Boyd v. Baeppler

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0188P (6th Cir.)

File Name: 00a0188p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

;



BERTHA BOYD,



Plaintiff-Appellee,





No. 99-3234

v.



>

MATTHEW BAEPPLER; DAVID 



Defendants-Appellants. 

WILSMAN,



1

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 98-00047—Paul R. Matia, Chief District Judge.

Argued: February 4, 2000

Decided and Filed: June 6, 2000

Before: WELLFORD, BATCHELDER, and

DAUGHTREY, Circuit Judges.

_________________

COUNSEL

ARGUED: Thomas J. Kaiser, CITY OF CLEVELAND

LAW DEPARTMENT, OFFICE OF DIRECTOR OF LAW,

Cleveland, Ohio, for Appellants. Jaye M. Schlachet,

Cleveland, Ohio, for Appellee. ON BRIEF: Jennifer Sorce,

ASSISTANT DIRECTOR OF LAW, Cleveland, Ohio, for

1

2 Boyd v. Baeppler, et al. No. 99-3234

Appellants. Jaye M. Schlachet, Cleveland, Ohio, for

Appellee.

WELLFORD, J., delivered the opinion of the court, in

which BATCHELDER, J., joined. DAUGHTREY, J.

(pp. 19-22), delivered a separate dissenting opinion.

_________________

OPINION

_________________

HARRY W. WELLFORD, Circuit Judge. Plaintiff Bertha

Boyd, administratrix of the estate of decedent Adolph Boyd,

Jr. (“Boyd”), filed a 42 U.S.C. § 1983 action against

Cleveland police officers Matthew Baeppler and David

Wilsman, police chief Rocco Pollutro, and the City of

Cleveland, asserting constitutional claims arising out of the

shooting death of Boyd. The case was removed from state

court to the federal district court. Subsequently, defendants

moved for summary judgment, which plaintiff opposed. The

district court denied defendants’ motion for summary

judgment with respect to officers Baeppler and Wilsman and

reserved judgment as to defendants Pollutro and the City of

Cleveland, concluding that:

Based upon the evidence presented by plaintiff, the Court

finds that genuine issues of fact exist as to whether the

amount of force used by the offices was justified.

. . . A genuine issue of fact exists as to whether it was

objectively reasonable to use deadly force where (1) a

suspect is running away from the officers in an attempt to

escape; (2) the officers did not witness the suspect fire

the weapon; and (3) no verified proof exists as to

whether the suspect committed a crime.

Defendants had moved for judgment on the accompanying

state law claims and the district court indicated that it would

not decide the state claims on their merits but would dismiss

22 Boyd v. Baeppler, et al. No. 99-3234 No. 99-3234 Boyd v. Baeppler, et al. 3

this court of a panel “arrogating unto itself the role of them without prejudice “upon the resolution of the federal

resolving on appeal the factual disputes presented by a claims.”

qualified immunity defense in a § 1983 action.” Scott v. Clay

County, 205 F.3d 867, 881 (6th Cir. 2000) (Clay, J., I. JURISDICTION

dissenting) (citing Claybrook v. Birchwell, 199 F.3d 350, 359-

60 (6th Cir. 2000)). Because I believe that the record Regarding this court’s jurisdiction over an interlocutory

supports the district court’s conclusion that genuine disputes appeal from a denial of summary judgment based on qualified

remain regarding whether the defendants’ conduct was immunity, we recently stated:

reasonable, I therefore dissent.

A district court’s order denying summary judgment that

is based on qualified immunity and turns on an issue of

law is immediately appealable as a final judgment under

the collateral order doctrine. However, as this court has

previously explained, “[u]nder the doctrine of Johnson v.

Jones, [515 U.S. 304 (1995),] this court cannot review on

interlocutory appeal a district court’s determination that

a genuine issue of fact exists for trial, but we retain

jurisdiction over the legal question of qualified

immunity, i.e., whether a given set of facts violates

clearly established law.” We review de novo the district

court’s denial of qualified immunity.

Hoard v. Sizemore, 198 F.3d 205, 211 (6th Cir. 1999)

(citations omitted). Plaintiff contends we lack jurisdiction,

because the district court denied summary judgment to

defendants on qualified immunity upon finding “that genuine

issues of fact exist” as to the use of deadly force. Defendants

argue, however, that the “genuine issues of fact, found by the

district court are not genuine and material, and that this appeal

presents purely legal questions based on essentially

uncontroverted material facts.” Specifically, defendants

assert that the district court:

erroneously applied a fleeing felon analysis, and

misidentified the governmental interest at stake in this

self defense case. The facts cited by the District Court as

precluding summary judgment under its erroneous

analysis are not relevant to a self defense inquiry, where

the government interests at stake are the lives of police

officers. In this regard, Appellants [defendants] do not

dispute the facts identified by the District Court as the

4 Boyd v. Baeppler, et al. No. 99-3234 No. 99-3234 Boyd v. Baeppler, et al. 21

basis for the denial of summary judgment because those autopsy, that, even while paralyzed, Boyd was “still fully able

facts are not material to the relevant qualified immunity to move his upper extremities, including his head, arms, and

issues in this case. torso.” The plaintiff challenges this assertion with the expert

testimony of Dr. Howard Tucker, whose reading of the

We agree, and therefore, as we shall explain, we believe autopsy report supported his conclusion that scapular muscles

that the district court’s assertion that there were genuine issue on both sides of Boyd’s body and both Boyd’s arms were hit

of material fact does not destroy the appealability of its by bullets, and thus “impaired from a functional standpoint.”

qualified immunity ruling under the circumstances set forth. Tucker admittedly did not know if these wounds were caused

by either Wilsman’s or Baeppler’s shots, but stated that even

Denial of summary judgment often includes a without the wounds to Boyd’s arms and scapulae “there was

determination that there are controverted issues of severe impairment of ability to turn and with medical

material fact . . . and Johnson surely does not mean that probability Mr. Boyd could not assume a defined posture

every such denial of summary judgment is which would signal his intent and capability to return fire”

nonappealable. from his prone position.

* * * * * * The majority dismisses Dr. Tucker’s testimony as based on

mere probabilities, and any conclusions a jury might reach

Johnson permits petitioner to claim on appeal that all of from it as mere speculation. In so doing, the majority again

the conduct which the District Court deemed sufficiently makes a determination as to which evidence it finds most

supported for purposes of summary judgment met the credible, and thus again wrongfully assumes the role of

Harlow [v. Fitzgerald, 457 U.S. 800 (1982)] standard of factfinder. To my mind, this is a classic battle of the medical

“objective legal reasonableness.” experts, the outcome of which we must leave to the jury to

decide at trial. Doctors Challener and Tucker, working from

Turner v. Scott, 119 F.3d 425, 428 (6th Cir. 1997) (quoting the same medical data, reach contrary results as to Adolph

Behrens v. Pelletier, 516 U.S. 299, 312, 313 (1996). We Boyd’s ability to even appear to aim a gun at the defendants

determined in Turner that we had jurisdiction over purely from his prone position. In this case, it should be the task of

legal questions despite a district court’s order stating that the jury, and not this court, to weigh the testimony of the

genuine issues of material fact existed; “[i]f it were otherwise medical experts and determine which is more credible, and

a district court could always insulate its qualified immunity thus decide if Boyd could have presented a risk to the officers

rulings from interlocutory review by mouthing the appropriate making each of Baeppler’s last shots, from the first to the

shibboleth.” 199 F.3d at 428. Defendants assert that seventh, objectively reasonable. Cf. Russo v. City of

“whether Boyd had committed a crime, fired shots, or was Cincinnati, 953 F.2d 1036, 1047 (6th Cir. 1992) (stating, in

running away are irrelevant to the reasonableness of both context of qualified immunity defense to § 1983 failure to

Officer Wilsman’s and Office Baeppler’s reactions to the train claim, that “we do not believe the opinions of experts are

threats with which they were faced.” Again, we agree. The to be given no weight . . . . [r]eliance on expert testimony is

issues in this case are whether Boyd posed a threat to officers particularly appropriate where, as here, the conclusions rest

Wilsman and Baeppler and, if so, whether their use of force directly upon the expert’s review of materials provided by the

in response was reasonable. The district court made no City itself”).

finding that there remained in dispute facts material to those Today the majority holds otherwise, and its decision

issues. Nonetheless, we will review the record to decide continues the unfortunate trend noted by other members of

20 Boyd v. Baeppler, et al. No. 99-3234 No. 99-3234 Boyd v. Baeppler, et al. 5

brandish a weapon during their meeting. Were Boyd alive to whether, as plaintiff maintains, we lack jurisdiction under the

supplement the trace evidence with his version of events, I district court’s decision, or otherwise, as defendants assert.

imagine we would be more likely to find genuine issues of

material fact as to whether any use of deadly force by either Witness, Steve J. Arvai, submitted an affidavit stating that

Wilsman or Baeppler was objectively reasonable. on April 14, 1997, around 11:10 or 11:15 p.m., he heard a

gunshot from his home and looked out the window and saw

Even were I to join my colleagues in assuming the truth of a black male armed and walking west on Buckeye near East

the defendants’ version of their initial interaction with Adolph 122nd. Arvai stated that the male was about six feet tall,

Boyd, I could not join their reversal of the district court’s wore a dark blue jacket, blue jeans and white tennis shoes and

decision as to officer Baeppler. I reach this conclusion after appeared to be holding a dark colored automatic. Arvai added

reviewing carefully the sequence of the alleged series of that he saw the man point the gun at three people outside of

interactions between Boyd and the officers. According to the Wendy’s but that he then lost sight of him.1 In any event,

defendants, as Boyd approached them officer Baeppler Arvai promptly called the police operator and reported his

ordered him to freeze; instead of stopping, however, Boyd ran observations. This evidence was undisputed.

across Buckeye Road and into a driveway. While Boyd ran,

he pointed his gun at Baeppler, who then fired three or four Defendant police officers Baeppler and Wilsman submitted

rounds of ammunition at Boyd. Boyd continued running affidavits to the effect that on the night in question, they were

away from the officers and then brought his right arm and on duty together, Baeppler driving the police car, and that

hand across his chest and under his left armpit and pointed his shortly after Arvai’s call, they were called to respond to a

weapon at Wilsman. Wilsman then fired one round of “Code One” emergency radio dispatch which indicated that

ammunition from his shotgun, which caused Boyd to fall to there was a male with a gun in the area of East 120th and

the ground. The autopsy report on Boyd’s death stated that Buckeye Road, who met the general description given by

one pellet from this shotgun blast lodged at Adolph Boyd’s Arvai. Defendants proceeded to the area and Wilsman

T9 vertebrae; according to Cuyahoga County coroner Dr. notified radio headquarters of their arrival. As they

Robert Challener, this pellet caused immedate paralysis of approached East 119th and Buckeye, Baeppler and Wilsman

Boyd’s lower extremities. “heard a broadcast from Officer Zbikowski that he had just

The defendants then claim that, after Boyd fell with his seen the male, that the male was armed with a gun, and that

stomach and face to the ground and while the officers the male was running towards us.”

approached him, Boyd pulled his upper torso up from the

ground and brought his right hand, still holding the weapon, There is no dispute but that this was the information

across his shoulders and pointed it at Officer Wilsman, furnished these two defendant officers: a dangerous and

twisting to the left to do so. At that point, Officer Baeppler emergency situation on Cleveland public streets at a time near

fired his weapon at Boyd seven more times until Boyd finally midnight involving an armed man who had reportedly fired

fully collapsed. shots, potentially endangering others in the area.

Defendant Baeppler claims that Boyd’s continued

movement while paralyzed on the ground, including the

twisting of his upper torso and continued display of his 1

firearm, made shooting Boyd seven times an objectively A later police check of that area’s “curb, gutter, and sidewalk for

possible shell casing” met with negative results. A street sweeper did go

reasonable use of force in self defense. Baeppler supports this up Buckeye Road right after this incident and may have destroyed any

assertion with Dr. Challener’s testimony, based on the evidence that was in the street at this location.

6 Boyd v. Baeppler, et al. No. 99-3234 No. 99-3234 Boyd v. Baeppler, et al. 19

Baeppler and Wilsman testified that they then saw Boyd, ________________

who sufficiently met the description given them and was in

the immediate area reported, running toward them with a gun DISSENT

in hand. Baeppler stopped the marked police car in the ________________

intersection of Buckeye Road and East 119th Street, and both

exited with their weapons drawn, Wilsman with a shotgun.

Both officers testified that they ordered Boyd to stop and MARTHA CRAIG DAUGHTREY, Circuit Judge,

identified themselves as police, although it seems clear to us dissenting. The majority awards summary judgment to

that this should have been obvious to anyone present at the officers Baeppler and Wilsman because it finds, as a matter of

time. law, that Adolph Boyd posed a threat to their safety that made

the use of deadly force objectively reasonable. In so doing,

Cleveland police officers Zbikowski and Nabowski, who the majority discounts the plaintiff’s evidence suggesting the

also arrived on the scene pursuant to the police broadcast, existence of genuine issues of material fact that should, under

testified that at Buckeye and East 120th Street they saw a Johnson v. Jones, 515 U.S. 304 (1995), preclude our assertion

person matching the description given of the suspect walking of jurisdiction here. Because I believe that our court lacks

west on Buckeye and into a parking lot and that he was armed jurisdiction to decide this appeal, at the very least as to

with a gun. Zbikowski added that the suspect ran down defendant Baeppler, and therefore that our decision today

Buckeye and that he reported his information on his car radio. preempts the jury’s role in deciding the sufficiency of the

Both of these officers also drew their weapons when they plaintiff’s evidence, see Behrens v. Pelletier, 516 U.S. 299,

observed the suspect at close range. 313 (1996), I must respectfully dissent.

Boyd did not stop, as ordered, nor did he drop the gun In some sense, the majority’s analysis of the immediate

which had been observed in his hand by a disinterested circumstances of Adolph Boyd’s death necessarily makes a

witness and by four different police officers at close range. determination as to the credibility of Baeppler and Wilsman,

We do not deem it to be a genuine issue of disputed fact that the only surviving eyewitnesses to the events, something the

Boyd was the suspect so observed and that he was armed. We law of this court forbids us to do while deciding a summary

therefore do not give credence to Boyd’s counsel’s contention judgment motion. See, e.g., Cain v. Nesbitt, 156 F.3d 669,

that since forensic testing after Boyd’s death was either 672 (6th Cir. 1998). The majority accepts the officers’

inconclusive or negative as to whether Boyd had held or fired rendition of their interactions with Boyd as fact: that Boyd

a weapon, a genuine issue remained regarding whether Boyd ran toward them and then away from them, that he was

had carried, pointed, or fired the gun that five persons carrying a gun while he ran, and that he pointed the gun

testified that he held in his hand when they observed him that towards them while running. Adolph Boyd is, of course,

unable to contest the truth of these highlighted facts; the

plaintiff here, Bertha Boyd, presents an alternate scenario, one

that necessarily lacks the specificity Adolph’s testimony

would have lent his case. The plaintiff’s counternarrative

clearly states one fact, however: that Adolph Boyd was not

carrying a gun. She supports this assertion with trace

evidence collected by the Cuyahoga County Coroner’s Office

that is inconsistent with his carrying a gun the night of

April 14. No one other than the defendants saw Adolph

18 Boyd v. Baeppler, et al. No. 99-3234 No. 99-3234 Boyd v. Baeppler, et al. 7

plaintiff’s version of events. There was no conflict of expert fateful night.2 The district court indicated no genuine dispute

witnesses in Adams. In a comparable qualified immunity as to whether Boyd was armed.

situation, we stated:

The district court made the following brief factual findings

At the summary judgment stage, whether the legal that are pertinent at this juncture:

violation alleged was clearly established at the time of

the incident, as well as whether a genuine issue of 1. There was reported to the police that an

material fact exists as to whether the alleged violation “African-American male had allegedly fired a

occurred, are questions of law for the court. gun.”

Russo v. City of Cincinnati, 953 F.2d 1036, 1043 (6th Cir. 2. A description of the suspect was furnished, and

1992) (citing Dominque v. Telb, 831 F.2d 673, 677 (6th Cir. “[t]his man turned out to be decedent Adolph

1987)). Boyd.”

Behrens v. Pelletier, 516 U.S. 299 (1996), also cited by the 3. “Boyd received several fatal shots that

dissent, is certainly not controlling in this case. Behrens effectuated his death.”

stands for the proposition that defendants asserting the

defense of qualified immunity are not limited to one 4. Officer Wilsman fired only one shot with his

interlocutory appeal. See id. We simply do not have that shotgun “that led to Boyd’s death.”

issue in this case. Unlike the dissent, we see no relevance to

the majority opinion in Claybrook v. Birchwell, 199 F.3d 350 5. Officer Baeppler fired at least six additional

(6th Cir. 2000), in which the court granted summary judgment shots, and “thirteen (13) entrance wounds were

to defendant police officers alleged to have violated the discovered.”

plaintiffs’ substantive due process rights, an issue clearly

distinct from the one confronting us here. 6. The officers “assert that Boyd possessed a

weapon, and he aimed or pointed the weapon in

Accordingly, we REVERSE the decision of the district the direction of the officers.” No officer

court and grant the qualified immunity claims of both witnessed “Boyd fire a weapon.”

defendants.

7. Baeppler and Wilsman “pursue[d] Boyd on

foot,” after he ignored their order to stop, and

Baeppler fired the first shorts at Boyd, but it is

unclear whether any of those shots hit the

target.

2

In plaintiff’s brief, Baeppler’s claim that he first saw Boyd with a

black object in his hand was dismissed as “incredible.” (Pl.’s Br. at 9.)

Counsel speculated, we believe unfairly and without justification, that the

police manufactured the contention that Boyd was armed, because the gun

found at the scene was not traced to Boyd, and identifiable prints were not

produced.

8 Boyd v. Baeppler, et al. No. 99-3234 No. 99-3234 Boyd v. Baeppler, et al. 17

8. “The shotgun blast” fired by Wilsman, who extremity and axillary wounds there was severe

claimed that Boyd was pointing his weapon at impairment of ability to turn and with medical

him, wounded and felled Boyd. probability Mr. Boyd could not assume a defined posture

which would signal his intent and capability to return fire

The district court further conceded that “[a] fact is at that point.

‘material’ only if its resolution will affect the outcome of the

controversy.” It is put more precisely, however, in Anderson (Emphasis added.) In sum, Dr. Tucker made assumptions

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986): about the sequence of shots and the pathways of the bullets

and concluded, not within a reasonable degree of medical

As to materiality, the substantive law will identify certainty, but only “with probability,” that a more likely

which facts are material. Only disputes over facts that scenario was that Boyd was unable to lift his torso and twist

might affect the outcome of the suit under the governing to threaten officer Wilsman a second time. Nowhere does Dr.

law will properly preclude the entry of summary Tucker point to any forensic evidence that proves what shot(s)

judgment. Factual disputes that are irrelevant or rendered Boyd unable to lift and twist his torso, or at what

unnecessary will not be counted. See generally 10A C. point during the sequence of events the critical shot(s) hit

Wright, A. Miller, & M. Kane, Federal Practice and Boyd.

Procedure § 2725, pp. 93-95 (1983). This materiality

inquiry is independent of and separate from the question The speculation of plaintiff’s expert is not sufficient

of the incorporation of the evidentiary standard into the evidence to create a genuine issue of material fact. In view of

summary judgment determination. That is, while the the uncontroverted evidence in support of the testimony of

materiality determination rests on the substantive law, it both officers Baeppler and Wilsman, any jury conclusion to

is the substantive law’s identification of which facts are the contrary would necessarily be founded on mere

critical and which facts are irrelevant that governs. speculation, not on the evidence. Therefore, we REVERSE

the denial of summary judgment for both officers Baeppler

As we have already indicated, the issue before us in this and Wilsman and find as fact that Boyd, as perceived by

case is not whether3 Boyd presented these officers with a reasonable police officers in the circumstances presented here,

Tennessee v. Garner fleeing felon situation--the situation as was armed and remained an imminent threat and a danger

to which the district court found that there remained genuine until he finally dropped his weapon after officer Baeppler

issues of disputed fact--but rather, whether Boyd presented an fired his last shots.

immediate threat to these officers to which they reacted with

an unreasonable degree of force. We now review what the In assessing the weight of expert testimony, we do not

district court identified as “genuine” issues of fact to resort to a credibility determination. Rather, we conclude that

determine whether these disputed facts are material to the the coroner’s report is a clear medical statement not based

issues before us. upon mere probabilities. We conclude that Dr. Tucker’s

report, which was based upon probabilities only, was

essentially a matter of speculation. Adams v. Metiva, 31 F.3d

375 (6th Cir. 1994), cited by the dissent, is clearly

distinguishable from this case. Adams involved a

confrontation and encounter between an unarmed person and

police with several independent eyewitnesses supporting the

3

471 U.S. 1 (1985).

16 Boyd v. Baeppler, et al. No. 99-3234 No. 99-3234 Boyd v. Baeppler, et al. 9

officer Baeppler fired seven more rounds at Boyd until Boyd 1. Was Boyd running away from the officers in an

dropped his weapon. attempt to escape?

We are of the view also that the forensic evidence also At first blush, it might appear that the district court made a

supports the police officers’ rendition of the event. The finding that there was a genuine issue of fact as to whether

coroner specifically testified that he could conclude, “within Boyd was fleeing the officers in an attempt to escape. In fact,

a reasonable degree of medical certainty,” that “the wounds the district court assumed that Boyd was fleeing, and this may

Adolph Boyd sustained to his back . . . are consistent with have been what caused it to apply the Tennessee v. Garner

Officers Baeppler’s and Wilsman’s description immediately analysis. However, the issue that is material here is not

prior to Officer Wilsman’s discharge of the shotgun;” and that whether Boyd was fleeing, but whether Boyd pointed his

the pellet that caused the injury to Boyd’s spinal cord “caused weapon at the officers and thus posed an immediate threat to

immediate paralysis of the lower extremities only. He was them. The district court did not address this issue at all.

still fully able to move his upper extremities, including his From what has been previously stated, it is clear that when

head, arms and torso.” (Emphasis added.) Furthermore, the first observed by the police officers, Boyd was running

state’s forensic evidence plainly indicates that neither the toward the officers, gun in hand. Each of the four officers, in

sequence nor the exact direction of the shots could be response to that observation, drew his or her weapon, not in

determined by an examination of Boyd’s body, and the any attempt to pursue or chase Boyd but to confront a

coroner testified that the coroner’s office did not undertake situation fraught with danger. An independent witness had

any type of analysis of the musculature and/or nerve damage reported that he heard gunshots, and then saw Boyd armed

inflicted by the shots. and pointing the gun at people outside a public restaurant.

The police recognized Boyd as the suspect in the area in

The only inconsistent “evidence” relied upon by the dissent which4 he had been observed and in which he apparently

is found in the report of plaintiff’s expert, Dr. Tucker, who lived. The police themselves independently confirmed that

did not examine Boyd’s body, but only reviewed the state’s Boyd was armed but none saw or heard him fire a shot.

autopsy report. This autopsy report was the sole basis for his Defendants ordered Boyd to stop, identifying themselves.

conclusion that Boyd might not have been able to turn and They testified that Boyd pointed the gun at them and ignored

point his weapon after officer Wilsman’s shot landed. Dr. their commands to stop. As he moved away, Boyd allegedly

Tucker’s opinion, however, did not definitively conclude that continued to point the gun at the officers. At the outset, then,

it would have been impossible for Boyd to raise himself up on Boyd was not running away from the officers. As the officers

his arms to aim his weapon again. Dr. Tucker opined, confronted him, he ignored their orders and allegedly

“[s]ince the entire spine from the neck to coccyx works as a continued to point his gun at them as he attempted to flee.

unit, rational movements are very limited throughout the

spine.” (Emphasis added.) Dr. Tucker further speculated: 2. Did Boyd fire the weapon?

Thus one can postulate with medical probability that Whether Boyd actually fired the weapon is wholly

both arms were impaired from a functional standpoint by immaterial here. The issue is whether or not he threatened to

bullet wounds. . . . Admittedly we do not know if these do so. It was reported to the officers that Boyd had probably

upper extremity and axillary bullet wounds were suffered

before or after the alleged turning toward police

officer. . . . However with probability even without these 4

Plaintiff’s brief indicates that Boyd had an apartment in the

immediate area of Buckeye Road.

10 Boyd v. Baeppler, et al. No. 99-3234 No. 99-3234 Boyd v. Baeppler, et al. 15

fired the gun and had pointed it at innocent observers at the are overborne by objective proof that Boyd was armed, or

scene when observed. They saw Boyd with gun in hand as reasonably perceived to be armed, by the police.

did the independent witness. No officer testified that he or

she saw Boyd fire the weapon. We deem this, however, as For the reasons indicated, we REVERSE the decision of

something other than a genuine and material issue of fact. the district court as to defendant Wilsman. We find him

That the defendants did not see or hear Boyd fire the weapon entitled to summary judgment based on qualified immunity

does not affect whether the police officers, acting reasonably with respect to his firing one shot from his shotgun at Boyd

under the circumstances known to them, acted in defense of under the essentially uncontested material facts. We find as

their own safety and the safety of officers through the use of fact that Boyd was armed and could be considered an

deadly force. imminent threat and a danger to a reasonable police officer

and to his partner in Wilsman’s circumstances.

3. Did Boyd commit a crime?

III. LIABILITY OF BAEPPLER

Again, this is wholly immaterial to the issue of whether

Boyd presented a threat to officers Wilsman and Baeppler. If, Much of our prior discussion applies to defendant Baeppler,

indeed, Boyd fired his gun at other people or even pointed his particularly as to his initial shots that may or may not have

gun at them, then he may have committed a crime. No one, struck Boyd. Certainly, these shots neither immobilized Boyd

however, much less the police, charged or claimed that Boyd nor incapacitated him. Boyd remained on the loose,

had just committed a crime when the police confronted him. apparently still armed, and potentially dangerous. We

The police never purported to treat him as a fleeing felon concede that the question of qualified immunity as to

suspect. They confronted him as a dangerous armed man who defendant Baeppler is more difficult, especially since

ignored their reasonable command to stop. That command Baeppler fired multiple shots that contributed to bringing

obviously included the direction to stop pointing his gun at about Boyd’s death. The question of law on this case is

them, and this, too, was ignored. clear—it is about the conduct of police acting in self-defense,

not about pursuit of a fleeing felon or suspect, reasonably

The principal issue in Tennessee v. Garner, 471 U.S. 1 thought to be armed and dangerous.

(1985), involved the use of deadly force by police in pursuit

of an unarmed minor burglar (a “non-violent suspec[t]”) was All of the eyewitness evidence in the record is consistent

not before the court with respect to these defendants claiming with the police officers’ recitation of the events that

qualified immunity. Garner, 471 U.S. at 10. Garner also surrounded the shooting. Unfortunately, officers Wilsman

described the suspect victim as a “nondangerous fleeing and Baeppler, and not Boyd, were the only ones available to

suspec[t].” Id. at 11. That was not the factual situation testify about the shooting. Their statements taken during the

presented to the court with respect to these defendants police investigation, their deposition testimony and their

claiming qualified immunity. The question, rather, from affidavits all tell the same consistent story. They testified that

Garner is this: they identified themselves as police officers and ordered Boyd

to stop; Boyd continued to flee with his weapon in hand;

Where the officer has probable cause to believe that the officer Baeppler fired three to four rounds at Boyd, but Boyd

suspect poses a threat of serious physical harm, either to responded by turning and pointing his weapon at officer

the officer or to others, it is not constitutionally Wilsman; officer Wilsman fired one shotgun blast and Boyd

unreasonable to prevent escape by using deadly force. fell face forward onto the ground; Boyd lifted his torso and

Thus, if the suspect threatens the officer with a weapon turned to point his weapon again at officer Wilsman; finally,

14 Boyd v. Baeppler, et al. No. 99-3234 No. 99-3234 Boyd v. Baeppler, et al. 11

plaintiff, supports our view that officer Wilsman is entitled to5 or there is probable cause to believe that he has

qualified immunity for his part in the encounter in question. committed a crime involving the infliction or threatened

infliction of serious physical harm, deadly force may be

Our decision as to defendants and their qualified immunity used if necessary to prevent escape, and if, where

is also supported by the statement from Smith v. Freland, 954 feasible, some warning has been given.

F.2d 343, 347 (6th Cir. 1992), that

Id. at 11, 12.

Thus, under Graham, we must avoid substituting our

personal notions of proper police procedure for the We note also that in Garner the complaint under 42 U.S.C.

instantaneous decision of the officer at the scene. We § 1983 had been dismissed against the individual police

must never allow the theoretical, sanitized world of our officers actually involved in the shooting. Id. at 22. The

imagination to replace the dangerous and complex world dissent in Garner made special mention of “the difficult,

that policemen face every day. What constitutes split-second decisions police officers must make.” Id. at 23.

“reasonable” action may seem quite different to someone The case, according to the dissent, fell within “‘the rubric of

facing a possible assailant than to someone analyzing the police conduct . . . necessarily [involving] swift action

question at leisure. predicated upon the on-the-spot observations of the officers

on the beat.’” Id. at 26 (quoting Terry v. Ohio, 392 U.S. 1, 20

Id. (citing Graham v. Connor, 490 U.S. 386, 396-97 (1989)). (1968)). The main points that distinguish Garner from this

See also, in a somewhat comparable situation, Bell v. City of case are that the suspect in Garner was (1) deemed to be

East Cleveland, No. 96-3801, 1997 WL 640116 (6th Cir. Oct. unarmed; (2) non-violent; (3) non-dangerous; (4) a minor;

14, 1997) (unpublished). With respect to our grants of and (5) the suspect did anything but confront the police.

qualified immunity, contrary to assertions of the dissent, we

do not base our opinion upon conflicting factual contentions The inquiry in § 1983 actions against a police officer for

or credibility determinations. The testimony of both unlawful or unconstitutional use of force is an objective one

defendant police officers is supported by objective and based upon the “information possessed” by the police officer

reasonable evidence. The eyewitness testimony of a number involved. Anderson v. Creighton, 483 U.S. 635, 641 (1987).

of persons and the broadcasts to the defendants support a It involves what a reasonable police officer would believe to

conclusion that the deceased was armed, even that he had be lawful based upon the information then possessed, not

probably fired his weapon. Plaintiff’s “counternarrative” in what the officers subjectively may have believed. See id. In

her brief that Boyd was not carrying a gun, in our view, is not the case before us here, the question is whether reasonable

based upon substantial and material evidence. See Bell, 1997 officers in the position of officers Wilsman and Baeppler

WL 640116. The various tests (fingerprint, residue, and would have believed that it was lawful under the

firearm trace) are inconclusive under the circumstances and circumstances to use the same degree of force used by those

officers. We have already reviewed the information upon

which the officers initially acted, some based upon the

officers’ personal observation. We view the scene and

5 activity from the perspective, then, of the reasonable police

Hopkins v. Andaya, 958 F.2d 881 (9th Cir. 1992), also relied upon officer at the scene based on reports and information received

by plaintiff, involved a police encounter with an unarmed man. We do

not deem it pertinent, nor do we consider Martin v. Heideman, 106 F.3d and what he has observed. See Graham v. Conner, 490 U.S.

1308 (6th Cir. 1997), to be relevant to the factual circumstances of this

case.

12 Boyd v. Baeppler, et al. No. 99-3234 No. 99-3234 Boyd v. Baeppler, et al. 13

386 (1989); Scott v. Clay County, ___ F.3d ___, No. 98-6157, was “a semi-automatic.” Boyd “appeared to fit the

2000 WL 228300 (6th Cir. Mar. 1, 2000). description given” Wilsman for a male “supposed to be

shooting.” Wilsman’s affidavit was consistent with his

II. LIABILITY OF WILSMAN statement and response to questions, but it added that before

he fired, he “feared for [his] own life, the life of [his] partner,

Wilsman fired one shot from his shotgun which “propelled and others. . . .” Plaintiff concedes in her brief that “it is

Boyd towards the ground.” No one, including plaintiff’s unknown whether any of Baeppler’s earlier shots struck

expert, testified or contended that Wilsman’s shot was the Boyd.” It was unknown to Wilsman, who heard shots,

deadly force that brought about Boyd’s death. The question whether Baeppler, Boyd, or perhaps some one else had fired

in Wilsman’s case, then, is whether he used “a degree of force these shots. Plaintiff describes Wilsman’s stated observations

that was unreasonable under the circumstances and in of Boyd’s pointing his gun at him while running as incredible.

violation of decedent’s rights,” not whether he himself was (Pl.’s Br. at 12.) Most of the plaintiff’s brief, however, is

guilty of administering deadly force, and whether he acted in directed at officer Baeppler and his actions.

concert with Baeppler in administering deadly force.

We do make all reasonable and justifiable inferences in

In our view, from the perspective of Wilsman, based upon favor of plaintiff, the non-movant. Anderson v. Liberty

the information available to him and the circumstances from Lobby, 477 U.S. 242, 255 (1986). This is not, however,

his viewpoint at the time he fired the single shot, we believe insofar as officer Wilsman is concerned, a case as to whether

that he was entitled to qualified immunity, and we therefore he used deadly force or excessive force to capture a fleeing

REVERSE the denial of summary judgment in this regard. felon, or a suspect attempting to escape. As to Wilsman, it is

His contemporaneous report indicated an emergency call to a case of whether he acted reasonably in response to a

the scene at about 11:30 p.m. “for a male with a gun, dangerous, split-second encounter late at night with an armed

shooting.” Other police reported seeing the suspect “running man reported to have been shooting the gun he had in hand

. . . with a gun in his hand,” and Wilsman then saw Boyd pointed at the officer.

“running towards me . . . with a gun in his right hand.”

Wilsman, in uniform, yelled “stop, police,” and Boyd Plaintiff relies upon Russo v. City of Cincinnati, 953 F.2d

disregarded the warning, proceeding “diagonally across 1036 (6th Cir. 1992), but that case held that in the § 1983

Buckeye.” Wilsman “turned to run around the squad car to claim, qualified immunity context, “plaintiff must present

cut him off.” While running on this mission, Wilsman “heard ‘evidence sufficient to create a genuine issue as to whether the

a couple of shots.” He then saw Boyd “still running . . . defendant in fact’” violated “clearly established law” in taking

looked back at us . . . pointed his gun . . . back at us.” As the action he did. “Whether a genuine issue of material fact

Wilsman saw it, Boyd “pointed the gun at me . . . right at my exists” is a question of law. Id. at 1043. In Russo, we

head, I could see down the barrel, and I thought I was a emphasized that we must “look to the ‘facts and

goner.” Wilsman then fired the shotgun at Boyd, and Boyd circumstances of each particular case . . . whether the suspect

went down, gun still in hand. Wilsman approached Boyd pose[d] an immediate threat to the safety of the officers or

telling him to drop the gun. Again, Boyd ignored that others, and whether he [was] . . . attempting to evade arrest by

command. Wilsman did not fire again, but his partner, flight.’” Id. at 1044. We believe Ford v. Childers, 855 F.2d

Baeppler–threatened–fired additional shots at closer range. 1271, 1275-76 (7th Cir. 1988) (en banc), also cited by

Wilsman did not know when he fired at Boyd, whether the

latter had fired his own pistol at them which Wilsman thought