Dorothy Chappell v. City of Cleveland

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0382p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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DOROTHY CHAPPELL, Administratrix of the

Plaintiff-Appellee, --

Estate of Deceased Brandon McCloud,

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No. 08-4456

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v.

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Defendant, -

CITY OF CLEVELAND,

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PHILLIP HABEEB, Badge No. 381, Cleveland

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Police Department; JOHN KRAYNIK, Badge

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No. 1517, Cleveland Police Department,

Defendants-Appellants. -

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Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 06-02135—Kathleen McDonald O’Malley, District Judge.

Argued: October 6, 2009

Decided and Filed: November 4, 2009

Before: DAUGHTREY, SUTTON, and McKEAGUE, Circuit Judges.

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COUNSEL

ARGUED: Stephen W. Funk, ROETZEL & ANDRESS, Akron, Ohio, for Appellants.

Terry H. Gilbert, FRIEDMAN & GILBERT, Cleveland, Ohio, for Appellee. ON BRIEF:

Stephen W. Funk, Aretta Bernard, ROETZEL & ANDRESS, Akron, Ohio, W. Craig

Bashein, BASHEIN & BASHEIN CO., Cleveland, Ohio, for Appellants. Terry H. Gilbert,

Gordon S. Friedman, FRIEDMAN & GILBERT, Cleveland, Ohio, for Appellee.

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No. 08-4456 Chappell v. City of Cleveland, et al. Page 2

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OPINION

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McKEAGUE, Circuit Judge. This action arises from the tragic shooting by police

officers of a fifteen-year old boy, Brandon McCloud, in his own bedroom. While conducting

a protective sweep of a home in the early-morning darkness prior to executing a search

warrant, the officers encountered a male suspect hiding in a bedroom closet. When they

ordered him to come out and show his hands, the suspect came toward the officers with a

knife upheld. When he ignored their commands to drop the knife and continued to move

toward the officers in close quarters, they opened fire, killing him instantly.

The administratrix of McCloud’s estate brought action against the officers under

federal and state law, alleging the use of deadly force was excessive as the officers were not

under imminent threat of serious bodily harm. The district court denied the officers’ motion

for summary judgment, holding that they are not entitled to qualified immunity because there

are genuine issues of material fact that preclude ruling, as a matter of law, that the officers’

conduct was objectively reasonable. Specifically, the court determined there is a factual

dispute about the nature of the threat posed by McCloud, rendering it impossible to rule

whether the officers’ reaction was objectively reasonable.

We find the district court’s reasoning, albeit thorough and well-articulated, to be

erroneous in its ultimate conclusion. Our review of the record convinces us that the material

facts are not genuinely disputed. Based on the record evidence, we conclude as a matter of

law that the officers’ conduct is not shown to have been objectively unreasonable. For the

reasons that follow, the denial of qualified immunity is reversed.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 31, 2005, City of Cleveland Police Detectives Philip Habeeb and John

Kraynik were investigating an armed robbery of a pizza-delivery person that had occurred

that evening. Upon learning about the circumstances of the robbery, the detectives

immediately suspected Brandon McCloud, who lived in the vicinity of the robbery and had

admitted committing 10-12 similar armed robberies in an interview with them some three

No. 08-4456 Chappell v. City of Cleveland, et al. Page 3

months earlier. Once he had used a handgun, but in all other cases, he had used knives. In

fact, McCloud had been formally adjudicated a delinquent in connection with one of the

robberies and had been sentenced to a short period of home detention, followed by

probation.

After discovering physical evidence near the scene of the robbery suggestive of the

same modus operandi McCloud had admitted using in the earlier robberies, the detectives

obtained a warrant at about 3:00 a.m. on September 1, 2005, to search the home where

McCloud lived with his grandmother, Dorothy Chappell, and uncle, Melvin Chappell. The

warrant authorized a search of the premises for evidence of the armed robbery, such as stolen

property, weapons, and articles of disguise. At about 5:00 a.m., after observing activity in

the Chappell house, the detectives knocked on the front door, advised Melvin Chappell that

they had a search warrant, and proceeded to conduct a protective sweep of the residence.

Chappell told the detectives that his mother was in the house getting ready for work, but he

did not mention nephew Brandon McCloud.

The house was still dark; the detectives proceeded from one room to another with

flashlights, firearms drawn. While the detectives say they announced themselves several

times as “Cleveland Police,” others present at the house did not recall hearing this. As the

detectives approached what turned out to be McCloud’s bedroom on the second floor, they

found the door closed. They barged into the small bedroom, each taking a position inside

the room on either side of the “fatal funnel” formed by the opening into the room. Across

the dark room, they spotted McCloud hiding in the closet. Their flashlights and firearms

trained on him, they ordered him to come out of the closet and show his hands. After first

hesitating, McCloud turned and came out of the closet, holding a knife in his right hand with

the blade pointing upward. Ignoring their commands to drop the knife, McCloud continued

to move quickly toward the detectives. Believing they were threatened with imminent

serious bodily harm, both detectives simultaneously opened fire, each striking McCloud with

several shots, killing him instantly. The entire encounter transpired in a matter of seconds.

Eight days later, during the Cleveland Police Department’s investigation of the

deadly force incident, both Detective Habeeb and Detective Kraynik stated that McCloud

moved quickly or “lunged” toward them. They both thought McCloud was attempting to

No. 08-4456 Chappell v. City of Cleveland, et al. Page 4

attack them and that they were in imminent peril of death or serious injury. Both believed

McCloud would have stabbed one or both of them if they had not defended themselves.

Twenty months later both detectives gave deposition testimony substantially consistent with

their earlier statements.

This action was commenced in the Cuyahoga County Court of Common Pleas and

removed to the District Court for the Northern District of Ohio on September 5, 2006.

Dorothy Chappell, McCloud’s grandmother and administratrix of his estate, asserted claims

against the City of Cleveland and both detectives under 42 U.S.C. § 1983 for violation of

McCloud’s Fourth Amendment rights (unreasonable seizure), and under state law for

wrongful death, assault and battery, and willful, wanton and reckless conduct resulting in

death. After completion of discovery, defendants moved for summary judgment. All claims

against the City of Cleveland were voluntarily dismissed with prejudice. Subsequently, the

district court issued a 54-page opinion denying Habeeb’s and Kraynik’s motion for summary

judgment, concluding they are not entitled to qualified immunity on either the federal or state

law claims because there are outstanding questions of fact. This appeal timely followed.

II. JURISDICTION

A threshold question we must answer is whether the court has jurisdiction to hear

this appeal. Ordinarily, the denial of a motion for summary judgment is an interlocutory

ruling, not a “final order,” and is not subject to immediate appeal. 28 U.S.C. § 1291;

Harrison v. Ash, 539 F.3d 510, 521 (6th Cir. 2008). Yet, it is well-established that an order

denying qualified immunity to a public official is immediately appealable pursuant to the

“collateral order” doctrine. Harrison, 539 F.3d at 521; Leary v. Livingston County, 528 F.3d

438, 447 (6th Cir. 2008). This exception is narrow, however. Appellate jurisdiction exists

“only to the extent that a summary judgment order denies qualified immunity based on a

pure issue of law.” Leary, 528 F.3d 447-48 (quoting Gregory v. City of Louisville, 444 F.3d

725, 742 (6th Cir. 2006)).

Plaintiff Chappell correctly points out that the district court’s denial of qualified

immunity is not based on a pure question of law, but on two clearly identified factual issues.

Yet, the district court’s characterization of the basis for its ruling does not necessarily dictate

the availability of appellate review. Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 402-

No. 08-4456 Chappell v. City of Cleveland, et al. Page 5

03 (6th Cir. 2007); Estate of Carter v. City of Detroit, 408 F.3d 305, 309 (6th Cir. 2005).

If, apart from impermissible arguments regarding disputes of fact, defendants raise purely

legal issues bearing on their entitlement to qualified immunity, then there are issues properly

subject to appellate review. Livermore, 476 F.3d at 403; Estate of Carter, 408 F.3d at 310.

Hence, the district court’s determination that there is a factual dispute does not necessarily

preclude appellate review where, as defendants here contend, the ruling also hinges on legal

errors as to whether the factual disputes (a) are genuine and (b) concern material facts. See

Scott v. Harris, 550 U.S. 372, 378-80 (2007) (reversing denial of qualified immunity where

lower court erred in finding genuine issue of material fact).

In Scott, the Eleventh Circuit was held to have erred by accepting the plaintiff’s

version of the facts as true even though that version was so conclusively contradicted by the

record that no reasonable jury could believe it. Id. at 380-81. In other words, the court is

not obliged to, and indeed should not, rely on the nonmovant’s version where it is “so utterly

discredited by the record” as to be rendered a “visible fiction.” Id. The court’s duty to view

the facts in the light most favorable to the nonmovant does not require or permit the court

to accept mere allegations that are not supported by factual evidence. Leary, 528 F.3d at

443-44. This is so because the nonmovant, in response to a properly made and supported

motion for summary judgment, cannot rely merely on allegations but must set out specific

facts showing a genuine issue for trial. Id. at 444.

Defendants Habeeb and Kraynik contend that the district court committed legal error

not unlike the error committed by the Eleventh Circuit in Scott. Specifically, they argue the

district court erred as a matter of law (a) by treating the objective reasonableness of their use

of force as a question of fact instead of a question of law; (b) by treating unsupported

speculation that McCloud did not pose an imminent threat of serious harm as creating a

“genuine” dispute; and (c) by treating evidence that the detectives did not announce

themselves as “Cleveland Police” as going to a “material” fact issue even though it was

not—per the “segmented analysis” that must be applied—part of the circumstances

immediately preceding the use of deadly force.

For reasons more fully developed below, we agree with defendants on the latter two

points. What’s most important at this stage, however, is that defendants are not “merely

No. 08-4456 Chappell v. City of Cleveland, et al. Page 6

quibbling with the district court’s reading of the factual record,” see Leary, 528 F.3d at 441,

but have identified purely legal issues that are, pursuant to the collateral order doctrine,

subject to appellate jurisdiction. Livermore, 476 F.3d at 403. We therefore overrule

Chappell’s objection to this court’s exercise of appellate jurisdiction.

III. ANALYSIS

A. Qualified Immunity Framework

Chappell alleges that Detectives Habeeb and Kraynik are liable under 42 U.S.C.

§ 1983 for using excessive force in responding to the discovery of her grandson in his

bedroom and that killing him represents an unreasonable seizure in violation of his rights

under the Fourth Amendment. In defense, the detectives have invoked qualified immunity,

which if it applies, is a defense not just against liability, but against suit itself. Pearson v.

Callahan, 129 S.Ct. 808, 815 (2009). Hence, the immunity questions should be resolved

as early in the litigation as possible. Id.

Qualified immunity shields government officials from liability for civil damages if

their actions did not violate clearly established statutory or constitutional rights of which a

reasonable person would have known. Pearson, 129 S.Ct. at 815. Qualified immunity

ordinarily applies unless it is obvious that no reasonably competent official would have

concluded that the actions taken were unlawful. Ewolski v. City of Brunswick, 287 F.3d 492,

501 (6th Cir. 2002). Qualified immunity “‘gives ample room for mistaken judgments’ by

protecting ‘all but the plainly incompetent or those who knowingly violate the law.’”

Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 343,

341 (1986)). Qualified immunity applies irrespective of whether the official’s error was a

mistake of law or a mistake of fact, or a mistake based on mixed questions of law and fact.

Pearson, 129 S.Ct. at 815.

Plaintiff bears the burden of showing that defendants are not entitled to qualified

immunity. Untalan v. City of Lorain, 430 F.3d 312, 314 (6th Cir. 2005). Plaintiff must show

both that, viewing the evidence in the light most favorable to her, a constitutional right was

violated and that the right was clearly established at the time of the violation. Scott, 550 U.S.

at 377; Harrison, 539 F.3d at 517. If plaintiff fails to show either that a constitutional right

No. 08-4456 Chappell v. City of Cleveland, et al. Page 7

was violated or that the right was clearly established, she will have failed to carry her

burden. Moreover, to satisfy the second prong of the standard, plaintiff must show that the

right was clearly established in a “particularized sense,” such that a reasonable officer

confronted with the same situation would have known that using deadly force would violate

that right. Brosseau v. Haugen, 543 U.S. 194, 199-200 (2004). In determining whether the

required showing has been made, the court has discretion to decide which of the two

elements to address first. Pearson, 129 S.Ct. at 818. The district court’s decision is

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reviewed de novo. Ewolski, 287 F.3d at 501.

B. Objective Reasonableness

There is no dispute regarding the correctness of the general legal standards

employed by the district court in evaluating the § 1983 excessive force claim. They are

summarized by the district court as follows:

It is axiomatic that individuals have a constitutional right not to

be subjected to excessive force during an arrest, investigatory stop, or

other “seizure” of his person. Graham v. Connor, 490 U.S. 386, 388, 395

(1989). A claim that the government used excessive force during the

course of a seizure is analyzed under the Fourth Amendment’s “objective

reasonableness” standard. Id. In Graham, the Supreme Court

established the test for analyzing objective reasonableness:

Determining whether the force used to effect a particular

seizure is ‘reasonable’ under the Fourth Amendment

requires a careful balancing of the nature and quality of

the intrusion on the individual’s Fourth Amendment

interests against the countervailing governmental interests

at stake.

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In response to plaintiff’s state law claims for wrongful death, assault and battery, and willful,

wanton and reckless conduct resulting in death, defendants moved for summary judgment, contending they

are entitled to statutory immunity from liability as public employees and police officers under Ohio law,

O.R.C. § 2744.03(A)(6). Such immunity applies unless defendants are shown to have acted “outside the

scope of [their] employment or official responsibilities” or “with malicious purpose, in bad faith, or in a

wanton or reckless manner.” Id. Plaintiff contends the immunity does not apply because defendants acted

recklessly.

The district court analyzed the matter of state law immunity in a manner paralleling its qualified

immunity analysis, and concluded that questions of fact precluded summary judgment on the state law

claims as well. While defendants challenge this ruling, too, both sides recognize that the availability of

both federal qualified immunity and state law immunity depends on the correctness of the district court’s

finding of the existence of the very same questions of fact. Hence, we address the issues, as the parties

have, primarily through the lense of the federal qualified immunity analysis.

No. 08-4456 Chappell v. City of Cleveland, et al. Page 8

Id. at 396. Application of this test “requires careful attention to the facts

and circumstances of each particular case, including the [1] severity of

the crime at issue, [2] whether the suspect poses an immediate threat to

the safety of the officers or others, and [3] whether he is actively resisting

arrest or attempting to evade arrest by flight.” Id. Further, the

“reasonableness” of a particular use of force is objective and “must be

judged from the perspective of a reasonable officer on the scene, rather

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

“in light of the facts and circumstances confronting [the officers], without

regard to their underlying intent or motivation,” id. at 397. Indeed, it is

not for the Court to substitute its own notion of the “proper police

procedure for the instantaneous decision of the officer at the scene.”

Boyd v. Baeppler, 215 F.3d 594, 602 (6th Cir. 2000). “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.” Graham, 490 U.S. at 396-97.

Moreover, with regard to the constitutionality of an officer’s use

of deadly force, which also is subject to the objective reasonableness

standard of the Fourth Amendment, the Supreme Court has noted that the

use of deadly force is reasonable only if “the officer has probable cause

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

to the officer or others.” Tennessee v. Garner, 471 U.S. 1, 7, 11 (1985);

see Sample v. Bailey, 409 F.3d 689, 697 (6th Cir. 2005) (stating that

“only in rare instances may an officer seize a suspect by use of deadly

force”); see also Williams v. City of Grosse Pointe Park, 496 F.3d 482,

487 (6th Cir. 2007) (“[A]n officer may use deadly force whenever he or

she, in the face of a rapidly evolving situation, has probable cause to

believe that a suspect poses a serious physical threat either to the police

or members of the public.”).

ROA 87, Corrected Opinion and Order pp. 26-28 (footnote omitted).

Thus, plaintiff’s excessive force claim requires a showing that the detectives’ use

of deadly force was objectively unreasonable. The district court held that plaintiff made

a sufficient showing to create a genuine issue of fact and forestall summary judgment.

Defendants contend the district court misapplied the standard by viewing the question

of objective unreasonableness as a question of fact rather than a question of law.

At the summary judgment stage, once the relevant set of facts is determined and

all reasonable inferences are drawn in favor of the plaintiff, to the extent supported by

No. 08-4456 Chappell v. City of Cleveland, et al. Page 9

the record, the question whether the detectives’ actions were objectively unreasonable

is “a pure question of law.” Scott, 550 U.S. at 381 n.8; Dunn v. Matatall, 549 F.3d 348,

353 (6th Cir. 2008). Careful review of the district court’s opinion reveals that the court

did not erroneously treat this ultimate question as one of fact. Rather, the court found

there to be a genuine fact issue as to whether McCloud posed a serious and immediate

threat of harm. Indeed, if there is some evidence—more than a mere scintilla of

evidence—that McCloud, through his conduct, judged from the perspective of

reasonable officers on the scene, did not give the officers probable cause to believe that

he posed a serious threat of harm, a genuine fact dispute is created. The district court

found there to be such a fact dispute and, resolving it in favor of plaintiff, concluded that

defendants could be found to have used force that was “excessive,” because it is well

established, as a matter of law, that use of deadly force is objectively unreasonable

absent probable cause to believe the suspect posed a serious threat of physical harm.

Garner, 471 U.S. 7, 11. It was on this basis that the district court denied defendants

qualified immunity.

For the reasons set forth below, we hold the district court erred in this conclusion,

but not because it mistook a legal question for a factual question. Rather, its error lies

in the determination that there is a genuine dispute at to whether McCloud gave the

officers probable cause to believe he posed a serious threat of harm. But this is the

subject matter of defendants’ next objection. The present argument, that the district

court committed legal error by treating the objective unreasonableness inquiry as a

question of fact, is based on a mischaracterization of the district court’s opinion and we

reject it.

C. Genuine Dispute of Material Fact?

The district court correctly recognized that the first step in the qualified immunity

analysis required the court to determine the relevant facts. Scott, 550 U.S. at 1774. The

court also recognized that it was obliged to view the factual evidence in the light most

favorable to plaintiff Chappell. The court went on to consider each of four factual

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disputes asserted by plaintiff. The court rejected the first two, but found merit in the

latter two.

First, the court rejected the argument that the manner in which the detectives

obtained and executed the search warrant (i.e., defendants’ conduct leading up to but

prior to the actual confrontation with McCloud in the bedroom) was relevant in assessing

the objective reasonableness of their use of force. The court correctly observed that this

assessment is based on a “segmented analysis” of the totality of the circumstances facing

the detectives at the time they made their split-second judgments immediately prior to

using deadly force. Livermore, 476 F.3d at 406. Because it is the reasonableness of the

“seizure” that is the issue, not the reasonableness of the detectives’ conduct in time

segments leading up to the seizure, the district court properly held that any fact issues

relating to the issuance of the warrant and initial entry into the Chappell residence are

immaterial.

Second, the district court addressed plaintiff’s contention that there is evidence

refuting the detectives’ account that McCloud was holding the knife when they fired on

him. The court clearly explained why it found the forensic evidence insufficient to

create a “genuine issue.” The court specifically cited the lack of affirmative evidence

contradicting the detectives’ account or indicating that the knife had been moved after

the shooting.

Neither side has challenged the district court’s conclusions on these first two

asserted fact issues. Third, the court considered the record evidence relating to whether

McCloud’s actions gave the detectives probable cause to believe he posed a threat of

serious physical harm to them. The court summarized the pertinent facts as follows:

Upon entering the dimly lit bedroom, the Detectives noticed

McCloud standing in a closet. Detective Habeeb immediately instructed

McCloud to come out of the closet and show his hands. McCloud

stepped forward, out of the closet and toward the Detectives. The

distance between McCloud and the Detectives was approximately five to

seven feet, and a mattress was lying on the floor between the closet and

the Detectives. At the same time, McCloud raised his right hand which

contained a knife, blade up. The Detectives commanded McCloud to

No. 08-4456 Chappell v. City of Cleveland, et al. Page 11

drop the knife; he did not do so; and they shot him ten times in a single

volley.

ROA 87, Corrected Opinion and Order at 33-34 (footnote omitted). This summary of

the extant record is accurate, but incomplete. Also relevant and undisputed, but

conspicuously lacking from this summary, is the consistent testimony of both officers

that McCloud continued moving toward them with the knife held up while ignoring their

commands to drop the knife; and that they believed he was trying to attack them and, at

a distance of less than seven feet, posed an imminent threat of serious bodily harm.

These are the relevant facts, as disclosed in the record. None of these facts are

refuted by physical or circumstantial evidence and none are disputed by contrary

testimony. In fact, there are no other witnesses who could testify to the circumstances

facing the detectives in the bedroom immediately before they fired their weapons.

Based on these undisputed facts, defendants argue they are entitled to qualified

immunity as a matter of law. They acknowledge they did not actually know McCloud’s

state of mind, but they knew he had admitted using knives in numerous armed robberies

and they saw him quickly moving toward them with a knife. It all happened in darkness,

in close quarters, within a matter of seconds. They insist that ultimately, McCloud’s

state of mind is irrelevant; they are entitled to qualified immunity unless their actions are

shown to have been objectively unreasonable. They remind the court that the prohibition

against second-guessing their actions based on 20/20 hindsight “carries great weight”

where the events in question happened very quickly. Untalan, 430 F.3d at 315. Still,

the fact that the situation unfolded quickly does not by itself legitimize the use of deadly

force. Kirby v. Duva, 530 F.3d 475, 483 (6th Cir. 2008).

The district court denied qualified immunity, reasoning as follows:

[T]he Detectives’ position fails to take into account that, in the

assessment of objective reasonableness, this Court must view the facts in

the light most favorable to Chappell. Saucier v. Katz, 533 U.S. 194, 201

(2001). When it does so, it is apparent that there is a genuine issue of

material fact regarding the threat of danger posed by McCloud.

McCloud was not charging the officers, a mattress separated McCloud

from the Detectives, and McCloud was not waving the knife about in a

No. 08-4456 Chappell v. City of Cleveland, et al. Page 12

threatening manner–the knife was pointed upward and was not in a

position to directly threaten the Detectives. Further, the evidence

plausibly suggests that McCloud was merely complying with the

Detectives’ instructions. That is, he stepped out of the closest when

instructed to do so and raised the knife in response to the command to

show his hands. Although he did not immediately drop the knife when

ordered to do so, there is no evidence indicating that McCloud had

sufficient time to comply. Indeed, the evidence suggests that all of the

events occurred in rapid succession.

ROA 87, Corrected Opinion and Order p. 38 (footnote omitted). The district court thus

purports to have viewed the facts in the light most favorable to plaintiff’s claim. In our

opinion, however, the court also gave plaintiff the benefit of inferences and suppositions

that are not only not supported by the record facts, but are directly contradicted by the

record facts. The district court’s reasoning is explicit and deserves careful scrutiny.

The district court noted there was no evidence that McCloud was “charging” the

detectives. Yet, the detectives’ statements that McCloud was continuing to move

quickly toward them and had closed to within seven feet with knife held high are not

contradicted. The detectives did not characterize McCloud’s movement as “charging”

them, but the semantic difference between “charging” and “moving quickly toward” is

immaterial. The knife-wielding suspect was undisputedly moving toward the officers

and had closed to within five to seven feet in a dark, cluttered, enclosed space. Both

detectives were backed up against a wall in the small bedroom and there was no ready

means of retreat or escape. Considering McCloud’s stature (5'7", 165 lbs.) and the size

of the knife (described and depicted in photograph as a standard “steak knife” with

serrated edge), it is apparent that if the detectives had hesitated one instant, i.e., long

enough to allow McCloud to take even one more step, they would have been within his

arm’s reach and vulnerable to serious or even fatal injury. These undisputed

circumstances clearly support probable cause to believe that serious harm was

imminently threatened and that use of deadly force in self-defense was justified.

The district court noted that a mattress separated McCloud from the detectives.

This is accurate insofar as “separated” means that the mattress was between McCloud

and the defendants. But the mattress was lying flat on the floor and did not pose much

No. 08-4456 Chappell v. City of Cleveland, et al. Page 13

of a barrier. The top surface of the mattress was no more than a foot higher than the

floor. The mattress would thus have posed little impediment to a knife-wielding

assailant of McCloud’s stature. Thus, the mere presence of the mattress on the floor

does not undermine probable cause to believe that serious harm was threatened.

The district court noted, based on the detectives’ testimony, that McCloud was

not waving the knife in a threatening manner. This hardly negates their testimony,

however, that when he turned quickly and moved from the closet toward them, he

displayed the knife (formerly concealed behind his body), held it up, and refused to

release it as he continued to move toward them. The district court mused, because the

blade was pointed upward, that it was not in a position to immediately threaten them.

Yet, whether the knife was held in a position more conducive to slashing than stabbing

can hardly be deemed to undercut the formation of probable cause to believe that serious

harm was imminently threatened. Further, the district court’s musing about the

significance of the knife’s position in McCloud’s hand, speculation at odds with both

officers’ on-the-scene perceptions, represents exactly the sort of theoretical speculation

that the courts are prohibited from engaging in. Graham, 490 U.S. at 396-97. It

represents the impermissible substitution of the district judge’s own personal

notions—about what might have been, could have been, or should have been—in a

“sanitized world of . . . imagination” quite unlike the dangerous and complex world

where the detectives were required to make an instantaneous decision. See Boyd v.

Baeppler, 215 F.3d 594, 602 (6th Cir. 2000).

Finally, the district court deemed it “plausible” that McCloud had not actually

refused to drop the knife, but was attempting to comply with the detectives’ commands.

The court observed that there is “no evidence indicating that McCloud had sufficient

time to comply.” ROA 87, Corrected Opinion and Order p. 38 (emphasis added). Thus,

again, the district court relied on an inference drawn, not from the record evidence, but

from a lack of evidence. Indeed, Kraynik testified that the whole encounter “happened

real, real fast . . . in seconds.” ROA 63-2, Kraynik dep. p. 117. Yet, from the time

Habeeb, who entered the bedroom first, initially spotted McCloud in the closet, he had

No. 08-4456 Chappell v. City of Cleveland, et al. Page 14

sufficient time to make the following observations: that McCloud “presented a threat;”

that he (Habeeb) needed to “put distance between us until I couldn’t anymore;” that

McCloud “turned and produced a knife;” that McCloud did not comply with Habeeb’s

multiple commands “to drop the knife;” that McCloud, upon exiting the closet,

continued to move forward—“almost lunging”—“as if he were stepping onto the bed;”

that McCloud had closed to within such close proximity of him that Habeeb thought he

was “going to be killed.” ROA 63-1, Habeeb dep. pp. 190-99. Although it may be fair

to say there is no evidence that McCloud, in the unknown inner workings of his mind,

had sufficient time to comply, the record shows there was sufficient time for the

detectives to make observations of McCloud’s actions—actions that, viewed objectively,

strongly indicated his intentions were not innocent and compliant, but defiant and

hostile. And ultimately, of course, the objective reasonableness of the detectives’

conduct must be measured in light of what they actually observed in the circumstances

confronting them, not in light of speculation that may arise with the benefit of hindsight.

Graham. 490 U.S. at 397.

Furthermore, to withstand a properly supported motion for summary judgment,

plaintiff must do more than rely merely on the allegations of her pleadings or identify

a “metaphysical doubt” or hypothetical “plausibility” based on a lack of evidence; she

is obliged to come forward with “specific facts,” based on “discovery and disclosure

materials on file, and any affidavits,” showing that there is a genuine issue for trial. Fed.

R. Civ. P. 56(c); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

586-87 (1986). Plaintiff has failed to carry this burden by adducing evidence refuting

the detectives’ account of the circumstances they confronted. Nor is there any

substantial likelihood that the record could be improved in trial. The factual record on

which the court must rule whether the detectives’ conduct was objectively reasonable

as a matter of law is fully developed.

The record affords no basis for holding that the detectives’ conduct was

objectively unreasonable under the circumstances they faced. There is no genuine issue

of material fact. The district court reached a contrary conclusion not based upon

No. 08-4456 Chappell v. City of Cleveland, et al. Page 15

“specific facts” shown by discovery materials and affidavits, but based on what it

considered to be plausible inferences drawn from a lack of conclusive evidence on

McCloud’s state of mind. To make out a genuine issue of material fact, plaintiff must

present significant probative evidence tending to support her version of the facts,

evidence on which a reasonable jury could return a verdict for her. Scott, 550 U.S. at

380-81 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). In Scott,

the Court specifically rejected the dissent’s argument that the duty to afford the

nonmoving party the benefit of reasonable inferences required it to find a genuine fact

issue based on an unsupported hypothetical. Id. at 380-81 n. 8 (concluding that once the

relevant facts are determined and all inferences drawn in favor of the nonmoving party

“to the extent supportable by the record,” whether the circumstances reasonably

warranted the use of deadly force presents a “pure question of law.” (emphasis in

original)).

The district court buttressed its reasoning on the basis of plaintiff’s fourth

asserted factual dispute, concerning whether McCloud even knew the intruders in his

bedroom were police officers. The court reasoned that if the record showed that

McCloud did not recognize the intruders as police officers, and this failure was

attributable to defendants, then such evidence would bear on the reasonableness of their

use of force. Earlier in its opinion, the court had correctly rejected plaintiff’s argument

that the manner in which the detectives executed the search warrant was relevant in

assessing the objective reasonableness of their use of force. Yet, in evaluating the

circumstances immediately prior to the seizure, the court believed it was obliged to

“assume” that McCloud did not know the intruders were police officers based on its duty

to read the record in the light most favorable to plaintiff. Yet again, ignoring for the

moment the question of its relevance, the court’s “assumption” is not based on the record

evidence, but on a lack of evidence.

There is no direct evidence as to whether McCloud knew the two men who

confronted him in the darkness of his bedroom were police officers. Both detectives

testified that they announced themselves in a command voice as “Cleveland Police”

No. 08-4456 Chappell v. City of Cleveland, et al. Page 16

several times as they performed the protective sweep and made their way to McCloud‘s

bedroom. ROA 63-1, Habeeb dep. pp. 166-68; ROA 63-2, Kraynik dep. pp 104-05, 113-

14. Habeeb remembered making this announcement as he reached the top of the steps

and entered into the hallway leading to McCloud’s bedroom, and as he approached the

closed door and pushed it open. ROA 63-1, Habeeb dep. at 171-72, 177, 181. Kraynik,

too, remembered making the announcement as they reached and faced the closed door

of McCloud’s bedroom. ROA 63-2, Kraynik dep. at 114. Yet, as the district court

observed, Melvin Chappell and Cleveland Police Officers Shawn Smith and Marcus

Jones, who were stationed near but outside the house during the sweep, testified they did

not hear the detectives announce themselves as “Cleveland Police.”

This discrepancy, the district court reasoned, created a genuine factual dispute

as to whether the detectives identified themselves and whether McCloud recognized

them for who they were. Further, the court concluded the dispute is one of material fact,

because the detectives’ failure to identify themselves as they made their way through a

dark house evidences not mere negligence, but recklessness, potentially justifying a jury

finding that their eventual use of deadly force was not objectively reasonable. We

disagree with both conclusions.

First, the three witnesses’ failure to hear the “Cleveland Police” announcements

does not refute the detectives’ testimony that they in fact made several such

announcements; it establishes only that the witnesses didn’t hear the announcements.

In other words, the discrepancy doesn’t actually raise a genuine dispute of fact. Indeed,

even though, as the district court observed, the conditions were such that Melvin

Chappell and Officers Jones and Smith may have been in a position to hear the

announcements, it is likely they were paying attention to other matters. Specifically,

Melvin Chappell and Jones were talking with each other on the porch. ROA 73, Jones

dep. pp. 18-20. And Smith was occupied talking with Dorothy Chappell in the rear

driveway. ROA 63-5, Smith dep. pp. 11-12. So, the fact that all three witnesses did not

notice the detectives announcing themselves does not necessarily impugn the veracity

of the detectives’ account.

No. 08-4456 Chappell v. City of Cleveland, et al. Page 17

Second, even if a genuine fact dispute were deemed presented, it is not material,

because the events before the shooting are not a factor in determining whether the

detectives had probable cause to use deadly force once they entered the bedroom.

Livermore, 476 F.3d at 406-07 (holding that evidence of recklessness by one officer in

events leading up to shooting was immaterial in evaluating objective reasonableness of

shooting officer’s decision to use deadly force in the situation he faced at time of

shooting); Claybrook v. Birchwell, 274 F.3d 1098, 1104-05 (6th Cir. 2001) (applying

temporally segmented analysis to possibly erroneous actions taken by officers and

finding error that preceded shooting segment to be immaterial); Boyd, 215 F.3d at 599

(applying segmented analysis to excessive force claim in determining which facts were

material); Dickerson v. McClellan, 101 F.3d 1151, 1161-62 (6th Cir. 1996) (holding the

time frame is crucial and evaluating reasonableness of officers’ use of deadly force at

the time of the seizure, irrespective of their prior unreasonable conduct in creating the

circumstances).

Notwithstanding this case law, the district court deemed Yates v. City of

Cleveland, 941 F.2d 444 (6th Cir. 1991), to be controlling. In Yates, the Sixth Circuit

affirmed the denial of qualified immunity where an officer, without identifying himself,

entered into the dark hallway of a house in which he could hear shouting and threatening

language and, upon encountering occupants, opened fire, seriously injuring one.

According to the officer, he used deadly force because he had been pushed, kicked and

beaten and felt vulnerable to further attack. The shooting victim’s version was different.

He stated that the officer tripped while moving backward and then purposefully shot him

after he recognized the intruder as a policeman, raised his hands, and said, “Don’t

shoot.” Id. at 445-46. Recognizing that these two versions presented a classic factual

dispute, the Yates court held the reasonableness of the shooting was a jury question. In

dictum, the court observed that “[a]n officer who intentionally enters a dark hallway in

the entrance of a private residence in the middle of the night, and fails to give any

indication of his identity, is more than merely negligent.” Id. at 447.

No. 08-4456 Chappell v. City of Cleveland, et al. Page 18

In applying Yates, the district court overlooked the fact that the Yates ruling was

driven by two obviously conflicting versions of the facts and instead focused on the

court’s comment about the unreasonableness of the officer’s conduct. The district court

viewed this dictum as suggesting that unreasonable conduct by an officer in events

leading up to the shooting may be a legitimate factor in assessing the reasonableness of

the subsequent shooting. The court reasoned that the more recent case law’s emphasis

on a time-segmented analysis of the officers’ conduct has no impact on application of

Yates to this case because here, as in Yates, the detectives’ failure to identify themselves

as police officers was not part of an earlier time segment, but was integral to the

circumstances leading directly to the use of deadly force:

Here, taking the facts in the light most favorable to Chappell, the

Detectives’ objectively unreasonable actions similarly may have caused

McCloud to take the potentially threatening response of picking up a

knife and hiding in the closet, because he believed the Detectives were

intruders. And, like the violent response to the officer’s actions in Yates,

this response to the Detectives’ actions by McCloud in turn precipitated

the Detectives’ use of deadly force.

ROA 87, Corrected Opinion and Order p. 42.

The district court’s analysis suffers from several defects. First, the court gives

inordinate weight to what is clearly a “thing said in passing” in Yates. Second, whereas

in Yates, it was undisputed that the officer did not identify himself, here it is undisputed,

as explained above, that the officers did identify themselves.

Third, it was not McCloud’s actions of picking up a knife and hiding in the closet

that precipitated the use of deadly force. If the detectives had fired immediately upon

finding McCloud hiding in the closet with a knife, their actions would certainly be held

objectively unreasonable. Instead, it was McCloud’s undisputed actions of quickly

advancing toward the officers while holding the knife up and refusing to drop it that

precipitated their use of deadly force. Even assuming the detectives had not effectively

identified themselves as police officers and that McCloud still failed to recognize them

as such even as they stood in his bedroom with flashlights and handguns trained on him,

McCloud had a momentary opportunity to consider how to react to their commands.

No. 08-4456 Chappell v. City of Cleveland, et al. Page 19

After pausing for a moment in the closet, McCloud chose to comply with the command

to come out of the closet. He chose to comply with the command to show his hands. He

chose not to comply with the command to drop the knife. And he chose to continue

advancing toward the officers with the knife held high until he reached a point within

five to seven feet of them before they fired in self-defense.

In Yates, in contrast, the assailants had no reason to believe, in the midst of an

angry, violent setting, that the particular intruder they encountered in the dark hallway

was a police officer. Yet, according to the Yates plaintiff’s version, it was only after he

realized that the intruder was a policeman and after he raised his hands in submission

and said, “Don’t shoot,” that the officer responded with deadly force, at a time when he

was not threatened with serious harm.

Thus, even assuming the Yates dictum was not overruled by Livermore, Yates is

distinguishable on its facts. Most importantly, it is undisputed that Detectives Habeeb

and Kraynik were confronted with what they perceived to be an imminent threat of

serious harm. Irrespective of any errors that contributed to the circumstances, they were

entitled to defend themselves unless their perception is shown by some evidence not to

have been reasonable. Considering what the record shows they knew at the moment of

McCloud’s attack, their use of deadly force to defend themselves in close quarters

against a knife-wielding assailant who had closed to within five to seven feet and was

still advancing toward them cannot be deemed objectively unreasonable. See Livermore,

476 F.3d at 406-07 (expressly rejecting the argument that officers can be liable despite

the reasonableness of a seizure if they recklessly created the circumstances which

required use of deadly force).

For these reasons, the putative dispute as to whether the detectives identified

themselves as they conducted the sweep is not a dispute of material fact and represents

no grounds for denying defendants qualified immunity.

In sum, plaintiff has failed to present a genuine issue of material fact on her claim

that defendants violated McCloud’s Fourth Amendment right to freedom from

unreasonable seizure. At best, plaintiff has presented grounds for speculation that

No. 08-4456 Chappell v. City of Cleveland, et al. Page 20

defendants misread her grandson’s innocent intentions when he came out of the closet

and advanced toward them with knife in hand. Yet, qualified immunity protects officers

from liability for mistakes of law and fact. Plaintiff has failed to adduce facts

demonstrating that defendants, in potentially misinterpreting McCloud’s actions, were

plainly incompetent or deliberately violated his rights when they acted in self-defense.

Plaintiff has thus failed to carry her burden under the first prong of the qualified

immunity analysis of demonstrating that defendants violated McCloud’s constitutional

rights. She has failed to demonstrate that they are not entitled to qualified immunity.

Moreover, there being insufficient evidence of a constitutional violation, defendants, in

effect, have no need of qualified immunity and are actually entitled to summary

judgment as matter of law. Dunn, 549 F.3d at 353.2, 3

IV. CONCLUSION

The shooting death of a fifteen-year old boy in his own bedroom at the hands of

police is a deplorable tragedy. With the benefit of hindsight, it appears the detectives

might have executed the search warrant differently, so as to minimize the risk of a

violent confrontation. Yet, assessing the undisputed facts through the lens of governing

Sixth Circuit case law compels the conclusion that the split-second decision of

Detectives Habeeb and Kraynik to use deadly force in self-defense is not shown to have

been objectively unreasonable. For the reasons set forth above, we conclude that the

district court’s denial of defendants’ motion for summary judgment must be

REVERSED and the case must be REMANDED to the district court for entry of

JUDGMENT in favor of the detectives on all of plaintiff’s claims, under federal and

state law.

2

Because plaintiff has failed to make the requisite showing of the violation of a constitutional

right, we need not address the second prong of the qualified immunity analysis and determine whether the

asserted right was clearly established in a particularized sense at the time of the fatal shooting.

3

Based on the same analysis, we conclude there are no genuine issues of material fact and that

defendants are similarly entitled to immunity from liability in connection with plaintiff’s claims under state

law. Inasmuch as plaintiff has failed to demonstrate that defendants’ conduct was objectively

unreasonable, it follows that she has also failed to demonstrate that defendants acted with “malicious

purpose, in bad faith, or in a wanton or reckless manner,” such as is required to avoid statutory immunity

under Ohio law. O.R.C. § 2744.03(A)(6)(b); Ewolski v. City of Brunswick, 287 F.3d 492, 517 (6th Cir.

2002).