Livermore v. Lubelan

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0056p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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GERALDINE LIVERMORE, Personal Representative

Plaintiff-Appellee, -

for the Estate of Roland E. Rohm, deceased,

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No. 06-1465

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v. >

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Defendants-Appellants. -

DANIEL LUBELAN and JERRY ELLSWORTH,

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Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 04-00552—Richard A. Enslen, District Judge.

Argued: December 8, 2006

Decided and Filed: February 7, 2007

Before: BATCHELDER and GRIFFIN, Circuit Judges; PHILLIPS, District Judge.*

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COUNSEL

ARGUED: Margaret A. Nelson, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL,

Lansing, Michigan, for Appellants. Herbert A. Brail, KEANE & KEANE, Dearborn, Michigan, for

Appellee. ON BRIEF: Margaret A. Nelson, Mark E. Donnelly, MICHIGAN DEPARTMENT OF

ATTORNEY GENERAL, Lansing, Michigan, for Appellants. Christopher J. Keane, KEANE &

KEANE, Dearborn, Michigan, for Appellee.

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OPINION

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GRIFFIN, Circuit Judge. Defendants Daniel Lubelan and Jerry Ellsworth appeal the denial

of their motion for summary judgment brought pursuant to FED. R. CIV. P. 56(c). Defendants argue

that the district court mistakenly concluded that genuine issues of material fact precluded the entry

of summary judgment and that it failed to consider whether defendants were entitled to qualified

immunity from plaintiff Geraldine Livermore’s Fourth Amendment claims. Defendants argue

further that Livermore’s state law claims of gross negligence fail as a matter of Michigan law. For

*

The Honorable Thomas W. Phillips, United States District Judge for the Eastern District of Tennessee, sitting

by designation.

1

No. 06-1465 Livermore v. Lubelan, et al. Page 2

the reasons set forth below, we reverse the district court’s denial of defendants’ motion for summary

judgment.

I.

Thomas Crosslin and decedent Roland Rohm operated the Rainbow Farms Campground

(“Rainbow Farms”) in Cass County, Michigan. Crosslin and Rohm advocated the legalization of

marijuana and often sponsored concerts and camp-outs on Rainbow Farms to espouse their views.

After receiving complaints about illegal drug use occurring on Rainbow Farms, the Cass County

Sheriff’s Department initiated an undercover investigation of Crosslin and Rohm. Crosslin, as

owner of Rainbow Farms, was subsequently charged with violating public health laws and forfeiture

proceedings against Crosslin and his property were initiated.

After a search warrant was issued, investigators discovered a “marijuana grow operation”

in the basement of Crosslin’s and Rohm’s residence on Rainbow Farms. Consequently, more

criminal charges were filed and a Family Independence Agency investigation began, resulting in the

court-ordered removal of Rohm’s young son, Robert, from Crosslin’s and Rohm’s residence on

Rainbow Farms. In August 2001, Crosslin and Rohm violated an injunction prohibiting them from

sponsoring any more events on the farm and were subsequently held in contempt by the Cass County

Circuit Court.

On August 31, 2001, after failing to appear at a scheduled show cause hearing in connection

with their contempt order, Crosslin and Rohm set fire to the outbuildings on Rainbow Farms and

barricaded themselves in their residence. The Cass County Sheriff’s Department set up observation

points around Rainbow Farms, closed off the perimeter, and requested assistance from the Michigan

State Police’s Emergency Services team (“Emergency Services”) to resolve the standoff at Rainbow

Farms and to arrest Crosslin and Rohm. Crosslin confronted the arriving police officials armed with

a gun and refused them permission to enter his property.

That evening, Crosslin shot at and struck a news helicopter as it flew over his property,

taking aerial footage of the fires. Emergency Services, commanded by defendant Lieutenant Jerry

Ellsworth, and FBI personnel responded to Cass County’s request for assistance and began arriving

on the morning of September 1. On September 3, Crosslin and an accomplice – later identified as

Bradon Peoples – exited their residence and walked through the woods to a neighboring home,

where they broke in and stole supplies. On their return, Crosslin was shot and killed by an FBI

agent in self-defense. Peoples was arrested.

During the early morning hours of September 4, Emergency Services began negotiating with

Rohm by phone. Rohm indicated that he would come out of the house and surrender at 7:00 a.m.

if he were allowed to speak with his son. The negotiator agreed, and Rohm was instructed to come

out to the street unarmed with his hands up. The Rainbow Farms residence began burning at 6:00

a.m. that morning, apparently set on fire by Rohm. At approximately 6:30 a.m., Rohm exited the

house armed with a rifle and hid between two trees in the backyard, near the northwest corner of the

house. What happened next is the subject of dispute between the parties.

After Rohm fled his residence and hid between the trees, Emergency Services members

Sergeant Steven Homrich, Sergeant David Bower, and Lt. Ellsworth approached Rohm in a Light

Armored Vehicle (“LAV”).1 Because of the LAV’s armor plating, Emergency Services’s radios did

not work inside the vehicle. To allow radio communication, Sgts. Homrich and Bower were placed

in open hatches in the roof of the LAV, exposed from their mid-torsos to the tops of their heads. The

LAV approached Rohm’s residence as Lt. Ellsworth identified himself via a loudspeaker and

1

An LAV is an armored vehicle designed to stop up to a .50 caliber round.

No. 06-1465 Livermore v. Lubelan, et al. Page 3

directed Rohm to surrender, but Sgts. Homrich and Bower were unable to see him due to the lack

of daylight and the smoke emitting from the house.

Emergency Services snipers on an observation point approximately 150 yards northwest of

the house, however, were able to see Rohm. Defendant Sgt. Daniel Lubelan, a Michigan State

Police Trooper, observed Rohm in a crouched or kneeling position, holding his rifle at waist level

and turning his torso back and forth as if looking for someone. According to Sgt. Lubelan, Rohm

identified the LAV and aimed his gun in its direction, tracking the LAV as it moved. Sgt. Lubelan

believed that Rohm was pointing his gun toward an exposed officer in the LAV and fired two shots

at Rohm, killing him.2

On August 17, 2004, plaintiff Geraldine Livermore, Rohm’s mother and personal

representative, filed a complaint in the Eastern District of Michigan. Livermore alleged that Sgt.

Lubelan used excessive force in shooting Rohm, and that Lt. Ellsworth acted negligently in creating

the circumstances that led to Rohm’s death. On November 29, 2005, defendants moved for

summary judgment, arguing that Sgt. Lubelan’s use of force was reasonable, that defendants were

entitled to qualified immunity, and that Livermore’s gross negligence claims failed as a matter of

Michigan law on the facts of this case. The district court denied defendants’ motion on February

17, 2006, finding that genuine issues of material fact existed.3

Defendants filed this interlocutory appeal on March 17, 2006.

II.

We first consider whether we have jurisdiction to address defendants’ interlocutory appeal.

Title 28 U.S.C. § 1291 limits this court’s jurisdiction to “final decisions of the district courts of the

United States. . . .” A district court’s denial of qualified immunity is an appealable final decision

pursuant to 28 U.S.C. § 1291, but only “to the extent that it turns on an issue of law.” Estate of

Carter v. City of Detroit, 408 F.3d 305, 309 (6th Cir. 2005) (quoting Mitchell v. Forsyth, 472 U.S.

511, 530 (1985)). A defendant raising a qualified immunity defense “may not appeal a district

court’s summary judgment order insofar as that order determines whether or not the pretrial record

sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 319-20 (1995); see

2

Livermore disputes that Rohm was aiming his rifle toward the LAV when he was fired upon.

3

Specifically, the Honorable Richard Enslen found that the following issues of fact precluded the grant of

summary judgment:

While Defendant Lubelan has testified that he shot the decedent in the back when the decedent was

swinging his rifle toward the approaching armored vehicle, his testimony is contradicted by the

autopsy (which showed that the bullet entered through the decedent’s chest). Lubelan’s contention

that the decedent was aiming toward the armored vehicle is contradicted by the affidavit of Plaintiff’s

ballistics expert John Thornton – which concluded, based on all ballistics calculations – that the angle

of the entry wound indicated the decedent was not facing the direction of the armored vehicle at the

time he was shot. Lubelan’s testimony that the decedent was aiming his rifle with his left-hand is

similarly contradicted by his step-father and fellow hunter who has sworn that the decedent was not

a left-handed shooter. Lubelan’s premise that the shooting was necessary to protect two officers

(Steve Homrich and Dave Bower) whose upper torsos were exposed as they were traveling in their

armored vehicle is contradicted by those officers’ past statements (given to investigators) that their

vehicle was repositioning, in a covered location while they were inside the vehicle, at the time the

shots were fired. Likewise, Lubelan admitted in deposition testimony that he did not see officers in

the armored vehicle exposed when he fired. Plaintiff’s law enforcement practices expert, D.P. Van

Blaricom, has also provided reliable opinion evidence that the police practices used and ordered by

Jerry Ellsworth were reckless and contributed to the use of excessive force. His conclusions include

that the fatal incident was triggered by the unjustified and reckless decision to rush the suspect,

without warning, at a time when he was trapped and did not pose any imminent threat.

No. 06-1465 Livermore v. Lubelan, et al. Page 4

also Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998) (“A defendant who is denied qualified

immunity may file an interlocutory appeal with this Court only if that appeal involves the abstract

or pure legal issue of whether the facts alleged by the plaintiff constitute a violation of clearly

established law.”). Nevertheless, that the district court here denied defendants’ motion for summary

judgment on the grounds that genuine issues of material fact exist does not necessarily preclude this

court’s jurisdiction over defendants’ appeal. Rather, as this court has recognized, “regardless of the

district court’s reasons for denying qualified immunity, [this court] may exercise jurisdiction over

the [defendants’] appeal to the extent it raises questions of law.” Williams v. Mehra, 186 F.3d 685,

689-90 (6th Cir. 1999) (en banc); see also Turner v. Scott, 119 F.3d 425, 428 (6th Cir. 1997).

Language in our earlier decisions interpreting Johnson suggests that where, as here, the

appellant fails to concede the facts as alleged by the appellee, this court is completely deprived of

jurisdiction over the appellant’s interlocutory appeal. See Berryman, 150 F.3d at 563 (“If . . . the

defendant disputes the plaintiff’s version of the story, the defendant must nonetheless be willing to

concede the most favorable view of the facts to the plaintiff for purposes of the appeal.”).

Subsequent cases, however, have rejected that approach and clarified that we may consider a pure

question of law, despite the defendants’ failure to concede the plaintiff’s version of the facts for

purposes of the interlocutory appeal: “If . . . aside from the impermissible arguments regarding

disputes of fact, the defendant also raises the purely legal question of whether the facts alleged . .

. support a claim of violation of clearly established law, then there is an issue over which this court

has jurisdiction.” Estate of Carter, 408 F.3d at 310 (internal quotations and citation omitted); see

also Smith v. Cupp, 430 F.3d 766, 772 (6th Cir. 2005); but see McKenna v. City of Royal Oak, et al.,

469 F.3d 559, 561 (6th Cir. 2006) (holding this court lacks jurisdiction to consider interlocutory

appeal where appellant relies solely on disputed facts). We therefore conclude that this court has

jurisdiction over defendants’ interlocutory appeal to consider whether, accepting the facts as alleged

by Livermore, defendants are entitled to qualified immunity from Livermore’s claim of excessive

force. See Mehra, 186 F.3d at 690 (instructing that court has jurisdiction to consider whether facts,

as alleged by plaintiff, entitle defendant to summary judgment); Berryman, 150 F.3d at 562 (same).

III.

“Through the use of qualified immunity, the law shields ‘governmental officials performing

discretionary functions . . . from civil damages liability as long as their actions could reasonably

have been thought consistent with the rights they are alleged to have violated.’” Solomon v. Auburn

Hills Police Dep’t, 389 F.3d 167, 172 (6th Cir. 2004) (quoting Anderson v. Creighton, 483 U.S. 635,

638 (1987)). The Supreme Court instructs lower courts to perform a two-tiered inquiry to determine

whether a defendant is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001).

Courts should first determine whether “the facts alleged show the officer’s conduct violated a

constitutional right[.]” Id. If the plaintiff establishes that a constitutional violation occurred, a court

must next consider “whether the right was clearly established.” Id. When a defendant raises a

defense of qualified immunity, the plaintiff bears the burden of demonstrating that the defendant is

not entitled to qualified immunity. Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006).

The Court has emphasized that the qualified immunity analysis “must be undertaken in light

of the specific context of the case, not as a broad general proposition[.]” Saucier, 533 U.S. at 201.

Thus, in the excessive force context, it is not enough that a plaintiff establishes that the defendant’s

use of force was excessive under the Fourth Amendment. To defeat qualified immunity, the plaintiff

must show that the defendant had notice that the manner in which the force was used had been

previously proscribed:

[T]here is no doubt that [precedent] clearly establishes the general proposition that

use of force is contrary to the Fourth Amendment if it is excessive under objective

standards of reasonableness. Yet that is not enough. Rather, we emphasized in

No. 06-1465 Livermore v. Lubelan, et al. Page 5

Anderson [v. Creighton,] “that the right the official is alleged to have violated must

have been ‘clearly established’ in a more particularized, and hence more relevant,

sense: The contours of the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.” 483 U.S. [635,] 640

. . . [(1987)]. The relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.

Brosseau v. Haugen, 543 U.S. 194, 198-99 (2004) (quoting Saucier, 533 U.S. at 201-02).

A. Sergeant Lubelan

As Saucier and Brosseau instruct, we must first determine whether Sgt. Lubelan violated

Rohm’s constitutional rights by shooting him. It is well-established that individuals have a

constitutional right to be free from excessive force during an arrest. See, e.g., Graham v. Conner,

490 U.S. 386, 388 (1989); Solomon, 389 F.3d at 173. “[A]ll claims that law enforcement officers

have used excessive force – deadly or not – in the course of an arrest, investigatory stop, or other

‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’

standard . . . . ” Graham, 490 U.S. at 395. “[T]he Fourth Amendment prohibits a police officer’s

use of deadly force to seize an unarmed, non-dangerous suspect.” Sample v. Bailey, 409 F.3d 689,

696 (6th Cir. 2005) (citing Tennessee v. Garner, 471 U.S. 1, 11 (1985)). Rather, the use of deadly

force is only constitutionally permissible if “the officer has probable cause to believe that the suspect

poses a threat of serious physical harm, either to the officer or to others . . . .” Garner, 471 U.S. at

11; see also Sample, 409 F.3d at 697 (noting that “only in rare instances may an officer seize a

suspect by use of deadly force”). The Court has identified three factors that lower courts should

consider in determining the reasonableness of force used: (1) the severity of the crime at issue;

(2) whether the suspect posed an immediate threat to the safety of the police officers or others; and

(3) whether the suspect actively resisted arrest or attempted to evade arrest by flight. Graham, 490

U.S. at 396; Smoak v. Hall, 460 F.3d 768, 783 (6th Cir. 2006). These factors are not an exhaustive

list, as the ultimate inquiry is “whether the totality of the circumstances justifies a particular sort of

seizure.” St. John v. Hickey, 411 F.3d 762, 771 (6th Cir. 2005) (quoting Graham, 490 U.S. at 396).

Considering the totality of the facts and circumstances as alleged by Livermore, we hold that

Sgt. Lubelan acted reasonably in firing at Rohm. Several factors compel a finding that Rohm posed

a serious threat: Rohm helped cause the standoff that led to Crosslin’s death by (along with

Crosslin) setting fire to the buildings on Rainbow Farms, he was present when Crosslin fired shots

at a news helicopter, and – rather than surrender as agreed upon – he exited his burning residence

armed with a rifle. In addition, Michigan State Police officers were told that Rohm and Crosslin had

wired their residence with explosives. Furthermore, although Livermore contends that Rohm was

not aiming a gun at the LAV when he was shot, the first – and ultimately fatal – bullet fired by Sgt.

Lubelan hit the rifle stock of Rohm’s gun before entering Rohm’s chest. Thus, 4plaintiff’s own

expert, Dr. Thornton, concedes that Rohm was holding his rifle when he was shot.

Despite these factors, Livermore argues that Sgt. Lubelan acted unreasonably in firing at

Rohm. Livermore relies on Dr. Thornton’s affidavit to argue that Rohm was not pointing his rifle

at the LAV when he was shot, and on statements made by Sgts. Homrich and Bower that they were

inside the LAV at the time of the shooting. Thus, Livermore argues, Rohm did not pose an

immediate threat when he was fired upon. We disagree.

4

Although Livermore’s brief contests defendants’ claim that Rohm was holding a weapon at the time he was

killed, Livermore conceded at oral argument that Rohm was in fact holding a rifle when he was shot.

No. 06-1465 Livermore v. Lubelan, et al. Page 6

First, we note our disagreement with the district court that Sgts. Homrich’s and Bower’s

statements create a genuine issue of material fact concerning their whereabouts at the time Rohm

was shot. In the statements at issue – derived from a Michigan State Police Incident Report filed

immediately after the shooting at Rainbow Farms – both Sgt. Bower and Sgt. Homrich state that

after they left their hatches and went down into the LAV, “they were informed by the perimeter

personnel that the suspect had been shot.” These statements, however, only suggest that Sgts.

Homrich and Bower were inside the LAV when they learned that Rohm had been shot; they are

silent as to whether the officers had been exposed at the time Sgt. Lubelan fired at Rohm. In our

view, these statements do not contradict Sgt. Homrich’s deposition testimony that he was exposed

at the time Rohm was shot.

Moreover, in determining whether Rohm posed a threat of serious harm at the time he was

shot, we must focus on Sgt. Lubelan’s perspective:

The “reasonableness” of a particular use of force must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight. . . . The calculus of reasonableness must embody allowance for the fact

that police officers are often forced to make split-second judgments – in

circumstances that are tense, uncertain, and rapidly evolving – about the amount of

force that is necessary in a particular situation.

Smith v. Freland, 954 F.2d 343, 346-47 (6th Cir. 1992) (quoting Graham, 490 U.S. at 396-97). Sgt.

Lubelan testified that he saw an officer exposed through the hatch of the LAV before he fired at

Rohm, and that he fired at Rohm in order to prevent Rohm from firing at the LAV. Even assuming

that Rohm was not aiming his rifle at the LAV when he was shot, we nonetheless conclude that Sgt.

Lubelan had probable cause to believe that Rohm posed a serious threat to the officers in the LAV

– particularly Sgt. Homrich – due to his proximity to the LAV while armed with a rifle, his prior

violent behavior, and his continued refusal to surrender and face arrest. Garner, 471 U.S. at 11

(holding the use of deadly force is constitutionally permissible only if “the officer has probable

cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to

others[.]”).

Because Livermore has not shown that Sgt. Lubelan used excessive force in shooting at

Rohm, we need not address whether Rohm had a “clearly established” right to be free from being

fired upon. Saucier, 533 U.S. at 201. Sgt. Lubelan’s request for qualified immunity should have

been granted, and the district court’s denial of defendants’ motion for summary judgment with

respect to Livermore’s claim of excessive force against Sgt. Lubelan is reversed.

B. Lieutenant Ellsworth

Livermore also asserts that Lt. Ellsworth, who commanded the Emergency Services team

and attempted to confront Rohm in the LAV, intentionally or recklessly created the circumstances

leading to Rohm’s death. With respect to this claim, the district court stated that:

Plaintiff’s law enforcement practices expert, D.P. Van Blaricom, has also provided

reliable opinion evidence that the police practices used and ordered by Jerry

Ellsworth were reckless and contributed to the use of excessive force. His

conclusions include that the fatal incident was triggered by the unjustified and

reckless decision to rush the suspect, without warning, at a time when he was trapped

and did not pose any imminent threat. Although this record could be interpreted

otherwise, the interpretation required by Rule 56 establishes that there are genuine

issues of material fact requiring the denial of summary judgment as to whether

Defendants recklessly used excessive force in violation of federal and state law.

No. 06-1465 Livermore v. Lubelan, et al. Page 7

Defendants argue that the district court erred in denying their motion for summary judgment

with respect to Livermore’s Fourth Amendment claim against Lt. Ellsworth. They contend that

Livermore’s theory of recovery as to Lt. Ellsworth is not cognizable under a Fourth Amendment

excessive force claim.

In support of her claim against Lt. Ellsworth, Livermore points to Billington v. Smith, 292

F.3d 1177 (9th Cir. 2002), in which the Ninth Circuit held that a plaintiff’s Fourth Amendment claim

against police officers who used deadly force may survive summary judgment, even where the

particular seizure is reasonable, if the defendant police officers acted recklessly in creating the

circumstances which required the use of deadly force. Id. at 1189 (stating that “even though the

officers reasonably fired back in self-defense, they could still be held liable for using excessive force

because their reckless and unconstitutional provocation created the need to use force.”). Although

this circuit has not addressed Billington directly, we have rejected such an analysis. The proper

approach under Sixth Circuit precedent is to view excessive force claims in segments. Gaddis v.

Redford Twp., 364 F.3d 763, 772 (6th Cir. 2004); Dickerson v. McClellan, 101 F.3d 1151, 1161 (6th

Cir. 1996). That is, the court should first identify the “seizure” at issue here and then examine

“whether the force used to effect that seizure was reasonable in the totality of the circumstances, not

whether it was reasonable for the police to create the circumstances.” Dickerson, 101 F.3d at 1161

(quoting Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir. 1992)). The Dickerson court reasoned:

The time-frame is a crucial aspect of excessive force cases. Other than random

attacks, all such cases begin with the decision of a police officer to do something, to

help, to arrest, to inquire. If the officer had decided to do nothing, then no force

would have been used. In this sense, the police officer always causes the trouble.

But it is trouble which the police officer is sworn to cause, which society pays him

to cause and which, if kept within constitutional limits, society praises the officer for

causing.

Id. (quoting Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir. 1994)); see also id. at 1161-62 (citing

with approval Drewitt v. Pratt, 999 F.2d 774, 778-80 (4th Cir. 1993) (rejecting a claim that an

officer who resorts to deadly force in self-defense violates the Fourth Amendment if he unreasonably

provokes the shooting by failing to identify himself as a police officer)); id. at 1162 (citing with

approval Cole v. Bone, 993 F.2d 1328, 1333 (8th Cir. 1993) (scrutinizing “only the seizure itself,

not the events leading to the seizure, for reasonableness under the Fourth Amendment” because the

“Fourth Amendment prohibits unreasonable seizures, not unreasonable or ill-advised conduct in

general.”)).

Applying the segmented analysis here that Dickerson requires, we conclude that Lt.

Ellsworth is entitled to summary judgment on Livermore’s excessive force claim. Livermore,

through her expert, asserts that Lt. Ellsworth acted recklessly by creating circumstances to justify

shooting Rohm, by ordering snipers to shoot Rohm if he raised a weapon at the LAV, by failing to

warn Rohm that he would be fired upon, and by “rushing” the assault on Rohm. Because Livermore

argues that Lt. Ellsworth acted negligently by increasing the likelihood that Rohm would be shot,

the seizure at issue is the shooting of Rohm. All of the actions concerning Lt. Ellsworth, however,

occurred in the hours and minutes leading up to Rohm’s killing; Dickerson instructs us to disregard

these events and to focus on the “split-second judgments” made immediately before the officer used

allegedly excessive force. See Dickerson, 101 F.3d at 1162 (citing Greenidge v. Ruffin, 927 F.2d

789, 792 (4th Cir. 1991) and Sherrod v. Berry, 856 F.2d 802, 805-06 (7th Cir. 1988) (en banc)). The

only force used against Rohm during the standoff was the two shots that killed him, and it is

undisputed that the only officer to shoot Rohm was Sgt. Lubelan. Under Dickerson, the preceding

decisions made by Lt. Ellsworth are immaterial and not a sufficient basis for a claim under the

Fourth Amendment. We therefore reverse the district court’s denial of defendants’ motion for

summary judgment with respect to Livermore’s excessive force claim against Lt. Ellsworth.

No. 06-1465 Livermore v. Lubelan, et al. Page 8

IV.

Livermore also asserts claims of gross negligence arising under Michigan state law against

Sgt. Lubelan and Lt. Ellsworth. Defendants argue that they are entitled to immunity from

Livermore’s state law claims under MICH. COMP. LAWS § 691.1407 unless Livermore can establish

that their conduct amounted to gross negligence. Because Livermore’s claims are predicated on

intentional – rather than negligent – conduct, defendants contend that Livermore’s state law claims

fail as a matter of law. We agree with defendants and reverse the district court’s denial of

defendants’ motion for summary judgment on Livermore’s state law claims of gross negligence.

A.

In a diversity case or a federal question action involving pendent state claims, we must look

to state immunity law to determine whether a denial of immunity based on state law is appealable.

Walton v. City of Southfield, 995 F.2d 1331, 1343 (6th Cir. 1993) (citing Mitchell v. Forsyth, 472

U.S. 511 (1985), and Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). In Walton, we held that a

defendant could not appeal a district court’s denial of governmental immunity pursuant to MICH.

COMP. LAWS § 691.1407 because it was not a “final decision” under 28 U.S.C. § 1291. Id. at 1344.

On June 4, 2002, however, Michigan Court Rule 7.202 was amended to include as a “final order”

an “order denying governmental immunity to a governmental party, including a governmental

agency, official, or employee . . . .” M.C.R. 7.202(6)(a)(v). Since the 2002 amendment, we have

held repeatedly that, because the denial of governmental immunity is now a “final order” providing

defendants with an appeal of right to the Michigan Court of Appeals, this court has jurisdiction over

interlocutory appeals concerning pendent state law claims of governmental immunity. See Schack

v. City of Taylor, 177 F. App’x 469, 473-74 (6th Cir. 2006) (unpublished); Bradley v. City of

Ferndale, 148 F. App’x 499, 511-12 (6th Cir. 2005) (unpublished). We therefore conclude that this

court has jurisdiction to consider defendants’ interlocutory appeal concerning the denial of qualified

immunity to Sgt. Lubelan and Lt. Ellsworth with respect to Livermore’s state law claims.

B.

Michigan’s governmental tort liability act, MICH. COMP. LAWS §§ 691.1401 et seq., provides

governmental employees with immunity from tort liability for injuries they cause during the course

of their employment so long as the employee’s conduct “does not amount to gross negligence that

is the proximate cause of the injury or damage.” MICH. COMP. LAWS § 691.1407(2)(c); see also id.

at § 691.1407(7)(a) (defining “gross negligence” as “conduct so reckless as to demonstrate a

substantial lack of concern for whether an injury results”). In her complaint, Livermore alleges a

claim of gross negligence against Sgt. Lubelan, contending that Sgt. Lubelan breached a duty owed

to Rohm by shooting and killing him, and by failing to understand “activity which constituted an

imminent threat of harm to him and others.” Although her complaint is articulated in terms

appropriate for a negligence claim (e.g., “failing to understand”), Livermore’s gross negligence

claim against Sgt. Lubelan is undoubtedly premised on the intentional tort of battery. The Michigan

courts have consistently “rejected attempts to transform claims involving elements of intentional

torts into claims of gross negligence.” VanVorous v. Burmeister, 687 N.W.2d 132, 143 (Mich. Ct.

App. 2004); see also Smith v. Stolberg, 586 N.W.2d 103, 104-05 (Mich. Ct. App. 1998); Sudul v.

Hamtramck, 562 N.W.2d 478, 479, 487-88 (Mich. Ct. App. 1997). Livermore’s claim of gross

negligence against Sgt. Lubelan is therefore not cognizable under Michigan law, and the district

court’s denial of defendant’s motion for summary judgment with respect to this claim is reversed.

Livermore also alleges a claim of gross negligence against Lt. Ellsworth. As discussed

above, governmental employees are immune from tort liability for injuries they cause during the

course of their employment, if the employee’s conduct “does not amount to gross negligence that

is the proximate cause of the injury or damage.” MICH. COMP. LAWS § 691.1407(2)(c) (emphasis

No. 06-1465 Livermore v. Lubelan, et al. Page 9

added). In Robinson v. City of Detroit, 613 N.W.2d 307, 311 (Mich. 2000), the Michigan Supreme

Court defined “the proximate cause” under § 691.1407(2)(c) to mean “the one most immediate,

efficient, and direct cause preceding an injury . . . .” Id. at 317-18. The Robinson court then applied

its definition of “the proximate cause” to conclude that police officers in pursuit of an underage

driver who was operating a car recklessly were immune from liability for injuries caused to the

driver’s innocent passengers. Id. at 319. The court reasoned that the proximate cause of the injuries

sustained by the plaintiffs was not the officers’ decision to chase after the driver, but rather the

reckless conduct of the fleeing driver. Id. Similarly, we conclude that the proximate cause of

Rohm’s death was not Lt. Ellsworth’s conduct, but rather Rohm’s decision to disregard his promise

to surrender unarmed and to set fire to his residence. Because Lt. Ellsworth’s conduct was not the

proximate cause of Rohm’s death, he is immune from Livermore’s claim of gross negligence

pursuant to MICH. COMP. LAWS § 691.1407(2)(c). See also Dean v. Childs, 705 N.W.2d 344 (Mich.

2005) (reversing denial of summary judgment for defendants, for reasons stated by dissenting

opinion in Dean v. Childs, 684 N.W.2d 894, 901-03 (Mich. Ct. App. 2004)).

The district court’s denial of defendants’ motion for summary judgment is reversed.