Sabo v. City of Mentor

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0264p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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DIAN SABO, Personal Representative and as

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Administrator of the Estate of Deceased,

Richard Sabo, -

Plaintiff-Appellee, -

No. 10-4358

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>

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v.

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CITY OF MENTOR, et al.,

Defendants, -

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OFFICER SCOTT TKACH, Individually, and as a -

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Police Officer for the City of Mentor,

Defendant-Appellant. N

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 10-00345—James S. Gwin, District Judge.

Argued: July 21, 2011

Decided and Filed: September 12, 2011

Before: COLE and ROGERS, Circuit Judges; SARGUS, District Judge.*

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COUNSEL

ARGUED: John T. McLandrich, MAZANEC, RASKIN & RYDER CO., L.P.A.,

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

Cleveland, Ohio, for Appellee. ON BRIEF: John T. McLandrich, Frank H. Scialdone,

MAZANEC, RASKIN & RYDER CO., L.P.A., Cleveland, Ohio, for Appellant. Gordon

S. Friedman, FRIEDMAN & GILBERT, Cleveland, Ohio, Robert F. DiCello, THE

DiCELLO FIRM, Mentor, Ohio, for Appellee.

*

The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of

Ohio, sitting by designation.

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No. 10-4358 Sabo v. City of Mentor, et al. Page 2

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OPINION

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COLE, Circuit Judge. Plaintiff-Appellee Dian Sabo filed this action against

Defendant City of Mentor and Defendant-Appellant Mentor Police Officer Scott Tkach

for violations of state and federal rights after Tkach shot and killed her husband, Richard

Sabo, outside the Sabo residence. Tkach appeals the district court’s denial of qualified

immunity. Because genuine issues of material fact preclude summary judgment in this

case, we DISMISS Tkach’s appeal of the denial of qualified immunity for lack of

jurisdiction and AFFIRM the denial of state statutory immunity.

I. BACKGROUND

The following facts are not in dispute:

On February 5, 2009, Dian Sabo (“Sabo”) noticed her seventy-two-year-old

husband, Richard Sabo (“Mr. Sabo”) acting strangely. Believing that Mr. Sabo may be

having a stroke, Sabo’s granddaughter called 911. When paramedics responded to the

call and attempted to give Mr. Sabo medical attention, he refused to cooperate,

demanding that the paramedics leave his home and threatening to retrieve a firearm so

he could shoot them. The paramedics retreated, asking Dian Sabo to accompany them,

and radioed the Mentor Police Department for support. Knowing Mr. Sabo was armed,

the arriving police established a defensive perimeter around the home.

Officer Tkach established the northern perimeter, positioning himself on the

second floor of a home immediately behind the Sabo residence. From his position,

Tkach could see the back of the house and down the driveway, but he could not see

anyone in front of the house.

On the highest-ranking officer’s request, Sabo called Mr. Sabo and told him to

exit the house with his hands in the air, so that the officers could see he was unarmed.

Although Mr. Sabo acted confused on the first call and did not answer the second, he

No. 10-4358 Sabo v. City of Mentor, et al. Page 3

exited the house a few minutes later holding a shotgun skyward at a forty-five degree

angle, with the barrel in his left hand and the stock in his right. None of the officers

spoke to Mr. Sabo or told him to drop the gun. While Mr. Sabo was walking down the

driveway, Tkach fired a single shot, hitting Mr. Sabo’s back and killing him.

As the district court noted, “[t]he events immediately surrounding the shooting

are disputed”:

The Defendants allege that [Mr.] Sabo paused after taking three

steps and began to lower the barrel of the gun, walked three more steps,

and then completely leveled his gun in the direction of officers as though

he was taking aim to fire. Knowing that officers and other safety

personnel were stationed in the area where [Mr.] Sabo was aiming, the

Defendants argue that Tkach fired to prevent [Mr.] Sabo from shooting

a police officer.

The Plaintiff describes the shooting differently. The Plaintiff

alleges that [Mr.] Sabo walked down the driveway holding his gun,

taking about six or seven steps. [Mr.] Sabo stopped and began to turn;

as he turned, the gun barrel dropped. When the barrel dropped, Officer

Tkach fired. Under the Plaintiff’s telling, Richard Sabo posed no

immediate threat to the officers because he never pointed the gun or

acted in an otherwise threatening manner.

Sabo v. City of Mentor, No. 1:10-CV-00345, 2010 WL 4008823 (N.D. Ohio Oct. 12,

2010) (unpublished disposition).

Sabo filed suit in the Lake County Court of Common Pleas, alleging violations

of Mr. Sabo’s Fourth Amendment rights under 42 U.S.C. § 1983 and pendent state law

claims, and defendants subsequently removed the case to the United States District Court

for the Northern District of Ohio. Following discovery, Defendants moved for summary

judgment on the grounds that (1) both defendants were entitled to statutory immunity on

the state law claims; (2) Tkach was entitled to qualified immunity on the section 1983

claim; and (3) the City of Mentor was entitled to judgment as a matter of law on the

section 1983 claim because Sabo had produced no evidence that a policy or procedure

was the cause of any constitutional violation. The district court granted the motion as

to the City of Mentor, but denied it as to Tkach, finding genuine issues of material fact

No. 10-4358 Sabo v. City of Mentor, et al. Page 4

regarding whether Tkach’s use of force was supported by probable cause and whether

Tkach’s actions were reckless. Tkach filed this timely appeal.

II. ANALYSIS

A. Section 1983 Claim

Our analysis of Sabo’s section 1983 claim begins and ends with jurisdiction.

28 U.S.C. § 1291 authorizes us to hear appeals only from “final decisions” of the district

court. Collateral orders—that is, orders that “(1) conclusively determine [a] disputed

question, (2) resolve an important issue completely separate from the merits of the

action, and (3) [will] be effectively unreviewable on appeal from a final judgment”—are

final decisions for the purposes of § 1291. See Johnson v. Jones, 515 U.S. 304, 310

(1995) (internal quotation marks omitted). In Mitchell v. Forsyth, 472 U.S. 511 (1985),

the Supreme Court held that district court orders denying summary judgment are

immediately appealable collateral orders if (1) the defendant asserted the defense of

qualified immunity, and (2) the issue appealed concerned whether a given set of facts

showed a violation of clearly established law. Id. at 528. Although we may consider

this “purely legal issue,” Johnson, 515 U.S. at 313, we lack jurisdiction to consider “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,” id. at 319.

Pursuant to Johnson, this circuit has held that interlocutory jurisdiction

is conferred only where the defendant’s appeal “involves the abstract or

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

violation of clearly established law.” Gregory[ v. City of Louisville], 444

F.3d [725,] 742 [6th Cir. 2006] (quoting Berryman v. Rieger, 150 F.3d

561, 563 (6th Cir. 1998)). Accordingly, if the defendant disputes the

plaintiff’s version of the facts and wishes to file an interlocutory appeal

of the district court’s denial of qualified immunity at the summary

judgment stage, “the defendant must . . . be willing to concede the most

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

Berryman, 150 F.3d at 563. The underlying principle is that, in the

qualified-immunity context, this court may entertain interlocutory

appeals of denials of summary judgment in order to resolve legal

disputes, not factual ones. Id. at 564-65 (“Once a defendant’s argument

drifts from the purely legal into the factual realm and begins contesting

No. 10-4358 Sabo v. City of Mentor, et al. Page 5

what really happened, our jurisdiction ends and the case should proceed

to trial.”).

Bomar v. City of Pontiac, 643 F.3d 458, 461 (6th Cir. 2011) (footnote omitted).

Throughout his brief and oral argument before this Court, Tkach has maintained

that Mr. Sabo pointed his gun in the direction of fellow police officers and civilians.

Sabo heavily disputes this fact, arguing that Mr. Sabo never pointed the gun, and the

district court, apparently using “aimed” interchangeably with “pointed,”1 assumed the

plaintiff’s version of the facts. Tkach has never argued that he is entitled to qualified

immunity even if Mr. Sabo did not point the gun. Tkach’s only argument rests on a

version of the facts that differs from the version the district court assumed. Accordingly,

Tkach’s appeal presents no pure legal issue for review, and we lack jurisdiction to hear

it. See Johnson, 515 U.S. at 319.

B. State Law Claims

Tkach also appeals the district court’s denial of statutory immunity on Sabo’s

state law claims. We have jurisdiction over an interlocutory order denying state

statutory immunity when state law provides immunity from suit rather than immunity

from liability. Chesher v. Neyer, 477 F.3d 784, 793 (6th Cir. 2007). Ohio’s immunity

statutes were revised in 2003 to provide immunity from suit. Id. at 794 (citing Ohio Rev.

Code § 2744).

We “review de novo a district court’s denial of summary judgment based on

immunity from suit,” construing the evidence and all reasonable inferences therefrom

in the light most favorable to the nonmoving party. Id. at 796. Summary judgment is

proper where there is no genuine issue of material fact and the moving party is entitled

to judgment as a matter of law. Id.

1

See Sabo, 2010 WL 4008823, at 9-10 & n.5 (stating that “[i]f Sabo was in fact aiming his gun

at the officers on the street, then Officer Tkach would likely be justified in using deadly force,” id. at 9,

but citing cases discussing whether a gun was pointed at someone).

No. 10-4358 Sabo v. City of Mentor, et al. Page 6

Ohio provides immunity from suit to state employees of political subdivisions

when those employees’ activities are connected to governmental or proprietary

functions, unless (1) the employee’s acts were outside the scope of employment or

official responsibilities; (2) the employee acted with a malicious purpose, in bad faith,

or in a wanton or reckless manner; or (3) another section of the Ohio Revised Code

expressly imposes liability. Ohio Rev. Code § 2744.03(A)(6). Ohio courts apply a

presumption of immunity. Cook v. City of Cincinnati, 658 N.E.2d 814, 821 (Ohio Ct.

App. 1995).

Sabo argues, and the district court held, that there is a genuine issue of material

fact regarding whether Tkach acted recklessly in using deadly force, thus precluding

immunity. “‘Reckless’ conduct refers to an act done with knowledge or reason to know

of facts that would lead a reasonable person to believe that the conduct creates an

unnecessary risk of physical harm and that this risk is greater than that necessary to

make the conduct negligent.” Shalkhauser v. City of Medina, 772 N.E.2d 129, 136

(Ohio Ct. App. 2002). “The question of whether a person has acted recklessly is almost

always a question for the jury.” Burlingame v. Estate of Burlingame, Nos. 2010-CA-

00124 & 2010-CA-00130, 2011 WL 982490, at *9 (Ohio Ct. App. Mar. 21, 2011) (citing

Hunter v. City of Columbus, 746 N.E.2d 246, 252 (Ohio Ct. App. 2000)).

In perhaps the only relevant case to examine recklessness in the context of a

police officer’s use of deadly force, the Ohio Court of Appeals implied that, if an officer

has probable cause to believe that a person poses an immediate threat of serious injury,

the officer’s use of deadly force against that person is not reckless. Kendzierski v.

Carney, No. 22739, 2005 WL 3482397, at *7 (Ohio Ct. App. Dec. 21, 2005)

(unpublished disposition). As noted above, the district court in this case found genuine

issues of material fact regarding whether Tkach had probable cause to believe that Mr.

Sabo posed an immediate threat to the safety of fellow officers, and we are without

jurisdiction to review that determination. Because the resolution of the recklessness

issue is heavily dependent upon the same disputed material facts as the probable cause

analysis, see, e.g., Carpenter v. City of Cincinnati, No. C-1-99-227, 2003 WL

No. 10-4358 Sabo v. City of Mentor, et al. Page 7

23415143, at *13 (S.D. Ohio Apr. 17, 2003) (unpublished disposition) (holding that

under Ohio law, “if the trier of fact were to find that [the decedent] posed no immediate

threat of harm to anyone else,” then the officer’s actions in shooting the decedent “were

reckless at best”), the district court did not err in denying summary judgment on Sabo’s

state law claims.

III. CONCLUSION

For the foregoing reasons, Tkach’s appeal of the denial of summary judgment on

the section 1983 claim is DISMISSED, and the denial of summary judgment on the state

law claims is AFFIRMED.