Petition for Writ of Certiorari — Jason Cunningham, Individually and as Administrator ad Litem and Personal Representative of the Estate of Nancy Jane Lewellyn, Deceased, Petitioner v. Robert Paschal, et al.

No. ______

In the Supreme Court of the United States

__________________

JASON CUNNINGHAM, Individually and as Adult

Natural Son and Sole Wrongful Death Beneficiary

and next of Kin, Affiant and Administrator Ad Litem

and Personal Representative for Nancy Jane

Lewellyn, Deceased and Estate of Nancy Jane

Lewellyn,

Petitioner,

v.

ROBERT PASCHAL, Individually and in his Official

Capacity as a Shelby County Sheriff’s Deputy and

MARVIN WIGGINS, Individually and in his Official

Capacity as a Shelby County Sheriff’s Deputy,

Respondents.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

DANIEL A. SEWARD

Counsel of Record

SEWARD LAW FIRM

4510 Chickasaw Road

Memphis, TN 38117

(901) 647-5848

sewardlawfirm@aol.com

Counsel for Petitioner

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

i

QUESTIONS PRESENTED

1. Does the ruling in this case by the U.S. Court of

Appeals for the Sixth Circuit violate basic fundamental

principles of Rule 56 of the Federal Rules of Civil

Procedure and therefore in direct conflict with existing

precedent of the United States Supreme Court’s

holdings in Tolan v. Cottan, 572 U.S. 650 (2014) and

Scott v. Harris, 550 U.S. 372 (2007) when the Sixth

Circuit refused to view any of the facts in the light

most favorable to the nonmoving party which were not

“utterly discredited” by the dash cam videos but rather

should have been viewed in in the light most favorable

to the Petitioner in conjunction with the videos to show

a dispute as to material fact as to whether Lewellyn

posed a threat of death or serious bodily injury at the

time she was shot ten (10) times? The Sixth Circuit

refused and/or did not consider deposition testimony

from Respondent Paschal who was outside of his SUV,

regarding distance and cover between Paschal and

Lewellyn and two photograph exhibits identified by

Respondent Paschal that depict the scene of the

shooting of Lewellyn and the position, field of vision

and line of sight of Respondent Paschal when he fired

his first shot from sixty feet away behind the cover of

Jayroe’s SUV that establishes a dispute as to material

fact that Lewellyn was not pointing the bb gun at

Paschal or anywhere in his vicinity and therefore posed

no objective reasonable threat of death or serious bodily

injury to Paschal which establishes a dispute as to

material facts and contradicts Paschal’s deposition

testimony and the dash cam videos constitutes

admissible evidence of a violation of Nancy Lewellyn’s

constitutional rights that were clearly established,

ii

precluding summary judgment on the basis of qualified

immunity. (ECF Nos. 93, 93-1, Photographs, PageID

489, PageID490)

2. Does the continued shooting of a mentally

disturbed suspect such as Lewellyn, eight (8) times by

Respondents after Paschal has shot her two times and

the dash cam videos clearly show that Lewellyn had

obviously surrendered the bb gun and/or fell to the

ground incapacitated without the bb gun or weapon

and posed no threat to Respondents, constitute

gratuitous violence and excessive force that is a

constitutional violation and clearly established under

the law and/or an obvious case under the existing

precedent and holdings of the United States Supreme

Court in Plumhoff v. Rickard, 572 U.S. 765 (2014),

precluding summary judgment on the basis of qualified

immunity?

iii

LIST OF PARTIES

All parties to the proceeding in the court whose

judgment is the subject of this petition appear in the

caption of the case on the cover page.

Shelby County, Tennessee and Sheriff William

Oldham are not parties to the proceeding in the court

whose judgment is the subject of this petition.

No corporations are involved in these proceedings.

RELATED CASES

Cunningham v. Shelby County, Tennessee et al.,

No. 2:18-cv-02185-TLP-dkv U.S. District Court for the

Western District of Tennessee at Memphis. Order

Denying Summary Judgment on April 1, 2020.

(Appendix B)

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

LIST OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . iii

RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . v

PETITION FOR WRIT OF CERTIORARI . . . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 4

REASONS FOR GRANTING THE PETITION . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

APPENDIX

Appendix A Opinion in the United States Court of

Appeals for the Sixth Circuit

(April 19, 2021) . . . . . . . . . . . . . . . App. 1

Appendix B Order Denying Motion for Summary

Judgment Based on Qualified

Immunity in the United States

District Court for the Western District

of Tennessee

(April 1, 2020) . . . . . . . . . . . . . . . App. 12

v

TABLE OF AUTHORITIES

CASES

Bletz v. Gribble,

641 F.3d 743 (6th Cir. 2011). . . . . . . . . . . . . 26, 28

Bouggess v. Mattingly,

482 F.3d 886 (6th Cir. 2007). . . . . . . 25, 27, 28, 30

Brandenburg v. Cureton,

882 F.2d 211 (6th Cir. 1989). . . . . . . . . . . . . 28, 29

Ciminillo v. Streicher,

434 F.3d 461 (6th Cir. 2006). . . . . . . . . . . . . . . . 26

Craighead v. Lee,

399 F.3d 954 (8th Cir. 2005). . . . . . . . . . . . . . . . 30

Davenport v. Causey,

521 F.3d 544 (6th Cir. 2008). . . . . . . . . . . . . . . . 24

Dickerson v. McClellan,

101 F.3d 1151 (6th Cir. 1996). . . . . . . . . . . . 27, 29

Graham v. Connor,

490 U.S. 386 (1989). . . . . . . . . . . . . . . . . . . . . . . 26

King v. Taylor,

694 F.3d 650 (6th Cir. 2012). . . . . . . . . . 26, 28, 29

Kirby v. Duva,

530 F.3d 475 (6th Cir. 2008). . . . . . . . . . . . . . . . 27

Kisela v. Hughes,

138 S. Ct. 1148 (2018). . . . . . . . . . . . . . . . . . . . . 28

Latits v. Phillips,

878 F.3d 541 (6th Cir. 2017). . . . . . . . . . . . . . . . 28

vi

Margeson v. White County, Tennessee,

579 Fed.Appx. 466 (6th Cir. 2014) . . . . . . . . 21, 30

McCaig v. Raber,

515 Fed.Appx. 551 (6th Cir. 2013) . . . . . . . . . . . 21

Mullins v. Cyranek,

805 F.3d 760 (6th Cir. 2015). . . . . . . . . . 25, 26, 27

Plumhoff v. Rickard,

572 U.S. 765 (2014). . . . . . . . . . . . . . . . . . . . 20, 29

Robinson v. Bibb,

840 F.2d 349 (6th Cir. 1988). . . . . . . . . . . . . . . . 26

Sample v. Bailey,

409 F.3d 689 (6th Cir. 2005). . . . . . . . . . . . . . . . 26

Saucier v. Katz,

533 U.S. 194 (2001). . . . . . . . . . . . . . . . . . . . . . . 25

Schreiber v. Moe,

596 F.3d 323 (6th Cir. 2010). . . . . . . . . . . . . . . . 24

Scott v. Harris,

550 U.S. 372 (2007). . . . . . . . . . . . . . . . . 19, 24, 33

Sigley v. City of Parma Heights,

437 F.3d 527 (6th Cir. 2006). . . . . . . . . . . . . . . . 26

Tennessee v. Garner,

471 U.S. 1 (1983). . . . . . . . . . . . . . . . . . . . . . 26, 27

Thomas v. City of Columbus,

854 F.3d 361 (6th Cir. 2017). . . . . . . . . . . . . . . . 27

Tolan v. Cottan,

572 U.S. 650 (2014). . . . . . . . . . . . . . . . . . . . 19, 33

vii

Untalan v. City of Lorain,

430 F.3d 312 (6th Cir. 2005). . . . . . . . . . . . . . . . 27

Yates v. City of Cleveland,

941 F.2d 444 (6th Cir. 1991). . . . . . . . . . . . . . . . 26

CONSTITUTION AND STATUTES

U.S. Const., amend. IV. . . . . . . . . . . . . . . . . . . . . . 1, 2

28 U.S.C. Section 1254(1) . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. Section 1983. . . . . . . . . . . . . . . . . . . . . . . . 2

RULES

Fed. R. Civ. P. 56 . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 33

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Jason Cunningham respectfully petitions

for a Writ of Certiorari to review the judgment of the

United States Court of Appeals for the Sixth Circuit in

this case.

OPINIONS BELOW

The decision of the U.S. Court of Appeals for the

Sixth Circuit was entered on April 19, 2021 for

publication but not reported to date and reproduced in

Appendix A. The district court’s unreported decision

denying summary judgment was entered on April 1,

2020 is reproduced in the Appendix B.

JURISDICTIONAL STATEMENT

The court of appeals entered its judgment on April

19, 2021. Pet. App. A. This Court has jurisdiction under

28 U.S.C. Section 1254(1). The United States Court of

Appeals for the Sixth Circuit’s judgment in this cause

was issued prior to July 19, 2021 and the deadline to

file a petition for writ of certiorari was extended 150

days to September 16, 2021 in which to file a petition

for writ of certiorari. (ORDER LIST: 594 U.S.)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const., amend. IV, provides:

The right to the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated and no warrants shall issue, but upon

probable cause, supported by oath or affirmation

2

and particularly describing the place to be

searched, and the persons or things to be seized.

42 U.S.C. Section 1983 provides:

Every person who, under color of any statute,

ordinance, regulation, custom or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress. . .

INTRODUCTION

For purposes of this Petition for Writ of Certiorari,

Petitioner Jason Cunningham will be referred to as

Petitioner and/or Cunningham and Nancy Jane

Lewellyn, Deceased will be referred to as “Lewellyn”.

Respondent Robert Paschal will be referred to as

“Paschal”. Respondent Marvin Wiggins will be referred

to as “Wiggins”.

Petitioner Jason Cunningham, is the adult natural

son of Nancy Lewellyn, Deceased who was shot ten (10)

times by Respondents Marvin Wiggins and Robert

Paschal in the driveway of her home and died on March

17, 2017. Petitioner respectfully submits that

Respondents’ Motion for Summary Judgment on the

basis of qualified immunity was properly denied by the

District Court pursuant to Rule 56 of the Federal Rules

of Civil Procedure, as there are material issues of fact

in dispute involving the shooting and death of Nancy

3

Lewellyn and that her shooting and resulting Wrongful

Death were objectively unreasonable under the totality

of the circumstances and in violation of clearly

established law. Petitioner respectfully submits that

Sixth Circuit’s Order granting summary judgment to

Respondents on the basis of qualified immunity was

error and in conflict with Rule 56 of the Federal Rules

of Civil Procedure and existing precedent of the United

States Supreme Court.

A portion of the record in this cause consists of video

from three different Dashcams mounted on the three

separate Shelby County Sheriff’s Deputies’ SUVs. (ECF

No. 83-3, SUV Dashcams 1, 2, 3, PageID#345) All three

SUVs contained cameras that record looking forward

from the SUV and also record looking backward from

the SUV.

The three video cams capture some of the material

facts but do not capture all of the material facts as

Paschal, Wiggins and Deputy Jayroe were standing

and moving outside of their SUV’s. The videos do not

show the sight line and/or field of vision of the

Respondents at the time when Respondents shot

Lewellyn while standing outside of their SUVS at a

minimum distance of sixty (60) feet. The videos do not

show Respondents’ perspective at all times. The

dashcam videos never blatantly contradict the

Petitioner’s version of events so that no jury could

believe it. Further, the Court of Appeals did not view

the Petitioner’s evidence in the light most favorable to

the nonmoving party when the Court refused to

consider the deposition testimony and photographic

evidence offered and introduced through Paschal in his

4

deposition that when viewed in conjunction with the

dash cam videos creates a material issue of fact in

dispute that must be decided by a jury and summary

judgment for Respondents should not have been

granted.

After the first two shots fired by Paschal, both

Respondents shot Nancy Lewellyn a combined eight

more times after she had surrendered the bb gun in

obvious plain sight and Respondents continued to shoot

her while she was falling and after she had fallen to the

ground without the bb gun or weapon in her hand

constituting gratuitous violence and excessive force

that is a constitutional violation and clearly established

under the law and/or an obvious case.

Deputy Jayroe was the first deputy on the scene and

the closest to Lewellyn at the time of the shooting and

Deputy Jayroe never fired his weapon at Lewellyn

even though Paschal and Wiggins shot Lewellyn ten

(10) times at a distance of sixty (60) feet or greater.

STATEMENT OF THE CASE

Petitioner respectfully states the following viewed

in the light most favorable to the nonmoving party,

considering all of the admissible evidence offered in

this cause which is not blatantly contradicted by the

three dash cam videos: On March 17, 2017, Nancy

Lewellyn was fifty-nine years old and living at the

home of her adult son, Jason Cunningham (Petitioner)

whose address was 10016 Woodland Pine Cove West in

Lakeland, Tennessee. (ECF No. 1, Complaint, PageID#

4-5). On this date, at approximately 12:00 p.m., Nancy

Lewellyn, who was obviously suffering from some type

5

of mental or emotional crisis and/or mental disorder,

called 911 Emergency Dispatch and stated that she

was out of her medicine, depressed and suicidal and

that she had a gun and was threatening to kill herself

and anyone who came to her residential address and to

tell them that she was sorry for doing so. (ECF No. 1,

Complaint, PageID# 4-5) During this 911 telephone

call, three Shelby County Deputies were dispatched to

Nancy Lewellyn’s address in three separate SUV’s.

(ECF No. 83-3, Dashcams 1,2,3, PageID#345) Shelby

County Sheriff’s Deputy Justin Jayroe is not a named

party to this litigation and was alone in his Shelby

County Sheriff’s SUV and he was the first to arrive

outside of the home located at 10016 Woodland Cove

West. (ECF No. 83-3, SUV Dashcam 1, Page ID#345)

Deputy Jayroe had certification on that date as a Crisis

Intervention Team member in dealing with the

mentally ill. (ECF No. 101, Newspaper Article,

PageID# 605-606) Deputy Jayroe never fired his pistol

at Nancy Jane Lewellyn even though Deputy Jayroe

was the closest to Nancy Jane Lewellyn at the time of

the ten shots were fired by Paschal and Wiggins.

Immediately right behind Deputy Jayroe, Respondent

Robert Paschal arrived on the scene of Nancy

Lewellyn’s home and parked behind Jayroe’s SUV.

(ECF No. 83-3, SUV Dashcams 1, 2, 3, PageID# 345)

Paschal was not certified as a member of the Shelby

County Sheriff’s Department’s Crisis Intervention

Team on the date of the shooting of Nancy Lewellyn.

(ECF No. 101, Newspaper Article, PageID# 605-606) It

is disputed as to how much information Paschal

actually had concerning the nature of the call and

Lewellyn when he arrived on the scene because as he

6

arrives someone can be heard on the dash cam video

saying “Whose the complainant?”

Respondent Marvin Wiggins is also a Shelby County

Sheriff’s Deputy who arrived on the scene last and he

parked his SUV behind Defendant Paschal’s SUV.

(ECF No. 83-3, SUV Dashcam 3, PageID# 345) Wiggins

was also not certified as a member of the Shelby

County Sheriff’s Department’s Crisis Intervention

Team on the date of the shooting of Nancy Lewellyn.

(ECF No. 101, Newspaper Article, PageID# 605-606)

It is undisputed that Nancy Lewellyn never had

any type of verbal communication nor did she make

any verbal threats directly to Wiggins or Paschal prior

to being shot ten (10) times. It is undisputed that

Nancy Lewellyn did not harm anyone prior to the

arrival of Wiggins, Paschal and Deputy Jayroe or prior

to being shot ten times by Paschal and Wiggins.

Lewellyn was never charged with any crime as a

result of anything that took place on March 17, 2017.

The nature of Lewellyn’s call to Shelby County

Dispatch was a 911 telephone call made by someone

who was suffering from some type of mental and/or

emotional issue and a cry for help or attention. The

Shelby County Sheriff’s Dispatcher sent armed

deputies to Lewellyn’s home, including Paschal and

Wiggins rather than mental health professionals to

assist and help Lewellyn.

After Paschal, Wiggins and Deputy Jayroe arrived

in the cove immediately in front of Lewellyn’s home,

Nancy Lewellyn walked out of the front door of her

home and was holding a bb gun in her right hand but

did not aim it at anyone. (ECF No. 83-3, SUV Dashcam

7

1, Page ID# 345) (ECF No. 100, Wiggins Deposition,

PageID# 577-578, 582-583, 603-604) (ECF Nos. 93 and

93-1, Exhibit Photographs, PageID#489-490) It is not

a crime in the State of Tennessee to possess a bb gun

on personal property and/or at your home. Further,

there had been no history of prior calls to 911 at this

residence prior to this date.

Nancy Lewellyn turned to her right as she exited

her front door. Respondent Marvin Wiggins,

Respondent Robert Paschal and Deputy Justin Jayroe

never identified themselves as Shelby County Sheriff’s

Deputies, never told and/or ordered Nancy Lewellyn to

drop the bb gun and/or weapon, never told Lewellyn to

show her hands and never gave Lewellyn any

warning of any type prior to the ten (10) shots

being fired at Nancy Lewellyn. (ECF No. 83-3, SUV

Dashcam 1, PageID# 345) It is undisputed that Nancy

Lewellyn never walked into the grass in front of her

residence with the bb gun when she walked out of the

front door but instead she turned to her right and

walked away from Paschal, Wiggins and Deputy

Jayroe, on the concrete walkway connected to her

driveway. (ECF No. 83-3, SUV Dashcam 1, PageID#

345) Undisputed that Nancy Lewellyn never fired a

shot at Wiggins or Paschal or Deputy Jayroe or anyone

else in the vicinity. (ECF No. 83-3, SUV Dashcam 1,

PageID# 345) There is no proof that there was anyone

else present at the scene or the immediate area prior

to the shooting except Lewellyn, Paschal, Wiggins and

Deputy Jayroe.

Wiggins states in his deposition that Nancy

Lewellyn never pointed the bb gun at him, Paschal or

8

Deputy Jayroe at any time prior to being shot. (ECF

100, Wiggins Deposition, PageID# 577-578, 582-583,

603-604) Petitioner alleges that Paschal fired the first

shot while Nancy Lewellyn was holding the bb gun and

walking in the driveway, away from Paschal,

Wiggins and Deputy Jayroe while she was

attempting to surrender the bb gun on the hood of the

parked car so that it would be visible and in plain sight

for all to see. (ECF No. 83-3, Dashcam SUV 1, PageID#

345)

Wiggins said in his statement to Bureau of

Professional Standards that when he first saw Nancy

Lewellyn, it looked “like she was under the

influence of something.” (ECF No. 89, Statement,

PageID# 407) Wiggins never saw or heard Nancy

Lewellyn fire a shot from her bb gun because he was

taking cover behind his SUV but Wiggins decided that

Nancy Lewellyn was a threat of death or serious bodily

injury that justified the use of deadly force when he

heard a “shot go off,” without knowing that Nancy

Lewellyn never fired the bb gun and that he

“started putting rounds down range and um,

struck the subject.” (ECF No. 89, Statement,

PageID# 406)

Wiggins never saw Nancy Lewellyn point the bb

gun at anybody on that date but shot at her anyway.

(ECF No. 100, Wiggins Deposition, PageID# 583, 603604) Wiggins shot Nancy Lewellyn four (4) times

without knowing that she never fired her bb gun.

(ECF 89, Statement, PageID# 407) (ECF 83-3, SUV

Dashcam 1, PageID#345) Wiggins admits that at some

point in the shooting, that he did not see the bb gun

9

that Nancy Lewellyn had been holding in her right

hand. (ECF No. 89, Wiggins Statement, PageID# 407)

(ECF No. 100, Wiggins Deposition, PageID# 579-580)

Wiggins states that Nancy Lewellyn never said

anything from the time that she came out of the house

until she was shot multiple times and lying on the

driveway. (ECF No. 89, Wiggins Statement, PageID#

408) Wiggins states in his deposition that Nancy

Lewellyn never pointed the bb gun at him. (ECF No.

100, Marvin Wiggins Deposition, PageID# 577-578,

582, 603)

Wiggins further states in his deposition that Nancy

Lewellyn never pointed the bb gun at Defendant

Robert Paschal. (ECF No. 100, Wiggins Deposition,

PageID# 577, 582, 603-604) Wiggins states in his

deposition that Nancy Lewellyn never pointed the bb

gun at Deputy Jayroe or anybody else that day

before she was shot. (ECF No. 100, Wiggins Deposition,

PageID# 577, 582-583, 604) Wiggins, Paschal and

Deputy Jayroe never verbally identified themselves to

Lewellyn as Shelby County Sheriff’s Deputies prior to

shooting her. (ECF No. 83-3, Dashcam Videos 1, 2, 3,

PageID#345) Wiggins states in his deposition that he

never heard any deputy on the scene say to Nancy

Lewellyn and he did not say, “drop the gun, put the gun

down” before she was shot 10 times. (ECF No. 100,

Wiggins Deposition, PageID# 584, 586) Wiggins states

in his deposition that the bb gun held by Nancy

Lewellyn was not a real gun. (ECF No. 100, Wiggins

Deposition, PageId# 586)

Wiggins admits that Nancy Lewellyn never walked

towards Wiggins or Paschal or Deputy Jayroe when she

10

had the bb gun in her hand but instead Nancy

Lewellyn did just the opposite and turned to her right

and started walking towards the parked car in the

driveway and did not walk towards the deputies.

(ECF No. 100, Wiggins Deposition, PageID# 587-588)

(ECF No. 83-3, Dashcam SUV 1, PageID# 345) Wiggins

stated that he was taking cover behind his SUV 3 and

he never said that he saw Nancy Lewellyn raise the bb

gun while she was in the driveway. (ECF No. 89,

Wiggins Statement, PageID# 404-409) Wiggins admits

that he shot at Nancy Lewellyn four times when he

heard a shot without knowing where the shot came

from. (ECF No. 89. Statement, PageID# 406) Wiggins

further admits that he aimed and fired his gun at

Nancy Lewellyn while she was walking towards the car

in the driveway. (ECF No. 91-1, Paschal Deposition,

PageID# 433, ECF No. 100, Wiggins Deposition,

PageID# 591) (SUV Dashcams 1, 3) Wiggins admits

that he fired four shots at Nancy Lewellyn and doesn’t

recall if he shot her while she was falling down. (ECF

No. 100, Wiggins Deposition, PageID# 597) Deputy

Justin Jayroe was behind SUV 1 and he was the closest

to Nancy Lewellyn but he never fired his weapon at

Nancy Lewellyn but Wiggins does not know why he

didn’t shoot when he states “No, I can’t speak on his

mindset at the time.” (ECF No. 100, Wiggins

Deposition, PageID# 601-603)

Wiggins admits in his deposition that Nancy

Lewellyn never pointed the bb gun at him (Wiggins) or

Paschal or Deputy Jayroe or anyone else on March 17,

2017 before the shooting of Nancy Lewellyn. (ECF No.

100, Wiggins Deposition, PageID# 603-604)

11

Paschal stated that when he first saw Nancy

Lewellyn that she had a gun in her hand and that she

walked out of the front door and turned to Lewellyn’s

right to go down the walkway and then she raised the

bb gun for the first time in the driveway and that’s

when he began to shoot. (ECF 88, Paschal Statement,

PageID# 402, ECF 92, Paschal Deposition, PageID#

458-460, ECF 83-3, SUV Dashcam 1, PageID# 345)

Paschal does not recall giving any verbal commands to

Nancy Lewellyn to drop the weapon before he shot

her. (ECF No. 88, Statement, PageID# 402) Paschal

testified that he knew that he was dealing with a

potentially mentally unstable person when he arrived

at Nancy Lewellyn’s home. (ECF No. 92, Deposition,

PageID# 447) Paschal states that he had a clear view

of Lewellyn’s front door. (ECF No. 92, Deposition,

PageID# 448) and that he “initiated the shooting”.

(ECF No. 92, Deposition, PageID# 453) Paschal

identified Exhibit Nos. 3, 4 and 9 from the scene of the

shooting. (ECF Nos. 93, 93-1, Deposition, PageID# 489491) Petitioner respectfully states that the Sixth

Circuit never considered the photograph exhibits

which Paschal identified and testified to that showed

his location, field of vision and sight line of Lewellyn in

the driveway when he fired his first shot at her. (ECF

Nos. 93, 93-1, PageID 489-490) This admissible

evidence is material and is not blatantly contradicted

by the videos and offers admissible proof that Lewellyn

never aimed her bb gun at Paschal or in his direction

and Paschal was not in fear of death or serious bodily

injury when he fired his first shot and qualified

immunity should have been denied at the summary

judgment stage.

12

Nancy Lewellyn never turned towards the deputies

and raised the bb gun and pointed it at them. (ECF No.

83-3, SUV Dashcam 1) (ECF No. 93, 93-1, Photographs,

PageID# 489-491) Paschal admits that Deputy Jayroe

never fired his gun at Nancy Lewellyn even though he

was the deputy that was closest to her. (ECF No. 92-1,

Deposition, PageID# 466) (ECF No. 83-3, SUV

Dashcams 1,2,3)

Petitioner alleges that Paschal shot Nancy Lewellyn

immediately before the bb gun was slightly raised in

the driveway in the dashcam video. (ECF No. 83-3,

SUV Dashcam 1, PageID#345) Paschal admits that he

first fired two shots at Nancy Lewellyn while she was

walking towards the car in the driveway and then

there was a pause and then the eight other shots

were fired. (ECF No. 92, Deposition, PageID# 467468)

Petitioner alleges that Paschal fired the first shot

and hit Nancy Lewellyn in the back, while the bb gun

was down by her side, causing the reaction from Nancy

Lewellyn to involuntarily raise the bb gun with her

right hand for a second and then lower it back to her

side and then reaching for her back, where Paschal had

shot her and/or she stumbled while walking causing

the bb gun to raise slightly for a second and then go

back down. (ECF No. 83-3, SUV Dashcam 1) (ECF No.

98, Autopsy Report of Nancy Lewellyn, PageID# 551566)

Regardless, Nancy Lewellyn never pointed the bb

gun at anyone, including Wiggins, Paschal and Deputy

Jayroe, and her back was facing Wiggins, Paschal and

Deputy Jayroe and they were never in any danger for

13

the second that the bb gun raised up after and/or at or

near the time that Nancy Lewellyn was shot by

Paschal. (ECF No. 83-3, SUV Dashcam 1, PageID#345,

ECF No. 98, Autopsy Report of Nancy Lewellyn,

PageID# 551-566, ECF No. 100, Wiggins Deposition,

PageID# 577-578, 582, 603-604) Paschal, Wiggins and

Deputy Jayroe were taking cover behind the SUVs with

their guns drawn, looking at Lewellyn’s back, when the

first shots were fired and none were in danger of death

and/or serious bodily injury from Nancy Lewellyn.

(ECF 83-3, Dashcams 1,2,3, PageID#345)

Paschal admits that if Nancy Lewellyn no longer

had the bb gun, that she was not a threat of death or

serious bodily injury to him (Paschal), Wiggins or

Deputy Jayroe. (ECF No. 92, Paschal Deposition,

PageID# 474) Paschal further admits that Wiggins first

said drop the weapon after the 10 shots had been fired

and Nancy Lewellyn laid dying on the ground. (ECF

No. 92, Paschal Deposition, PageID# 478, ECF No. 95,

Autopsy Report PageID#551-566ECF 83-3, SUV

Dashcam 1, PageID#345)

Petitioner argues that the proof shows that after

surrendering the bb gun and obviously placing the bb

gun on the hood of the car parked in the driveway and

prior to falling to the ground, Nancy Lewellyn

stretches out both arms and it is obvious and you can

plainly see that both of her hands are open and empty

and that she is not holding any bb gun or any other

type of weapon. (ECF No. 83-3, SUV Dashcam 1,

PageID# 345)

After the first two shots, there was a pause

described by Paschal, then both Paschal and Wiggins

14

continue to shoot Nancy Lewellyn after she has clearly

surrendered the bb gun on the hood of the car and is

attempting to get back to the house, falling down with

no bb gun in her hand and laying on the concrete

driveway incapacitated, posing no threat of any type to

anyone, bleeding and dying. (ECF No. 83-3, SUV

Dashcam 1, Page ID# 345) (ECF No. 92, Paschal

Deposition, PageID# 482-483) Paschal does not dispute

that the video from Jayroe’s SUV shows Nancy

Lewellyn being shot after she falls on the ground in

the driveway with no weapon in her hands. (ECF

No. 83-3, SUV Dashcam 1, PageID# 345)(ECF No. 92,

Paschal Deposition, PageID# 483-484) Paschal also

admits that if someone is laying on the ground after

being shot and they have no weapon, there would be

no reason to shoot that person. (ECF No. 92,

Paschal Deposition, PageID# 484) Paschal admits that

it is improper to shoot someone after they surrender

their weapon. (ECF No. 92, Paschal Deposition,

PageID# 485) Paschal admits that Wiggins first shouts

drop the weapon after the tenth (10th) shoot is fired.

(ECF No. 92, Paschal Deposition, PageID# 486)

Paschal states that he is approximately sixty (60) feet

away from Nancy Lewellyn when he shoots her and

that Defendant Wiggins is even farther away than

that because Wiggins was behind Paschal. (ECF

No. 92, Paschal Deposition, PageID# 488)

The autopsy report of Nancy Lewellyn reveals that

Nancy Lewellyn died on March 17, 2017 as a result of

multiple gun shot wounds inflicted by Paschal and

Wiggins who shot Nancy Lewellyn a total of no less

than Ten (10) times, with four (4) shots and bullet

wounds to Nancy Lewellyn’s back. Defendant

15

Paschal fired 6 shots and Defendant Wiggins fired 4

shots. (ECF No. 83-3, SUV Dashcams 1, 2,3) (ECF No.

95, Autopsy Report, PageID# 551-566)

Reviewed in the light most favorable to the

Petitioner, the proof would show that Wiggins, Paschal

and Deputy Jayroe never gave any type of order and/or

verbal command to Nancy Lewellyn to drop the bb gun

or put her hands in the air, never gave her any warning

of any type that Wiggins and Paschal would shoot if

she did not obey their commands although it was

feasible and there was ample time to do so before

Paschal fired his first shot.

Nancy Lewellyn was walking away from Paschal

and Wiggins and Deputy Jayroe and attempting to

surrender the bb gun before she was shot by walking

to the car in the driveway and placing the bb gun on

the hood of the car. Nancy Lewellyn never pointed the

bb gun at Respondents or Deputy Jayroe and her back

was to them when she was walking towards the car

parked in the driveway. (ECF No. 83-3, SUV Dashcam

1, PageID# 345) Petitioner would allege that Lewellyn

raised her hand with the bb gun at the time she was

shot the first time and the raising of the bb gun was a

reaction to being shot or Lewellyn was shot while she

stumbled while walking. Regardless, the bb gun was

not pointed in the direction of Paschal or Wiggins and

the bb gun was quickly lowered as Lewellyn grabs for

her back where she was shot and she never pointed

and/or shot the bb gun at anyone on the scene.

Petitioner respectfully states that the Sixth Circuit

Court of Appeals committed error by not viewing the

evidence offered by the Petitioner which was not

16

blatantly contradicted by the dash cam videos, in the

light most favorable to the Petitioner and drawing all

inferences in the Petitioner’s favor.

Further, Nancy Lewellyn was shot multiple times

after she surrendered the bb gun in plain sight on the

hood of the car in the driveway. (ECF No. 83-3, SUV

Dashcam 1, PageID# 345) Nancy Lewellyn was shot

multiple times after she surrendered the bb gun, with

her arms extended and hands out and empty as she

was walking and falling in plain and obvious sight to

Paschal and Wiggins.(ECF No. 83-3, SUV Dashcam 1,

PageID# 345)

Petitioner states that the shooting of Lewellyn

multiple times after she had obviously surrendered the

bb gun and/or laying without the bb gun while she was

falling and laying on the ground constitutes gratuitous

violence and a violation of Lewellyn’s constitutional

rights that were clearly established and summary

judgment should not have been granted in this cause.

The dashcam videos do not so utterly discredit

Petitioner’s material evidence so that no jury could

believe it.

Paschal identified two exhibits during his deposition

that fairly and accurately depict the location of the

three SUVs parked behind each other at the time of the

shooting of Nancy Lewellyn (ECF No. 93, Photograph

Exhibit, PageID# 489, ECF No. 93-1, Photograph

Exhibit, PageID# 490) and the spot on the driveway

where Nancy Lewellyn had fallen after being shot and

Paschal’s sight, field of vision and perspective when

Paschal fired his first shot at Lewellyn. (ECF No. 93-2,

Photograph Exhibit, PageID# 490-491)

17

Importantly, the photograph exhibit found at ECF

93-1, Exhibit, PageID# 490 shows the location where

Defendant Robert Paschal was standing to the right of

Jayroe’s SUV, his field of vision and line of sight in

relation to Lewellyn and her home when he first shot

her. The Sixth Circuit refused and did not consider this

material evidence which provides a genuine dispute to

material fact and it was error not to consider the

photographs contained in ECF Nos. 93 and 93-1 which

should have been viewed in the light most favorable to

the Petitioner and in conjunction with the three dash

cam videos which would have established a dispute as

to material fact as to whether the Respondents had a

reasonable objective fear of death or serious bodily

injury when Paschal fired his first shot. A review of

ECF Nos. 93 and 93-1, PageID# 489-490 and ECF No.

83-3, SUV Dashcams1, 2 and 3, PageID#345 provides

proof that Nancy Lewellyn was walking away from

Defendants, with her back to Respondents and not

aiming the bb gun at Paschal, when she was first

shot by Paschal, as evidenced by bullet wounds and/or

graze bullet wounds to Nancy Lewellyn’s back and that

Nancy Lewellyn never pointed the bb gun at anyone.

(ECF No. 98, Autopsy Report of Nancy Lewellyn,

PageID# 551-566)

The photographs and videos contained within ECF

Nos. 93 and 93-1 and ECF 83-3, Dashcams SUV 1,2 3

do not blatantly contradict Petitioner’s admissible

evidence and when viewed in conjunction with each

other, provide admissible proof of disputed material

fact that Nancy Lewellyn never pointed the bb gun at

and/or in the vicinity where Wiggins and Paschal and

were located at the time that the first shots were fired.

18

(ECF No. 93, 93-1, Photographs, PageID# 489-491)

Exhibit 93-1, Page ID# 490 proves the location, sight

line and field of vision of Paschal when he shot

Lewellyn. Paschal stated that he was approximately

Sixty (60) feet away from Nancy Lewellyn when he shot

her. Respondent Paschal stated that Respondent

Wiggins was more than Sixty (60) feet away from

Nancy Lewellyn when she was shot because Wiggins

was standing behind him (Paschal) when Paschal shot.

Therefore, there is admissible proof of a disputed

material fact that a jury should decide regarding

whether Respondents had an objective fear of

imminent death and/or serious bodily injury to Wiggins

and Paschal or Deputy Jayroe or anyone else when

Nancy Lewellyn was shot by Paschal and continued to

be shot a total of Ten (10) times and killed.

When Paschal fired the first two shots, striking

Nancy Lewellyn in the back and/or grazing her back,

Paschal stated in his deposition that there is a pause

in the shooting and Nancy Lewellyn is seen in the

video trying to hurriedly walk to the parked car to

obviously surrender the bb gun on the hood of the

parked car in the driveway, in plain and obvious sight

to Wiggins and Paschal and Deputy Jayroe.

Wiggins and Paschal were not separated after

the shooting but kept together with Deputy Jayroe

after the shooting so that they could get their stories

straight in violation of the Deadly Force Policy of the

Shelby County Sheriff’s Department. (ECF No. 99,

Deadly Force Policy, PageID# 567-571). This violation

calls Respondents’ veracity and credibility into

question regarding their deposition testimony and

19

statements made to the Sheriff’s Department. (ECF

No. 83-3, Dashcams SUV 1 and 2, Time 12:24-12:36

p.m., PageID #345)

REASONS FOR GRANTING THE

WRIT OF CERTIORARI

A. The ruling of the U.S. Court of Appeals violates

the basic fundamental principles of Rule 56 of the

Federal Rules of Civil Procedure and therefore in direct

conflict with the existing precedent of the United

States Supreme Court’s holdings in Tolan v. Cottan,

572 U.S. 650 (2014) and Scott v. Harris, 550 U.S. 372

(2007). Respectfully, the Sixth Circuit improperly

weighed evidence and resolved disputed issues in favor

of the moving party by failing to credit key evidence

offered by the Petitioner. In ruling on a motion for

summary judgment, “[t]he evidence of the nonmovant

is to be believed, and all justifiable inferences are to be

drawn in his favor.” Tolan v. Cottan, Id at page 651.

The Sixth Circuit only considered the dash cam videos

in making the determination that Lewellyn posed a

threat of death or serious bodily injury at the time that

Paschal fired the first shot at Lewellyn. The cameras

located in the three SUVs did not provide the same

field of vision and/or sight line that Paschal had

standing outside and to the right of Jayroe’s SUV.

Paschal’s own deposition testimony provided material

evidence through the photograph exhibit of his location,

sight line and field of vision of Lewellyn when he fired

his first shot. (ECF No. 93-1, PageID 490) Further,

Paschal was at least sixty (60) feet away from Lewellyn

when he fired his first shot. A careful review of

photograph exhibits 93 and 93-1 when viewed in

20

conjunction with the dashcam videos provides

admissible proof that Lewellyn never pointed the bb

gun at or in the direction of Paschal. As a result,

Petitioner has presented admissible evidence of a

material disputed fact that Paschal never had an

objective reasonable fear of death and/or serious bodily

injury when he fired his first shot at Lewellyn that

should be resolved by a jury and summary judgment

was granted in error.

B. The shooting of a mentally disturbed person

such as Lewellyn, eight times by Respondents after

the dash cam videos clearly show that Lewellyn had

obviously surrendered the bb gun and/or fell to the

ground without the bb gun or weapon and posed no

threat to Respondents, constitutes gratuitous violence

and excessive force that is a constitutional violation

and clearly established under the law and/or an

obvious case. The United States Supreme Court

recognized and held

…This would be a different case if petitioners

had initiated a second round of shots after an

initial round had clearly incapacitated

Rickard…or if Rickard had clearly given himself

up…

Plumhoff v. Rickard, 572 U.S. 765, 774 (2014)

The law in the Sixth Circuit is clearly established

that suspects who are unarmed and who have

surrendered are not subject to gratuitous violence

during arrest. The Sixth Circuit has recognized that

“We have … consistently held that various types of

force applied after the subduing of a suspect are

21

unreasonable and a violation of a clearly established

right.” McCaig v. Raber, 515 Fed.Appx. 551 (6th Cir.

2013) (unpublished) The Sixth Circuit has previously

recognized that it is clearly established that shooting a

suspect who is incapacitated or while no longer a threat

is gratuitous violence and excessive force in violation of

the constitution. Margeson v. White County,

Tennessee, 579 Fed.Appx. 466 (6th Cir. 2014)

(unpublished) In this case, the Court of Appeals did not

consider whether the continued shooting of Nancy

Lewellyn multiple times after she had obviously

surrendered the bb gun and/or after falling to the

ground with no bb gun or weapon created issues

regarding gratuitous violence and excessive force that

a jury would have to resolve, precluding summary

judgment to the Respondents.

Wiggins and Paschal never had an objective

reasonable fear of death or imminent serious bodily

injury to themselves or anyone else when they shot

Nancy Lewellyn Ten (10) times without giving any type

of warning or command of any type, including but not

limited to: put down the bb gun, show her hands, place

her hands in the air, stop walking, stand still or freeze,

get on the ground and/or stop and it was feasible to do

so before the first shot was fired by Paschal. Wiggins

and Paschal shot Nancy Lewellyn ten (10) times with

four shots to her back, mortally wounding her when:

she was at home (private property) and had not

committed a crime, she had called 911 saying that she

was out of medicine and was going to kill herself, was

obviously mentally unstable and/or suffering a mental

crisis of some type, she never verbally threatened them

in person, never was charged with a crime of any type,

22

never aimed the bb gun at anyone, never fired the bb

gun at anyone and Paschal and Wiggins had no

knowledge that Lewellyn had harmed anyone prior to

Paschal, Wiggins and Deputy Jayroe arriving on the

scene and shooting her multiple times.

Lewellyn never walked towards Paschal, Wiggins or

Deputy Jayroe but instead walked away from them

when she attempted to and surrendered the bb gun in

plain and obvious sight on the hood of the parked car in

the driveway. As she was attempting to do so, Paschal

fires his first shot and then there was a pause in the

shooting after the first two shots. Lewellyn reacts

to being shot and then staggers toward the parked car

and places the bb gun on the hood of the car. Paschal

and Wiggins knew that Nancy Lewellyn had been shot

and had obviously surrendered the bb gun in plain

sight but they continued to shoot her eight more times

as she falls to the ground and she is shot multiple

times while she is laying on the ground obviously

unarmed, defenseless and after she had surrendered.

At the time that the first shot was fired by Paschal,

Wiggins, Paschal and Deputy Jayroe were taking cover

behind the SUVs and not in danger and/or fear of death

or serious bodily injury to themselves or anyone else.

When the shots struck Nancy Lewellyn, it was in broad

daylight and Paschal and Wiggins clearly saw Nancy

Lewellyn surrender the bb gun who was then unarmed

and shot 8 more times in the driveway of her home.

Prior to shooting Nancy Lewellyn ten (10) times

with four gun shots to her back, Paschal, Wiggins and

Deputy Jayroe: never identified themselves as Shelby

23

County Sheriff’s Deputies, never ordered Lewellyn to

drop the bb gun, never ordered Lewellyn to show her

hands, put her arms up, stop walking or any thing else

although there was ample time to do so before using

deadly force. Wiggins and Paschal’s actions in shooting

Nancy Lewellyn Ten (10) times were not objectively

reasonable under the totality of the circumstances. As

a result, Wiggins and Paschal violated Nancy

Lewellyn’s constitutional rights when they shot and

killed her and those rights were clearly established on

March 17, 2017 and Respondents were on notice of

their constitutional violations. Existing precedent from

the United States Supreme Court and the Sixth Circuit

Court of Appeals squarely governs the facts of this case

and the shooting violated clearly established law. In

the alternative, the shooting of Nancy Lewellyn

constituted gratuitous violence and was an “obvious”

violation of Nancy Lewellyn’s constitutional rights.

Wiggins and Paschal’s shooting of Nancy Lewellyn

multiple times, no less than Ten (10) times, when she

posed no threat of death or serious bodily injury to

Paschal, Wiggins or Deputy Jayroe or anyone else, was

objectively unreasonable under the totality of the

circumstances and therefore constitutes excessive force

in violation of the United States Constitution.

(Lewellyn Autopsy Report, ECF No. 98) Paschal and

Wiggins never gave Lewellyn any order or command

of any type prior to Paschal and Wiggins shooting

Lewellyn ten (10) times with four (4) shots to the her

back. This Honorable Court should grant the

Petitioner’s Writ of Certiorari and should reverse the

ruling of the Sixth Circuit and affirm the District

Court’s denial of qualified immunity for Paschal and

24

Wiggins and should remand this matter for trial by

jury for resolution.

The Courts resolve questions of qualified immunity

at the summary judgment stage by determining

whether the record shows no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law. Rule 56(a) of the Federal

Rules of Civil Procedure. Credibility judgments and

weighing of evidence are prohibited in a reviewing a

summary judgment motion. Schreiber v. Moe, 596 F.3d

323, 333 (6th Cir. 2010) The Courts view all facts and

related inferences in the light most favorable to the

non-moving party. Davenport v. Causey, 521 F.3d 544,

550 (6th Cir. 2008) The Court should not adopt the

non-moving party’s version of the facts for purposes of

summary judgment onlywhere the videotape capturing

the events in question blatantly contradict the

Plaintiff’s version of events so that no reasonable jury

could believe it. Scott v. Harris, 550 U.S. 372 (2007). In

this cause, the Sixth Circuit only relied upon the dash

cam videos and did not consider relevant admissible

evidence offered by the Petitioner, which was not

blatantly contradicted by the videos, that should have

been viewed in a light most favorable to the Petitioner

and in conjunction with the dash cam videos.

In this case, the dashcams do not depict all of

the genuinely disputed facts, such as the

perspective of Wiggins and Paschal immediately prior

to and during the shooting of Nancy Lewellyn. Further,

the dashcams do not “blatantly contradict the

Petitioner’s version of events so that no reasonable jury

could believe it.” Paschal and Wiggins were both out of

25

their SUVs when they fired their guns ten times at

Lewellyn. The location of the cameras in the SUVs do

not have the same field of vision or sight line that

Paschal had while standing to the right of Jayroe’s

SUV and firing his gun. Exhibits 93 and 931(PageID489-490) are material evidence that the Sixth

Circuit should have considered in the light most

favorable to the Petitioner as to whether Respondents

were in objective danger of death or serious bodily

injury when they fired their weapons ten times at

Lewellyn.

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 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

light most favorable to the plaintiff. Bougess v.

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

26

The United States Supreme Court has held that

“Apprehension by use of deadly force is a seizure

subject to the reasonableness requirement of the

Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1,

7 (1983) The Sixth Circuit has authorized the use of

deadly force “only in rare instances.” Sample v. Bailey,

409 F.3d 689, 697 (6th Cir. 2005) “It has been clearly

established in this circuit for some time that

individuals have a right not to be shot unless they are

perceived as posing a threat to officers or others.” King

v. Taylor, 694 F.3d 650, 664 (6th Cir. 2012) see also;

Ciminillo v. Streicher, 434 F.3d 461, 468 (6th Cir.

2006); Robinson v. Bibb, 840 F.2d 349, 351 (6th Cir.

1988); Bletz v. Gribble, 641 F.3d 743, 752 (6th Cir.

2011); Yates v. City of Cleveland, 941 F.2d 444, 447

(6th Cir. 1991).

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.”

27

Mullins v. Cyranek, 805 F.3d 760, 766 (6th Cir. 2015)

quoting Untalan v. City of Lorain, 430 F.3d 312, 314

(6th Cir. 2005)). It is established black letter law in the

Sixth Circuit that merely possessing a weapon is

not enough, the officer must reasonably believe the

individual poses a danger of death or serious physical

harm to himself or others to justify the use of deadly

force. Bouggess v. Mattingly, 482 F.3d 886 (6th Cir.

2007); see also Dickerson v. McClellan, 101 F.3d 1151

(6th Cir. 1996) Instead, whether a suspect has a

weapon constitutes just one consideration in assessing

the totality of the circumstances. Thomas v. City of

Columbus, 854 F.3d 361, 366 (6th Cir. 2017) “But just

because we must look at the circumstances through the

eyes of a reasonable officer does not mean, as

defendants suggest, that we must accept the officers’

subjective view of the facts when making this

assessment. … we must conduct the reasonable officer

analysis using the facts in the light most favorable to

plaintiff. Bouggess v. Mattingly, 482 F.3d at 887, 889.

“Whether the use of deadly force at a particular

moment is reasonable depends on an objective

assessment of the danger a suspect poses at the

moment. The assessment must be made from the

perspective of a reasonable officer in the defendant’s

position.” Bouggess, 482 F.3d at 889. Ultimately, the

question is “whether the totality of the circumstances

justified a particular sort of … seizure.” Tennessee v.

Garner, 471 U.S. 1, 8-9 (1983) Further, “the fact that a

situation unfolds relatively quickly does not, by itself,

permit an officer to use deadly force”. Kirby v. Duva,

530 F.3d 475, 483 (6th Cir. 2008) “Even a split-second

decision, if sufficiently wrong, may not be protected by

28

qualified immunity.” Bouggess v.Mattingly, 482 F.3d

886, 894 (6th Cir. 2007)

“To the extent that facts shown on video can be

interpreted in multiple ways” or are otherwise unclear,

that video too must be “viewed in the light most

favorable to the plaintiff”. Latits v. Phillips, 878 F.3d

541, 547 (6th Cir. 2017)

The caselaw in the Sixth Circuit is replete with

cases in which the Courts have denied an officer’s

qualified immunity when taking the facts in the light

most favorable to the Plaintiff where the suspect did

not pose a serious threat to the officer. See, e.g. , King

v. Taylor, 694 F.3d at 662-63 (noting fact dispute as to

whether the suspect pointed gun at officers);

Brandenburg v. Cureton, 882 F.2d 211 (6th Cir. 1989)

(similar); Bletz v. Gribble, 641 F.3d at 752 (disputed

facts over whether decedent was putting gun down

when he was shot)

In Kisela v. Hughes, the United States Supreme

Court reminded and reaffirmed the controlling law that

an officer may violate a clearly established

constitutional right in an obvious case in which any

competent officer would have known that the use of

deadly force by the officer under the circumstances

would be excessive and violate the Fourth Amendment.

Kisela v. Hughes, 138 S. Ct. 1148 (2018) Plaintiff has

presented material facts in this case that sets out such

an obvious case.The shooting of Nancy Lewellyn,

multiple times with four shots to her back, was

objectively unreasonable considering the totality of the

circumstances presented and therefore a constitutional

29

violation by Paschal’s and Wiggins’ use of excessive

force against Nancy Lewellyn.

Petitioner relies upon the cases previously cited and

the following cases which were in force prior to the

shooting of Nancy Lewellyn on March 17, 2017 to show

that the constitutional right was clearly established or

an “obvious case”. In the alternative, existing precedent

squarely governs the specific facts at issue that places

the constitutional question beyond debate and/or a

consensus of cases of persuasive authority that clearly

establish the constitutional right:

Supreme Court of the United States:

Plumhoff v. Rickard, 572 U.S. 765 (2014)

Sixth Circuit Decisions:

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

Qualified immunity denied noting factual dispute as

to whether suspect pointed gun at officers.

Brandenburg v. Cureton, 882 F.2d 211 (6th Cir.

1989) Qualified immunity was denied where there

was a dispute as to whether the suspect was putting

the gun down or not when he was shot and whether

suspect was pointing the gun at police when shot.

Dickerson v. McClellan, 101 F.3d 1151 (6th Cir.

1996); Holding that despite uncontroverted evidence

of serious danger to officers stemming from the

suspect’s clear possession of a weapon, his recent

firing of the weapon, and his threatening language

toward the police, because it was undisputed that

the suspect was nonthreatening when he was shot,

30

the officer was not entitled to qualified immunity.

As here, there is a time dispute as to the first shot.

Disputed issues of material fact as to whether

officer’s shot to suspect’s back without ever

attempting to announce his presence or to issue a

warning before shooting suspect. Only the facts

known to the officer at the time of the alleged

violation are to be considered. Disputed issue of fact

that precludes summary judgment regarding the

time of the first shot and whether suspect was

pointing gun a police or not.

Bouggess v. Mattingly, 482 F.3d 886 (6th Cir. 2007)

Qualified immunity denied where officer never

warned suspect that he might shoot, as

required by Garner when feasible under the

circumstances. Nothing indicates that a

warning was infeasible. Craighead v. Lee, 399

F.3d at 962 denying qualified immunity in part,

because “the facts we are required to assume

show that a warning was feasible but not

given.” “A suspect’s flight on foot, without more,

cannot justify the use of deadly force.” Id. at 891.

Margeson v. White County, Tennessee, 579

Fed.Appx. 466 (6th Cir. 2014) (unpublished) This

opinion and precedent from the Sixth Circuit held

that genuine issues of material fact remained in

dispute regarding whether three police officers used

reasonable amount of force in shooting victim to

death multiple times, with at least 12 shots after

the suspect had fallen down. Genuine issues of

material fact remained as to whether three police

officers used gratuitous violence during arrest or

31

reasonable amount of force in shooting victim to

death by firing 43 shots including at least 12 shots

after he had fallen to the ground with multiple

gunshot wounds, thus precluding summary

judgment on his widow’s Section 1983 claim of

excessive force. Petitioner further relies upon this

precedent to establish that Respondents violated

clearly established law in the multiple shooting of

Nancy Lewellyn and shooting Nancy Lewellyn after

she had surrendered her bb gun and lay unarmed

on the ground but still shot multiple times. Nancy

Lewellyn suffered at least four gun shots to her

back. This decision by the Sixth Circuit “squarely

governs” this case and establishes clearly

established law in Petitioner’s favor that precludes

summary judgment in this cause.

Considering the facts in the light most favorable to

the Petitioner, there is admissible proof and/or

inferences that Nancy Lewellyn had not committed a

crime but was instead mentally and/or emotionally

unstable prior to the shooting, Nancy Lewellyn had not

pointed the bb gun at anyone, Nancy Lewellyn did not

verbally threaten Paschal, Wiggins or Deputy Jayroe

when they arrived on the scene, Nancy Lewellyn did

not move towards the Respondents or Deputies but did

just the opposite, she turned to her right and started

walking away from the Respondents and Deputy

Jayroe before she was shot, Nancy Lewellyn did not

turn around and face Paschal or Wiggins or Deputy

Jayroe and/or aim the bb gun at anyone. Further,

Nancy Lewellyn was attempting to surrender the bb

gun prior to being shot, made no aggressive moves

towards the Respondents or Deputy Jayroe,

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surrendered the bb gun on the hood of the car in plain

sight to the Respondents and Deputy Jayroe. Once

Nancy Lewellyn surrendered the bb gun on the hood of

the car, it was obvious that she had surrendered the bb

gun and she was therefore unarmed. Even after

surrendering the bb gun in obvious and plain sight,

Nancy Lewellyn was shot multiple times as she

attempted to go back to the house unarmed. Nancy

Lewellyn was shot multiple times while she was

unarmed and while she was falling to the ground and

after she fell on the ground, defenseless and unarmed,

resulting in her Wrongful Death. Prior to shooting

Lewellyn ten times, neither Paschal, Wiggins or

Deputy Jayroe ever gave any order or command to

Lewellyn to drop the bb gun, show her hands, raise her

arms in the air and/or any other command although

they had the time to do so. Nancy Lewellyn 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 established precedent that would have

placed Wiggins and Paschal and any reasonable law

enforcement officer on notice that a reasonable official

in their position would have known that they were

violating the constitutional rights of Nancy Lewellyn

when they shot her causing her severe damages and

premature extremely painful Wrongful Death.

Nancy Lewellyn clearly was a person suffering from

mental crisis and/or mental problems and she needed

mental health treatment not being shot Ten (10) times

with Four (4) shots to her back, causing her Wrongful

Death on March 17, 2017. Respectfully, the Sixth

Circuit committed error when it misapplied the basic

33

principles of Rule 56 of the Federal Rules of Civil

Procedure and entered a judgment in conflict with the

Supreme Court precedent in the holdings of Tolan v.

Cottan and Scott v. Harris by failing to view the

Petitioner’s evidence in the light most favorable to the

nonmoving party when that admissible evidence was

not blatantly contradicted by the videos. Further, the

Sixth Circuit committed error by failing to recognize

that Respondents were guilty of gratuitous violence

and excessive force against Nancy Lewellyn for

shooting her multiple times after she had clearly and

obviously surrendered the bb gun and/or while she was

incapacitated and falling and/or shooting her multiple

times after she was lying on the ground in a helpless

condition.

CONCLUSION

Petitioner respectfully requests that this Honorable

Court grant the Petitioner’s Writ of Certiorari in this

cause.

Respectfully submitted,

DANIEL A. SEWARD

Counsel of Record

SEWARD LAW FIRM

4510 Chickasaw Road

Memphis, TN 38117

(901) 647-5848

sewardlawfirm@aol.com

Counsel for Petitioner