle were splattered with blood, as evidence that Craft was not holding and

pointing the gun at the officers when he was shot. Finally, the testimony of the

officers reveals great uncertainty about the handling of Craft’s gun, and at what

point it went over the fence.

(Order at 14, Dec. 13, 2013, Dist. Ct. Dkt. No. 58.) For these reasons, the district court

determined that a jury could reasonably conclude that Craft had already disposed of the gun

when Lasseigne shot him.

Lasseigne filed a timely appeal to this court. Plaintiff filed a Motion to Dismiss the

appeal, arguing that this court did not have jurisdiction to consider the appeal. In an order by the

motions panel, this court denied Plaintiff’s Motion and concluded that the merits panel should

determine whether Lasseigne’s claim raises a legal issue subject to review by our court.

II. ANALYSIS

A. Qualified Immunity

The denial of a summary judgment motion is not generally a final order that is

immediately subject to appeal, but a denial of qualified immunity is immediately appealable.

Chappell v. City of Cleveland, 585 F.3d 901, 905 (6th Cir. 2009). However, “this exception is

No. 14-1033 Harris v. Lasseigne Page 5

narrow,” giving this court jurisdiction only over pure questions of law. Id. Accordingly, an

appellate court may not review disputes of fact where the defendant is “merely quibbling with

the district court’s reading of the factual record,” but may review whether “factual disputes

(a) are genuine and (b) concern material facts.” Id. at 906 (emphasis original). Upon review, the

court must view the facts in a light most favorable to the plaintiff, unless those facts are

“blatantly contradicted by the record,” Scott v. Harris, 550 U.S. 372, 380 (2007), or are “so

utterly discredited by the record as to be rendered a visible fiction.” Younes v. Pellerito,

739 F.3d 885, 889 (6th Cir. 2014) (internal quotation marks omitted).

Where the court has jurisdiction to review the denial of qualified immunity, it does so de

novo. Bishop v. Hackel, 636 F.3d 757, 765 (6th Cir. 2011). It is important to note that “[t]his

court does not ask ‘whether the officers were entitled to qualified immunity under the officers’

version of the facts,’ but whether the plaintiff has disputed those facts.” Younes, 739 F.3d at 889

(citation omitted). Therefore, “‘[a] defendant challenging a denial of summary judgment on

qualified immunity grounds must be willing to concede the most favorable view of the facts to

the plaintiff for purposes of the appeal.’” Id. at 888 (quoting Thompson v. Grida, 656 F.3d 365,

367 (6th Cir. 2011)). In circumstances where “a defendant relies instead on her own disputed

view of the facts, ‘the appeal boils down to issues of fact and credibility determinations that we

cannot make,’” and this court does not have jurisdiction. Id. (quoting Thompson, 656 F.3d at

367).

The plaintiff has the burden of demonstrating that the defendant should not be granted

qualified immunity. Chappell, 585 F.3d at 907. Lasseigne is entitled to qualified immunity if the

court determines that his actions in shooting Craft “did not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Id. The court first

determines “if the facts alleged make out a violation of a constitutional right,” and next decides

“if the right at issue was ‘clearly established’ when the event occurred such that a reasonable

officer would have known that his conduct violated it.” Martin v. City of Broadview Heights,

712 F.3d 951, 957 (6th Cir. 2013). The court must answer both questions in the affirmative to

deny qualified immunity. Id. It was clearly established at the time of the shooting that an officer

violates the Fourth Amendment if he shoots a suspect without “probable cause to believe that the

No. 14-1033 Harris v. Lasseigne Page 6

suspect poses a threat of serious harm, either to the officer or to others.” Sample v. Bailey,

409 F.3d 689, 697 (6th Cir. 2005) (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)) (internal

quotation marks omitted). Here, the parties agree that Craft posed no threat of serious physical

harm apart from the shotgun. Thus, if Craft threw the shotgun over the fence before Lasseigne

fired, Lasseigne violated Craft’s Fourth Amendment rights. Harris asserts exactly that–that Craft

threw the gun over the fence before the shot. Thus, under her version of the incident, Lasseigne

was not entitled to qualified immunity. The district court held that a reasonable jury could

accept that version; hence it denied qualified immunity to Lasseigne.

On appeal, Defendant argues that the district court should not have relied on Plaintiff’s

version of the facts because it is “blatantly contradicted by the record.” However, Lasseigne’s

arguments amount to an attempt to demonstrate that his evidence is more plausible than

Plaintiff’s evidence. He spends time discussing how Craft’s injuries would allow him to throw

the gun after he was shot. However, this does not answer the question of whether he was holding

the gun when he was shot. He also argues that the video stills show Craft turning the shotgun

toward the officers before it went out of view, but a review of the video stills does not make clear

that Craft was doing as he claims. Also, the video stills do not answer the question at issue

because the relevant events occurred off-camera. While a jury would certainly not be required to

conclude from Plaintiff’s evidence that Lasseigne used excessive force, the evidence relied upon

by the district court was not “so utterly discredited by the record as to be rendered a visible

fiction.” Younes, 739 F.3d at 889 (internal quotation marks omitted). To deny qualified

immunity, the court need not conclude that the inferences drawn by the Plaintiff are the only

reasonable inferences that could be drawn, but must simply find that the inferences drawn are

reasonable and not blatantly contradicted. While Plaintiff’s and Lasseigne’s evidence contradict

each other, neither renders the other “a visible fiction.” See Younes, 739 F.3d at 889 (finding

that on review of a qualified immunity denial, the police officers’ statements contradicting the

plaintiff’s version of events were “not the type of evidence in the record which ‘utterly

discredits’” the plaintiff’s evidence).

Lasseigne characterizes his appeal as one dealing with purely legal issues, but his appeal

does not concede the facts in a light most favorable to Plaintiff. As a result, “[w]e are left with

No. 14-1033 Harris v. Lasseigne Page 7

precisely the sort of factual dispute over which this Court lacks jurisdiction.” Id. at 890 (internal

quotation marks omitted).

B. Governmental Immunity

Under Michigan law, “[t]his court has jurisdiction over an interlocutory appeal of a denial

of governmental immunity. . . .” Younes, 739 F.3d at 890. As with a proper appeal of a denial of

qualified immunity, we review the appeal of a denial of governmental immunity de novo. Id.

This requires the court to “view all facts in a light most favorable to the non-moving party and

draw inferences in favor of the non-movant.” Id. (internal quotation marks omitted). The court

“appl[ies] Michigan governmental immunity law and federal procedural law to the issue.” Id.

(internal quotation marks omitted).

The district court correctly explained that governmental immunity is granted where a

governmental employee:

establish[es] that (1) the employee’s challenged acts were undertaken during the

course of employment and that the employee was acting, or reasonably believed

he was acting, within the scope of his authority, (2) the acts were undertaken in

good faith, and (3) the acts were discretionary, rather than ministerial, in nature.

Odom v. Wayne Cnty., 760 N.W.2d 217, 218 (Mich. 2008). But “there is no immunity when the

governmental employee acts maliciously or with a wanton or reckless disregard of the rights of

another.” Id. at 225. Here, construing the facts in Harris’s favor, Lasseigne shot Craft while he

was unarmed and otherwise posed no threat of physical harm to anyone. A reasonable jury could

find that, in doing so, Lasseigne acted with a wanton or reckless disregard for Craft’s rights.

Thus, the district court correctly denied summary judgment based on governmental immunity.

III. CONCLUSION

For the foregoing reasons, we DISMISS Lasseigne’s appeal of the district court’s denial

of summary judgment based on qualified immunity for lack of jurisdiction and AFFIRM the

district court’s denial of governmental immunity.