Petition for Writ of Certiorari — John Turnure, Petitioner v. Latrent Redrick

Ai

No. 22-________

IN THE SUPREME COURT OF THE UNITED STATES

John Turnure

Petitioner

v.

Latrent Redrick

Respondent

On Petition for Writ of Certiorari

To The United States Court of Appeals for the Sixth

Circuit

PETITION APPENDIX

EVE V. BELFANCE

DIRECTOR OF LAW

JOHN CHRISTOPHER REECE

DEPUTY DIRECTOR OF LAW

Counsel of Record

MICHAEL J. DEFIBAUGH

ASSISTANT DIRECTOR OF LAW

City of Akron, Ohio

161 S. High St. Ste. 202

Akron, Ohio 44308

(330) 375-2030

JREECE@AKRONOHIO.GOV

MDEFIBAUGH@AKRONOHIO.GOV

Counsel for Petitioner

Aii

PETITION APPENDIX

Appendix A ................................................................ A1

Appendix B .............................................................. A18

Appendix C .............................................................. A35

Appendix D.............................................................. A36

A1

APPENDIX A

NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0517n.06

Case No. 21-3027

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED NOV. 15, 2021

DEBRAH S. HUNT, CLERK

LATRENT REDRICK; JAMON PRUIETT,

Plaintiffs-Appellees,

v.

CITY OF AKRON, OHIO,

Defendant,

JOHN TURNURE,

Defendant-Appellant

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF OHIO

OPINION

Before: SUTTON, Chief Judge; McKEAGUE and

WHITE, Circuit Judges

A2

McKEAGUE, Circuit Judge.

Akron police officer John Turnure appeals the

district court's denial of his motion for summary

judgment based on qualified immunity. Turnure shot

Latrent Redrick and Jamon Pruiett six times each.

Redrick and Pruiett brought § 1983 claims alleging

unlawful seizure and state-law claims for negligence

and assault and battery, among others. The district

court held that disputes of material fact preclude

summary judgment on these claims. For the reasons

that follow, we AFFIRM in part, REVERSE in part,

and REMAND for further proceedings.

I. Facts

Brothers Latrent Redrick and Jamon Pruiett

were celebrating Redrick's twenty-first birthday in

Akron, Ohio on October 1, 2017. The brothers and

their friends were ordering food late in the night at a

stand outside of Zar Nightclub when a fight broke out

nearby. City of Akron police officers instructed those

in the vicinity, including Redrick and Pruiett, to move

across the street away from the fight. Akron police

officers John Turnure and Utomhin Okoh were

stationed near the nightclub in a police cruiser.

Officer Al Jones was nearby on the street when the

fight broke out.

As Redrick, Pruiett, and a friend of theirs

walked toward their car to go home, a group of men

bumped into the friend. Many of the men wore hoods

tied tightly around their faces ostensibly to obscure

their identities. The men threatened Redrick, Pruiett,

and their friend with physical violence. The brothers

A3

feared they would be harmed. Redrick possessed a

Carrying Concealed Weapon (CCW) license and was

carrying his gun in his pocket.

At this point, the accounts of what happened

diverge. Video, but not audio, of the events was

partially captured by a surveillance camera from a

nearby Goodwill boutique. The parties dispute the

extent to which the video proves their version of the

events.

A. Redrick and Pruiett's Account

According to Redrick, when the group

threatened them, he announced that he had a weapon

and showed it to the group to deescalate the situation,

pursuant to his CCW training. He did so by lifting the

butt of his gun partially out of his pocket and saying,

“I have a license to carry, CCW, get back.” R. 19-1, P.

116. After that, many of the men in the group

dispersed. He claims that he did not point the gun at

anyone, he never raised the gun, and in fact never

pulled the gun fully out of his pocket. The testimony

of Pruiett, Joseph Brantley (one of the brothers’

friends who was at the scene), and Officer Jones all

confirm that they never saw Redrick pull out his gun,

point it at anyone, or brandish it in any way. Redrick

asserts that he never intended to use the gun and his

purpose in showing and announcing the weapon was

de-escalation. Redrick, Pruiett, and their friend kept

walking down the sidewalk toward their

car. Redrick's hand was on the butt of his gun. Redrick

says he did not know a police officer was behind him.

Redrick and Pruiett maintain that Turnure never

gave any commands for Redrick to drop the gun.

Officer Jones, who was roughly five to ten feet from

A4

Redrick, testified that he never heard anyone yell,

“drop the gun.” The surveillance video does not show

anyone turning to look in Turnure's direction at the

time he was allegedly screaming commands to drop

the gun. Turnure fired his gun at Redrick from

behind. As Turnure shot Redrick in the back,

Redrick's elbow jerked up and the gun flew out of his

hand. After the gun was out of Redrick's hand,

Turnure continued to shoot.

Pruiett testified that, as Redrick was being

shot, he saw the gun come out of Redrick's hand. He

thought his brother was dead and that he, too, was

going to die. Not knowing who was shooting and

thinking it was the group of threatening men, he

crouched down and reached for the gun, pulling it to

his chest. Turnure began shooting at Pruiett and shot

him multiple times. Pruiett then, assertedly without

knowing who was firing at him, shot once in Turnure's

direction. The gunshots ceased. Each brother was shot

six times.

B. Turnure's Account

According to Turnure, he was in his police

cruiser when he looked across the street and saw a

person “with an outstretched arm, with a gun in his

hand, pointing it at people on the sidewalk.” R. 23-9,

P. 322. The testimony of Officer Okoh, Turnure's

partner that night, agrees. Turnure exited the police

cruiser and walked toward Redrick. Turnure saw

another Akron police officer, Al Jones, walking across

the street toward Redrick as well. Jones did not

appear to see that Redrick was armed, and so Turnure

contends that he screamed repeatedly, “Gun, gun.

Guy's got a gun.” R. 23-9, P. 318. Turnure made his

A5

way across the street and positioned himself behind

Redrick with his gun drawn and pointing at Redrick.

He saw Redrick with the gun at his side. He claims

that he screamed, “Drop the gun. Drop the gun. Drop

the gun.” R. 23-9, P. 319. Then, Turnure saw the gun

“separate[ ] from his body in a manner.” Id. Turnure

fired into Redrick's back. He continued to fire until the

gun was no longer in Redrick's possession. Then,

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

Pruiett. Pruiett fired back.

C. Procedural History

Redrick and Pruiett filed federal claims

under 42 U.S.C. § 1983 and state-law claims against

the police officers and the City of Akron. The officers

and the city filed a motion for summary judgment,

asserting the defenses of qualified immunity and Ohio

statutory immunity, among others. When the district

court considered the motion for summary judgment,

only three claims remained, all against Officer

Turnure: unconstitutional seizure, negligence, and

assault and battery. The district court denied Turnure

immunity on summary judgment based on the

existence of genuine disputes of material fact.

Turnure appeals.1

II. Standard of Review

We review the district court's denial of

summary judgment de novo. Harrison v. Ash, 539

F.3d 510, 516 (6th Cir. 2008). In doing so, when there

1 Neither party contests that we have jurisdiction in this case.

The parties raise legal issues as well as factual issues, and so we

have jurisdiction to review. See Johnson v. Jones, 515 U.S. 304,

313 (1995); Chappell v. City of Cleveland, 585 F.3d 901, 906 (6th

Cir. 2009).

A6

is video evidence, we view the facts “in the light

depicted by the videotape.” Scott v. Harris, 550 U.S.

372, 381 (2007). But if the video “can be interpreted in

multiple ways or if [the] videos do not show all

relevant facts, such facts should be viewed in the light

most favorable to the non-moving party.” Latits v.

Phillips,

878

F.3d

541,

547

(6th

Cir.

2017) (citing Godawa v. Byrd, 798 F.3d 457, 463 (6th

Cir. 2015)). Viewing the facts in this manner, if “there

are any genuine factual issues that properly can be

resolved only by a finder of fact because they may

reasonably be resolved in favor of either party,” then

summary judgment should be denied. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Fed. R.

Civ. P. 56.

III. Qualified Immunity

Qualified immunity is available to public

officials “insofar as their conduct does not violate

clearly established statutory or constitutional rights

of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). The analysis has two components: (1) whether

a constitutional violation occurred, and (2) whether

the law was clearly established at the time. Saucier v.

Katz, 533 U.S. 194, 201–02 (2001). We have discretion

to consider those two elements in either

order. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

If the right is not clearly established, we may decline

to reach the constitutional question. Ashcroft v. alKidd, 563 U.S. 731, 735 (2011). The touchstone of the

clearly established prong is whether an official had

“fair warning” of the illegality of his actions. Hearring

v. Sliwowski, 712 F.3d 275, 280 (6th Cir. 2013). This

inquiry “do[es] not require a case directly on point, but

A7

existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft, 563

U.S. at 741; see also Rivas-Villegas v. Cortesluna, No.

20-1539, 2021 WL 4822662, at *2–3 (U.S. Oct. 18,

2021); City of Tahlequah v. Bond, No. 20-1668, 2021

WL 4822664, at *2 (U.S. Oct. 18, 2021). Therefore,

“police officers are entitled to qualified immunity

unless existing precedent ‘squarely governs’ the

specific facts at issue.” Kisela v. Hughes, 138 S. Ct.

1148, 1153 (2018) (quoting Mullenix v. Luna, 577 U.S.

7, 13 (2015)).

Viewing the facts in light of the video and

construing the evidence in the manner most favorable

to the plaintiffs, disputes of material fact preclude

summary judgment to Turnure on Redrick's claims.

But there is no clearly established law that places the

unconstitutionality of utilizing deadly force against

Pruiett beyond debate. Thus, we reverse the district

court's denial of qualified immunity as to Pruiett's §

1983 claim but affirm the district court as to

Redrick's § 1983 claim and both plaintiffs’ state-law

claims.

IV. Redrick's Claims

A. Fourth Amendment Claim

1. Constitutional Violation

Redrick claims that Turnure violated his right

to be free from excessive force under the Fourth

Amendment. In assessing whether a constitutional

violation has occurred, we undertake a “fact-specific,

case-by-case inquiry,” considering whether the force

used was reasonable “from the perspective of the

reasonable official on the scene.” Marcilis v. Twp. of

A8

Redford, 693 F.3d 589, 598 (6th Cir. 2012) (quotation

omitted). Reasonableness in the context of deadly

force is a totality-of-the-circumstances inquiry, based

on the three Graham factors: (1) the severity of the

crime at issue, (2) active resistance to law

enforcement, and (3) whether the suspect posed an

immediate threat to the safety of officers or

others. Graham v. Connor, 490 U.S. 386, 396 (1989).

The immediate threat factor is a “minimum

requirement for the use of deadly force.” Untalan v.

City of Lorain, 430 F.3d 312, 314 (6th Cir. 2005); see

also Chappell v. City of Cleveland, 585 F.3d 901, 908

(6th Cir. 2009). And if it is feasible to give a warning

before resorting to lethal force, an officer must do

so. Tenn. v. Garner, 471 U.S. 1, 11–12 (1985). Still,

our inquiry “contains a built-in measure of deference

to the officer's on-the-spot judgment.” Burchett v.

Kiefer, 310 F.3d 937, 944 (6th Cir. 2002); Graham, 490

U.S. at 396–97 (cautioning courts not to look with “the

20/20 vision of hindsight” and to be mindful that

officers face “tense, uncertain, and rapidly evolving”

situations).

a. Severity of the Crime and Active

Resistance

Here, when viewing the facts in the light most

favorable to Redrick, the first two Graham factors do

not support the use of deadly force. On the first factor

(severity of the crime), Turnure argues that he had

probable cause to believe Redrick was committing a

severe crime because he observed Redrick “show” his

gun. But it is legal to carry a gun in Ohio. See Ohio

Rev. Code § 2923.12. Redrick was licensed to carry a

concealed weapon. And although Turnure claims

Redrick raised his gun to shoulder height and pointed

A9

it at the group in front of him, Redrick's account

differs. Redrick maintains that he never raised his

gun to shoulder height and instead that he pulled only

the butt of his gun out of his pocket to reveal that he

possessed a weapon and thus diffuse the situation,

pursuant to his CCW training. Accepting Redrick's

account, as we must on summary judgment, Redrick

did not commit any crime at all, much less one that

would justify deadly force. See Anderson, 477 U.S. at

255. Turnure attempts to rely on Redrick's later

conviction for inducing panic and indictment for

felonious assault to support his argument. 2 But the

reasonableness of an officer's actions is limited to

what the officer could have known at the

time. Bouggess v. Mattingly, 482 F.3d 886, 889 (6th

Cir. 2007). Turnure could not have known about a

subsequent indictment and conviction at the time he

shot Redrick. Thus, Turnure cannot rely on the

severity of any crime to justify his use of force.

On the second factor (active resistance), the

facts are again disputed. Turnure contends that he

gave commands for Redrick to drop his gun, and that

Redrick refused those commands. Redrick claims that

no such commands were given, and he was not aware

of officers’ presence behind him at all. The

surveillance video has no audio and so it does not

resolve the dispute. Construing the evidence in the

light most favorable to Redrick, we assume Turnure

did not issue any commands, and therefore that

Redrick was not resisting. See Anderson, 477 U.S. at

255; Baker v. Union Twp., 587 F. App'x 229, 235–36

(6th Cir. 2014) (“[B]ecause [the officer] gave no

2 Facing multiple felony charges, Redrick accepted a plea deal for

misdemeanor inducing panic. R. 23-4, P. 207–08.

A10

warnings and issued no commands once inside the

house, it would have been impossible for [the plaintiff]

to resist at this time.”). But even if commands were

given, mere noncompliance with an officer's command

does not constitute active resistance. Eldridge v.

Warren, 533 F. App'x. 529, 535 (6th Cir.

2013) (“[N]oncompliance alone does not indicate

active resistance; there must be something more.”).

b. Immediate Threat

That leaves us with the third factor: whether

Redrick posed an immediate threat to officers or

others. Turnure argues that Redrick posed an

immediate threat because he “show[ed]” his gun,

“advance[d]” toward individuals on the sidewalk, did

not respond to commands to drop the gun, and then

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

As discussed above, the nature of Redrick

“showing” his gun is disputed, as is whether Turnure

gave any command or warning to drop the gun. That

leaves Redrick's alleged movement to raise the gun as

the crucial evidence in support of the assertion that

Redrick posed an immediate threat. Contrary to

Turnure's argument, the video evidence is

inconclusive regarding whether Redrick made any

movement to raise his gun. The video does not show

any definitive movement of Redrick's hand prior to

him being shot in the back. Watching the video in real

time, it appears that Redrick was simply holding the

gun in his pocket or at his side while walking down

the sidewalk when he was shot in the back. Redrick

stands firm that he was not making any movement to

raise his gun. A reasonable jury viewing the video

could resolve the dispute in favor of either party.

A11

Therefore, we draw the inferences for purposes

of this appeal (1) that Redrick was not raising his gun,

and that it was instead in his pocket or at his side

prior to his being shot, and (2) that Turnure never

gave Redrick any commands to drop his weapon

before shooting him. Under this version of the facts,

Turnure's actions were unreasonable.

Redrick was in lawful possession of a firearm,

which he kept at his side. But mere possession of a

weapon without more is insufficient to justify deadly

force. See Bouggess, 482 F.3d at 896 (“[E]ven when a

suspect has a weapon, but the officer has no

reasonable belief that the suspect poses a danger of

serious physical harm to him or others, deadly force

is not justified.”); Thomas v. City of Columbus, 854

F.3d 361, 366 (6th Cir. 2017) (“[W]e do not hold that

an officer may shoot a suspect merely because he has

a gun in his hand.”). Although it is not necessary that

a gun be pointed at another person for deadly force to

be justified, there must be some indication that the

possessor of a weapon is willing to and is about to use

the weapon to harm officers or others. See Bouggess,

482 F.3d at 896; Bletz v. Gribble, 641 F.3d 743, 753–

54 (6th Cir. 2011) (unreasonable to shoot when

suspect had a gun in his hands but “there was no

imputation of past or potential future violence on the

part of [the suspect]” and the suspect was complying

with police commands); Brandenburg v. Cureton, 882

F.2d 211, 213, 215 (6th Cir. 1989) (unreasonable to

shoot a suspect who previously threatened violence to

officers but was not pointing his gun at the officer or

others).

And where it is feasible, non-lethal means must

be utilized before resorting to deadly force. Garner,

A12

471 U.S. at 11–12; see also Thomas, 854 F.3d at 366–

67; Dickerson v. McClellan, 101 F.3d 1151, 1163 (6th

Cir. 1996). For example, in Yates v. City of Cleveland,

we held that it was unreasonable for an officer who

entered a home late at night to shoot without

identifying himself when confronted with a suspect

who did not pose an immediate threat. 941 F.2d 444,

447 (6th Cir. 1991). In contrast, in Chappell v. City of

Cleveland, we held that it was reasonable to shoot

without warning when the suspect was “quickly

advancing toward the officers while holding [a] knife

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

Here, Turnure was in position behind Redrick

as he walked down the sidewalk with his lawfully

carried gun in his pocket or at his side. In these

circumstances, Turnure's failure to warn Redrick to

drop his weapon before shooting was unreasonable.

Without any other facts indicating an immediate

danger beyond possession of a lawful firearm, it was

feasible to attempt non-lethal means of deescalating

the situation. Turnure could have ordered Redrick to

drop the gun. If a jury finds those warnings were given

and ignored, this may be a different case. But if the

need for deadly force could have been obviated by a

simple command to drop the weapon and the officer

failed to attempt such less-than-lethal means, deadly

force was unreasonable.

2. Clearly Established

Accepting Redrick's account of the facts,

Turnure violated Redrick's clearly established rights

when he shot him six times from behind without

warning and without any indication that Redrick

would use his lawfully carried gun to harm officers or

A13

others. See Garner, 471 U.S. at 7, 11–12 (deadly force

is unreasonable unless the suspect poses an

immediate threat of harm and, if feasible, a warning

has

been

given).

In

general,

cases

like Graham and Garner cannot clearly establish a

constitutional violation because they are “cast ‘at a

high level of generality.’ ” Cortesluna, 2021 WL

4822662 at *2 (quoting Brosseau v. Haugen, 543 U.S.

194, 199 (2004)). But “in an obvious case, these

standards can ‘clearly establish’ the answer, even

without a body of relevant case law.” Brosseau, 543

U.S. at 199. Under Redrick's facts, this is a case where

no reasonable officer could believe deadly force was

justified. See Garner, 471 U.S. at 7, 11–12. And

beyond that, a body of relevant case law from this

Circuit supports the denial of qualified immunity

here. See David v. City of Bellevue, 706 F. App'x 847,

852 (6th Cir. 2017) (denying qualified immunity when

there was a dispute of fact whether suspect had his

firearm raised); Brandenburg, 882 F.2d at 215–

216 (same); Dickerson,

101

F.3d

at

1154,

1163 (denying qualified immunity when officers shot

a man who had fired nine shots inside his home and

made verbal threats but at that moment was simply

“walk[ing] slowly toward his front door ... his arms

down by his sides”); King v. Taylor, 694 F.3d 650, 653,

663–64 (6th Cir. 2012) (denying qualified immunity

when officers shot a man who had threatened to kill

someone but had his gun “resting on his right hip”

while lying on the couch); Bletz, 641 F.3d at

752 (denying qualified immunity when suspect was

lowering his gun when he was shot); Cf. Thornton v.

City of Columbus, 727 F. App'x 829, 831, 837–38 (6th

Cir. 2018) (granting qualified immunity when officer

shot a man who threatened neighbor children with a

A14

gun and was walking toward officers looking right at

them with his gun pointed “upward and slightly to

[the officer's] right” and failing to comply with

commands). Therefore, summary judgment is

inappropriate.

B. State Claims

Redrick asserts an assault and battery claim

and a negligence claim against Turnure under Ohio

state law. Ohio provides a form of statutory immunity

to state employees unless they acted “outside the

scope of the employee's employment” or “with

malicious purpose, in bad faith, or in a wanton or

reckless manner.” Ohio Rev. Code § 2744.03(A)(6)(a)–

(b). We have held that “[w]hen federal qualified

immunity and Ohio state-law immunity under [Ohio

Rev. Code] § 2744.03(A)(6) rest on the same questions

of material fact, we may review the state-law

immunity defense ‘through the lens of federal

qualified immunity analysis.’ ” Wright v. City of

Euclid,

962

F.3d

852,

878

(6th

Cir.

2020) (quoting Hopper v. Plummer, 887 F.3d 744, 759

(6th Cir. 2018)). For the same reasons and disputed

facts relevant to Redrick's § 1983 claim that compel us

to find Turnure's shooting Redrick was objectively

unreasonable, a jury could find that Turnure acted in

a wanton or reckless manner or with malicious

purpose.3 So, state statutory immunity is unavailable

to Turnure on summary judgment.

After the shooting stopped, Turnure walked over to where

Redrick and Pruiett lay on the sidewalk. Redrick said, “pick me

up, please.” Turnure responded, “f*** you,” as confirmed by his

own testimony. R. 23-9, P. 338.

3

A15

V. Pruiett's Claims

Pruiett also claims that Turnure violated his

Fourth Amendment rights by shooting him. Holding

that using deadly force against Redrick was

unreasonable does not dictate that shooting Pruiett

was likewise unreasonable. See Los Angeles v.

Mendez, 137 S.Ct. 1539, 1544 (2017) (“A different

Fourth Amendment violation cannot transform a

later, reasonable use of force into an unreasonable

seizure.”); Livermore ex rel. Rohm v. Lubelan, 476

F.3d 397, 406–07 (6th Cir. 2007). But we need not

reach the constitutionality of Turnure's actions as

related to Pruiett because the law in these

circumstances was not clearly established.

A. Fourth Amendment Claim

When the shooting occurred, case law did not

clearly establish that Turnure's use of deadly force

against Pruiett was unconstitutional. See Ashcroft,

563 U.S. at 741; Cortesluna, 2021 WL 4822662, at

*3; City of Tahlequah, 2021 WL 4822664, at *2. The

situation was unfolding rapidly. Amidst gunfire,

Redrick's firearm came out of his hand and Pruiett

lunged for it. This quick movement toward a deadly

weapon in the heat of gunfire is different from

Redrick's simply holding a lawful weapon at his side.

Because Pruiett was grabbing for the gun, the

immediacy of the situation makes it less feasible that

less-than-lethal force, i.e. giving commands to drop

the gun, would have sufficed. There was no clearly

established law from the Supreme Court or this

Circuit that would have informed Turnure that using

deadly force against a suspect who lunged for a

weapon amidst a dangerous altercation was unlawful.

A16

Plaintiffs cite Bouggess v. Mattingly to argue

that having and holding a weapon is not enough to

make deadly force reasonable, but that case does not

squarely govern the facts before us. 482 F.3d at 896.

More than mere possession of a weapon, Pruiett made

a quick movement to grab the gun as his brother was

being fired upon. The immediacy of that movement—

and the inference that could reasonably be drawn

regarding what a person might do with a gun after

they grab it during a gunfight—is a material factual

difference between this case and those referenced in

Redrick's analysis that may otherwise clearly

establish the law.

B. State Claims

Although Ohio statutory immunity often fails when

federal qualified immunity is denied, the same is not

necessarily true in reverse. See Martin v. City of

Broadview Heights, 712 F.3d 951, 963 (6th Cir.

2013) (citing Chappell, 585 F.3d at 916 n.3) (stating

that “officers may be entitled to state-law immunity if

qualified immunity shields them from liability on

federal claims”); see also Wilson v. Gregory, 3 F.4th

844, 860 (6th Cir. 2021) (“But in this case, our federal

qualified immunity analysis turns on the ‘clearly

established’ prong. As a result, ‘the availability of both

federal qualified immunity and state law immunity’

does not entirely ‘depend[ ] on the correctness of the

district court's finding of the existence of the very

same questions of fact’ because Ohio statutory

immunity does not turn on whether a particular right

was clearly established.”) (quoting Chappell, 585 F.3d

at 907 n.1, 916 n.3). The statute contains no explicit

“clearly established” law requirement. See Ohio Rev.

Code § 2744.03. Because Turnure's qualified

A17

immunity defense is granted here on “clearly

established” grounds and we do not decide the

constitutionality of his conduct in relation to Pruiett,

the state-law claims are not foreclosed. A reasonable

jury could find that Turnure acted “with malicious

purpose, in bad faith, or in a wanton or reckless

manner” when he shot Pruiett after Pruiett picked up

the gun but before he ever fired a shot, especially

considering this incident was precipitated by his

unconstitutional shooting of Redrick. Ohio Rev. Code

§ 2744.03(A)(6)(a); see King v. City of Columbus, No.

2:18-CV-1060, 2021 WL 3367507, at *5, *8 (S.D. Ohio

Aug. 3, 2021) (denying statutory immunity because a

jury could find that an officer's use of deadly force was

wanton and reckless when the suspect had a gun but

did not pose a threat to officers). Therefore, summary

judgment as to Pruiett's state-law claims is

inappropriate.

VI. Conclusion

For these reasons, we AFFIRM the district

court's denial of summary judgment to Turnure as to

Redrick's federal and state claims and as to Pruiett's

state claims, REVERSE the district court's denial as

to Pruiett's federal claim, and REMAND to the

district court for further proceedings consistent with

this opinion.

A18

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Case No. 5:18-CV-2523

Judge John R. Adams

Latrent Redrick, et al.,

Plaintiffs,

v.

City of Akron, Ohio, et al.

Defendants.

MEMORANDUM OF OPINION

This matter comes before the Court on a motion

for summary judgment filed by Defendants John

Turnure, Utomhin Okoh and Scott Lietke.4 Plaintiffs

Latrent Redrick and Jamon Pruiett have opposed the

4 Within their response, Plaintiffs note: “Plaintiffs do not proceed

on claims against Okuh [sic] or Leitke [sic], and dismiss all

claims against them. Plaintiffs further limit their claims against

Turnure to Unconstitutional Seizure (Sixth Claim for Relief),

Assault and Battery (First Claim for Relief), and Negligence –

Willful, Wanton, and/or Reckless Conduct (Second Claim for

Relief).” Doc. 26 at 20. Accordingly, the claims against

Defendants Okoh and Lietke are hereby dismissed, and the

Court will solely analyze the remains counts against Defendant

Turnure – counts one, two, and six.

A19

motion, and Defendants have replied. Plaintiffs have

also sought leave to file a sur-reply, and Defendants

have opposed that motion. The motion for leave (Doc.

29) is GRANTED. The Court will consider the surreply in reviewing the pending motion for summary

judgment. For the reasons that follow, Defendants’

motion is DENIED.

I. Facts & Procedure

On October 1, 2017, Redrick and his brother

Pruiett were in downtown Akron, Ohio to celebrate

Redrick's 21st birthday. Eventually, Redrick and

Pruiett and several others ended up outside Zar

Nightclub near closing time. While Redrick's group

was attempting to place a food order with a nearby

food stand, a fight broke out at the exit of Zar. Turnure

and Okoh were stationed downtown due to prior

criminal activity that had occurred at or around the

closing time of the downtown bars and nightclubs and

observed this initial scuffle. At that time, the officers

decided not to intervene unless matters escalated.

According to Redrick, a short time later, a

group of individuals crossed paths with his group of

friends and bumped into one of Redrick's friends.

Redrick indicated that the other group was saying “a

bunch of junk.” Specifically, Redrick asserts that the

other group was making threatening remarks to his

friend, T.J. Redrick contends that in an attempt to deescalate the situation, he revealed to the other group

that he was carrying a conceal weapon.5 At the time,

5 As discussed below, the parties do not agree to what extent

Redrick did or did not remove the firearm from his pocket.

A20

Redrick possessed a concealed carry permit for the

weapon.

Okoh contends that around this time he

witnessed an individual, later identified as Redrick,

raise a pistol to shoulder level and continue to

approach another group of people. At that time, Okoh

yelled to Turnure, “Gun, gun. He's got a gun.” Turnure

claimed to witness the same activity: “I look across the

street to – on the other side of Main Street, and I see

a suspect with an outstretched arm, with a gun in his

hand, pointing it at people on the sidewalk.” Turnure

then exited his cruiser to cross the street to approach

the suspect he claims to have witnessed holding a

firearm. At that time, Turnure observes Officer Al

Jones also approaching this same group of

individuals.

According to Turnure, he attempted in vain to

inform Jones of the imminent threat posed by the

firearm: I am screaming at Al, “Gun, gun. Guy's got a

gun.” I was screaming it repeatedly. The only way I

can describe it, it's a nightmare that when you scream,

nothing comes out; or you're screaming and no one can

hear you. It was along those lines. I'm just screaming,

screaming, “Al, he's got a gun. Al. he's got a gun.” Doc.

23-9 at 5-6. Jones, however, never heard any such

statement from Turnure. Turnure then finished

crossing the street and came up behind Redrick and

his group of friends. According to Turnure, he was

repeatedly screaming “Drop the gun” as he

approached the group.

I find myself behind the suspect with the

gun in hand. I can now locate he's got a

gun down at his side. I can see the butt

A21

of the gun in his hand, and I'm walking

behind him. I had my gun drawn. My

gun is pointed at him. And I'm screaming

now [ ] at the suspect. I'm screaming,

“Drop the gun. Drop the gun. Drop the

gun.”

Doc. 23-9 at 6. However, no one in the group or

elsewhere on the street that night testified to hearing

any statement from Turnure at any time.

Turnure's version of events continued:

I'm following him, and the gun separates

from his body in a manner. So I know

there's potential victims in front of him.

And he goes -- he begins the motion to

raise the pistol. At that point, I begin to

fire into the suspect's back.

Doc. 23-9 at 6. Turnure contends that he continued to

fire his weapon only until Redrick was no longer in

possession of the firearm. He then scanned the area

and saw Pruiett diving for the firearm. At that time,

he began firing at Pruiett. Pruiett returned a single

shot in Turnure's direction. At that time, Turnure

retreated. However, his initial actions resulted in

Redrick being shot in the back four times, and Pruiett

being shot as well.

Redrick's version of the events surrounding

him being shot vary significantly from Turnure's

account. As noted above, Redrick contends that he

attempted to use the visibility of his firearm to

deescalate the confrontation that was occurring with

the second group of individuals.

A22

In an effort to deescalate the situation

pursuant to my CCW training, I showed

the gun to the group of menacing men by

holding the butt of the gun, and lifting it

partially out of my pocket so they could

see the handle of the gun, while I

announcing to them that I carried a gun.

Doc. 26-4 at 1. Redrick contends that he never fully

removed the firearm from his pocket, never raised his

arm holding the firearm, and never pointed the

firearm at anyone. Describing the precise time of the

shooting, Redrick offered the following in his affidavit:

17. I again placed my hand on the butt of

my gun-but did not remove the gun from

my pocket-when Turnure began to shoot

me.

18. Prior to shooting me, Officer Turnure

did not give any orders or commands to

drop the gun.

19. Prior to shooting me, Officer Turnure

did not announce his presence.

20. Prior to being shot, I did not know

Officer Turnure was behind me.

21. When Officer Turnure shot me in the

back, my elbow went up involuntarily

and the gun flew out of my hand.

Doc. 26-4 at 2. Redrick further asserts that Turnure

continued to shoot at him after he lost possession of

the firearm and was on the ground with his hands in

the air.

A23

Based upon this version of events, Redrick and

Pruiett filed a slew of claims against Turnure, Okoh,

Leitke, and the City of Akron. As noted above, only

three claims – all against Turnure – remain for this

Court to consider in this motion for summary

judgment: Unconstitutional Seizure (Sixth Claim for

Relief), Assault and Battery (First Claim for Relief),

and Negligence – Willful, Wanton, and/or Reckless

Conduct (Second Claim for Relief). The Court now

examines those claims.

II. Legal Standard

Summary judgment is appropriate only when

there is no genuine issue of material fact and the

movant is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477

U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477

U.S. 242 (1986); Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574 (1986). The moving party

must demonstrate to the court through reference to

pleadings and discovery responses the absence of a

genuine issue of material fact. Celotex Corp. v.

Catrett, 477 U.S. at 323. This is so that summary

judgment can be used to dispose of claims and

defenses which are factually unsupported. Id. at 324.

The burden on the nonmoving party is to show,

through the use of evidentiary materials, the

existence of a material fact which must be

tried. Id. The court's inquiry at the summary

judgment stage is “the threshold inquiry of

determining whether there is the need for a trial whether, in other words, there are any genuine factual

issues that properly can be resolved only by a finder

of fact because they may reasonably be resolved in

A24

favor of either party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. at 250.

The court's treatment of facts and inferences in

a light favorable to the nonmoving party does not

relieve that party of its obligation “to go beyond the

pleadings” to oppose an otherwise properly supported

motion

for

summary

judgment

under Rule

56(e). See Celotex Corp. v. Catrett, 477 U.S. at 324.

The nonmoving party must oppose a proper summary

judgment motion “by any kinds of evidentiary

material listed in Rule 56(c), except the mere

pleadings themselves...” Id. Rule 56(c) states, “...[t]he

judgment sought shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, show that there is no genuine issue of material

fact and that the moving party is entitled to a

judgment as a matter of law.” A scintilla of evidence

in favor of the nonmoving party is not sufficient.

III. Law and Analysis

§ 1983 claim for unlawful seizure

Redrick and Pruiett raise a claim under 42

U.S.C. § 1983, alleging a constitutional violation of

their Fourth Amendment rights to be free from

unlawful seizure. To state a claim under § 1983, a

plaintiff must set “forth facts that, when construed

favorably, establish (1) the deprivation of a right

secured by the Constitution or laws of the United

States (2) caused by a person acting under the color of

state law.” Burley v. Gagacki, 729 F.3d 610, 619 (6th

Cir. 2013) (internal citation omitted). No one disputes

that Turnure was acting under the color of state law.

Rather, this motion challenges whether the rights of

A25

Redrick and Pruiett were indeed violated and if so

whether the Turnure is entitled to qualified

immunity.

Qualified immunity is appropriate when an

official's conduct “does not violate clearly established

statutory or constitutional rights of which a

reasonable person would have known.” Mullenix v.

Luna, 577 U.S. 7, 11(2015) (internal citation omitted).

A clearly established right is one that is “sufficiently

clear that every reasonable official would have

understood that what he is doing violates that

right.” Reichle v. Howards, 566 U.S. 658, 664

(2012) (internal quotation marks and alteration

omitted). “We do not require a case directly on point,

but existing precedent must have placed the statutory

or constitutional question beyond debate.” Ashcroft v.

al–Kidd, 563 U.S. 731, 741 (2011). Put simply,

qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the

law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

The Court's qualified immunity analysis

contains two components, which courts may analyze

in any order: (1) whether the plaintiff has established

with the requisite proof the violation of a

constitutional right, and (2) whether the

particularized right at issue was “clearly established”

at the time of the alleged misconduct. Pearson v.

Callahan, 555 U.S. 223, 232- 236 (2009). When a

defendant invokes qualified immunity in a motion for

summary judgment, the plaintiff must offer sufficient

evidence to create a genuine dispute of fact that the

defendant

violated

a

clearly

established

right. DiLuzio v. Vill. of Yorkville, 796 F.3d 604, 608–

09 (6th Cir. 2015).

A26

“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. Thus, if the suspect threatens the

officer with a weapon or there is probable cause to

believe that he has committed a crime involving the

infliction or threatened infliction of serious physical

harm, deadly force may be used if necessary to

prevent escape, and if, where feasible, some warning

has been given.” Tennessee v. Garner, 471 U.S. 1, 11–

12, (1985). “This Circuit has employed a nonexhaustive list of three factors to evaluate whether an

officer's actions are reasonable: ‘(1) the severity of the

crime at issue; (2) whether the suspect poses an

immediate threat to the safety of the officers or others;

and (3) whether the suspect is actively resisting arrest

or attempting to evade arrest by flight.’ Mullins v.

Cyranek, 805 F.3d 760, 765

(6th

Cir.

2015) (quoting Sigley v. City of Parma Heights, 437

F.3d 527, 534 (6th Cir. 2006)). But the ultimate

inquiry is always whether the totality of the

circumstances justified the use of force.” Littlejohn v.

Myers, 684 F. App'x 563, 567 (6th Cir. 2017). With

respect to deadly force, the Sixth Circuit has further

explained:

With that said, this Court has explicitly

stated—regardless of the other factors—

that with respect to the use of deadly

force, there is a minimum requirement

that the officer have “probable cause to

believe that the suspect poses a threat of

severe physical harm, either to the

officer or others.” Untalan v. City of

A27

Lorain, 430 F.3d 312, 314 (6th Cir. 2005).

Our analysis turns on whether Myers

had probable cause to believe that

Littlejohn presented a serious danger to

either himself or others at the moment

Myers

discharged

his

firearm. See Bouggess v. Mattingly, 482

F.3d 886, 890 (6th Cir. 2007) (the

relevant time for purposes of this inquiry

“is the moment immediately preceding

the shooting”). As a general note, the

mere fact that Littlejohn was a felon

fleeing from police is not sufficient to

justify the use of deadly force. Tennessee

v. Garner, 471 U.S. 1 (1985) (“It is not

better that all felony suspects die than

that they escape. Where the suspect

poses no immediate threat to the officer

and no threat to others, the harm

resulting from failing to apprehend him

does not justify the use of deadly force to

do so.”). On the other hand, if a suspect

threatens either an officer or any other

person with serious physical harm

during

flight,

deadly

force

is

authorized. Dickerson, 101 F.3d at 1163.

Id. “The ‘reasonableness’ of a particular use of force

must be judged from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision

of hindsight.” Graham v. Connor, 490 U.S. 386, 396

(1989). As such, the Court must undertake its analysis

“in light of the facts and circumstances confronting

[the officers], without regard to their underlying

intent or motivation.” Id. at 397.

A28

A. Redrick

With respect to Redrick, Turnure's arguments

that his force was reasonable as premised upon

numerous disputed facts:

With respect to the severity of the crime

at issue, Turnure observed Redrick raise

a gun in the direction of two individuals

standing in the middle of a crowd at bar

closing time, causing people to panic.

...

With respect to active resistance and

evasion by flight, there can be no serious

dispute that Turnure did not observe

Redrick respond to the officers’

commands to drop the gun.

...

With respect to the immediacy of the

threat, the following undisputed facts

establish that a reasonable officer on

scene would have believed that Redrick's

actions posed a significant physical

threat to Turnure or the individuals on

the sidewalk: (1) Turnure observed

Redrick pull a handgun on a crowd of

people outside a bar in the midst of an

altercation; (2) moments later, Redrick

was moving in the direction of the same

group of individuals on the sidewalk

with the gun at his side; (3) Redrick does

not respond to Turnure or Okoh's

commands to drop the gun; (4) there are

several individuals at or around the

A29

sidewalk/street area near Redrick; (5)

Redrick maintains the handgun at his

side with Turnure, Okoh, Jones and

others in close proximity and without

protective cover; and (6) the handgun

separates from Redrick's body[.]

Doc. 23 at 18-19.

As noted above, Redrick denies ever raising the

firearm and pointing it at anyone. In fact, Redrick

contends that the firearm never fully left his pocket

prior to him being shot by Turnure. While Turnure

contends that Redrick's prior sworn testimony

contradicts this assertion, the Court disagrees.

Rather, Redrick's prior sworn testimony indicated

that Redrick “showed” the firearm to the opposing

group of individuals. Contrary to Turnure's

contention, that is not an admission by Redrick that

he fully removed the firearm from his pocket or raised

it to shoulder level. As such, there remains an issue of

fact

surrounding

whether

Redrick

engaged

in any crime prior to the use of deadly force.

Turnure's contention that Redrick actively or

passively resisted his command to drop the firearm

fares no better. Turnure appears to contend that

because his sworn testimony includes that he gave the

command, this fact must be established as true.

However, the record contains numerous examples of

individuals that note that they never heard Turnure

give any commands. This list includes Officer Jones

who was in close proximity to the shooting and never

heard any of things that Turnure allegedly shouted

over and over. Thus, while the Court may be required

to accept Turnure's assertion that he gave the

A30

command, it must also accept that whatever command

Turnure gave was given in a manner that Redrick was

unable to hear it. As such, at best, there exists a

question of fact regarding whether Redrick ignored

commands.

Finally, Turnure alleges that the firearm

separated from Redrick's body in the split second

before he opened fire. Meanwhile, Redrick contends

that he never made such a movement. Turnure

asserts that this particular factual dispute can be

resolved by virtue of the surveillance video that

caught portions of the events at issue. In that regard,

Turnure is correct that when evaluating the

circumstances of Turnure's use of deadly force,

“where, as here, there is ‘a videotape capturing the

events in question,’ the court must ‘view[ ] the facts in

the light depicted by the videotape.’ ” Green v.

Throckmorton, 681 F.3d 853, 859 (6th Cir.

2012)(quoting Scott v. Harris, 550 U.S. 372, 381

(2007).

At

the

summary

judgment

stage, Scott “instructs [courts] to determine as a

matter of law whether the events depicted on the

video... show that the Officer's conduct was objectively

reasonable.” Dunn v. Matatall, 594 F.3d 348, 353 (6th

Cir. 2008).

However, the dispute raised by the parties –

whether Redrick began to remove the firearm from his

pocket at the moment immediately before Turnure

began to fire at him – cannot be resolved by viewing

the grainy video from the nearby surveillance

camera. The Court has viewed the video and closely

reviewed the individual frames pulled from the video

by the parties. The competing positions of the parties

are both reasonable interpretations of the view. A jury

A31

could review the video and find Turnure's version of

events to be credible – that he did not open fire until

he saw movement from Redrick. Likewise, a

reasonable juror could conclude that any movement

from Redrick was the result of him being shot by

Turnure. In other words, the frame-by-frame pictures

presented to the Court simply do not provide a

definitive view of the disputed event. Moreover, when

evaluating the video of the event, this Court and “the

jury might reasonably consider why the other [ ]

officers did not fire shots if it was quite obvious that

they were being threatened with imminent bodily

harm.” Brandenburg v. Cureton, 882 F.2d 211, 215

(6th Cir. 1989).

Accordingly, every substantial aspect of the

Court's totality-of-the-circumstances review is

clouded by a dispute of facts. Viewing those facts in a

light most favorable to Redrick, he committed no

crime, resisted no lawful commands, and was shot

from behind. Accordingly, his § 1983 claim survives.

For similar reasons, Turnure is not entitled to

qualified immunity for this claim. In this respect, the

Court agrees with a colleague from the Southern

District of Ohio who noted:

[T]he law is clearly established that,

even when officers respond to a report

that a suspect is brandishing a loaded

gun, the use of deadly force is not

justified unless the suspect either points

the gun at the officers or makes some

other kind of movement, gesture or

verbal statement giving rise to a

reasonable belief that the officers or

A32

others were in imminent danger of

serious bodily harm.

Sherrod v. Williams, No. 3:14-CV-454, 2019 WL

267175,

at *15 (S.D. Ohio Jan. 15, 2019).6

Sherrod went on to review the holding in King v.

Taylor, 694 F.3d 650 (6th Cir. 2012). King noted that

“we have little trouble concluding that if Taylor shot

King while he was lying on his couch and not pointing

a gun at the officers, Taylor violated King's clearlyestablished right to be free from deadly force.” Id. at

664. In that regard, King noted that there was a

genuine issue of material fact surrounding whether

the gun was pointed at the officer at the time of the

shooting. The same dispute exists here. Until the

details surrounding Redrick's alleged movements at

the time of the shooting are resolved by a jury,

Turnure cannot demonstrate that he is entitled to

qualified immunity.

For these same reasons, Redrick's state law

claims also survive summary judgment. The heart of

each claim centers upon the same disputed facts set

forth above and must be resolved by a jury.

B. Pruiett

Sherrod is

unavailing. Turnure is correct that other cases have found that

the use of deadly force was valid without a firearm being aimed

at an officer. However, Sherrod and the case it cites, King, do not

make such a finding a prerequisite to the use of deadly force.

Rather, it simply requires a “movement, gesture or verbal

statement.” In other words, a defendant must do something more

than simply lawfully possess a firearm. Here, when the facts are

viewed in a light most favorable to Redrick, he did not engage in

that something more.

6 Turnure's attempt to cast doubt on this holding in

A33

There are undoubtedly aspects of Pruiett's

excessive force claim that directly overlap with the

Court's analysis of Redrick's claims. For example,

there is no evidence that Pruiett ever heard any of the

commands allegedly issued by Turnure. As such,

Turnure cannot demonstrate, at this stage of the

litigation, any active resistance by Pruiett. Similarly,

given the dispute over whether Turnure ever

identified himself, there remains a question of fact

surrounding the alleged crime Pruiett is to have

committed. Without Turnure identifying himself as a

police officer, Pruiett could have reasonably believed

that shots were being fired at him and his brother by

a member of the opposing group. At that point, Pruiett

would have been permitted to lawfully return fire in

defense of himself and others. As a result, it cannot

simply be said that Pruiett engaged in felonious

conduct by firing the firearm – or threatening to – at

Turnure.

*7 However, unlike Redrick's shooting, there

can be dispute that there was an immediacy attached

to Pruiett's shooting. When Turnure opened fire at

Pruiett, it was immediately after Pruiett had lunged

to the ground to grab the firearm that had fallen from

Redrick's grasp. While Pruiett contends that he did

not then aim the firearm at Turnure, it was entirely

reasonable for Turnure to assume that Pruiett dove

for the firearm with every intent to use it. As such,

there was an immediate threat.

Upon reviewing the totality of the

circumstances, the Court finds that the existing

genuine issues of material fact on the issues leading

to Pruiett's shooting preclude summary judgment. It

would be a somewhat remarkable result for a jury to

A34

conclude that Redrick's shooting was an excessive use

of force and for this Court to have concluded that

Turnure could rely on that excessive use of force to

justify Pruiett's shooting. In other words, the jury's

resolution of the disputed facts surrounding Redrick's

shooting will serve to determine the reasonableness of

the shooting of Pruiett as well as the two events are

inextricably intertwined. Pruiett's claims, therefore,

must also be considered by a jury.

IV. Conclusion

Defendants’ motion for summary judgment

DENIED. Consistent with Plaintiffs’ pleadings, all

remaining claims against Defendants Okoh and

Lietke are hereby dismissed. The remaining claims

shall be heard be a jury. A telephone status conference

for counsel only is hereby scheduled for January 7,

2021 at 3:00 p.m. Plaintiffs’ counsel shall provide the

Court a call-in number to utilize for the conference.

IT IS SO ORDERED.

A35

APPENDIX C

A36

APPENDIX D