# Smith v. Cupp

> Court of Appeals for the Sixth Circuit · December 2, 2005 · 430 F.3d 766

URL: https://www.frixlaw.com/law-library/cases/9813778

## Case

- **Full name:** Gabrielle SMITH; Elijah Smith, Minor Children of Glen Smith, by Their Mother Cheri Janine Smith, Widow of Glen Smith; Cheri Janine Smith, Widow of Glen Smith, Plaintiffs-Appellees, v. John CUPP, Individually and as Sheriff of Hamilton County, Tennessee, Defendant, Marty Dunn, Individually and as Deputy Sheriff of Hamilton County, Tennessee, Defendant-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** December 2, 2005
- **Citations:** 430 F.3d 766; 2005 WL 3242150
- **Precedential status:** Published
- **Opinion:** Concurrence by Merritt
- **Judges:** Duplantier, Merritt, Rogers
- **Cited by:** 112 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9813778

## How later opinions describe it (automated extraction)

- holding that suspect who had taken control of officer’s patrol car, although he was in possession of a dangerous weapon, “was not threatening the lives of those around him” because officer was never in the suspect’s line of flight and had already been passed by the car when he…
- holding that unlike Brosseau, where there is no suspicion of a firearm, where the crime did not involve infliction or threatened infliction of serious physical harm, and where there is no imminent threat to others, a clearly established right was violated
- finding “a jury could conclude that [the defendant–officer] fired as he ran toward the driver side of [the plaintiff’s car] after the car passed him” and thus that the defendant–officer was not entitled to qualified immunity

## Opinion text

MERRITT, Circuit Judge,
concurring.
I concur in the Court’s opinion except for Section II.A on jurisdiction. The case is primarily a factual dispute, and the jury should apply the “clearly established law” to the facts developed at trial before we review the case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9813778. Public record. Not legal advice.