Daniel Simmonds v. Genesee County

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0184p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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DANIEL SIMMONDS, as Personal

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Representative of the Estate of Kevin Joseph

Simmonds, Deceased, -

Plaintiff-Appellant, -

No. 10-1470

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v.

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GENESEE COUNTY; JOSH DIRKSE; JAMES

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COMSTOCK; KEVIN SHANLIAN; DOUGLAS

Defendants-Appellees. -

GEORGE STONE,

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Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 09-12286—Marianne O. Battani, District Judge.

Argued: January 12, 2012

Decided and Filed: June 19, 2012

Before: MERRITT and COLE, Circuit Judges; VARLAN, District Judge.*

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COUNSEL

ARGUED: Heather Anne Glazer, FIEGER, FIEGER, KENNEY, JOHNSON &

GIROUX, P.C., Southfield, Michigan, for Appellant. John G. Fedynsky, OFFICE OF

THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, Mary Massaron Ross,

PLUNKETT COONEY, Detroit, Michigan, for Appellees. ON BRIEF: Victor S.

Valenti, FIEGER, FIEGER, KENNEY, JOHNSON & GIROUX, P.C., Southfield,

Michigan, for Appellant. James T. Farrell, OFFICE OF THE MICHIGAN ATTORNEY

GENERAL, Lansing, Michigan, Mary Massaron Ross, Hilary A. Ballentine,

PLUNKETT COONEY, Detroit, Michigan, for Appellees.

COLE, J., delivered the opinion of the court, in which VARLAN, D. J., joined.

MERRITT, J. (pp. 12–14), delivered a separate dissenting opinion.

*

The Honorable Thomas A. Varlan, United States District Judge for the Eastern District of

Tennessee, sitting by designation.

1

No. 10-1470 Simmonds v. Genesee County, et al. Page 2

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OPINION

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COLE, Circuit Judge. Daniel Simmonds appeals the district court’s grant of the

defendants’ motions for summary judgment on the basis of qualified immunity. As the

defendants’ actions entitled them to qualified immunity, we AFFIRM.

I.

A. Factual Background

On November 23, 2007, Genesee County police received multiple 911 calls

regarding Kevin Simmonds’s threatening behavior. Kevin’s father, Daniel Simmonds

(“Simmonds”), called to report that Kevin had threatened to kill his ex-girlfriend’s

parents. Beverly Carey, the mother of Kevin’s ex-girlfriend, also called 911 to report

Simmonds’s death threat. Michigan State Police Troopers Doug Kaiser and Joshua

Dirkse were dispatched, and received backup assistance from Richfield Township

Officer Michael Bernard, Genesee County Lieutenant Kevin Shanlian, Genesee County

Sheriff Deputy James Comstock, Genesee County Deputy Douglas Stone, and Genesee

County Sergeant William Tucker. Kaiser, Bernard, Shanlian, and Comstock responded

to the Carey residence; meanwhile, Dirkse, Stone, and Tucker responded to the

Simmonds’s home. When the officers arrived at the Carey residence, they confirmed

that Kevin was not at the home, and Carey informed them that Kevin had left a message

on her answering machine saying that “he was coming over to kill them and send them

to the promised land.” Kaiser remained at the Carey residence to complete paperwork,

while the other three officers went to the Simmonds’s residence to assist Dirkse, Stone,

and Tucker.

The officers arrived at the Simmonds’s property and first met with Simmonds to

formulate a plan to apprehend Kevin. When the officers arrived, it was dark out and

they were unfamiliar with the rural property, which was surrounded by a heavily-wooded

area. Simmonds told the officers that he was worried about Kevin’s mental state, as

No. 10-1470 Simmonds v. Genesee County, et al. Page 3

Kevin had been drinking, “wasn’t acting right,” and was possibly suicidal. Simmonds

further cautioned the officers that Kevin owned a pistol and a shotgun, although he did

not know whether Kevin was armed. After speaking with Simmonds, the officers

planned to prevent Kevin’s escape from the property by blocking the private road from

the home to the public road and attempting to negotiate with him, using shields and

helmets for their own protection. Dirkse and Tucker positioned their vehicles at the

beginning of the long private road that led from the Simmonds’s home into the heavily-

wooded part of the property.

Before the officers could fully implement their plan, Kevin drove up the private

road, approaching the location where Dirkse’s and Stone’s patrol cars were stationed.

The two officers activated their overhead lights and ordered Kevin to raise his hands and

exit the vehicle. A patrol video camera captured these requests clearly. Instead, Kevin

shifted his pick-up truck into reverse and backed down the private roadway into a

heavily-wooded area. Dirkse, Tucker, Comstock, Bernard, and Stone followed Kevin

in their patrol cars. During the pursuit, Kevin’s truck became stuck in the snow, so the

officers exited their patrol cars and began approaching Kevin’s vehicle while repeatedly

ordering Kevin to show his hands—a command Kevin ignored. At that point, the

situation quickly escalated.

Because Kevin refused to comply, Stone approached Kevin’s truck, opened the

door, yelled “Taser, Taser,” and then deployed his state-issued taser with the hopes of

subduing Kevin. At first, Stone believed the taser had successfully subdued Kevin

because immediately following its deployment, Kevin leaned toward the center console

and passenger seat as if he had been tranquilized. In fact, Kevin’s thick winter jacket

prevented the taser from properly functioning.

According to the five officers on the scene, Kevin arose from the passenger seat

after the failed taser attempt, yelled that he had a gun and turned toward the officers with

his hands extended in a firing position. Stone testified in his deposition that after he

deployed the taser, “Kevin roll[ed] to the passenger side of his vehicle, [and] seconds

later he yell[ed] that he ha[d] a gun.” Stone further testified that, fearing he would be

No. 10-1470 Simmonds v. Genesee County, et al. Page 4

shot in the face, he turned around and attempted to make his way back to his patrol

vehicle. Bernard and Tucker both testified in their depositions that they heard Kevin yell

“I got a gun”or “I have a gun” immediately after Kevin reared up from the console area.

Tucker also reported that Kevin extended his arm, as if he had a gun in his hands.

Comstock testified that Kevin punched his hands out of the open car window, in a

shooting position, with what Comstock believed was a silver handgun. Fearing for his

safety, Comstock did not hesitate and immediately fired several shots at Kevin. Dirkse

similarly reported seeing a silver object in Kevin’s hand, but recalled that Kevin was

attempting to exit the car through an open door when he pointed the weapon. Dirkse

testified that he observed Kevin yelling “I have a gun, I have a gun,” while holding his

hands “together as if he was pointing or holding a gun, point[ing] it in the direction of

me and the other officers.” After Kevin allegedly threatened the officers, Dirkse

immediately fired shots at Kevin.

Immediately after the shooting, Comstock and Stone began administering life-

saving procedures on Kevin until an ambulance arrived to take him to the hospital.

Despite these efforts, Kevin did not survive. As the police removed Kevin from the

vehicle, they found a silver and blue cell phone with the antenna extended on the front

passenger seat. The police also later found a .22 caliber rifle lying in the snow on the

ground, several car lengths away from Kevin’s truck.

B. Patrol Car Video

The video camera in Dirkse’s patrol car captured a portion of these events. The

video begins with Dirkse arriving at the Simmonds’s property, and soon thereafter

exiting the vehicle to confer with Simmonds and the other officers. This conversation

with Simmonds was not captured on videotape. When Dirkse reenters the car, the video

clearly picked up—over the sound of music on the radio—his statements on the patrol

radio informing fellow officers that Kevin may be mentally unstable and may have been

drinking. The video next shows Dirkse’s patrol car driving down the Simmonds’s

private roadway. When Dirkse first encountered Kevin’s vehicle, the video makes clear

that Dirkse exited his car and yelled “Let me see your hands” and “Get out of the car.”

No. 10-1470 Simmonds v. Genesee County, et al. Page 5

After Kevin failed to comply with these orders and drove his car in reverse down the

private road, the video shows Dirkse returning to his car, turning it around, and

following Kevin and the other patrol cars down the road.

As Dirkse arrived at Kevin’s car which was stuck in the snow, the video shows

that Dirkse parked and exited, again leaving the car running, including the video camera

and car radio. Because a police SUV parked directly in front of Dirkse’s car, and

obstructed the view, the video does not visually capture any more of the relevant events.

Rather, the video shows only the hood of Dirkse’s car and the rear of the police

SUV—neither Kevin nor his vehicle are visible. Additionally, because there was music

playing on the radio, the video could not capture any audible statements from either the

officers or Kevin. Over the music, the only audible sound is Dirkse cocking his gun as

he opens the driver’s side door and, later, the gunshots. The video picks up no further

sound, including the officer’s commands to Kevin to show his hands, Stone’s “Taser,

Taser” warning, or Kevin’s threat that he had a gun. After the shots were fired, the video

shows officers returning to their vehicles to retrieve medical and lifesaving equipment.

The video could not capture the lifesaving procedures unfolding at Kevin’s car, however,

it does show a few officers conversing at this time, again with no audible conversation.

C. Procedural Background

Simmonds, as the personal representative of Kevin’s estate, filed a lawsuit under

42 U.S.C. § 1983 against the County of Genesee, Michigan, alleging failure to supervise,

monitor, and train its officers, as well as Dirkse, Comstock, Shanlian, and Stone, alleging

Fourth, Eighth, and Fourteenth Amendment violations. Simmonds later amended this

complaint to remove the Eighth and Fourteenth Amendment claims. The officers all

filed individual answers, asserting qualified immunity and later moved for summary

judgment on this basis. The district court granted a continuance to permit Simmonds to

depose the officers present.

Following their depositions, the officers filed supplemental briefing in support

of their motions for summary judgment, arguing that the depositions failed to disclose

any genuine issue of material fact. Simmonds opposed the motion, on the basis of two

No. 10-1470 Simmonds v. Genesee County, et al. Page 6

factual discrepancies. First, Simmonds raised an alleged discrepancy in Dirkse’s and

Comstock’s testimony concerning where Kevin pointed the alleged weapon. Comstock

testified that Kevin was “squarely facing” him when he brandished the silver object,

whereas Dirkse stated that he saw Kevin “pointing it towards [Dirkse] and other officers

standing next to [Dirkse.]” Simmonds’s supplemental briefing noted that the two

officers were standing roughly ten feet apart, and asserted that this testimony evidences

a material factual discrepancy. Second, Simmonds noted conflicting testimony

concerning the door of Kevin’s vehicle at the time of the incident. Although Comstock

and Dirkse both testified that Kevin yelled that he had a gun and simultaneously

brandished a silver object, Comstock explained that Kevin brandished the weapon

through the open driver’s side window, whereas Dirkse stated that it was through the

open driver’s side door.

The district court found these two factual inconsistencies insufficient to

withstand summary judgment, as neither discrepancy involved a genuine issue of

material fact. The resolution of these factual inconsistences had no bearing on the

officers’ entitlement to qualified immunity, as these facts did not alter the reasonableness

and permissibility of the officers’ use of force. Therefore, the district court granted the

officers’ motions for summary judgment on the basis of qualified immunity. Simmonds

timely appealed, challenging only the grant of summary judgment as to Comstock and

Dirkse, and did not appeal the order as it applied to Stone and Shanlian.

II.

Government officials are immune from civil liability under 42 U.S.C. § 1983

when performing discretionary duties, provided “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). Qualified immunity seeks to

prevent government officials, such as police officers, from being held liable for

reasonable mistakes of law, fact, or mixed questions of law and fact made while acting

within their scope of authority. See Groh v. Ramirez, 540 U.S. 551, 566-67 (2004)

(Kennedy, J., dissenting). To determine whether qualified immunity shields a

No. 10-1470 Simmonds v. Genesee County, et al. Page 7

government official’s action from § 1983 liability, we apply the two-prong Saucier test

and inquire (1) whether the officer violated a constitutional right and (2) if so, whether

that constitutional right was clearly established such that a “reasonable official would

understand that what he is doing violates that right.” Saucier v. Katz, 533 U.S. 194, 202

(2001) (citation and internal quotation marks omitted), abrogated in part by Pearson v.

Callahan, 555 U.S. 223, 236 (2009).

Once a defendant raises qualified immunity, “the burden is on the plaintiff to

demonstrate that the official[ is] not entitled to qualified immunity,” Silberstein v. City

of Dayton, 440 F.3d 306, 311 (6th Cir. 2006), by alleging “facts sufficient to indicate

that the [government official’s] act in question violated clearly established law at the

time the act was committed,” Russo v. City of Cincinnati, 953 F.2d 1036, 1043 (6th Cir.

1992). To defeat the qualified immunity bar, a plaintiff “must present evidence

sufficient to create a genuine issue as to whether the defendant committed the acts that

violated the law.” Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994).

The district court found Simmonds unable to meet this burden, as the two

inconsistencies Simmonds raised—the discrepancy in the direction the alleged weapon

was pointed and the positioning of the vehicle door—failed to create a genuine issue as

to whether the officers’ use of force was a violation of Kevin’s constitutional rights. As

the qualified immunity inquiry arises in the summary judgment context, to create the

requisite genuine issue of material fact, the plaintiff must raise “disputes over facts that

might affect the outcome of the suit under the governing law . . . .” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). Such a dispute is only considered a genuine issue

“if the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Id.; see Chappell v. City of Cleveland, 585 F.3d 901, 913 (6th Cir. 2009) (“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.”). We review the district court’s grant of summary

judgment on the grounds of qualified immunity de novo. Sample v. Bailey, 409 F.3d

689, 695 (6th Cir. 2005).

No. 10-1470 Simmonds v. Genesee County, et al. Page 8

In determining whether Comstock and Stone are entitled to qualified immunity,

under the first Saucier prong, we must identify “the specific constitutional right

allegedly infringed,” Graham v. Connor, 490 U.S. 386, 394 (1989), and subsequently

determine whether that right was violated. As Simmonds raises a Fourth Amendment

claim, alleging that officers used excessive force in seizing Kevin, the relevant question

is whether the officers’ use of force complied with that allowable under the Fourth

Amendment. Any claim of excessive force is evaluated under the objective standard of

“whether the officers’ actions are ‘objectively reasonable’ in light of the facts and

circumstances confronting them, without regard to their underlying intent or

motivation.” Id at 397.

Although a number of factors influence this objective reasonableness

determination, such as “the severity of the crime at issue [and] whether the suspect poses

an immediate threat to the safety of the officers or others,” id. at 396, “the ultimate

question is whether the totality of the circumstances justifies a particular sort of seizure,”

Ciminillo v. Streicher, 434 F.3d 461, 467 (6th Cir. 2006) (citation and internal quotation

marks omitted). In evaluating the totality of the circumstances and the objective

reasonableness of the force, we “must be sure to view [the] facts ‘from the perspective

of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’”

Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir. 2001) (quoting Graham, 490 U.S.

at 396). This objective reasonableness analysis “contains a built-in measure of deference

to the officer’s on-the-spot judgment about the level of force necessary in light of the

circumstances . . . .” Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002). “Where the

officer has probable cause to believe that the suspect poses a threat of serious physical

harm, either to the officer or to others, it is not constitutionally unreasonable to prevent

escape by using deadly force.” Tennessee v. Garner, 471 U.S. 1, 11 (1985).

Here, the totality of the circumstances, as known to Comstock and Dirkse at the

time of the incident, warranted the use of deadly force. The officers were aware that

Kevin had threatened to kill his ex-girlfriend’s parents, as both Simmonds and Carey

separately called 911 to report these threats. The officers were further informed that

No. 10-1470 Simmonds v. Genesee County, et al. Page 9

Kevin had been drinking, was displaying mentally unstable behaviors, and was possibly

suicidal. They also knew that Kevin owned a pistol and a shotgun and that he might be

armed. Once the officers came into contact with Kevin, he refused to comply with their

request to raise his hands and exit his truck, and instead shifted the truck into reverse and

fled into a heavily-wooded area of his parent’s property. After Kevin’s vehicle became

stuck in the snow, he again ignored repeated orders to show his hands and, even after

officers attempted to use a taser to subdue him, threatened the officers by yelling “I have

a gun,” and brandishing a silver object, and pointing it at the officers, as if it were a

weapon. Although 20/20 hindsight now informs us that Kevin was unarmed at the time,

all of the information available to the officers at the time they used force constituted

probable cause that Kevin “pose[d] a threat of serious physical harm . . . .” Id. at 11.

To satisfy the first Saucier prong and establish a constitutional violation to defeat

the officers’ claim of qualified immunity, Simmonds “is obliged to present facts which

if true would constitute a violation of clearly established [Fourth Amendment] law.”

Dominque v. Telb, 831 F.2d 673, 677 (6th Cir. 1987). Specifically, he must “go beyond

the pleadings and by [his] own affidavits, or by the depositions, answers to

interrogatories, and admissions on file, designate specific facts showing that there is a

genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal

quotation marks omitted). Simmonds has presented no such facts. Once Kevin yelled

“I have a gun” and pointed a weapon-like object at the officers in a firing position, in

light of all the other information officers possessed regarding Kevin’s mental instability

and threatening behavior, the officers were constitutionally permitted to use deadly

force. See Garner, 471 U.S. at 12; Dudley v. Eden, 260 F.3d 722, 727 (6th Cir. 2001).

Simmonds has not alleged any material facts disputing the officers’ uniform testimony

on these matters and has instead relied on factual discrepancies immaterial to his claim.

Nevertheless, Simmonds summarily asserts that the discrepancies are material, without

alleging any factual or legal basis as to why these two immaterial discrepant facts

constitute a genuine issue for trial.

No. 10-1470 Simmonds v. Genesee County, et al. Page 10

Both Simmonds and the dissent rest their theories for relief on a series of

inconsistencies. The dissent is premised on a disparity between the officers’ testimony

and what was heard on the video. Because one cannot hear Kevin yell “I have a gun”

on the videotape, the dissent infers that “it is unlikely that the victim ever said he had a

gun.”1 This is an overstatement, to say the least. In the key moments leading up to the

shooting, as the officers approached Kevin’s car stuck in the snow, there are absolutely

no audible statements.2 It is not, as the dissent suggests, just Kevin’s threat that is

inaudible. The officer’s commands to Kevin to show his hands and Stone’s warning

about deploying the taser are also absent. To adopt the dissent’s theory one would have

to reasonably infer that this group of police officers approached Simmonds and, without

warning or hesitation, shot him. Such an inference stretches the definition of

“reasonable” beyond its natural boundary.

The inconsistencies Simmonds points to—the direction of the weapon and the

positioning of the door—are not genuine issues for trial. As the district court correctly

concluded, it is immaterial whether Simmonds pointed the object squarely at Comstock

or in the direction of Dirkse and the other officers. In either scenario, the officers were

permitted to use deadly force in light of the uncontested statement by Kevin that “I have

a gun.” Similarly, it is of no consequence whether Simmonds brandished the alleged

weapon through an open door or window as the officers’ statements are consistent in that

Kevin brandished an alleged weapon. Indeed, these discrepancies fail to give rise to any

1

In addition to discussing audible sounds, the dissent points to Dirkse’s clearly audible commands

from when he first encountered Kevin and directed Kevin to show his hands and get out of the car. What

the dissent fails to mention is that these were the only audible statements and occurred at a different time,

in a different location, and where the actor in question was standing directly next to the patrol car and

camera.

2

The dissent focuses on the audibility of Kevin’s “I have got a gun” statement on the video and

alleges that we have found “as fact that this statement was made but was ‘inaudible.’” We do not use the

words “audible” or “inaudible” to make a factual finding of what was (or was not) said. Rather, we use

those words for the limited purpose of describing exactly what statements and sounds the video recording

picked up. The dissent opines that “it is unlikely that the victim ever said he had a gun;” this inference

is unsupported by affirmative evidence outside the pleadings, and is insufficient to survive summary

judgment. See Celotex Corp., 477 U.S. at 324 (requiring a nonmoving party to “go beyond the pleadings

and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file,

designate specific facts showing that there is a genuine issue for trial”).

No. 10-1470 Simmonds v. Genesee County, et al. Page 11

reasonable inferences that could persuade “a reasonable jury [to] return a verdict for the

nonmoving party,” and find the officers’ use of deadly force unconstitutional. Liberty

Lobby, 477 U.S. at 248.

As such, the district court correctly concluded that Simmonds failed to “present

evidence sufficient to create a genuine issue as to whether the defendant[s] . . . violated

the law.” Metiva, 31 F.3d at 386. Because Simmonds is unable to establish a

constitutional violation, “there is no necessity for further inquiries concerning qualified

immunity,” and we need not engage in Saucier’s second prong analysis of determining

whether the violation of the constitutional right was clearly established. 533 U.S. at 201.

The district court properly granted Comstock and Dirkse qualified immunity.

III.

The district court’s grant of the Defendants’ motions for summary judgment on

the basis of qualified immunity is AFFIRMED.

No. 10-1470 Simmonds v. Genesee County, et al. Page 12

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DISSENT

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MERRITT, Circuit Judge, dissenting. The court predetermines the facts of this

case by finding as a fact that Kevin Simmonds yelled, “I have a gun” and pointed a

silver object out of the window as though he were firing a pistol at the five officers who

had his truck blocked. The court refers to the evidence as “the uncontested statement by

Kevin that ‘I have a gun’” and that he “brandished a weapon” (Opin. p. 12). These so-

called “facts” on which it upholds the summary judgment are very much contested by

the parties. They are the most crucial, contested facts in the case.

The police officers testified as a unit that they believed Kevin had a silver gun

because he had his hands and arms extended in a firing position out of the driver’s side

of the truck and appeared to be pointing a shiny object at one of the officers. They

testified that, at that point, two of the officers immediately opened fire and killed Kevin.

The problem is, of course, there was no gun at all. The officers and the court respond

that Kevin must have been pointing his cell phone at them out of the window. But this

seems highly unlikely because the cell phone was found resting inside the truck on the

seat, not where it would have dropped from Kevin’s hands when he was killed. At least

one officer conceded that any weapon would likely have fallen onto the ground outside

the driver’s side door of Kevin’s truck. A neutral fact finder could easily find that there

was no gun and no threat of deadly force.

As to the officers’ claim that Kevin yelled, “I have got a gun,” our court finds as

fact that this statement was made but was “inaudible.” But two facts could easily lead

a jury to find that the officers’ claim is false and that its falsity completely undermines

the defense. First, the audio picked up clearly other sounds before, during, and after the

shooting. For example, the audio recorded the sound of Dirkse’s voice yelling, “Show

me your hands” four times and “Get out of the car.” After Kevin refused to comply and

instead backed down the two-track, the police officers pulled up their cars within a few

feet of Kevin’s truck in order to block his escape. A minute after Dirkse yells, “Show

No. 10-1470 Simmonds v. Genesee County, et al. Page 13

me your hands” four times, we hear the sound of Dirkse leaving the car and cocking his

shot gun once outside. Less than thirty seconds later we hear very distinctly the fourteen

shots being fired at Kevin by the police officers a few feet away. Then, less than two

minutes later, we hear the sound of a medical bag being knocked over when taken out

of the police SUV that was parked immediately in front of Kevin’s truck.

Based on the clarity of these other sounds, it is unlikely that the victim ever said

he had a gun. But this issue is not for me to decide or for the court to decide because it

is a classical example of a factual issue for the jury. Anyone who listens to the audio

recording could certainly doubt that the officers are telling the truth. They may have

simply invented a story in order to claim that they were in mortal danger. It would not

be the first time police have invented such a defense. We should not just accept as

gospel the word of witnesses who have a strong motivation to lie when other evidence

calls their veracity into question. The question for the jury is whether the claimed “I

have a gun” statement was “inaudible,” as the majority argues, or simply “invented”

falsely by the officers as a defense.

There is a second piece of evidence that weighs strongly against the majority’s

“inaudible” thesis. Officer Shanlian, a sixth officer, who remained back down the farm

road near the Simmonds’ home, some 400 feet away, testified that he also heard Kevin’s

“I have a gun” statement. Kevin’s voice would have carried through trees at least the

distance of a football field for Shanlian to hear it. If Kevin’s voice was that loud, it

seems highly unlikely that the statement could have been “inaudible.” More likely, it

was simply invented. Thus, I would reverse and remand the case for trial. Our Court’s

effort to predetermine the facts in favor of the officers and prevent a trial of the case is

inconsistent with the Seventh Amendment and our long, common law tradition of calling

on juries to resolve factual disputes. This principle is particularly important when an

individual is killed by state officers and the issue is one of whether there was a gross

abuse of governmental power. Judges, like others, are sometimes predisposed to believe

what they want to believe, but we should resist that temptation here and let the jury

decide after the parties have fully developed the case.

No. 10-1470 Simmonds v. Genesee County, et al. Page 14

At present, the case remains a puzzle. Why did the police rush so quickly,

aggressively, and impulsively to hem Kevin in, surrounding him like an animal with

guns drawn? Why was his family back at his house not allowed to intervene to avoid

such a confrontation? Were reasonable steps taken by the police to consider the situation

carefully and avoid shooting a man who was perhaps mentally ill and, in fact, unarmed?

These are relevant questions unmentioned by the majority that would be better

considered by the jury after the full development of the case by competent counsel.