Opposition Brief — Erin J. Shepherd, et al., Petitioners v. Angela Studdard

No. 19-609

In the

Supreme Court of the United States

__________________

ERIN SHEPHERD AND TERRY REED,

Petitioners,

v.

ANGELA STUDDARD,

__________________

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

__________________

BRIEF IN OPPOSITION

__________________

DANIEL A. SEWARD

Counsel of Record

SEWARD LAW FIRM

4510 Chickasaw Road

Memphis, TN 38117

(901) 527-5500

sewardlawfirm@aol.com

Counsel for Respondent

December 12, 2019

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED

Petitioners, two Shelby County Sheriff’s Deputies

on July 7, 2016, shot Edmond Studdard, Deceased as

he stood and/or swaying in place in the middle of a

grassy area east of Northbound Big Orange Road at

approximately noon on a clear summer day in Shelby

County, Tennessee. Respondents fired five shots while

both were standing in the Southbound lane of Big

Orange Road at a distance of thirty four (34) feet from

Edmond Studdard, Deceased with no less than two

bullets striking Edmond Studdard as he held a

boxcutter handle without a razor blade to his own

throat. Edmond Studdard, Deceased at the time of the

shooting and immediately prior to in the presence of

Petitioners, never threatened to hurt anyone but

himself and had not made any movements towards

anyone with the “knife” or boxcutter handle. Edmond

Studdard died approximately two months after the

shooting from the bullet wounds that he suffered. On

Petitioner’s motion for summary judgment based upon

qualified immunity, the district court concluded that

genuine issues of material fact precluded it from

granting the motion. The Sixth Circuit affirmed in an

unanimous decision. The question presented is:

Whether this Court should review the Sixth

Circuit’s decision affirming the

district court’s

conclusion that genuine issues of fact preclude

summary judgment for petitioner.

ii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iii

STATEMENT OF ISSUE PRESENTED FOR

REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 3

REASONS FOR GRANTING THE PETITION . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

iii

TABLE OF AUTHORITIES

CASES

Bougess v. Mattingly,

482 F.3d 886 (6th Cir. 2007). . . . . . . . . . . . . . . . 22

Brosseau v. Haugen,

543 U.S. 194 (2004). . . . . . . . . . . . . . . . . . . . . . . 23

Brown v. Wayne Blanchard and Walworth County

Wisconsin, (No. 14-2808) (7th Cir. 2015) . . . . . . 31

Chappell v. City of Cleveland,

585 F.3d 901 (6th Cir. 2009). . . . . . . . . . . . . . . . 22

Ciminillo v. City of Cincinnati,

434 F.3d 461 (6th Cir. 2006). . . . . . . . . . . . . . . . 28

Duong v. Telford Borough,

186 F. App’x 214 (3d Cir. 2006) . . . . . . . . . . . . . 32

Eldridge v. City of Warren,

533 F. App’x 529 (6th Cir. 2013) . . . . . . . . . . . . 23

Glenn v. Washington County,

673 F.3d 864 (9th Cir. 2011). . . . . . . . . . . . . . . . 32

Graham v. Connor,

490 U.S. 386 (1989). . . . . . . . . . . . . . . . . . . . . . . 22

Hope v. Pelzer,

536 U.S. 730 (2002). . . . . . . . . . . . . . . . . . . . . . . 25

Kisela v. Hughes,

138 S. Ct. 1148 (2018). . . . . . . . . . . . . . . 22, 23, 33

Lopez v. City of Cleveland,

625 F. App’x 742 (6th Cir. 2015) . . . . . . . . . . . . 30

iv

Mercado v. City of Orlando,

407 F.3d 1152 (11th Cir. 2005). . . . . . . . . . . . . . 32

Mullins v. Cyranek,

805 F.3d 760 (6th Cir. 2015). . . . . . . . . . . . . 21, 24

Pitzer v. Tenorio,

802 F.3d 1160 (10th Cir. 2015). . . . . . . . . . . . . . 31

Russo v. City of Cincinnati,

953 F.2d 1036 (6th Cir. 1992). . . . . . . . . . . . 27, 28

Saucier v. Katz,

533 U.S. 194 (2001). . . . . . . . . . . . . . . . . . . . . . . 21

Scozzari v. Miedzianowski,

454 F. App’x 455 (6th Cir. 2012) . . . . . . . . . . . . 29

Sigley v. City of Parma Heights,

437 F.3d 527 (6th Cir. 2006). . . . . . . . . . . . . . . . 22

Sova v. City of Mt. Pleasant,

142 F.3d 898 (6th Cir. 1998). . . . . . . . . . . . . . . . 26

Stevens-Rucker v. City of Columbus, OH,

739 F. App’x 834 (6th Cir. 2018) . . . . . . . . . . . . 33

Walker v. City of Orem,

451 F.3d 1139 (10th Cir. 2006). . . . . . . . . . . . . . 31

Williams v. Indiana State Police Department,

(No. 142523) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Zuchel v. Spinharney,

890 F.2d 273 (10th Cir. 1989). . . . . . . . . . . . . . . 31

Zulock v. Shures,

441 F. App’x 294 (6th Cir. 2010) . . . . . . . . . . . . 29

v

CONSTITUTION

U.S. Const. amend. IV . . . . . . . . . . . . . . 21, 25, 27, 29

1

STATEMENT OF ISSUE

PRESENTED FOR REVIEW

Whether the Sixth Circuit of the United States

Court of Appeals correctly ruled that Respondent met

her burden of showing that Shepherd and Reed were

not entitled to qualified immunity in light of controlling

law in the shooting of Eddie Studdard.

For purposes of this Appeal, Petitioner Erin

Shepherd will be referred to as “Shepherd”, Petitioner

Terry Reed will be referred to as “Reed”, Respondent

Angela Studdard will be referred to as Plaintiff and/or

Respondent and/or Angela Studdard and Edmond

Studdard will be referred to as “Edmond”, “Studdard”

and/or “Eddie Studdard”.

INTRODUCTION

On the morning of July 7, 2016, “Eddie Studdard”

was 46 years old, married to Respondent Angela

Studdard and living with his wife and two daughters in

Shelby County, Tennessee. (Medical Record/TBI File,

RE 132, Page ID# 2008) Eddie Studdard was part

owner of A&H Ironworks, LLC, a business which was

located on private property on Big Orange Road in

Shelby County, Tennessee that made custom

ornamental fencing and railing along with his father

Hollis Studdard, Sr. and his brother, Ricky Studdard.

Eddie Studdard had been suffering from some type

of lung condition over the previous two years and had

been dealing with a lot of pain and his health insurance

had lapsed at some point prior to that date and Eddie

asked his father that morning to borrow some money so

that he could go to his doctor’s appointment that day.

2

When Hollis Studdard, Sr. refused, Eddie became upset

and apparently suffered some type of emotional or

mental issue and he drove his pick up truck into the

back of his father’s unoccupied corvette which was

located on the driveway of the private property owned

by A&H Ironworks and then to abandon his truck, to

slit his own wrists in the bathroom of A&H Ironworks

and then start walking northbound on the right side of

Big Orange Road away from A&H Ironworks. There

was no evidence of a physical fight between Eddie and

his father. All of this information was unknown to

Appellants Shepherd and Reed and the other deputies

on the scene on Big Orange Road at the time that

Eddie Studdard was shot by Shepherd and Reed.

It is undisputed that Shepherd and Reed fired a

total of five times with their 40 caliber service pistols

at Studdard that day (Reed fired two times and

Shepherd fired three times) with one and/or two bullets

striking Eddie’s arm and one bullet entering the right

side of Eddie’s neck, severing his spine and rendering

him a quadriplegic from July 7, 2016, where he was

transported by ambulance and was hospitalized and

underwent multiple surgeries and medical procedures

at Regional One Hospital in Memphis, Tennessee, up

to the date of his premature death in the Hospital on

September 4, 2016, caused by the gunshot wounds of

July 7, 2016. It is undisputed that Eddie suffered

greatly over this two month period before his death.

(Medical Records, RE 132, Page ID# 2005-2006)

Photographs of Eddie Studdard prior to the

shooting and after the shooting while hospitalized at

Regional One Hospital can be found at Affidavit of

3

Angela Studdard, RE 167, PageID# 167-1, Page

ID# 2696-2699, RE 168-1, PageID# 2703-2704) The

post shooting photographs clearly and undisputedly

show the extreme pain and suffering that Eddie

Studdard endured after was shot.

There is no proof that Eddie had any prior history

of mental illness or psychiatric diagnosis and/or

treatment prior to July 7, 2016. After the shooting,

while Eddie was an admitted patient at Regional One

Hospital and prior to his death, he remembered getting

into the disagreement with his father, slitting his

wrists and deputies being on Big Orange Road but did

not know why they shot him. (Medical Records of

Studdard/TBI File, RE 132, PageID# 56, 2008-2009)

The shooting of Eddie by Shepherd and Reed,

viewed in the light most favorable to Angela Studdard

and/or Eddie Studdard was objectively unreasonable

considering and viewing the facts taken in the light

most favorable to Respondent immediately before and

at the time of the shooting.

STATEMENT OF THE CASE

On July 7, 2016, Deputy Sheriff Kyle Lane who was

employed by the Shelby County Sheriff’s Department

and was dispatched by radio to Big Orange Road in

Shelby County, Tennessee to fill out a report

concerning a male white who was involved in an

accident and hit another vehicle on private property

located at A&H Ironworks. The male white had left the

scene of the accident but there were no reports of

personal injury but only property damage to the

vehicle. (Deposition of Kyle Lane, RE 96-1, PageID#

4

981-982, 987) As Deputy Lane was traveling

southbound on Big Orange Road and approaching the

address of A&H Ironworks, he saw and passed a male

white who was walking northbound on Big Orange

Road. Deputy Lane testified that he had no reason to

believe that Eddie Studdard was the person involved in

the hit and run. It was around noon on a clear July

day. Deputy Lane was informed by an adult male at

the A&H address that the individual walking

northbound on Big Orange Road, later identified as

Edmond “Eddie” Studdard, Deceased, had slit his own

wrists. (Lane Deposition, RE 96-1, PageID# 989,995)

Having just learned of this information and not

knowing any other information and having no

knowledge that Eddie Studdard committed any crime

or whether Studdard was even involved in the hit and

run, Deputy Lane turned his motorcycle around on Big

Orange road and began to follow Eddie Studdard as he

walked and/or ran northbound on Big Orange Road to

investigate the situation. (Lane Deposition, RE 96-1,

PageID# 994, 1004-1005)

As Deputy Lane approached Eddie Studdard slowly

from behind on his motorcycle as they were traveling

northbound on Big Orange Road, Deputy Lane saw

blood on both of Eddie Studdards’ wrists and he knew

at that moment that Eddie Studdard had cut his own

wrists. (Lane Deposition, RE 96-1, PageID# 994- 995)

Deputy Lane alleges that Eddie Studdard was

nonresponsive to his verbal commands and that Eddie

Studdard opened his hand and showed him what

Deputy Lane believed to be a knife. It was at that

moment that Deputy Lane told dispatch that “both

5

wrists of respondent are slit”. (Lane Deposition, RE 961, PageID# 1007) and requested back up from the

Shelby County Sheriff’s Department and continued to

follow Eddie Studdard at a safe distance as he

continued to walk northbound on Big Orange Road.

(Lane Deposition, RE 96-1, PageID# 1004, 1007)

As Deputy Lane continued to follow him northbound

on Big Orange Road, Deputy Lane could tell that Eddie

Studdard appeared in distress and Lane notified

Sheriff Department’s dispatch that the male white,

later identified as Eddie Studdard was not resisting,

just walking around with knife in his hand. (Lane

Deposition, RE 96-1, PageID# 1005-1006) Deputy Lane

said that after Eddie Studdard showed him the knife,

that Eddie Studdard did not act aggressive and never

tried to stab him, never threatened him verbally and

never tried to knock him of his motorcycle as Eddie

Studdard continued to walk and/or run northbound on

Big Orange Road. (Lane Deposition, RE 96-1, PageID

1004) Deputy Lane continued to follow Eddie Studdard

as he walked northbound on Big Orange Road and that

he followed him for three to five minutes covering

approximately ¾ of a mile. (Lane Deposition, RE 96-1,

PageID# 1011, 1015) During this time frame, Eddie

Studdard never tried to stab, cut or point the knife at

Deputy Lane or threaten him. (Lane Deposition, RE 961, PageID# 1011-1013, 1015) Deputy Lane said that

Eddie Studdard had a “decent amount of blood” on both

of his wrists (Lane Deposition, RE 96-1, PageID# 1014)

Deputy Lane said that Eddie Studdard looked in

“distress”. (Lane Deposition, RE 96-1, PageID# 1013)

PageID 1726-27)

6

As Eddie Studdard continued to walk northbound

on Big Orange Road with Deputy Lane following him,

Deputy Lane testified that he followed him on his

motorcycle for three to five minutes before the other

deputies showed up. (Lane Deposition, RE 96-1,

PageID# 1015) Immediately prior to the other deputies

arriving on Big Orange Road, Deputy Lane testified

that Eddie Studdard did not represent an immediate

threat of death to Deputy Lane or anybody else. (Lane

Deposition, RE 96-1, PageID# 1016) During this time,

Deputy Lane testified that it appeared to him that

Eddie Studdard had emotional issues and was trying to

kill himself. (Lane Deposition, RE 96-1, PageID# 10151016)

As Eddie Studdard and Deputy Lane approached

and are getting closer to the intersection of Macon

Road and Big Orange Road, Deputy Lane testified that

he saw three or four vehicles ahead and that the

County Sheriff’s Deputies arrived on Big Orange Road,

traveling in the opposite direction and parked their

vehicles on Big Orange Road, approximately one

hundred yards from the intersection of Macon Road.

(Lane Deposition, RE 96-1, PageID# 1018-1020) Deputy

Lane testified that Big Orange Road is a wide road

with single lanes of traffic for northbound and

southbound traffic on the road and that two solid

yellow lines run down the middle of Big Orange Road

separating northbound from southbound traffic on Big

Orange Road with a curb running parallel with the

road. (Lane Deposition, RE 96-1, PageID# 1020-1021)

Deputy Lane testified that on the east side of

northbound Big Orange Road, there is a grassy area

which runs from the curb to a wooden fence to the east

7

of Big Orange Road. (Lane Deposition, RE 96- 1,

PageID# 1021-1022)

Deputy Lane testified in his deposition that the

deputies that showed up on the scene, parked their

vehicles in the southbound lane of Big Orange Road.

(Lane Deposition, RE 96-2, PageID# 1025) There were

no obstructions on Big Orange Road that prevented

Deputy Lane from clearly seeing the other deputies

who he later identifies as Defendant Shepherd,

Defendant Reed and Deputy Pair. (Lane Deposition,

RE 96-2, PageID# 1025) At the time that the other

deputies arrived on the scene, Eddie Studdard walked

away from all of the deputies and into the grassy area

on the east side of northbound Big Orange Road and he

backed up and had his back to the fence. (Lane

Deposition, RE 96-2, PageID#1029) When Eddie

Studdard first stopped, Deputy Lane testified that

Eddie Studdard began to sway in place in the grassy

area while facing west. (Lane Deposition, RE 96-2,

PageID# 1030-1031) At this time, Deputy Lane

testified that the “knife” was down by his side and that

Eddie Studdard was in the grassy area and not

pointing the “knife” at Lane. (Lane Deposition, RE 962, PageID# 1031-1032)

Plaintiff’s credible and admissible proof is that

Eddie Studdard was standing in the grassy area and

Deputies Reed, Shepherd, Pair and Deputy Lane had

Eddie Studdard surrounded and pinned in with the

wooden fence behind him while Eddie Studdard was

standing in the grassy area. (Shepherd Deposition, 136139) (Lane Deposition, RE 96-3, PageID# 1098-1099) It

is undisputed that all four deputies had their pistols

8

drawn and aimed at Eddie Studdard. Defendant

Shepherd testified in her deposition that Eddie

Studdard was standing in the grassy area midway

between the Big Orange Road and the fence. (Shepherd

Deposition, RE 106, PageID# 1454-1455)

Eddie Studdard was standing in the grassy area

and swaying in place and he continued to hold the

“knife” down and was not charging anybody.

(Lane Deposition, RE 96-2, PageID# 1039-1040) Deputy

Lane testified that one deputy shouted put the knife

down or I’m going to shoot. (Lane Deposition, RE 96-2,

PageID# 1037) Deputy Lane testified that after this

happened, Eddie Studdard raised the knife to his own

throat in a slicing position on the right side of his neck.

(Lane Deposition, RE 96-2, PageID# 1037-1039) Deputy

Lane testified that his was the first and only time

that Eddie Studdard raised the “knife” other than the

initial time that Studdard had shown it to Deputy Lane

at the very beginning of when Lane began to follow

him. Deputy Lane testified that almost immediately

after Eddie Studdard raised the knife to his own

throat, Eddie Studdard was shot. (Lane Deposition, RE

96-2, PageID# 1039) It is undisputed that Defendants

Lane and Shepherd both fired multiple shots at Eddie

Studdard and that he was hit in the arm and neck

and/or throat by two or three of the five bullets and

mortally wounded, rendered a quadriplegic and

subsequently died of his injuries in the hospital on

September 4, 2016, approximately two months after

the shooting.

Defendant Shepherd gave a sworn declaration and

testified that Eddie Studdard never said anything

9

throughout the whole ordeal. (Shepherd Deposition,

RE 106, PageID# 1466) (Statement of Shepherd, RE

132-1, PageID# 2098) Defendant Shepherd testified

that at the time that Eddie Studdard raised the knife

to his own throat, she believed he was going to cut his

own throat. (Shepherd Deposition, RE Page ID# 14661477) Defendant Shepherd further testified that once

Eddie Studdard put the knife to his own throat, that he

never moved it away from his throat until the time

that he was shot. Defendant Shepherd testified that

Eddie Studdard never left the grassy area. (Shepherd

Deposition, RE 106, PageID# 1470) Defendant

Shepherd further testified that Eddie Studdard never

made a stabbing or lunging motion toward her or

anyone else prior to being shot. (Shepherd Deposition,

RE 106, PageID# 1469)

Deputy Lane testified that at the time that the

shots were fired that he was not in fear for his life.

(Lane Deposition, RE 96-2, PageID# 1041) Deputy

Lane testified in his deposition that prior to Eddie

Studdard being shot, that he was not charging

anybody. (Lane Deposition, RE 96-2, PageID# 1040)

Deputy Lane testified that he did not know why

Shepherd or Reed fired shots at Eddie Studdard. (Lane

Deposition, RE 96-2, PageID# 1042) Deputy Lane

testified that Deputy Pair did not fire and neither did

he. (Lane Deposition, RE 96- 2, PageID# 1042) At the

time that the shots were fired, Deputy Lane testified

that he felt no imminent threat to himself or anyone

else. (Lane Deposition, RE 96-2, PageID# 1044)

Lane further testified that Eddie Studdard never

pointed the knife at Lane or any of the other deputies.

10

Lane testified that Eddie Studdard never waived the

knife around, never ran towards Lane, never ran

towards Shepherd or Reed with a knife in his hands,

never ran towards Pair. (Lane Deposition, RE 96-2,

PageID# 1056) Eddie Studdard dropped straight to the

ground when he was shot and fell on his back. (Lane

Deposition, RE 96-2, PageID# 1057-1058) Deputy Lane

does not remember if they moved Eddie Studdard after

he was shot.

Deputy Lane testified that “at the time of the

shooting”, that Eddie Studdard was pinned in and

had not threatened anybody, was not an

imminent threat of death or serious bodily injury

to anybody except himself and that Lane did not

feel threatened at that point and time. (Lane

Deposition, RE 96-3, RE PageID# 1099-1101) Up to the

point where Eddie Studdard was shot, he had not

attacked anybody. (Lane Deposition, RE 96-3, PageID#

1106) Deputy Lane did not shoot. (Lane Deposition, RE

96-3, PageID# 1106-1107) Lane had an unobstructed

view of the scene on Big Orange Road before and at

the time of the shooting. (Lane Deposition, RE 96-3,

PageID# 1111)

Deputy Lane testified that Eddie Studdard never

walked towards anybody with a knife or whatever

he had in his hands prior to the shooting. (Lane

Deposition, RE 96-3, PageID# 1110) Further, Eddie

Studdard never walked towards anybody while he

had a knife to his own throat. (Lane Deposition, RE 963, PageID# 1110) Deputy Kyle Lane testified that

Eddie Studdard fell in the exact spot he was standing

and that he dropped to the ground. (Lane Deposition,

11

RE 96-4, PageID# 1144) Deputy Lane does not know

the exact area where Eddie Studdard fell after being

shot. (Lane Deposition, RE 96-4, PageID# 1165) See

Exhibit to 16 Deputy Lane’s testimony regarding the

area where Eddie Studdard fell after the was shot in

the grassy area. Lane Deposition, RE 96-4, PageID#

1165, RE 96-5, PageID# 1216)

At the time that Petitioners Reed and

Shepherd fired their weapons at Eddie Studdard,

Deputy Lane testified that Eddie Studdard was not a

fleeing felon, not threatening imminent serious

bodily injury to anyone aside from himself. (Lane

Deposition, RE 96-4, PageID# 1176) Deputy Lane

testified at this time there was nothing obstructing his

or Reed’s or Shepherd’s view of Eddie Studdard. (Lane

Deposition, RE 96-4, PageID# 1177) The shooting

occurred in an open space during the middle of the day.

(Lane Deposition, RE 96-4, PageID# 1176)

Deputy Lane testified that if a person is threatening

suicide or harm to themselves, deadly force is never an

option for a Shelby County Sheriff’s Deputy. (Lane

Deposition, RE 96-4, PageID# 1177) Deputy Lane

testified that he would never shoot someone to prevent

them from committing suicide and to do so would be a

violation of Shelby County Sheriff Department’s deadly

force policy. (Lane Deposition, RE 96-4, PageID# 11781179)

Deputy Lane testified that at the time of the

shooting of Eddie Studdard, there was no doubt

that Eddie Studdard was suffering some type of

mental crisis or illness or disorder.

12

Deputy Lane further testified that at the entire

time that Eddie Studdard was in the grassy area that

he never pointed a knife at anyone and he never

threatened anybody with a knife, never going

towards them and never pointing the knife at

them. (Lane Deposition, RE 96-4, PageID# 1181)

Deputy Lane testified that at the time of the shooting

that he could have waited five more hours as long

as Eddie Studdard continued not to be

aggressive. (Lane Deposition, RE 96-4, PageID# 1183)

Deputy Lane testified under oath that Eddie

Studdard was not advancing towards anybody

before the shots were fired or at the time the shots

were fired. (Lane Deposition, RE 96-4, PageID# 1183)

Deputy Lane further testified that Eddie Studdard

never attacked anybody before the shots were fired.

(Lane Deposition, RE 96-4, PageID# 1183)

Towards the end of the deposition of Kyle Lane

conducted by Respondent’s counsel, the following

questions and answers were provided, recorded and

video taped:

Question by Attorney Seward: “I want you to

stand up and show the videographer how he

(Studdard) was moving. Was he moving toward

people or swaying?”

Answer by Deputy Kyle Lane: “He was

swaying like this (demonstrating).” …

Question by Attorney Seward: “Okay. Was

he advancing toward anybody?”

13

Answer by Deputy Kyle Lane: “Not that I

saw. No, sir”.

Question by Attorney Seward: “Okay. Did he

attack anybody with whatever was in his hand?”

Answer by Deputy Kyle Lane: “No, sir”.

Question by Attorney Seward: “Prior to being

shot?”

Answer by Deputy Kyle Lane: “No, sir.”

Question by Attorney Seward: “Never?”

Answer by Deputy Kyle Lane: “No, Sir.”

(Deposition of Kyle Lane, RE 96-4, PageID# 1183)

Eddie Studdard was never charged with any crime

by any law enforcement or the Shelby County Sheriff’s

Department for anything or any act that took place on

July 7, 2016.

Deputy Abdullah testified under oath that at the

time that Deputy Shepherd and Deputy Reed

fired their pistols and shot Eddie Studdard,

Deputies Pair and Defendant Shepherd and

Defendant Reed were all standing in the

southbound lane of Big Orange Road and that

Abdullah was less than 50 yards away heading

southbound on foot on Big Orange Road. (Deposition of

Abdullah, RE 104, PageID# 1409 and RE 104, PageID#

1418, Page 1407) The last time that Abdullah saw

Studdard before the shooting, Studdard was in the

grassy area and never came back onto Big Orange

Road. (Deposition of Abdullah, RE 104, PageID#

14

1408,1412) Shepherd, Reed and Pair were all in the

southbound lane of Big Orange Road with their pistols

drawn and aimed at Studdard prior to the shooting.

(Deposition of Abdullah, RE 104, PageID#1410) Deputy

Abdullah testified that he did not feel threatened by

Studdard and that Abdullah never pulled his gun and

did not aim it at Studdard. (Deposition of Abdullah, RE

104, PageID# 1413, 1411)

EMS Natalie Stewart provided emergency medical

care to Eddie Studdard on July 7, 2016 after he was

shot and she did so in the grassy where Eddie

Studdard’s body was located on the ground in the

grassy area after the shooting. EMS Natalie Stewart

provide emergency medical care to Eddie Studdard at

the scene and while in transport to Regional One

Medical Center. EMS Natalie Stewart executed a

Sworn Declaration that Eddie Studdard’s body was in

the grassy area when she arrived and administered

medical care to Studdard and she states in her Sworn

Declaration that Eddie Studdard’s body was over

ten (10) feet east of the curb of northbound Big

Orange Road when she arrived to administer

emergency medical care. (Sworn Declaration of

Natalie Stewart, RE 95, PageID# 920-921)

Jason Cunningham executed a Sworn Declaration

that he was familiar with Big Orange Road and that he

worked at a gym located across the street from the

shooting of Eddie Studdard and that he was present

inside his employer’s building at the time of the

shooting of Eddie Studdard. Jason Cunningham states

in his Sworn Declaration that “The distance from the

curb on the eastern side of Northbound Big Orange

15

Road to the first yellow solid line in the middle of Big

Orange Road is over twenty-four (24) feet. He further

declares that the distance from the curb on the eastern

side of Northbound Big Orange Road to the curb and/or

driveway located on the western side of Southbound

Big Orange Road is greater than forty-eight (48) feet.

He further declares that “the distance from the curb on

the eastern side of Northbound Big Orange Road across

the grassy area to the wooden fence that was located

there on July 7, 2916 is greater than nineteen (19)

feet”. (Sworn Declaration of Jason Cunningham, RE 94,

PageID# 917-919)

If the distance from the middle of Big Orange Road

to the eastern edge and/or curb is greater than 24 feet

and Defendants Shepherd and Reed were standing in

the southbound lane of Big Orange Road at the time

that they shot Eddie Studdard who was in the grassy

area at the time of the shooting, Defendants Reed and

Shepherd shot Eddie Studdard at a minimum of 24 feet

and not 7 to 10 as they claim. This calculation of 24 feet

would not include any additional feet that Eddie

Studdard would have been in the grassy area on the

east side of Big Orange Road when he was shot, which

the Appellee has presented as ten (10) additional feet

for total of thirty-four (34) feet separating Reed

and Shepherd from Eddie Studdard when he was

shot.

Petitioner adopts Plaintiff’s Rule 26 Expert Report

of Jeffrey Noble herein as if stated in verbatim.

Petitioner adopts said report and said report’s citation

of the statements of fact and opinions of Jeffrey Noble.

(Rule 26 Expert Report of Jeffrey Noble, RE 99, Page

16

ID#1276-1305) Jeffrey Noble opines that “Based upon

the statements of Deputies Lane, Pair and Abdullah

and the physical evidence, Mr. Studdard was not an

imminent threat to either Deputy Shepherd or

Deputy Reed. Mr. Studdard was not moving

toward the deputies at the moment that deadly force

was used, he had the knife held at his own neck, and if

Deputies Shepherd and Reed were in the southbound

lane of traffic and Mr. Studdard was in the middle of

the grassy area, Mr. Studdard would have been at

least 34 feet away from the officers at the

moment of the shooting. Thus, the use of deadly

force would not be objectively reasonable or

consistent with generally accepted police

practices.” (Noble Rule 26 Expert Report, RE 99,

PageID 1292)

Petitioners’ Rule 26 Expert Richard Lichten states

and opines in his Rule 26 Expert Disclosure that:

Mr. Noble and I do agree if the decedent

was in fact standing still and had not made

a move at all toward the shooter deputies,

the shooting would be unjustified.

(Rule 26 Expert Disclosure of Richard Lichten, RE 8910, PageID#753)

Further, Petitioners’ Rule 26 Expert Richard

Lichten testified under oath in his deposition that

opines that:

“If you accept that the decedent was standing

still in the middle of the grass area and if you

accept that the shooter deputies were in the

southbound lane as Mr. Noble states, the Mr.

17

Noble’s math makes sense and he’d be right

…And the same would be true, as you just said,

if it was 34 feet or 7 feet. If that was true, if Mr.

Studdard was standing still and not acting

aggressively.”

(Deposition of Richard Lichten, RE 98, PageID#1272)

Defendants’ Rule 26 Expert also testified during his

deposition that the “ 21 foot Rule” is not a rule per

se …The 21 foot rule isn’t necessarily a rule,

although that’s what it’s called.” (Deposition of

Richard Lichten, RE 98, PageID# 1263)

During Erin Shepherd’s discovery deposition,

Petitioner’s counsel asked Shepherd the following:

Question by Attorney Seward: …In this case,

did you feel that Eddie Studdard was an

eminent (imminent) or immediate threat to

cause you serious bodily injury or death at the

time you pulled the trigger?

Answer by Shepherd: Yes.

Question by Attorney Seward: Why?

Answer by Shepherd:

Because we are

trained on a 25 foot rule in relation to

bladed weapons. That someone within the

25 feet can get to us and injure us before

we can draw out weapons and pull the

trigger. And so we’re not supposed to –

we’re trained not to let someone in that 25

foot threshold who has a weapon, rather

18

it’s to their throat, out at us, or anything

like that.

Question by Attorney Seward: Okay. You

called it the 25 foot rule. Is that – a written rule

that Shelby County Sheriff’s Department has

adopted?

Response by Shepherd: As far as I know,

yes. The research has been done on it. It used

to be 21 feet but I believe they’ve extended

it in the past few years to 25 feet. … I don’t

know about the policy. I know that that’s

what we’re trained.

(Deposition of Erin Shepherd, ECF No. 105, 1-3,

deposition pages 173-175)1

The Tennessee Bureau of Investigation conducted

an investigation into the shooting of Edmond Studdard

and as part of that investigation approximately two

1

After the shooting in this cause and after the close of discovery,

Petitioner’s counsel learned after reading the complaint to her

pending lawsuit against Shelby County, Tennessee and the Shelby

County Sheriff’s Department, that Appellant Erin Shepherd was

relieved of duty in May of 2018. Shepherd received a letter from

Shelby County Sheriff’s Office advising that it had been

determined that she cannot perform the essential job functions of

a Sheriff Patrol Officer as required and was therefore relieved of

duty without pay. (Shepherd’s Complaint against Shelby County,

et al. Appellant Shepherd now alleges that she was wrongfully

terminated as a Sheriff’s Deputy on September 6, 2018. (Complaint

of Appellant Erin Shepherd vs. Shelby County, RE 156-1, Page ID#

2601-2620 The District Court did not have knowledge of this

information or consider it at the time of ruling on the summary

judgment motion.

19

hundred photographs were taken by the TBI after the

shooting on July 7, 2016. The photographs are part of

the record in this cause and provide relevant evidence

and information regarding the scene of the shooting on

Big Orange Road. TBI Photographs of Big Orange

Road, RE 135-1, PageID# 2325 through 152-37, Page

ID# 2540.

The facts in this appeal are undisputed that

Studdard did not have a gun but instead was holding

a box cutter handle without a razor blade in it and

not a knife or bladed weapon. The possession of a

knife and/or pocket knife in public is not a crime in the

State of Tennessee. Eddie was not advancing, walking

or moving towards anyone but standing still and/or

swaying in place in the grassy area east of northbound

Big Orange Road while being at least 34 feet away from

Shepherd, Reed and Pair, with all three standing in the

southbound lane of Big Orange Road at the time of the

shooting.

Eddie was more than 30 feet from Deputy Lane at

the time that Shepherd and Reed shot him Eddie was

not moving towards, walking towards, approaching,

running, attacking or charging towards Shepherd and

Reed or anyone else but was standing still and/or

swaying in place in the grassy area on the east side

of northbound Big Orange Road the entire time that

Shepherd, Reed, Pair and Lane had their guns pointed

at him, up to the time that Shepherd and Reed shot

Eddie Studdard. There is admissible proof that

Studdard never verbally threatened Shepherd, Reed,

Pair, Lane or anyone else on the scene prior to and/or

at the time that Eddie was shot. Shepherd and Reed

20

had no information that Eddie had committed a crime

of any type. Eddie was not a fleeing felon and he was

on foot, surrounded by the Shepherd, Reed, Pair and

Lane at the time that he was shot. Eddie never pointed

the boxcutter handle which did not have a razor blade

in it at anyone except to put it to his own throat at the

time that he was shot. Eddie was shot around noon on

July 7, 2016 while standing the grassy area which is

east side of northbound traffic on Big Orange Road.

Shepherd, Reed, Pair and Lane had approached

Eddie Studdard and had Eddie boxed in with a wooden

fence to Eddie’s back. It was a hot summer day on July

7, 2016 with no obstructions on or near Big Orange

Road that would prevent Deputy Lane from seeing of

the events as they unfolded on Big Orange Road prior

to and at the time of the shooting of Studdard. There

was plenty of room for Shepherd and Reed to back up

and/or escape. Reed, Shepherd, Pair and Lane all had

their 40 caliber pistols pointed at Eddie immediately

before and at the time that Eddie was shot.

There was no split second decision to be made as

Lane stated in his deposition when he testified that he

did not know why Shepherd and Reed fired when they

did and that he could have stayed there on Big Orange

Road with Eddie surrounded for as much time as was

needed.

21

REASONS FOR DENYING THE PETITION

I.

The Court of Appeals agree on the test

applicable to the reasonableness of an officer’s

use of deadly force under the Fourth

Amendment and have reached consistent

results.

II.

The Sixth Circuit correctly applied this Court's

Fourth Amendment jurisprudence.

III.

The Fourth Amendment violation was clearly

established.

IV.

This case does not present an appropriate

vehicle for review because material issues of fact

remain to be resolved.

The Courts apply a two-prong test and inquire

whether (1) whether the facts, taken in the light most

favorable to the party asserting the injury, show the

that the officer’s conduct violated a constitutional right

and (2) whether the right violated 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, 201-02 (2001) It is black

letter law that individuals have a clearly established

right not to be shot absent a probable cause belief that

that individual poses a threat of serious physical harm.

Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015)

Further, just because the Courts must look at the

circumstances through the eyes of a reasonable officer

does not mean that the Courts must accept the officer’s

subjective view of the facts when making the

assessment. Rather, the Courts must conduct the

reasonable officer analysis using the facts in the in the

22

light most favorable to the plaintiff. Bougess v.

Mattingly, 482 F.3d 886, 887-889 (6th Cir. 2007).

Excessive force claims are analyzed under an

objective reasonableness standard. Graham v. Connor,

490 U.S. 386, 397 (1989) The Courts consider the facts

and circumstances of each case, including the severity

of the crime at issue; whether the suspect posed an

immediate threat to the safety of the officers or others;

and whether the suspect was actively resisting arrest

or attempting to evade arrest by flight. Sigley v. City of

Parma Heights, 437 F.3d 527, 534 (6th Cir. 2006) The

ultimate inquiry must always be whether the totality

of the circumstances justified the use of force. Mullins

v. Cyranek, 805 F.3d 760 (6th Cir. 2015) “In excessive

force cases, the threat factor is a ‘minimum

requirement for the use of deadly force,’ meaning

that deadly force ‘may be used only if the officer has

probable cause to believe that the suspect poses a

threat of severe physical harm.” Mullins v. Cyranek,

805 F.3d 760, 766 (6th Cir. 2015) Further, the Plaintiff

must show that the constitutional right was clearly

established in a ‘particularized sense,’ such that a

reasonable officer confronted with the same or similar

situation would have known that using deadly force

under those circumstances would violate that right.

Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th

Cir. 2009) Consonant with that requirement, the

United States Supreme Court recently reminded lower

courts “not to define clearly established law at a high

level of generality.” Kisela v. Hughes, 138 S. Ct. 1148,

1152 (2018) In determining whether an official’s

conduct violates a clearly established constitutional

right of which a reasonable person would have known,

23

the focus is on whether the official had fair notice that

their conduct was unlawful, with the reasonableness

being judged under the law at time that the conduct

took place. Brosseau v. Haugen, 543 U.S. 194, 198

(2004)

The United States Supreme Court in Kisela

reaffirmed that “this Court’s caselaw does not require

a case directly on point for a right to be clearly

established, existing precedent must have placed the

statutory or constitutional question beyond debate.”

Kisela, 138 S. Ct. at 1152.

CLEARLY ESTABLISHED LAW

In this case, Eddie Studdard was never charged

with any crime. Further, Eddie Studdard was not

actively resisting arrest. Eddie Studdard’s conduct did

not rise to the level of active resistance. The Sixth

Circuit Court of Appeals has held that mere

noncompliance is not active resistance. Eldridge v. City

of Warren, 533 F. App’x 529, 535 (6th Cir. 2013)

Further, Eddie was not attempting to flee nor was he

a fleeing felon. Just the opposite, Eddie was

surrounded and boxed in a semi circle in by the four

deputies with the wooden fence to his back. He wasn’t

going anywhere and he did not try to go anywhere.

Shepherd, Reed and the other deputies on the scene

had it under control in that there was no reasonable

threat of escape or flight by Eddie Studdard prior to

being shot. The main issue to be resolved is whether

Eddie Studdard posed an imminent threat of serious

bodily harm to Shepherd and/or Reed or anyone else on

the scene. In excessive force cases, the threat factor is

‘a minimum requirement for the use of deadly force,

24

meaning deadly force may only be used if the officer

has probable cause to believe that the suspect poses a

threat of severe physical harm. Mullins, 805 F.3d at

766.

In this case, the Plaintiff has presented admissible

material evidence to show that Eddie Studdard was

never verbally threatening anyone, never moving

and/or walking towards, running towards or

attempting to attack Defendant Shepherd, Defendant

Reed or anybody else in the area of Big Orange Road

through the sworn testimony of Deputy Kyle Lane.

Further, Plaintiff has presented admissible evidence

that Deputy Reed and Deputy Shepherd were 34 feet or

more away from Eddie Studdard when they shot him.

Plaintiff’s Rule 26 Expert Jeffrey Nobles opines that

the shooting was a violation of police practices by

Defendant Shepherd and Defendant Reed. Defendants’

Rule 26 Expert Richard Lichten agrees that the

shooting was unjustified and a violation of police

practices if Eddie Studdard, at the time that he was

shot, was thirty-four (34) feet away from Reed and

Shepherd and standing still and not moving towards

Defendant Reed or Deputy Shepherd or anyone else at

the time that he was shot.

There is ample admissible evidence in the record of

this cause to present a disputed issue of material fact

on the issue of whether Eddie Studdard was a threat to

anyone except himself, there is admissible facts that

Eddie Studdard was not moving towards or walking

towards Reed and Shepherd or anyone else at the time

that he was shot. Also, Appellee has presented

admissible facts and inferences that no one was in

25

danger and/or in striking distance of Eddie Studddard

regarding the distance that Eddie Studdard was from

Reed and Shepherd at the time that he was shot where

there is admissible evidence in the record that Eddie

Studdard was 34 feet or more away from Shepherd and

Reed when they shot him. Here there is ample

admissible evidence in the record upon which the trier

of fact could believe that Petitioners had no objectively

reasonable belief that Studdard posed an imminent

threat of serious bodily injury or harm to anyone except

himself.

Therefore, based upon the totality of the

circumstances known to Reed and Shepherd at the

time of the shooting, the use of deadly force was

objectively unreasonable and violated the Fourth

Amendment.

The second prong of the qualified immunity analysis

is to determine whether the right in question was

clearly established at the time of the violation. Hope v.

Pelzer, 536 U.S. 730, 739 (2002) Respondent asserts

that the state of the law at the time of the incident

provided notice and resulting fair warning to

Defendants Shepherd and Reed that their alleged

conduct was unconstitutional.

Respondent distinguishes prior decisions where a

suspect is holding what appears to be a knife or bladed

weapon and is advancing or moving towards someone

and along with the distance that an individual is from

someone who is holding a knife and/or bladed weapon.

In this instance, there is ample admissible proof that

Eddie Studdard was never moving towards and/or

attacking Shepherd and Reed or anybody else. Further,

26

there is ample admissible proof in the records that

Eddie Studdard was 34 feet or greater from the

Defendants Reed and Shepherd when they shot him

holding what they alleged was a knife but in reality,

could have been nothing more than a box cutter handle

without any razorblade in it. Regardless, Studdard

never made any type of movement towards Shepherd,

Reed or anyone else on the scene of Big Orange Road at

or before the time that Studdard was shot. Studdard

never threatened anyone verbally or physically.

The Plaintiff relies upon the following cases which

were in force prior to the shooting of Eddie Studdard on

July 7, 2016 to show that the constitutional right was

clearly established as an obvious case, existing

precedent that squarely governs the specific facts at

issue and that places the constitutional question

beyond debate and/or a consensus of cases of

persuasive authority that clearly establish the

constitutional right:

Sixth Circuit Precedent:

Respondent submits that adequate controlling

precedent is cited in Sova v. City of Mt. Pleasant, 142

F.3d 898 (6th Cir. 1998) In this published opinion and

controlling precedent from the Sixth Circuit, Thomas

Sova was suffering from depression who was armed

with two butcher knives and was harming himself with

the knives. In this case, Sova wanted the police to shoot

him. Sova was in his parents’ home and claims that the

police officers shot him before he ever walked out of the

kitchen door towards the officers. The Sixth Circuit

reaffirmed the precedent of the Court and ruled that

taking the facts in the light most favorable to Sova,

27

that if the jury determines that the police officer shot

Sova without a reasonable belief that he posed a

significant threat of death or serious bodily injury to

the officer or others, then the police officers actions of

shooting Sova were legally unreasonable under the

Fourth Amendment and therefore a violation of Sova’s

clearly established constitutional rights. Again, the

facts in this case are that Sova, like Studdard,

possessed a bladed weapon, with some type of mental

issue but was not advancing toward the officers when

he was shot. This precedent from the Sixth Circuit is

analogous to the facts and law concerning the Studdard

appeal and again reaffirms in the Sixth Circuit that a

person has a right not to be shot unless perceived to be

an immediate threat of death or serious bodily injury in

this factually similar case.

Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir.

1992) This published opinion states the clearly

established precedent from the Sixth Circuit which

states and reaffirms that a person has a constitutional

right not to be shot by the police unless that person is

perceived to pose a threat to the pursuing officers or

others. Id. at 1045. Russo is a factually similar case in

which a man, like Studdard, suspected of having

mental issues, who threatened to take his own life and

being armed with a bladed weapon and both were shot

by police. In that case, the Court held that considering

the evidence in the light most favorable to the

decedent, there would be a violation of the decedent’s

constitutional right not to be shot by police where the

decedent was shot while he was on the stairs some six

to seven steps below the officers and not advancing

towards the officers. The District Court ruled that this

28

case was established precedent in the Sixth Circuit and

that “Russo strongly supports that there is a clearly

established right that squarely governs the facts at

issue in this case.” Petitioner agrees with argument

made in Appellants’ brief that “Russo stands for the

proposition that shooting a suspect who “[never stood

up or charged towards officers” is unreasonable.”

Appellants’ brief at page 29 Considering the facts in

the light most favorable to the Petitioner, there is

admissible proof and/or inferences that Studdard was

standing still and/or swaying in place, more than 34

feet from Reed and Shepherd and that he never

threatened anyone verbally or physically and did not

make any movement towards anyone with a bladed

weapon. Studdard was holding the boxcutter to his own

throat and not moving towards anyone at the time that

he was shot nor was within striking distance with the

box cutter without a razor blade. Studdard was not a

threat of death or serious bodily injury or harm under

the totality of the circumstances. As a result, the

constitutional rights and contours are sufficiently

definite with this established precedent that would

have placed Shepherd and Reed on notice that a

reasonable official in their position would have known

that they were violating the constitutional rights of

Eddie Studdard when they shot him causing his severe

damages and premature death.

Ciminillo v. City of Cincinnati, 434 F.3d 461, 469

(6th Cir. 2006) This Sixth Circuit decision and

precedent, as recognized by the District Court in this

case, held that the police officer in that case was “on

notice that it is unreasonable to use beanbag

propellants against individuals who pose no threat to

29

officer safety” based on Ninth Circuit caselaw. Id and

District Court’s Order denying summary judgment in

this appeal.

Zulock v. Shures, 441 F. App’x 294 (6th Cir. 2010)

(Unpublished) In this case, the Court was again

reviewing an appeal where Zulock had been shot by a

police officer while holding a 10” steak knife in his

kitchen and had refused to drop it and backed or moved

away from the police officer while using verbally

abusive language. In that case, the police officer was

investigating a minor hit and run and had been trained

on the 21 foot rule as Shepherd in this appeal. The

Sixth Circuit held:

If Zulock was approximately twenty feet from

Officer Shures, and if Zulock did not brandish or

point the knife at Officer Shures, and if Zulock

was turning away from Officer Shures when he

was shot in the back of the shoulder, then a

reasonable jury could conclude that Officer

Shures used excessive force against Zulock in

violation of his Fourth Amendment rights.

Id.

In Zulock, the Sixth Circuit held that shooting a

man approximately 20 feet away holding a knife but

not attacking or moving towards anyone and/or

threatening the police or anyone else with death or

serious bodily injury is an obvious case of violating

the constitutional rights of Zulock under the totality of

the circumstances.

Scozzari v. Miedzianowski, 454 F. App’x 455 (6th

Cir. 2012) (Unpublished) The Sixth Circuit denied

30

qualified immunity to police officer who shot a suspect

who was alleged to have been wielding a knife and

hatchet over his head and whether the situation

required a split second decision to use lethal or deadly

force were issues for the jury to determine. Viewing the

evidence in the light most favorable to the plaintiff, the

Court denied qualified immunity to the police officer

because there were facts if believed by the jury that the

decedent was 15 to 20 feet from the officers when he

was shot, was not wielding a knife and hatchet over his

head in aggressive fashion and was not walking

towards the officers when he was shot. This case again

relies on Sixth Circuit precedent that has long

recognized that a person holding a bladed weapon, not

moving towards the police or anyone else, who is 15 to

20 feet away from police and others and the officer has

his gun aimed at the suspect, is not an imminent or

immediate threat of death or serious bodily injury to

the officer or others and shooting said suspect under

those factual circumstances is a violation of a clearly

established right with facts similar to the Studdard

appeal and providing resulting notice of constitutional

violation to Shepherd and Reed.

Lopez v. City of Cleveland, 625 F. App’x 742 (6th

Cir. 2015) (Unpublished) The Sixth Circuit again

denied qualified immunity to officer viewing the facts

in the light most favorable to the plaintiff, who shot a

suspect holding a knife but not moving towards

or attacking anyone. Footnotes to the decision stated

that the law was clearly established that officers

cannot use deadly force unless there was probable

cause to believe that the person posed a risk of serious

risk of harm to officers or others. Again, this fact

31

pattern is similar to the Studdard case where person is

shot by police but there is evidence that the person held

a bladed weapon, threatening to hurt only themselves

and not moving towards or attacking the police or

anyone else.

Other Circuits:

Pitzer v. Tenorio 802 F.3d 1160 (10th Cir. 2015)

cert. denied by U. S. Supreme Court April 18, 2016;

Tenth Circuit Court of Appeals denied qualified

immunity to police officer who shot a suspect who was

holding a bladed weapon to his own throat, made no

threatening gestures towards anyone and was shot

before he was within striking distance of the police or

anyone else, only harming himself and not charging

anyone. See Zuchel v. Spinharney, 890 F.2d 273 (10th

Cir. 1989); Tenth Circuit denied qualified immunity to

police officer who shot suspect with knife who was 1012 feet from officer and not charging or threatening

officer with knife.

Walker v. City of Orem, 451 F.3d 1139 (10th Cir.

2006) Tenth Circuit Court of Appeals recognized and

“specifically established that where an officer had

reason to believe that the suspect was holding a knife,

not a gun, and the suspect was not charging the officer

and had made no slicing or stabbing motions toward

him, that it was unreasonable for the officer to use

deadly force against the suspect”. Id. at 1160. See

Williams v. Indiana State Police Department, (No.

142523) Consolidated with Brown v. Wayne Blanchard

and Walworth County Wisconsin, (No. 14-2808) (7th

Cir. 2015) cert. denied to U.S. Supreme Court April 25,

2016. In Brown, the Seventh Circuit Court of Appeals

32

denied qualified immunity to police officer when

viewing the evidence in the light most favorable to the

Plaintiff, that the Plaintiff possessed a bladed weapon

or knife, was emotionally upset, refused to drop knife,

was threatening suicide but was not approaching or

threatening anyone with death or serious bodily injury

and was only passively resisting.

Glenn v. Washington County, 673 F.3d 864 (9th Cir.

2011) Glenn held pocket knife to his neck and

threatened to kill himself. Glenn had committed no

crime but was upset and destroying some of his

personal property. Glenn had no altercation with

anyone, was not threatening anyone, police were 6 to

12 feet from Glenn and he didn’t have any guns nor

was he wanted for a crime by the authorities. Like

Studdard, Glenn did not drop the pocket knife when

ordered but he never threatened anyone with death or

serious bodily injury except himself.

Mercado v. City of Orlando, 407 F.3d 1152 (11th

Cir. 2005) The 11th Circuit Court of Appeals denied

summary judgment to police officer on grounds of

qualified immunity where officer shot suspect who was

holding a knife and threatening only himself but

suspect was not moving towards or threatening death

or serious bodily injury to police or anyone else.

Duong v. Telford Borough, 186 F. App’x 214 (3d Cir.

2006) Third Circuit Court of Appeals held that viewing

the facts in the light most favorable to the Plaintiff,

that a constitutional violation may have taken place

when police shot Duong who was holding a knife but

33

not pointing it at police or anyone else nor was he

threatening anyone with death or serious bodily injury.

All cases cited predate the shooting of Eddie

Studdard in this cause and clearly establish and place

Defendant Shepherd and Defendant Reed on notice

that the shooting of Eddie Studdard when he was not

moving toward or advancing towards either and he was

at a distance of at least thirty-four (34) feet when he

was shot that he could not have constituted an

imminent threat to cause death or serious bodily injury

to anyone nor was there any reasonable or probable

cause that Eddie Studdard was an immediate threat to

cause serious bodily injury or death to either Shepherd

or Reed or anyone else.

Petitioners cannot rely upon the following cases to

define clearly established law. Kisela v. Hughes, 138

S. Ct. 1148 (2018) is a U.S. Supreme Court decision

that was rendered after July 7, 2016, the date of the

shooting in this case and therefore the facts and

ultimate ruling by the Supreme Court ruling are

respectfully not to be considered by this Court in

defining the relevant clearly established law at the

time.

Stevens-Rucker v. City of Columbus, OH 739

F. App’x 834 (6th Cir. 2018) was issued after July 7,

2016 and cannot be used to define the clearly

established law on that date.

The Sixth Circuit properly reviewed the caselaw

relevant to Petitioners’ Motion for Summary Judgment

and examined the legal position of both sides in

evaluating prior cases and ending the review by

34

applying the facts in the light most favorable to the

Petitioner to reach the legal conclusions. Petitioners’

argument has no merit that the Court of Appeals

considered the wrong set of operative facts in reaching

the legal conclusions. The Sixth Circuit considered the

Petitioner’s facts in the light viewed most favorably to

the Respondent and properly concluded that there is a

genuine issue of material fact in dispute that prevents

summary judgment.

CONCLUSION

The United States Court of Appeals for the Sixth

Circuit properly denied qualified immunity to

Shepherd and Reed because their conduct in shooting

a man holding a boxcutter without a razor and/or what

appeared to be a bladed weapon was not objectively

reasonable under the totality of the circumstances

facing the Petitioners on July 7, 2016. Shepherd and

Reed were on notice that shooting Eddie Studdard was

a violation of his established constitutional rights when

Studdard was shot when he was not moving towards

Shepherd and Reed or anyone else, holding the bladed

weapon to his own throat, not threatening anyone

except himself, made no verbal or physical threats to

anyone, was passively resisting at best, was not a

fleeing felon and was at least 34 feet away from

Shepherd and Reed and not within a distance to

anyone that Studdard would constitute a threat of

serious bodily injury to anybody. The totality of the

circumstances in this appeal presents an obvious case

involving the violation of Eddie Studdard’s clearly

established rights. Regardless, existing precedent in

the Sixth Circuit placed the constitutional question

35

beyond debate and the precedent cited by Respondent

squarely governs the issue in this appeal. Respondent

has further provided authority from other Circuits that

establishes a consensus of cases of persuasive authority

which clearly established Eddie Studdard’s

constitutional right to not be shot by Shepherd and

Reed. As a result, Respondent respectfully request that

this Honorable Court deny Shepherd and Reed’s

Petition in this cause and to remand this matter to the

District Court for jury trial.

Respectfully submitted,

Daniel A. Seward

Counsel of Record

Seward Law Firm

4510 Chickasaw Road

Memphis, TN 38117

(901) 527-5500

sewardlawfirm@aol.com

Counsel for Respondent

December 12, 2019