Latrent Redrick v. City of Akron, Ohio

NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0517n.06

Case No. 21-3027

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

) Nov 15, 2021

LATRENT REDRICK; JAMON PRUIETT, DEBORAH S. HUNT, Clerk

)

Plaintiffs-Appellees, )

) ON APPEAL FROM THE

v.

) UNITED STATES DISTRICT

CITY OF AKRON, OHIO, ) COURT FOR THE NORTHERN

) DISTRICT OF OHIO

Defendant, )

) OPINION

JOHN TURNURE,

)

Defendant-Appellant. )

Before: SUTTON, Chief Judge; McKEAGUE and WHITE, Circuit Judges.

McKEAGUE, Circuit Judge. Akron police officer John Turnure appeals the district

court’s denial of his motion for summary judgment based on qualified immunity. Turnure shot

Latrent Redrick and Jamon Pruiett six times each. Redrick and Pruiett brought § 1983 claims

alleging unlawful seizure and state-law claims for negligence and assault and battery, among

others. The district court held that disputes of material fact preclude summary judgment on these

claims. For the reasons that follow, we AFFIRM in part, REVERSE in part, and REMAND for

further proceedings.

Case No. 21-3027, Redrick et al. v. City of Akron, et al.

I. Facts

Brothers Latrent Redrick and Jamon Pruiett were celebrating Redrick’s twenty-first

birthday in Akron, Ohio on October 1, 2017. The brothers and their friends were ordering food

late in the night at a stand outside of Zar Nightclub when a fight broke out nearby. City of Akron

police officers instructed those in the vicinity, including Redrick and Pruiett, to move across the

street away from the fight. Akron police officers John Turnure and Utomhin Okoh were stationed

near the nightclub in a police cruiser. Officer Al Jones was nearby on the street when the fight

broke out.

As Redrick, Pruiett, and a friend of theirs walked toward their car to go home, a group of

men bumped into the friend. Many of the men wore hoods tied tightly around their faces ostensibly

to obscure their identities. The men threatened Redrick, Pruiett, and their friend with physical

violence. The brothers feared they would be harmed. Redrick possessed a Carrying Concealed

Weapon (CCW) license and was carrying his gun in his pocket.

At this point, the accounts of what happened diverge. Video, but not audio, of the events

was partially captured by a surveillance camera from a nearby Goodwill boutique. The parties

dispute the extent to which the video proves their version of the events.

A. Redrick and Pruiett’s Account

According to Redrick, when the group threatened them, he announced that he had a weapon

and showed it to the group to deescalate the situation, pursuant to his CCW training. He did so by

lifting the butt of his gun partially out of his pocket and saying, “I have a license to carry, CCW,

get back.” R. 19-1, P. 116. After that, many of the men in the group dispersed. He claims that he

did not point the gun at anyone, he never raised the gun, and in fact never pulled the gun fully out

of his pocket. The testimony of Pruiett, Joseph Brantley (one of the brothers’ friends who was at

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the scene), and Officer Jones all confirm that they never saw Redrick pull out his gun, point it at

anyone, or brandish it in any way. Redrick asserts that he never intended to use the gun and his

purpose in showing and announcing the weapon was de-escalation. Redrick, Pruiett, and their

friend kept walking down the sidewalk toward their car. Redrick’s hand was on the butt of his

gun. Redrick says he did not know a police officer was behind him. Redrick and Pruiett maintain

that Turnure never gave any commands for Redrick to drop the gun. Officer Jones, who was

roughly five to ten feet from Redrick, testified that he never heard anyone yell, “drop the gun.”

The surveillance video does not show anyone turning to look in Turnure’s direction at the time he

was allegedly screaming commands to drop the gun. Turnure fired his gun at Redrick from behind.

As Turnure shot Redrick in the back, Redrick’s elbow jerked up and the gun flew out of his hand.

After the gun was out of Redrick’s hand, Turnure continued to shoot.

Pruiett testified that, as Redrick was being shot, he saw the gun come out of Redrick’s

hand. He thought his brother was dead and that he, too, was going to die. Not knowing who was

shooting and thinking it was the group of threatening men, he crouched down and reached for the

gun, pulling it to his chest. Turnure began shooting at Pruiett and shot him multiple times. Pruiett

then, assertedly without knowing who was firing at him, shot once in Turnure’s direction. The

gunshots ceased. Each brother was shot six times.

B. Turnure’s Account

According to Turnure, he was in his police cruiser when he looked across the street and

saw a person “with an outstretched arm, with a gun in his hand, pointing it at people on the

sidewalk.” R. 23-9, P. 322. The testimony of Officer Okoh, Turnure’s partner that night, agrees.

Turnure exited the police cruiser and walked toward Redrick. Turnure saw another Akron police

officer, Al Jones, walking across the street toward Redrick as well. Jones did not appear to see

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that Redrick was armed, and so Turnure contends that he screamed repeatedly, “Gun, gun. Guy’s

got a gun.” R.23-9, P. 318. Turnure made his way across the street and positioned himself behind

Redrick with his gun drawn and pointing at Redrick. He saw Redrick with the gun at his side. He

claims that he screamed, “Drop the gun. Drop the gun. Drop the gun.” R. 23-9, P. 319. Then,

Turnure saw the gun “separate[] from his body in a manner.” Id. Turnure fired into Redrick’s

back. He continued to fire until the gun was no longer in Redrick’s possession. Then, Pruiett

“dove for the pistol.” Id. Turnure fired at Pruiett. Pruiett fired back.

C. Procedural History

Redrick and Pruiett filed federal claims under 42 U.S.C. § 1983 and state-law claims

against the police officers and the City of Akron. The officers and the city filed a motion for

summary judgment, asserting the defenses of qualified immunity and Ohio statutory immunity,

among others. When the district court considered the motion for summary judgment, only three

claims remained, all against Officer Turnure: unconstitutional seizure, negligence, and assault and

battery. The district court denied Turnure immunity on summary judgment based on the existence

of genuine disputes of material fact. Turnure appeals.1

II. Standard of Review

We review the district court’s denial of summary judgment de novo. Harrison v. Ash, 539

F.3d 510, 516 (6th Cir. 2008). In doing so, when there is video evidence, we view the facts “in

the light depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 381 (2007). But if the video

“can be interpreted in multiple ways or if [the] videos do not show all relevant facts, such facts

should be viewed in the light most favorable to the non-moving party.” Latits v. Phillips, 878 F.3d

1

Neither party contests that we have jurisdiction in this case. The parties raise legal issues as well as factual issues,

and so we have jurisdiction to review. See Johnson v. Jones, 515 U.S. 304, 313 (1995); Chappell v. City of Cleveland,

585 F.3d 901, 906 (6th Cir. 2009).

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541, 547 (6th Cir. 2017) (citing Godawa v. Byrd, 798 F.3d 457, 463 (6th Cir. 2015)). Viewing the

facts in this manner, if “there are any genuine factual issues that properly can be resolved only by

a finder of fact because they may reasonably be resolved in favor of either party,” then summary

judgment should be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Fed. R.

Civ. P. 56.

III. Qualified Immunity

Qualified immunity is available to public officials “insofar as their conduct does not violate

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

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The analysis has two components: (1)

whether a constitutional violation occurred, and (2) whether the law was clearly established at the

time. Saucier v. Katz, 533 U.S. 194, 201–02 (2001). We have discretion to consider those two

elements in either order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). If the right is not clearly

established, we may decline to reach the constitutional question. Ashcroft v. al-Kidd, 563 U.S.

731, 735 (2011). The touchstone of the clearly established prong is whether an official had “fair

warning” of the illegality of his actions. Hearring v. Sliwowski, 712 F.3d 275, 280 (6th Cir. 2013).

This inquiry “do[es] not require a case directly on point, but existing precedent must have placed

the statutory or constitutional question beyond debate.” Ashcroft, 563 U.S. at 741; see also Rivas-

Villegas v. Cortesluna, No. 20-1539, 2021 WL 4822662, at *2–3 (U.S. Oct. 18, 2021); City of

Tahlequah v. Bond, No. 20-1668, 2021 WL 4822664, at *2 (U.S. Oct. 18, 2021). Therefore,

“police officers are entitled to qualified immunity unless existing precedent ‘squarely governs’ the

specific facts at issue.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (quoting Mullenix v. Luna,

577 U.S. 7, 13 (2015)).

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Viewing the facts in light of the video and construing the evidence in the manner most

favorable to the plaintiffs, disputes of material fact preclude summary judgment to Turnure on

Redrick’s claims. But there is no clearly established law that places the unconstitutionality of

utilizing deadly force against Pruiett beyond debate. Thus, we reverse the district court’s denial

of qualified immunity as to Pruiett’s § 1983 claim but affirm the district court as to Redrick’s §

1983 claim and both plaintiffs’ state-law claims.

IV. Redrick’s Claims

A. Fourth Amendment Claim

1. Constitutional Violation

Redrick claims that Turnure violated his right to be free from excessive force under the

Fourth Amendment. In assessing whether a constitutional violation has occurred, we undertake a

“fact-specific, case-by-case inquiry,” considering whether the force used was reasonable “from the

perspective of the reasonable official on the scene.” Marcilis v. Twp. of Redford, 693 F.3d 589,

598 (6th Cir. 2012) (quotation omitted). Reasonableness in the context of deadly force is a totality-

of-the-circumstances inquiry, based on the three Graham factors: (1) the severity of the crime at

issue, (2) active resistance to law enforcement, and (3) whether the suspect posed an immediate

threat to the safety of officers or others. Graham v. Connor, 490 U.S. 386, 396 (1989). The

immediate threat factor is a “minimum requirement for the use of deadly force.” Untalan v. City

of Lorain, 430 F.3d 312, 314 (6th Cir. 2005); see also Chappell v. City of Cleveland, 585 F.3d 901,

908 (6th Cir. 2009). And if it is feasible to give a warning before resorting to lethal force, an

officer must do so. Tenn. v. Garner, 471 U.S. 1, 11–12 (1985). Still, our inquiry “contains a built-

in measure of deference to the officer’s on-the-spot judgment.” Burchett v. Kiefer, 310 F.3d 937,

944 (6th Cir. 2002); Graham, 490 U.S. at 396–97 (cautioning courts not to look with “the 20/20

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vision of hindsight” and to be mindful that officers face “tense, uncertain, and rapidly evolving”

situations).

a. Severity of the Crime and Active Resistance

Here, when viewing the facts in the light most favorable to Redrick, the first two Graham

factors do not support the use of deadly force. On the first factor (severity of the crime), Turnure

argues that he had probable cause to believe Redrick was committing a severe crime because he

observed Redrick “show” his gun. But it is legal to carry a gun in Ohio. See Ohio Rev. Code §

2923.12. Redrick was licensed to carry a concealed weapon. And although Turnure claims

Redrick raised his gun to shoulder height and pointed it at the group in front of him, Redrick’s

account differs. Redrick maintains that he never raised his gun to shoulder height and instead that

he pulled only the butt of his gun out of his pocket to reveal that he possessed a weapon and thus

diffuse the situation, pursuant to his CCW training. Accepting Redrick’s account, as we must on

summary judgment, Redrick did not commit any crime at all, much less one that would justify

deadly force. See Anderson, 477 U.S. at 255. Turnure attempts to rely on Redrick’s later

conviction for inducing panic and indictment for felonious assault to support his argument.2 But

the reasonableness of an officer’s actions is limited to what the officer could have known at the

time. Bouggess v. Mattingly, 482 F.3d 886, 889 (6th Cir. 2007). Turnure could not have known

about a subsequent indictment and conviction at the time he shot Redrick. Thus, Turnure cannot

rely on the severity of any crime to justify his use of force.

On the second factor (active resistance), the facts are again disputed. Turnure contends

that he gave commands for Redrick to drop his gun, and that Redrick refused those commands.

Redrick claims that no such commands were given, and he was not aware of officers’ presence

2

Facing multiple felony charges, Redrick accepted a plea deal for misdemeanor inducing panic. R. 23-4, P. 207–08.

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behind him at all. The surveillance video has no audio and so it does not resolve the dispute.

Construing the evidence in the light most favorable to Redrick, we assume Turnure did not issue

any commands, and therefore that Redrick was not resisting. See Anderson, 477 U.S. at 255; Baker

v. Union Twp., 587 F. App’x 229, 235–36 (6th Cir. 2014) (“[B]ecause [the officer] gave no

warnings and issued no commands once inside the house, it would have been impossible for [the

plaintiff] to resist at this time.”). But even if commands were given, mere noncompliance with an

officer’s command does not constitute active resistance. Eldridge v. Warren, 533 F. App’x. 529,

535 (6th Cir. 2013) (“[N]oncompliance alone does not indicate active resistance; there must be

something more.”).

b. Immediate Threat

That leaves us with the third factor: whether Redrick posed an immediate threat to officers

or others. Turnure argues that Redrick posed an immediate threat because he “show[ed]” his gun,

“advance[d]” toward individuals on the sidewalk, did not respond to commands to drop the gun,

and then made a movement to raise his gun. R. 23-9, P. 318–19.

As discussed above, the nature of Redrick “showing” his gun is disputed, as is whether

Turnure gave any command or warning to drop the gun. That leaves Redrick’s alleged movement

to raise the gun as the crucial evidence in support of the assertion that Redrick posed an immediate

threat. Contrary to Turnure’s argument, the video evidence is inconclusive regarding whether

Redrick made any movement to raise his gun. The video does not show any definitive movement

of Redrick’s hand prior to him being shot in the back. Watching the video in real time, it appears

that Redrick was simply holding the gun in his pocket or at his side while walking down the

sidewalk when he was shot in the back. Redrick stands firm that he was not making any movement

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to raise his gun. A reasonable jury viewing the video could resolve the dispute in favor of either

party.

Therefore, we draw the inferences for purposes of this appeal (1) that Redrick was not

raising his gun, and that it was instead in his pocket or at his side prior to his being shot, and (2)

that Turnure never gave Redrick any commands to drop his weapon before shooting him. Under

this version of the facts, Turnure’s actions were unreasonable.

Redrick was in lawful possession of a firearm, which he kept at his side. But mere

possession of a weapon without more is insufficient to justify deadly force. See Bouggess, 482

F.3d at 896 (“[E]ven when a suspect has a weapon, but the officer has no reasonable belief that the

suspect poses a danger of serious physical harm to him or others, deadly force is not justified.”);

Thomas v. City of Columbus, 854 F.3d 361, 366 (6th Cir. 2017) (“[W]e do not hold that an officer

may shoot a suspect merely because he has a gun in his hand.”). Although it is not necessary that

a gun be pointed at another person for deadly force to be justified, there must be some indication

that the possessor of a weapon is willing to and is about to use the weapon to harm officers or

others. See Bouggess, 482 F.3d at 896; Bletz v. Gribble, 641 F.3d 743, 753–54 (6th Cir. 2011)

(unreasonable to shoot when suspect had a gun in his hands but “there was no imputation of past

or potential future violence on the part of [the suspect]” and the suspect was complying with police

commands); Brandenburg v. Cureton, 882 F.2d 211, 213, 215 (6th Cir. 1989) (unreasonable to

shoot a suspect who previously threatened violence to officers but was not pointing his gun at the

officer or others).

And where it is feasible, non-lethal means must be utilized before resorting to deadly force.

Garner, 471 U.S. at 11–12; see also Thomas, 854 F.3d at 366–67; Dickerson v. McClellan, 101

F.3d 1151, 1163 (6th Cir. 1996). For example, in Yates v. City of Cleveland, we held that it was

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unreasonable for an officer who entered a home late at night to shoot without identifying himself

when confronted with a suspect who did not pose an immediate threat. 941 F.2d 444, 447 (6th

Cir. 1991). In contrast, in Chappell v. City of Cleveland, we held that it was reasonable to shoot

without warning when the suspect was “quickly advancing toward the officers while holding [a]

knife up and refusing to drop it.” 585 F.3d at 915.

Here, Turnure was in position behind Redrick as he walked down the sidewalk with his

lawfully carried gun in his pocket or at his side. In these circumstances, Turnure’s failure to warn

Redrick to drop his weapon before shooting was unreasonable. Without any other facts indicating

an immediate danger beyond possession of a lawful firearm, it was feasible to attempt non-lethal

means of deescalating the situation. Turnure could have ordered Redrick to drop the gun. If a jury

finds those warnings were given and ignored, this may be a different case. But if the need for

deadly force could have been obviated by a simple command to drop the weapon and the officer

failed to attempt such less-than-lethal means, deadly force was unreasonable.

2. Clearly Established

Accepting Redrick’s account of the facts, Turnure violated Redrick’s clearly established

rights when he shot him six times from behind without warning and without any indication that

Redrick would use his lawfully carried gun to harm officers or others. See Garner, 471 U.S. at 7,

11–12 (deadly force is unreasonable unless the suspect poses an immediate threat of harm and, if

feasible, a warning has been given). In general, cases like Graham and Garner cannot clearly

establish a constitutional violation because they are “cast ‘at a high level of generality.’”

Cortesluna, 2021 WL 4822662 at *2 (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)).

But “in an obvious case, these standards can ‘clearly establish’ the answer, even without a body of

relevant case law.” Brosseau, 543 U.S. at 199. Under Redrick’s facts, this is a case where no

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reasonable officer could believe deadly force was justified. See Garner, 471 U.S. at 7, 11–12.

And beyond that, a body of relevant case law from this Circuit supports the denial of qualified

immunity here. See David v. City of Bellevue, 706 F. App’x 847, 852 (6th Cir. 2017) (denying

qualified immunity when there was a dispute of fact whether suspect had his firearm raised);

Brandenburg, 882 F.2d at 215–216 (same); Dickerson, 101 F.3d at 1154, 1163 (denying qualified

immunity when officers shot a man who had fired nine shots inside his home and made verbal

threats but at that moment was simply “walk[ing] slowly toward his front door . . . his arms down

by his sides”); King v. Taylor, 694 F.3d 650, 653, 663–64 (6th Cir. 2012) (denying qualified

immunity when officers shot a man who had threatened to kill someone but had his gun “resting

on his right hip” while lying on the couch); Bletz, 641 F.3d at 752 (denying qualified immunity

when suspect was lowering his gun when he was shot); Cf. Thornton v. City of Columbus, 727 F.

App’x 829, 831, 837–38 (6th Cir. 2018) (granting qualified immunity when officer shot a man

who threatened neighbor children with a gun and was walking toward officers looking right at

them with his gun pointed “upward and slightly to [the officer’s] right” and failing to comply with

commands). Therefore, summary judgment is inappropriate.

B. State Claims

Redrick asserts an assault and battery claim and a negligence claim against Turnure under

Ohio state law. Ohio provides a form of statutory immunity to state employees unless they acted

“outside the scope of the employee’s employment” or “with malicious purpose, in bad faith, or in

a wanton or reckless manner.” Ohio Rev. Code § 2744.03(A)(6)(a)–(b). We have held that

“[w]hen federal qualified immunity and Ohio state-law immunity under [Ohio Rev. Code] §

2744.03(A)(6) rest on the same questions of material fact, we may review the state-law immunity

defense ‘through the lens of federal qualified immunity analysis.’” Wright v. City of Euclid, 962

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F.3d 852, 878 (6th Cir. 2020) (quoting Hopper v. Plummer, 887 F.3d 744, 759 (6th Cir. 2018)).

For the same reasons and disputed facts relevant to Redrick’s § 1983 claim that compel us to find

Turnure’s shooting Redrick was objectively unreasonable, a jury could find that Turnure acted in

a wanton or reckless manner or with malicious purpose.3 So, state statutory immunity is

unavailable to Turnure on summary judgment.

V. Pruiett’s Claims

Pruiett also claims that Turnure violated his Fourth Amendment rights by shooting him.

Holding that using deadly force against Redrick was unreasonable does not dictate that shooting

Pruiett was likewise unreasonable. See Los Angeles v. Mendez, 137 S.Ct. 1539, 1544 (2017) (“A

different Fourth Amendment violation cannot transform a later, reasonable use of force into an

unreasonable seizure.”); Livermore ex rel Rohm v. Lubelan, 476 F.3d 397, 406–07 (6th Cir. 2007).

But we need not reach the constitutionality of Turnure’s actions as related to Pruiett because the

law in these circumstances was not clearly established.

A. Fourth Amendment Claim

When the shooting occurred, case law did not clearly establish that Turnure’s use of deadly

force against Pruiett was unconstitutional. See Ashcroft, 563 U.S. at 741; Cortesluna, 2021 WL

4822662, at *3; City of Tahlequah, 2021 WL 4822664, at *2. The situation was unfolding rapidly.

Amidst gunfire, Redrick’s firearm came out of his hand and Pruiett lunged for it. This quick

movement toward a deadly weapon in the heat of gunfire is different from Redrick’s simply

holding a lawful weapon at his side. Because Pruiett was grabbing for the gun, the immediacy of

the situation makes it less feasible that less-than-lethal force, i.e. giving commands to drop the

gun, would have sufficed. There was no clearly established law from the Supreme Court or this

3

After the shooting stopped, Turnure walked over to where Redrick and Pruiett lay on the sidewalk. Redrick said,

“pick me up, please.” Turnure responded, “f*** you,” as confirmed by his own testimony. R. 23-9, P. 338.

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Circuit that would have informed Turnure that using deadly force against a suspect who lunged

for a weapon amidst a dangerous altercation was unlawful.

Plaintiffs cite Bouggess v. Mattingly to argue that having and holding a weapon is not

enough to make deadly force reasonable, but that case does not squarely govern the facts before

us. 482 F.3d at 896. More than mere possession of a weapon, Pruiett made a quick movement to

grab the gun as his brother was being fired upon. The immediacy of that movement—and the

inference that could reasonably be drawn regarding what a person might do with a gun after they

grab it during a gunfight—is a material factual difference between this case and those referenced

in Redrick’s analysis that may otherwise clearly establish the law.

B. State Claims

Although Ohio statutory immunity often fails when federal qualified immunity is denied,

the same is not necessarily true in reverse. See Martin v. City of Broadview Heights, 712 F.3d 951,

963 (6th Cir. 2013) (citing Chappell, 585 F.3d at 916 n.3) (stating that “officers may be entitled to

state-law immunity if qualified immunity shields them from liability on federal claims”); see also

Wilson v. Gregory, 3 F.4th 844, 860 (6th Cir. 2021) (“But in this case, our federal qualified

immunity analysis turns on the ‘clearly established’ prong. As a result, ‘the availability of both

federal qualified immunity and state law immunity’ does not entirely ‘depend[] on the correctness

of the district court’s finding of the existence of the very same questions of fact’ because Ohio

statutory immunity does not turn on whether a particular right was clearly established.”) (quoting

Chappell, 585 F.3d at 907 n.1, 916 n.3). The statute contains no explicit “clearly established” law

requirement. See Ohio Rev. Code § 2744.03. Because Turnure’s qualified immunity defense is

granted here on “clearly established” grounds and we do not decide the constitutionality of his

conduct in relation to Pruiett, the state-law claims are not foreclosed. A reasonable jury could find

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that Turnure acted “with malicious purpose, in bad faith, or in a wanton or reckless manner” when

he shot Pruiett after Pruiett picked up the gun but before he ever fired a shot, especially considering

this incident was precipitated by his unconstitutional shooting of Redrick. Ohio Rev. Code

§ 2744.03(A)(6)(a); see King v. City of Columbus, No. 2:18-CV-1060, 2021 WL 3367507, at *5,

*8 (S.D. Ohio Aug. 3, 2021) (denying statutory immunity because a jury could find that an officer’s

use of deadly force was wanton and reckless when the suspect had a gun but did not pose a threat

to officers). Therefore, summary judgment as to Pruiett’s state-law claims is inappropriate.

VI. Conclusion

For these reasons, we AFFIRM the district court’s denial of summary judgment to Turnure

as to Redrick’s federal and state claims and as to Pruiett’s state claims, REVERSE the district

court’s denial as to Pruiett’s federal claim, and REMAND to the district court for further

proceedings consistent with this opinion.

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