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.

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

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

App. 1

APPENDIX A

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0085p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 20-5375

[Filed April 19, 2021]

______________________________________

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,

)

Plaintiff-Appellee,

)

v.

)

)

SHELBY COUNTY, TENNESSEE;

)

SHERIFF WILLIAM OLDHAM,

)

Defendants,

)

)

ROBERT PASCHAL and MARVIN WIGGINS, )

individually and in their official

)

capacities as Shelby County Sheriff’s

)

Deputies,

)

Defendants-Appellants. )

______________________________________ )

App. 2

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 2:18-cv-02185—Thomas L. Parker, District

Judge.

Argued: November 19, 2020

Decided and Filed: April 19, 2021

Before: NORRIS, SUTTON, and KETHLEDGE,

Circuit Judges.

_________________

COUNSEL

ARGUED: E. Lee Whitwell, SHELBY COUNTY

ATTORNEY’S OFFICE, Memphis, Tennessee, for

Appellants. Daniel A. Seward, SEWARD LAW FIRM,

Memphis, Tennessee, for Appellee. ON BRIEF: E. Lee

Whitwell, John Marshall Jones, SHELBY COUNTY

ATTORNEY’S OFFICE, Memphis, Tennessee, for

Appellants. Daniel A. Seward, SEWARD LAW FIRM,

Memphis, Tennessee, for Appellee.

_________________

OPINION

_________________

ALAN E. NORRIS, Circuit Judge. This appeal has

its origins in the fatal shooting of Nancy Lewellyn by

Shelby County, Tennessee, deputy sheriffs Robert

Paschal and Marvin Wiggins. The representative of

Lewellyn’s estate filed this action pursuant to 42

U.S.C. § 1983, alleging that the deputies used excessive

force in violation of the Fourth Amendment’s guarantee

that citizens have the “right to be secure in their

App. 3

persons . . . against unreasonable . . . seizures.” U.S.

Const. amend. IV.

Deputies Paschal and Wiggins appeal from the

district court’s denial of their motion for summary

judgment based upon their claims of qualified

immunity. Two features distinguish this case from the

typical excessive force claim: the entire shooting

incident was recorded by dashboard cameras and

“screen shots”—stop action frames from the

recordings—were relied upon by the district court when

analyzing the shooting. When videotape footage exists,

the reviewing court need not credit the version of a

party who asserts facts “blatantly contradicted” by the

videotape; rather it should view the facts in the light

depicted by the videotape. Scott v. Harris, 550 U.S. 372,

380-81 (2007); see also Rudlaff v. Gillispie, 791 F.3d

638, 639 (6th Cir. 2015).

I.

Each of the dashcam videos begins with the receipt

of the dispatcher’s message informing the deputies of

the situation which resulted in the shooting at issue.

We begin there.

Around noon on March 17, 2017, the dispatcher for

the Shelby County Sheriff’s Department alerted three

of the department’s deputies to the potential danger

posed by a 911 caller. That caller was Nancy Lewellyn.

She told the dispatcher that “she was depressed and

suicidal, that she had a gun, and that she would kill

anyone who came to her residence.” (Page ID 645.).

Three deputies—Justin Jayroe, Paschal and Wiggins—

responded. Each drove a Sheriff’s Department cruiser

App. 4

equipped with a dashboard camera, which recorded

video, sound, and the time of day.

The deputies were also aware from the dispatcher

that Lewellyn was “suffering from some type of mental

illness and/or crisis,” and that she was saying she was

armed with “what may be a .45 caliber pistol.” (Page ID

646.)

Deputy Jayroe arrived first, shortly after 12:13

p.m., and parked his cruiser facing Lewellyn’s house.

Deputy Paschal arrived soon thereafter and parked

behind him, as did Deputy Wiggins.

At 12:14 p.m., Lewellyn walked out of her front door

and turned towards the driveway in front of her home’s

garage where a sedan was parked. She carried

something in her right hand, which was later

determined to be a BB handgun but resembled a .45

caliber pistol.

The video recorded by the dashboard camera in

Jayroe’s cruiser shows that she began walking towards

the driveway and, as she proceeded, began to raise the

handgun. One of the deputies yelled to her. The parties

disagree whether the video shows Lewellyn beginning

to turn towards the deputies. It was then that Paschal

fired his service pistol once. A second shot followed

after a short pause. As Lewellyn continued walking

with her right arm extended horizontally and the pistol

pointed in the direction of her car, Deputy Wiggins,

who was the last to arrive and who had initially taken

cover behind the parked cruiser, also began shooting.

After reaching the vehicle, Lewellyn leaned on its hood

briefly and then turned back toward the house. As the

App. 5

firing continued, she took a few steps and collapsed. A

total of eleven seconds had elapsed since she exited her

house.

Altogether, ten shots had been fired; eight struck

Ms. Lewellyn. Although not visible to the deputies, nor

to us on the video, she had deposited the BB handgun

on the sedan’s hood before turning back. As she lay on

the driveway, the deputies approached her and

demanded that she show her hands before discovering

that she was unarmed. They rendered medical aid

while awaiting EMS personnel. Ms. Lewellyn died at

the scene.

II.

We review de novo the district court’s denial of

defendants’ motion for summary judgment based upon

qualified immunity. Stoudemire v. Mich. Dep’t of

Corrs., 705 F.3d 560, 565 (6th Cir. 2013).

Qualified immunity shields federal and state

officials from money damages unless a plaintiff alleges

facts showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was clearly

established at the time of the challenged conduct.

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Because both prongs must be satisfied by the plaintiff,

we are permitted to decide which prong of the qualified

immunity equation to tackle first. al-Kidd, 563 U.S. at

735 (citing Pearson v. Callahan, 555 U.S. 223, 236

(2009)).

We will begin by considering the second prong,

which asks whether on March 17, 2017, it was “clearly

App. 6

established” that deputies Paschal and Wiggins’ resort

to lethal force violated a Fourth Amendment right “of

which a reasonable person would have known.” White

v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting Mullenix

v. Luna, 577 U.S. 7, 11 (2015)). “Because the focus is on

whether the officer had fair notice that her conduct was

unlawful, reasonableness is judged against the

backdrop of the law at the time of the conduct.”

Brosseau v. Haugen, 543 U.S. 194, 198 (2004).

Although the Supreme Court’s “case law does not

require a case directly on point for a right to be clearly

established, existing precedent must have placed the

statutory or constitutional question beyond debate.”

White, 137 S. Ct. at 551 (quotation omitted). “In other

words, immunity protects all but the plainly

incompetent or those who knowingly violate the law.”

Id. (internal quotation marks omitted). Plaintiff bears

the burden of showing that defendants are not entitled

to qualified immunity. Untalan v. City of Lorain, 430.

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

The district court pointed to precedent from this

court that it believed had clearly established before

March of 2017 that, for Paschal and Wiggins to been

titled to qualified immunity under the circumstances of

this case, they must have perceived a threat to

themselves or others from Nancy Lewellyn. Then,

recounting conclusions it had drawn from its denial of

qualified immunity under the first prong, the court

concluded that “[u]sing lethal force when a disputed

view of the evidence suggests that Lewellyn neither

pointed her gun toward the officers nor used the gun in

a threatening way violates a clearly established Fourth

App. 7

Amendment right under Sixth Circuit precedent.”

(Page ID 747.)

The court relied upon three cases from our court to

support its conclusion that defendants had fair warning

that their conduct violated the Fourth Amendment.

The first of these cases, King v. Taylor, 694 F.3d 650

(2012), was also cited by plaintiff’s counsel during oral

argument in response to a request that he point us to

a case based upon facts sufficiently similar to those

before us that clearly established that the deputies’ use

of deadly force violated the Fourth Amendment.

In King, the district court analyzed a dispute over

whether the victim of a deadly shooting had pointed a

gun at the officer just before being shot, as the officer

had related. Although his account was called into

question by expert forensic evidence that the position

of the victim’s body made the officer’s version unlikely,

the district court concluded qualified immunity was

warranted.

Noting that the plaintiff’s estate, as the non-moving

party, was entitled to have courts view the facts in the

light most favorable to the estate, a panel of this court

concluded that fact issues precluded qualified

immunity. Id. at 664.

The circumstances in King are easily distinguished

from those before us. First, because the events in this

case are recorded on video, the facts are viewed in the

video’s light, not in a light favorable to plaintiff.

Second, no competing versions of material fact are

before us in this appeal, as the evidence before us is

undisputed, since it is revealed on the video.

App. 8

Accordingly, King cannot represent “existing precedent

[that] squarely governs the specific facts at issue” in

this appeal. Kisela v. Hughes, 138 S. Ct. 1148, 1153

(2018).

In addition to King, the district court construed

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

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

1996), as supporting the proposition that “the use of

lethal force against an armed suspect who does not

pose an imminent threat of harm constitutes a Fourth

Amendment violation.” (Page ID 744.) While we have

no quarrel with the proposition of law stated by the

district court, the devil is in the details. In both

Brandenburg and Dickerson, law enforcement officers

fatally shot an individual who, in the moments

preceding his death, had possessed and discharged a

firearm. As in King, the district court in each case

found that qualified immunity was inappropriate

because conflicting evidence existed concerning

whether the deceased posed an imminent threat to the

officers or others. Because the evidence must be viewed

in a light most favorable to the non-moving party, the

district courts each found that the issue should be

submitted to the jury; no videotapes of the incidents at

issue existed. The situation facing us in the instant

appeal is distinguishable because we view the facts in

the light depicted by the videotape, Rudlaff, 791 F.3d

at 639. In contrast to the three cases relied upon by the

district court, there is no dispute about how the

shooting of Ms. Lewellyn unfolded. Our task is to

determine whether the videotapes portray a

constitutional violation of the kind that a reasonable

deputy should have understood.

App. 9

None of the three cases relied upon by the district

court identifies situations where officers acting under

circumstances similar to those faced by deputies

Paschal and Wiggins were held to have violated the

Fourth Amendment. See White, 137 S. Ct. at 552

(holding that “clearly established law” should not be

defined at a high level of generality); D.C. v. Wesby, 138

S. Ct. 577, 590 (2018). None of them involved the

ultimate victim calling the police to declare that she

possessed a firearm and intended to use it against

anyone who came to her residence. And in none of them

was it undisputed that the victim of the police shooting

was brandishing a firearm in the manner Lewellyn

displayed in the video. Deputy Paschal said in his

deposition that he felt threatened by her display of the

gun as he perceived her beginning to turn in the

deputies’ direction. The district court’s reliance on a

stop action “screen shot” notwithstanding (see Part III),

Paschal’s perception is consistent with the video viewed

in real time.

In reaching this conclusion, we return to the

fundamental axiom that excessive force claims are

analyzed under an objective reasonableness standard.

Graham v. Connor, 490 U.S. 386, 395 (1989). In

Graham, the Court explained that the application of

the reasonableness standard in this context “requires

careful attention to the facts and circumstances of each

particular case, including the severity of the crime at

issue, whether the suspect poses an immediate threat

to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest

by flight.” Id. at 396 (citation omitted). In addition,

“[t]he ‘reasonableness’ of a particular use of force must

App. 10

be judged from the perspective of a reasonable officer

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

hindsight.” Id. In our view, the “facts and

circumstances” support the deputies’ contention that

reasonable officers would perceive that Lewellyn posed

an immediate threat to their safety.

As neither plaintiff nor the district court has

pointed us to existing precedent that squarely governs

the specific facts and circumstances of this appeal that

would have given Deputies Paschal and Wiggins fair

notice that their conduct was unlawful, they are

entitled to qualified immunity.

III.

Because plaintiff cannot prevail on the second prong

of the qualified immunity analysis, we need not delve

deeply into the district court’s conclusion with respect

to the first prong: that material questions of fact

precluded summary judgment in favor of deputies

Paschal and Wiggins.

Specifically, we are troubled by the district court’s

use of “screen shots” to analyze the dashcam videos. By

relying on screen shots, a court would violate the

teaching of Graham against judging the reasonableness

of a particular use of force based upon 20/20 hindsight.

While the district court acknowledged that it “spent

much time pinpointing moments” to help it to establish

what occurred, it conceded that such moments “do not

tell the full story” in light of “how quickly the incident

occurred.” (Page ID 716, n.9). We agree and therefore

believe that the district court erred by including

several screen shots in its opinion to support its

App. 11

conclusions. For example, directly below one screen

shot, the court stated that “[b]ased on the video

footage, the Court finds that a genuine dispute of

material fact exists about whether Lewellyn pointed

her gun in the deputies’ direction when she reached the

driveway.” (Page ID 721.) To the extent that the

district court relied upon screen shots, as it apparently

did here, to decide whether it was objectively

reasonable for the officers to use lethal force, it erred.

The deputies’ perspective did not include leisurely

stop-action viewing of the real-time situation that they

encountered. To rest a finding of reasonableness on a

luxury that they did not enjoy is unsupported by any

clearly established law and would constitute reversible

error.

IV.

For the foregoing reasons, we vacate the judgment of

the district court and remand the cause with

instructions to grant summary judgment to

defendants-appellants based upon qualified immunity.

App. 12

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

No. 2:18-cv-02185-TLP-dkv

JURY DEMAND

[Filed April 1, 2020]

______________________________________

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,

)

Plaintiff,

)

v.

)

)

SHELBY COUNTY,

)

SHERIFF WILLIAM OLDHAM,

)

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,

)

Defendants.

)

______________________________________ )

App. 13

ORDER DENYING MOTION FOR

SUMMARY JUDGMENT BASED ON

QUALIFIED IMMUNITY

Plaintiff Jason Cunningham sued under 42 U.S.C.

§ 1983 for the alleged wrongful shooting death of Nancy

Jane Lewellyn (“Lewellyn”).1 (ECF No. 1.)

Defendants Robert Paschal (“Paschal”) and Marvin

Wiggins (“Wiggins”) now move for summary judgment.

(ECF No. 83.) The crux of Defendants’ motion is that

they are entitled to qualified immunity. (Id.) Plaintiff

responded and Defendants replied. (ECF No. 104; ECF

No. 108.)

For the reasons below, the Court DENIES

Defendants’ motion for summary judgment.

1

The complaint states that Plaintiff is the adult natural son and

sole wrongful death beneficiary of Lewellyn. (ECF No. 1 at PageID

2.)

App. 14

BACKGROUND

I.

Factual Background2

A. 911 Receives Lewellyn’s Call

Around noon on Friday March 17, 2017, Lewellyn

called 911. (ECF No. 104-2 at PageID 645.)

When the representative of the 911 call center in

Shelby County, Tennessee, picked up, Lewellyn

announced “that she was depressed and suicidal, that

she had a gun, and that she would kill anyone who

came to her residence.” (Id.)

In response to Lewellyn’s phone call, radio dispatch

for the Shelby County Sherriff’s Office (SCSO) provided

information and three deputies—Wiggins, Paschal, and

their colleague, Justin Jayroe (“Jayroe”)—made their

way to Lewellyn’s residence. (Id. at PageID 646.) At the

time, all three deputies knew that Lewellyn “was

2

The Court notes that Defendants have filed video evidence of the

events here. (See ECF No. 83-3.) Equipped with this video

evidence, the Court becomes an active observer and interpreter of

the facts here. See Rudlaff v. Gillispie, 791 F.3d 638, 639 (6th Cir.

2015).

That said, for this section, the Court relies on the parties’ briefs for

a factual account of the shooting that led to Lewellyn’s death. (See

ECF No. 83-2; ECF No. 104-2.) The Court chooses to do so

primarily to spotlight the main factual disputes between the

parties. And it also does so because, under the Court’s

interpretation, the parties have faithfully recounted the events

with help from the video footage. The Court will rely on its own

interpretation of the video footage in later sections of this

order—when it analyzes the merits of Defendants’ qualified

immunity argument.

App. 15

suffering from some type of mental illness and/or

crisis.” (Id.) And radio dispatch advised them “that

[Lewellyn] was ‘saying she [was] armed with what may

be a .45 caliber pistol’” and that she was ready to shoot

herself or anyone who approached her home. (Id.)

(quoting SUV Camera 1 at 12:11:51; SUV Camera 2 at

12:11:51.)

B. The Deputies Arrive at Lewellyn’s

Residence

Minutes after Lewellyn’s phone call, the deputies

started arriving at her residence in their respective

SUVs, although not at the same time. (Id. at PageID

647.) First came Jayroe. (Id.) Then came Paschal. (Id.)

And then came Wiggins. (Id. at PageID 648.)

Lewellyn’s residence is at the end of a cul-de-sac.

Jayroe parked his SUV “with its front facing the front

of Lewellyn’s house.” (Id.) And when Paschal and

Wiggins arrived, they parked behind Jayroe’s SUV

with their blue lights activated.3 (Id.)

Both parties agree that the day was nothing short

of beautiful: “[T]he weather was clear, the sun was

shining.” (Id.) But, despite the beautiful weather, the

parties disagree about how clear and unobstructed the

view of Lewellyn’s home was.

According to Defendants, “there were no

obstructions to visibility or sight due to the weather or

lighting outside the home and the immediate area

3

Plaintiff does not dispute that Paschal had his blue lights

activated, but he leaves open whether he disputes that Wiggins

had his activated. (Id. at PageID 649.)

App. 16

around the home.” (ECF No. 83-2 at PageID 341.) But,

according to Plaintiff, “there were . . . obstructions to

visibility regarding [Lewellyn]’s front door.” (ECF No.

104-2 at PageID 648.) Both parties thus disagree about

what the deputies could see of Lewellyn’s residence

when they parked their cars.

C. Lewellyn Walks Out Her Front Door

About fourteen minutes after noon, Lewellyn

opened her front door and became visible to the

deputies. (Id. at PageID 649.) And from that point

forward, the parties dispute much of the facts that

ensued.

The parties do agree that, “[w]hen Lewellyn first

walked through her door, she was holding an object in

her right hand.” (Id.) But they disagree about how

exactly she held the object.

According to Defendants, Lewellyn held the object

“up and approximately level with her chest, neck, or

face, and pointed in the direction of” Jayroe’s SUV.

(ECF No. 83-2 at PageID 341.) But Plaintiff points to

Wiggins’s deposition testimony to claim that, when

Lewellyn stepped out of her house, Wiggins did not

perceive Lewellyn pointing the object in the deputies’

direction. (ECF No. 104-2 at Page 650 (citing ECF No.

91 at PageID 424–25).) And Plaintiff says that Paschal,

too, testified that he did not see Lewellyn raise the

object as she walked out of her home. (Id.)

The object in Lewellyn’s right hand is also a subject

of contention between the parties. On one hand,

Defendants say that “[t]he object in Lewellyn’s hand

was a silver or nickle [sic] BB gun with a black grip

App. 17

that looked like a semiautomatic handgun . . . . It had

a trigger, trigger guard, and sights on top, but it did

not have an orange or other bright-colored muzzle or

barrel tip.” (ECF No. 83-2 at PageID 341–42.)

But, on the other hand, Plaintiff disputes that he

“has personal knowledge to state the object in

Lewellyn’s hand looked like a semiautomatic handgun.”

(ECF No. 104-2 at PageID 650.) He also says that

“Paschal and Wiggins initially saw the BB gun when

Lewellyn was on the porch coming out of her home,”

presumably putting into question whether the deputies

saw that Lewellyn was holding a gun-shaped object.

(Id. at PageID 651.) Plaintiff only agrees, based on

pictures taken after the incident, that the object was a

BB gun. (Id. at PageID 650–51.)

D. Lewellyn Walks Toward Her Driveway

After Lewellyn opened her front door and became

visible to the deputies, she immediately started

walking to her right, toward her driveway. (Id. at

PageID 651.)

At first, while walking toward her driveway,

Lewellyn did not have her gun raised. (Id.) Both

parties agree on this fact. (Id.) But the parties have

different interpretations of what occurred moments

later.

Defendants say that, “while still walking, Lewellyn

again began to raise the handgun up, pointed outward.”

(ECF No. 83-2 at PageID 342.) But Plaintiff claims that

Lewellyn never aimed the BB gun at the deputies.

(ECF No. 104-2 at PageID 652.) He also claims, in the

alternative, that Lewellyn “was moving towards the

App. 18

parked car [in her driveway] to surrender the bb gun.”

(Id.)

Then, at the moment when Lewellyn began walking

toward her driveway, according to Defendants, one

deputy yelled: “Hey, ma’am!” (ECF No. 83-2 at PageID

343.) But Plaintiff states that “[t]he voice is heard but

inaudible and not understandable.” (ECF No. 104-2 at

PageID 653.) Plaintiff also disputes that the “voice said

‘put the gun down, Sheriff or drop the gun’ or anything

similar to that.” (Id.)

E. The Deputies Shoot Lewellyn

Right when the deputy yelled, Paschal fired the first

shot toward Lewellyn. (Id.) After the shot, which

Plaintiff claims hit Lewellyn in the back, she

“continued to walk towards her parked car.” (Id.) And

then came another bullet. (Id.)

By this point, Wiggins had arrived on the scene.

After the first two shots, “Wiggins ran to cover behind

the back of his parked vehicle . . . , turned around, and

began firing.” (Id.)

Defendants claim Wiggins was “running away from

Lewellyn” when he took cover behind his SUV (ECF

No. 83-2 at PageID 342), but Plaintiff disputes that

Wiggins ever mentioned this fact (ECF No. 104-2 at

PageID 654.).

Allegedly hit by multiple shots, “Lewellyn leaned

against her car” and placed the BB gun on its hood.

(Id.) Defendants argue that, “[o]nce on the hood, the

pistol was not visible from” the perspective of Jayroe’s

SUV. (ECF No. 83-2 at PageID 342.) But Plaintiff

App. 19

disputes this allegation (ECF No. 104-2 at PageID 654),

presumably arguing that Lewellyn’s BB gun was

sitting on the hood of the car, visible to the deputies.

According to Defendants, “[n]either Wiggins nor

Paschal realized that Lewellyn discarded her pistol

until after they stopped shooting and approached her.”

(ECF No. 83-2 at PageID 343.) But Plaintiff alleges

that “Lewellyn clearly held out her two arms, with

palms and/or hands open, after surrendering the bb

gun on the hood of the car and Defendants continued to

shoot her multiple times as she fell and while she lay

dying on the ground.” (ECF No. 104-2 at PageID 654.)

Defendants add that “[n]either Wiggins nor Paschal

realized, during the volley (of shots), that Lewellyn

turned at any point to expose her back to the officers.”

(ECF No. 83-2 at PageID 343.) But Plaintiff disputes

this allegation (ECF No. 104-2 at PageID 655), citing

Lewellyn’s autopsy that shows evidence of four shots in

Lewellyn’s back. (ECF No. 95 at PageID 522.)

F. Lewellyn Is Down

Defendants allege that, once shot multiple times,

Lewellyn fell to the ground and “continued to shift her

position.” (ECF No. 83-2 at PageID 343.) Disputing this

interpretation, Plaintiff claims that “Lewellyn laid

bleeding and dying . . . while Defendants continued to

shoot multiple times.” (ECF No. 104-2 at PageID 655.)

But both parties agree that the deputies shot at

Lewellyn 10 times, with eight of those bullets striking

her. (Id. at PageID 655–56.) And only after the 10 shots

did the deputies ask Lewellyn to put down her gun. (Id.

at PageID 656.)

App. 20

Finally, once Lewellyn was lying on the ground, “the

deputies [approached] Lewellyn, yelling ‘let me see

your hands!’ and ‘hands up!’” (Id. at PageID 657.) The

deputies then “began trying to render medical aid.”

(Id.)

II.

Procedural Background

Plaintiff sued officers Wiggins and Paschal under 42

U.S.C. § 1983 for the alleged wrongful shooting death

of Lewellyn. (ECF No. 1.) He also sued Sheriff William

Oldham (“Oldham”) and Shelby County, Tennessee,

under the same claim.4(Id.)

As to Wiggins and Paschal, Plaintiff claims that

they “deprived [Lewellyn] from her Constitutional right

to be free from unreasonable and excessive deadly force

and unreasonable seizure through means intentionally

applied under the Fourth Amendment of the United

States Constitution.” (Id. at PageID 17.) Plaintiff

claims that, because of Wiggins and Paschal’s alleged

constitutional violation, he is entitled to “compensatory

damages available under the law including but not

limited to extreme pain and suffering of [Lewellyn],

funeral expenses, medical expenses, pecuniary value of

the life of [Lewellyn] and the loss of society and

companionship and consortium for Plaintiff.” (Id. at

PageID 19.)

4

The Court dismissed without prejudice Plaintiff’s claim against

Oldham for failure to state a claim under Fed. R. Civ. P. 12(b)(6).

(See ECF No. 48.) And as of this order, Shelby County, Tennessee,

remains a defendant in this lawsuit and has not moved for a

dismissal.

App. 21

Wiggins and Paschal have now moved for summary

judgment. (ECF No. 83.) They argue that they are

entitled to qualified immunity and provide two

interrelated reasons why this Court should find in their

favor.5 (ECF No. 83-1.)

First, they say that “Wiggins and Paschal are

entitled to qualified immunity because, at the time

[Lewellyn] walked out of her house with a handgun,

their actions were reasonable under the Sixth Circuit’s

segmenting approach.” (Id. at PageID 318.) And

second, they say that “Wiggins and Paschal did not

violate clearly established law.” (Id. at PageID 319.)

In the next sections, the Court will address

Defendants’ qualified immunity argument. And for the

reasons detailed below, the Court DENIES

Defendants’ motion for summary judgment.

LEGAL STANDARD

I.

Summary Judgment Standard

The Court begins its analysis with the rules and

cases about the summary judgment standard.

A party is entitled to summary judgment “if the

movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to

5

The Court entered a limited scheduling order allowing Plaintiff

to depose Paschal, Wiggins, and the medical examiner who

conducted Lewellyn’s autopsy. (See ECF No. 68.) The Court found

“it appropriate and necessary to allow Plaintiff to conduct limited

discovery on the issue of qualified immunity before responding to”

Defendants’ motion for summary judgment. (Id. at PageID 286)

(citing Crawford-El v. Britton, 523 U.S. 574, 593 n.14 (1998)).

App. 22

judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A

fact is ‘material’ for purposes of summary judgment if

proof of that fact would establish or refute an essential

element of the cause of action or defense.” Bruederle v.

Louisville Metro Gov’t, 687 F.3d 771, 776 (6th Cir.

2012).

“In considering a motion for summary judgment,

[the] court construes all reasonable inferences in favor

of the nonmoving party.” Robertson v. Lucas, 753 F.3d

606, 614 (6th Cir. 2014) (citing Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

“The moving party bears the initial burden of

demonstrating the absence of any genuine issue of

material fact.” Mosholder v. Barnhardt, 679 F.3d 443,

448 (6th Cir. 2012) (citing Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986)).

“Once the moving party satisfies its initial burden,

the burden shifts to the nonmoving party to set forth

specific facts showing a triable issue of material fact.”

Mosholder, 679 F.3d at 448-49; see also Fed. R. Civ. P.

56(e); Matsushita, 475 U.S. at 587. If “the non-moving

party fails to make a sufficient showing of an essential

element of his case on which he bears the burden of

proof, the moving parties are entitled to judgment as a

matter of law and summary judgment is proper.”

Martinez v. Cracker Barrel Old Country Store, Inc., 703

F.3d 911, 914 (6th Cir. 2013) (quoting Chapman v.

UAW Local 1005, 670 F.3d 677, 680 (6th Cir. 2012) (en

banc)) (internal quotation marks omitted); see also

Kalich v. AT & T Mobility, LLC, 679 F.3d 464, 469 (6th

Cir. 2012).

App. 23

The parties must cite “to particular parts of

materials in the record” to “show that a fact is, or is

not, genuinely disputed,” “showing that the materials

cited do not establish the absence or presence of a

genuine dispute” or showing “that an adverse party

cannot produce admissible evidence to support the

fact.” Bruederle, 687 F.3d at 776 (alterations in

original) (quoting Fed. R. Civ. P. 56(c)(1)); see also

Mosholder, 679 F.3d at 448 (“To support its motion, the

moving party may show ‘that there is an absence of

evidence to support the nonmoving party’s case.’”

(quoting Celotex, 477 U.S. at 325)).

“Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from

the facts are jury functions, not those of a judge[.]”

Martinez, 703 F.3d at 914 (alteration in original)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986)). “The court need consider only the cited

materials, but it may consider other materials in the

record.” Fed. R. Civ. P. 56(c)(3). “[T]he district court

has no ‘duty to search the entire record to establish

that it is bereft of a genuine issue of material fact.’”

Pharos Capital Partners, L.P. v. Deloitte & Touche, 535

F. App’x 522, 523 (6th Cir. 2013) (per curiam) (quoting

Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir. 2008),

abrogation recognized by Anderson v. City of Blue Ash,

798 F.3d 338 (6th Cir. 2015)).

Ultimately, the “question is whether ‘the evidence

presents a sufficient disagreement to require

submission to a [fact finder] or whether it is so

one-sided that one party must prevail as a matter of

law.’” Johnson v. Memphis Light Gas & Water Div., 777

App. 24

F.3d 838, 843 (6th Cir. 2015) (quoting Liberty Lobby,

477 U.S. at 251–52). Summary judgment “‘shall be

entered’ against the nonmoving party unless affidavits

or other evidence ‘set forth specific facts showing that

there is a genuine issue for trial.’” Rachells v. Cingular

Wireless Employee Services, LLC, No. 1:08 CV 02815,

2012 WL 3648835, at *2 (N.D. Ohio Aug. 23, 2012)

(quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,

884 (1990)).

“[A] mere ‘scintilla’ of evidence in support of the

non-moving party’s position is insufficient to defeat

summary judgment; rather, the non-moving party must

present evidence upon which a reasonable jury could

find in her favor.” Tingle v. Arbors at Hilliard, 692 F.3d

523, 529 (6th Cir. 2012) (quoting Liberty Lobby, 477

U.S. at 251). “[T]o withstand a motion for summary

judgment, the party opposing the motion must present

‘affirmative evidence’ to support his/her position.”

Mitchell v. Toledo Hosp., 964 F.2d 577, 584 (6th Cir.

1992) (citing Liberty Lobby, 477 U.S. at 247–254; Street

v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.

1989)). “[C]onclusory assertions, unsupported by

specific facts made in affidavits opposing a motion for

summary judgment, are not sufficient to defeat a

motion for summary judgment.” Rachells, 2012 WL

3648835, at *2 (quoting Thomas v. Christ Hosp. and

Med. Ctr., 328 F.3d 890, 894 (7th Cir. 2003)).

Statements in affidavits that are “nothing more than

rumors, conclusory allegations and subjective beliefs”

are insufficient. See Mitchell, 964 F.2d at 584–85.

App. 25

II.

Video Evidence

As mentioned above, the Court ordinarily must view

facts in the light most favorable to the nonmoving

party when deciding a motion for summary judgment.

See Robertson, 753 F.3d at 614. But an “added wrinkle”

exists when the record includes “videotape[s] capturing

the events in question.” Scott v. Harris, 550 U.S. 372,

378 (2007).

In cases like the one here, “where the police

dash-cam video[s] . . . depict[] all of the genuinely

disputed facts,” Standifer v. Lacon, 587 Fed. App’x.

919, 920 (6th Cir. 2014), the Court must view “the facts

in the light depicted by the videotape[s].” Scott, 550

U.S. at 381. That said, when “facts shown in videos

can be interpreted in multiple ways or if 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)).

ANALYSIS

Defendants argue first that they did not violate

Plaintiff’s Fourth Amendment rights because their

actions were reasonable under the circumstances. (ECF

No. 83-1 at PageID 318.) And even if they did,

Defendants argue that they are entitled to qualified

immunity because “they did not violate clearly

established law.” (Id. at PageID 318.) Plaintiff

disagrees on both counts. (See ECF No. 104.)

The Sixth Circuit has established a three-step

analysis to determine whether qualified immunity

App. 26

applies. First, assess whether the facts viewed in the

light most favorable to the nonmoving party show that

a constitutional violation has occurred. Second,

consider whether the alleged violation implicated a

clearly established constitutional right of which a

reasonable person would have known. And third,

determine whether Plaintiff has put forth enough

evidence “to indicate that what the official allegedly did

was objectively unreasonable in light of the clearly

established constitutional rights.” Feathers v. Aey, 319

F.3d 843, 848 (6th Cir. 2003) (quoting Williams v.

Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc)).

Under this standard, the first issue that this Court

will decide is thus whether the facts viewed in the light

depicted by the video footage or in the light most

favorable to Plaintiff show that Defendants committed

a constitutional violation. The Court assesses whether

the video footage or Plaintiff’s version of the facts when

the video footage is unclear shows that Defendants

violated Lewellyn’s Fourth Amendment rights. The

Court takes on this issue in the next section.

I.

The Fourth Amendment

To recover damages under § 1983, a plaintiff must

allege that a person acting under color of state law

violated a right secured by the Constitution and laws

of the United States. West v. Atkins, 487 U.S. 42, 42

(1988). Plaintiff here asserts a Fourth Amendment

excessive force claim against Defendants. (See ECF No.

1.) And there is no dispute that, at the time of

Lewellyn’s seizure, Defendants were “acting under

color of state law.” West, 487 U.S. at 42.

App. 27

Courts analyze excessive force claims under the

Fourth Amendment’s reasonableness standard. See

Graham v. Connor, 490 U.S. 386, 395 (1989).

“[W]hether the force used to effect a particular

seizure is reasonable . . . requires a careful balancing of

the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.” Id. at

396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985))

(internal quotation marks omitted). And “[d]eadly force

is objectively reasonable when an officer ‘has probable

cause to believe that the suspect poses a significant

threat of death or serious physical injury to the officer

or others.’” Thomas v. City of Columbus, Ohio, 854 F.3d

361, 365 (6th Cir. 2017) (quoting Garner, 471 U.S. at

3).

Although the Court assesses reasonableness based

on the totality of the circumstances, three factors guide

the analysis: “(1) the severity of the crime at issue;

(2) whether the suspect poses an immediate threat to

the safety of the officer or others; and (3) whether the

suspect is actively resisting arrest or attempting to

evade arrest by flight.” Bouggess v. Mattingly, 482 F.3d

886, 889 (6th Cir. 2007) (citing Graham, 490 U.S. at

396).

This test is objective, “to be ‘judged from the

perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.’” Sova v. City

of Mt. Pleasant, 142 F.3d 898 at 903 (6th Cir. 1998)

(quoting Graham, 490 U.S. at 396). It must make

“allowance for the fact that police officers are often

forced to make split-second judgments—in

App. 28

circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary

in a particular situation.” Graham, 490 U.S. at 397.

An officer’s intent does not affect the Court’s

analysis. So, if an officer has evil motive, that motive

will not turn an objectively reasonable use of force into

a Fourth Amendment violation. Graham 490 U.S. at

397 (citing Scott v. United States, 436 U.S. 128, 138

(1978)). Likewise, an officer’s good intentions will not

turn objectively unreasonable use of force into a

constitutional act. Id.

“In this circuit, we consider the officer’s

reasonableness under the circumstances he faced at the

time he decided to use force.” Thomas, 854 F.3d at 365

(citing Livermore ex rel Rohm v. Lubelan, 476 F.3d 397,

406 (6th Cir. 2007)) (emphasizing the use of the

so-called segmented analysis in the Sixth Circuit).

“Even if an officer approaches a scene recklessly, this

will not necessarily render a later decision to protect

himself unreasonable.” Id. (citing Chappell v. City of

Cleveland, 585 F.3d 901, 915–16 (6th Cir. 2009)).

II.

Whether the

Unreasonable

Deputies’

Seizure

Was

To begin with, the Court notes that Defendants do

not argue that the first and third factors of the

so-called Graham factors apply here. Nor could they.

The parties neither allege that Lewellyn was

committing a crime—the first factor—nor that the

deputies sought to arrest her— the third factor.

And so the Court will focus on the other

factor—whether Lewellyn, at the time of the shooting,

App. 29

“pose[d] an immediate threat to the safety of the

officer[s] or others.” Graham, 490 U.S. at 395. Said

otherwise, the Court should answer whether Paschal

and Wiggins had “probable cause to believe that

[Lewellyn] posed an imminent danger of serious

physical harm to [them] or to others.”6 Garner, 471

6

The Court notes that it focuses its analysis here to whether

Lewellyn posed an immediate threat to the deputies, not to

anybody else in the vicinity. See Graham, 490 U.S. at 395. Wiggins

testified that he “started firing [his] weapon” when Lewellyn had

reached her driveway and allegedly “fac[ed]” the deputies. (ECF

No. 91 at PageID 424.) Similarly, Paschal testified that he shot

Lewellyn when she allegedly reached the driveway, “saw” the

deputies, and “raise[d] her gun” in their direction. (ECF No. 92-1

at PageID 462–63.) Paschal also claimed that Lewellyn was a

danger to him, Jayroe, and “all the other citizens in that cove”

when he fired his weapon. (Id. at PageID 464.) Hypothetically,

Paschal’s statement about others may be right but there is no

evidence that he is.

At this stage in the lawsuit, the Court must deal in evidence—not

speculation or hypotheticals—when deciding whether the deputies’

use of lethal force was reasonable under the Fourth Amendment.

See Bruederle, 687 F.3d at 776. And the Court finds no evidence

that suggests that people other than Lewellyn and the deputies

were present when the shooting occurred.

For one, the parties do not argue in their briefs that Lewellyn

posed a threat to anybody else than the deputies. (See ECF No. 83;

ECF No. 104.) What is more, neither the paper record nor the

video footage shows that anybody other than the deputies and

Lewellyn was present at the time of the incident. In fact, starting

at the moment when the deputies enter Lewellyn’s neighborhood,

the video footage captures the presence of only four people:

Lewellyn, Jayroe, Paschal, and Wiggins. (See ECF No. 83-3.)

More to this point, Wiggins did not say during his deposition that

people other than the deputies were at risk of danger when

Lewellyn walked out of her home. (See ECF No. 83-6; ECF No. 91;

App. 30

U.S. at 3. The Court will evaluate this question

separately for each deputy.

ECF No. 91-1.) And aside from Paschal’s statement about other

potential people in the cove (ECF No. 92-1 at PageID 464), his

deposition testimony largely tracks Wiggins’s. He focuses on

Lewellyn’s alleged threat to the deputies, not anyone else. (See

ECF No. 83-7; ECF No. 92; ECF No. 92-1; ECF No. 92-2.)

Thus, although the parties do not argue in their briefs that

Lewellyn posed an imminent danger of serious physical harm to

other, unknown people in the cove, the Court finds that raising

this argument would, at best for Defendants, raise a genuine issue

of material fact. The record is replete with evidence that shows

that, in fact, only Lewellyn and the deputies were present at the

time of the shooting. At worst, however, this argument would have

no proverbial leg to stand on—there is simply nothing in the record

that suggests the presence of anybody else than Lewellyn and the

deputies. See also Adams v. Blount Cty., Tennessee, 946 F.3d 940,

949 (6th Cir. 2020) (“[I]n cases where the witness most likely to

contradict the officer’s testimony is dead, ‘the [C]ourt may not

simply accept what may be a self-serving account by the police

officer. It must look at the circumstantial evidence that, if believed,

would tend to discredit the police officer’s story.”) (quoting

Jefferson v. Lewis, 594 F.3d 454, 462 (6th Cir. 2010).

To speculate about the alleged threat posed by Lewellyn—and

particularly the imminence of her alleged threat—beyond the

evidence presented would lead the Court far astray from the

relevant, more narrow question at stake here. Namely, whether

Defendants had probable cause to believe that Lewellyn posed an

imminent threat of serious physical threat to the deputies. See

Garner, U.S. 471 at 3. This more narrow and relevant question

thus guides the Court’s analysis throughout this order.

App. 31

A. Paschal

1. Before Paschal Arrives on the Scene

The radio dispatch had informed Paschal of two key

facts before he arrived at Lewellyn’s home.

First, it told him that Lewellyn was in mental

health distress. (ECF No. 104-2 at PageID 645.) He,

and the other two deputies, knew that Lewellyn had

told the 911 call center that she was depressed and

suicidal.7 (Id.) And second, Paschal knew she had told

7

The Court notes that Defendants characterize Lewellyn’s mental

health condition as “making her actions unpredictable.” (ECF No.

83-2 at PageID 340.) But Plaintiff disputes this characterization

“for purposes of summary judgment statement . . . as there is not

[sic] citation to the record that contains that statement.” (ECF No.

104-2 at PageID 646.)

Because Defendants’ characterization that Lewellyn was

unpredictable lacks support in the record, the Court declines to

infer that Lewellyn’s mental health condition indeed made her

unpredictable—and thus more or less of a threat for Defendants.

What remains undisputed here is that Lewellyn was in mental

health distress. She made threats about future conduct and

reported that she was suicidal.

The Court also notes that “unpredictable” in this context could

mean many things. But the Court assumes that Defendants mean

it in a way that suggests that Lewellyn posed more of a threat

than she would have had she not suffered from a mental health

condition. To assume otherwise would, after all, contradict

Defendants’ position that Lewellyn posed a danger to the deputies.

This suggestion, if left unaddressed, could have implications that

the Court finds troubling. It could propagate an ill-explored—and

perhaps prejudiced—understanding of the effects of mental illness

on later violent behavior. This issue, if unsupported by evidence,

is one best left to mental health experts, not courts. The Court

App. 32

the dispatch that she had a gun, and that she would

kill any person who came to her home. (Id.) While on

their way to Lewellyn’s home, the dispatch explained to

the deputies that Lewellyn had in her possession “what

she [thought] may be a .45 caliber pistol.” (SUV

Camera 1 at 12:11:58.)

With these facts in mind, Paschal arrived at

Lewellyn’s home aware of the risks at hand. This

explains why, shortly after his arrival, but before

Lewellyn came out of her house, Paschal drew his gun

and appeared to communicate with Jayroe about

Lewellyn’s status. (SUV Camera 2 at 12:13:44.) The

video camera attached to Paschal’s SUV records one of

the deputies telling the other that Lewellyn was

“possibly armed with a .45.” (Id. at 12:13:40.) And

Paschal also appeared to communicate by radio with

Wiggins—who was on his way to the scene—about

Lewellyn. (Id. at 12:13:45.)

2. Lewellyn Steps Out of Her Home

When Lewellyn first becomes visible from the

perspective of the video camera attached to Jayroe’s

SUV, Jayroe and Paschal stood in the street. (SUV

Camera 1 at 12:14:08.)

According to Paschal’s deposition testimony,

Lewellyn was 60 feet away, “give or take,” from the

deputies when she walked out of her house. (ECF No.

92-2 at PageID 488.) And the deputies’ SUVs, as well

thus stresses that the evidence, or lack thereof, about Lewellyn’s

mental health condition does not assist in the Court’s Fourth

Amendment analysis.

App. 33

as both deputies, were slightly to the right of

Lewellyn’s front door.8 (SUV Camera 1 at 12:14:08; see

also ECF No. 93.)

Defendants argue that, “[w]hen Lewellyn first

walked through her door, she was holding an object in

her right hand . . . and pointed in the direction of

[Jayroe’s SUV].” (ECF No. 83-2 at PageID 341.) They

then say that, because “Jayroe and Paschal are

standing at the rear of [Jayroe’s SUV] at that time, . . .

Lewellyn points the gun in their direction.” (Id.)

Plaintiff does not dispute that “Lewellyn was

holding an object in her right hand when she came out

of the door.” (ECF No. 104-2 at PageID 649.) But he

disputes that “Lewellyn pointed in the direction of”

Jayroe’s SUV. (Id.) He also disputes that the deputies

ever saw Lewellyn point her gun in their direction. (Id.

at PageID 649–50.)

Two fact issues arise from this tension between the

parties’ positions: (1) Whether Lewellyn pointed her

gun in the direction of Jayroe’s SUV when she stepped

out of her home; and (2) whether the deputies perceived

her doing so.

The Court finds that reconciling these positions is

important because “whether the use of deadly force . . .

depends primarily on objective assessment of the

danger a suspect poses . . . from the perspective of a

reasonable officer in the defendant’s position.”

Bouggess, 482 F.3d at 889 (emphasis added). The Court

8

The Court adopts the deputies’ point of view when describing the

facts here, and it continues to do so for the rest of this order.

App. 34

must thus focus its Fourth Amendment analysis on

what Paschal perceived when Lewellyn stepped out of

her home. And, as the Court will explain, the record

does not unequivocally show that Paschal saw

Lewellyn raise her gun when she stepped out of her

house.

As to the first issue, the video camera attached to

Jayroe’s SUV appears to show Lewellyn walking out of

her house with the gun in her right hand. (SUV

Camera 1 at 12:14:08.) The video footage also appears

to show that Lewellyn raised the gun in the SUV’s

general direction. (Id.) Seeing this movement is also

difficult because in front of Lewellyn’s house—between

the camera and Lewellyn—is a tree the limbs of which

partially obscure the view of Lewellyn. (Id.)

But, as to the second issue, the Court cannot infer

that, just because the video footage shows Lewellyn

raising her gun in the direction of Jayroe’s SUV,

Paschal saw her doing so. Latits, 878 F.3d at 547 (“To

the extent that facts shown in videos can be interpreted

in multiple ways or if videos do not show all relevant

facts, such facts should be viewed in the light most

favorable to the non-moving party.”) Neither deputy on

the scene at that time fired at Lewellyn when she first

walked out of her house. There is thus a question of

fact whether the video footage shows what the deputies

saw when Lewellyn first stepped out of her home.

The deposition testimony of both Paschal and

Wiggins also supports the Court’s reluctance to infer

too much on this point from the video footage. Wiggins

stated that Lewellyn had not pointed her gun toward

any of the deputies up until the moment when she

App. 35

reached her driveway. (ECF No. 91 at PageID 424–25.)

And Paschal testified that he “deemed [Lewellyn] to be

a threat of death or serious bodily injury” when he fired

the two first shots. (ECF No. 83-7 at PageID 375.) But

Paschal did not shoot Lewellyn when she first emerged

from her home. By the time Paschal fired those two

shots, Lewellyn had walked from her front door along

the walkway to her driveway. (SUV Camera 1 at

12:14:14.)

Based on the above analysis, the Court makes two

findings. First, the Court finds that the video footage

does show that Lewellyn stepped out of her home with

her BB gun in her hand. And second, the Court finds

that a genuine dispute of material fact exists about

whether the deputies saw Lewellyn’s gun at that time

or what, if anything, she did with it.

The Court emphasizes that, because the material

fact here is not whether Lewellyn stepped out of her

home with her gun pointed toward Jayroe’s SUV, but

whether Paschal saw her doing so, it cannot find that

Paschal perceived Lewellyn as an “imminent danger of

serious physical harm to [them] or to others” at that

moment. Garner, 471 U.S. at 3; see Mitchell, 964 F.2d

at 584 (explaining that the Court must view facts in

the light most favorable to the nonmoving party when

genuine disputes of material facts exist). The video is

unclear about whether the deputies perceived that

Lewellyn pointed her gun in their direction as she

walked through the front door. And the deputies’

testimony strongly suggests that the deputies did not

see her do so. This fact issue should thus “be viewed in

App. 36

the light most favorable to the non-moving party.”

Latits, 878 F.3d at 547.

To find legitimate Paschal’s use of force, the Court

must thus focus its analysis on whether Lewellyn acted

in threatening ways between when she stepped out of

her home to when Paschal fired his gun and struck her

with his first bullet. The Court proceeds with this

analysis in the next section.

3. Paschal Shoots Lewellyn

a. Undisputed Facts About Paschal’s

Shooting

The Court finds necessary, before analyzing the

genuine disputes of material fact between the parties,

to highlight two undisputed facts that relate to

Paschal’s alleged liability under the Fourth

Amendment. The first relates to the time that expired

between the moment Lewellyn stepped out of her home

and Paschal’s first shot. And the second relates to the

lack of warning given by the deputies.

i. The Passage of Time Before the

Shot

Lewellyn took no more than 10 steps outside her

house—the Court counts seven, to be exact—before

Paschal fired his first shot. (SUV Camera 1 at 12:14:08

App. 37

to 12:14:12; see also Figure 19.) These steps occurred in

no more than four seconds. (Id.)

More troublesome is that Lewellyn took five of these

steps, not in the deputies’ direction, but away from the

deputies, toward the car parked in the driveway. (Id.)

The Court must also note that Lewellyn’s steps

appeared confused. (Id.) In the Court’s view, neither

her demeanor nor her body language shows that she

stepped out of her home with a clear purpose in mind.

Figure 1. SUV Camera 1 at 12:14:11.

9

The Court generated all Figures by taking screenshots of the

video footage provided by Defendants. (See ECF No. 83-3.) The

software allowing the Court to watch the video footage included a

screenshot function, and the Court did not crop any of the included

Figures.

The Court also stresses that it spent much time pinpointing

through screenshots moments that it deemed relevant to this

order. But the Court also wishes to emphasize that watching the

video of events from start to finish, without pause, reveals how

quickly the incident occurred. But it also reveals that the Figures

in this order do not tell the full story; they are mere moments in a

stream of events that provide context for the reader.

App. 38

When Paschal fired, Lewellyn did not have her body

angled toward the deputies, nor did she have her gun

pointed in their direction. (See Figure 2.) The Court

even questions whether Lewellyn knew where Jayroe

and Paschal were when the first bullet struck her.

Based on the video footage, nothing appears to show

that she knew the deputies’ positioning. What is more,

there is a tree between Lewellyn’s front door and the

street where the deputies’ vehicles were located, which

presumably would have hindered Lewellyn’s ability to

see the deputies.

That said, the video shows Lewellyn extending her

right arm with the gun either toward her car in the

driveway or slightly to its left as she walked toward her

car, away from the deputies, when Paschal first shot

her. (Id. at 12:14:12.) And, in this way, Lewellyn’s gun

is about at a 90-degree angle away from Paschal, who

still stands upright to the right of Jayroe’s SUV. (See

Figure 3 (occurring simultaneously as Figure 2); see

also ECF No. 93; ECF No. 93-1.) In other words,

Paschal had Jayroe’s SUV between him and Lewellyn

when he fired at her.

App. 39

Figure 2. SUV Camera 1 at 12:14:12.

Figure 3. SUV Camera 2 at 12:14:12.

ii. The Lack of Warning Before

the Shot

Paschal also did not wait for Lewellyn to respond to

a warning before shooting her. See Garner, 471 U.S. at

11–12 (“[I]f the suspect threatens the officer with a

weapon . . . , deadly force may be used if necessary to

prevent escape, and if, where feasible, some warning

App. 40

has been given.”) (emphasis added). Paschal pulled the

trigger at the same time as one of the deputies— most

likely Jayroe10—shouted “Hey—ma’am!” or “Yo—

ma’am!” (SUV Camera 1 at 12:14:11 at 12:14:12.) The

video footage captures Paschal shooting Lewellyn when

the word “ma’am” echoes. (Id. at 12:14:12.)

This fact raises questions about whether a warning

was feasible, and whether doing so was the reasonable

action to take under the circumstances. Garner, 471

U.S. at 11–12.

At a minimum, the Court finds that Paschal could

have waited a second—even a fraction of a

second—after the shouting to gauge her response. The

Court also finds rather implausible that a warning was

unfeasible at the time of Lewellyn’s appearance. If

anything, one of the deputies did shout at Lewellyn,

and he waited to do so until her foot was on her

driveway. (SUV Camera 1 at 12:14:11.)

10

During an interview with a detective of Shelby County’s Bureau

of Professional Standards and Integrity (“BOPSI”), Paschal

explained that he did not remember giving Lewellyn a warning.

(ECF No. 88 at 402) (“I don’t remember giving verbal

commands . . . . [T]here was some yelling but I don’t remember

what was said.”) This statement raises the question about whether

Paschal even considered giving Lewellyn a warning before taking

aim and shooting. And Jayroe appears to have told the BOPSI

detective during his own interview that he was responsible for the

shouting, but he left doubt about this fact. (ECF No. 90 at PageID

412) (“[S]omebody did [give verbal commands to Lewellyn] and, uh,

I want to say I did as well but I know I didn’t say it until she was

already on the ground. Um, but I heard somebody else say it but

I don’t know at what point they said it.”)

App. 41

The Court also finds striking that the deputies did

not give Lewellyn a warning when she first walked out

of her home and, instead, waited many seconds before

doing so. The Court acknowledges that it must make

“allowance for the fact that police officers are often

forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly

evolving.” Graham, 490 U.S. at 397. But the Supreme

Court emphasized more than 30 years ago the

importance of warnings when feasible before using

lethal force. See Garner, 471 U.S. at 11–12. The Court

thus cannot excuse the deputies’ omission by inferring

that the circumstances were too “tense, uncertain, and

rapidly evolving” to undercut foundational principles of

law enforcement conduct. Graham, 490 U.S. at 397.

The Court thus finds, much like the Sixth Circuit

did for Defendant Mattingly in Bouggess, that Paschal

“never warned [Lewellyn] that he might shoot, as

required by Garner when feasible under the

circumstances.” 482 F.3d at 892 (6th Cir. 2007) (citing

Craighead v. Lee, 399 F.3d 954, 962 (8th Cir. 2005)). As

the Court will explain below, this finding is one factor

among many that the Court weighs when assessing

whether Paschal violated Lewellyn’s Fourth

Amendment rights.

b. Factual Disputes Over Paschal’s

Shooting

Based on the discussion above, the Court can

highlight two undisputed facts that bear on Paschal’s

liability under the Fourth Amendment. First, he shot

Lewellyn as she walked toward the car in her driveway

and thus farther away from the deputies. And second,

App. 42

Paschal did not wait for Lewellyn to respond to the

deputy’s shout before pulling the trigger.

Having made these findings, the Court now turns to

the record to assess factual disputes about the danger

posed by Lewellyn. The Court finds that genuine

disputes of material facts exist about the danger posed

by Lewellyn when Paschal used lethal force against

her.

Defendants say that, while walking toward her

driveway, “Lewellyn again began to raise the handgun

up, pointed outward,” and that Paschal perceived her

doing so. (ECF No. 83-2 at PageID 342.) To this effect,

Defendants cite Paschal’s deposition, during which he

testified the following: “From what I remember—I don’t

remember exact [sic]—from that day perceiving that

day on March 17th—I don’t remember exactly how it

was. I remember her turning, lifting the gun. And then

I start firing.” (ECF No. 83-7 at PageID 375–76)

(emphasis added.) He also answered in the affirmative

when asked “whether [Lewellyn] ever point[ed] the

gun” at him. (ECF No. 92-1 at PageID 464.)

Plaintiff disputes these statements. (See ECF No.

104-2 at PageID 652.) He says that “Lewellyn never

pointed the bb gun at Defendants Wiggins or Paschal

or Deputy Jayroe or any other person in the vicinity

that date.” (Id.)

The Court finds that the video footage supports

Plaintiff’s position. The picture below (Figure 4) shows

Lewellyn at the exact moment when Paschal pulled the

trigger for the first time:

App. 43

Figure 4. SUV Camera 1 at 12:14:12.

Based on the video footage, the Court finds that a

genuine dispute of material fact exists about whether

Lewellyn pointed her gun in the deputies’ direction

when she reached the driveway. Lewellyn was facing

away from the deputies when Paschal first fired. (See

Figure 3; Figure 4.) Plus, Paschal stood several dozen

feet to the right of Lewellyn, partially hidden by

Jayroe’s SUV. (See Figure 3.)

In fact, when Lewellyn’s body was the closest to

facing the deputies (see Figure 5), Paschal had already

fired his weapon for the first time. Lewellyn’s

movement captured in Figure 5 could thus be a jerk in

response to Paschal’s shot, which struck her in the

back.

App. 44

Figure 5. SUV Camera 1 at 12:14:12.

“To the extent that facts shown in videos can be

interpreted in multiple ways,” which the Court finds is

the case here, “such facts should be viewed in the light

most favorable to the non-moving party.” Latits, 878

F.3d at 541. The Court must thus find that Lewellyn

did not point her gun at Paschal when she reached her

driveway. To find otherwise would contradict the

standard of review under which the Court must view

the facts here.

Plaintiff also says that “Paschal fired his

weapon . . . , causing Lewellyn’s arm and body to

move.” (ECF No. 104-2 at PageID 652.) The Court

assumes that this assertion responds to Paschal’s

deposition testimony, in which he said that he saw

Lewellyn “turning” before he shot her. (See ECF No. 88

at PageID 401.)

As the Court mentioned above, the video footage

shows that Lewellyn turned her body toward her

App. 45

driveway, and thus away from the deputies, between

the moment she opened her front door to when Paschal

first shot her. (SUV Camera 1 at 12:14:08 to 12:14:12.)

It also shows that Lewellyn rotated her body from her

driveway (see Figure 4) toward Paschal (see Figure 5)

only after he took his first shot. (See Figure 5.)

Another fact issue thus exists about Paschal’s

perception of Lewellyn’s threat when he first fired, and

about Defendants’ description of the scene when

Paschal shot his first bullet. The contention that

Lewellyn turned her body toward Paschal before being

shot is, at best, inconclusive and, at worst, untenable.

The Court thus finds that a genuine dispute of material

fact exists about whether Lewellyn turned her body

toward the deputies before Paschal shot her.

4. The Reasonableness of Paschal’s

Shooting Is Subject to Dispute

Having spotlighted key undisputed and disputed

facts surrounding Paschal’s first pull of the trigger, the

Court now turns to precedent in the Sixth Circuit to

assess the reasonableness of Paschal’s actions.

Defendants rely on Thomas, 854 F.3d, to argue that

“[o]fficers are not liable for shooting in self-defense,

even when the suspect does not point or fire her

weapon at them.” (ECF No. 83-1 at 327.) But a key

factual difference exists between Thomas and here: the

distance between the officer and the suspect at the

moment of the firing.

In Thomas, moments after Officer Kaufman arrived

at the scene where a burglary was allegedly in

progress, “two men exited [the suspect’s] apartment

App. 46

and ran toward him. The first had a gun in his hand.”

854 F.3d at 363. By the time Officer Kaufman “shouted

and then fired two shots at the person with the gun,”

the suspect “had closed the distance to what Officer

Kaufman later estimated to be ten feet.” Id. (emphasis

added). According to the Sixth Circuit, “[a]t this range,

a suspect could raise and fire a gun with little or no

time for an officer to react. Given these facts, a

reasonable officer would perceive a significant threat to

his life in that moment.” Id. at 366 (emphasis added).

But, here, the facts are different. First, the parties

do not dispute that Lewellyn stood around 60 feet away

from Paschal when he shot her. And unlike in Thomas,

where the distance between Officer Kaufman and the

suspect “only shrank as the person closed in on him,”

the distance between Paschal and Lewellyn only

increased as she walked toward her driveway. Id. As

the Sixth Circuit noted, this difference is meaningful:

“[T]he . . . space available to an officer may mean that

the reasonable thing to do is to monitor the suspect,

issue a warning, or take cover.” Id. at 366–67.

Defendants also cite Thornton v. City of Columbus,

727 F. App’x 829 (6th Cir. 2018), to support their

position. But there, too, several facts differ from those

here.

In Thornton, when the officers approached the

suspect’s home, they allegedly could see him “walking

from the bedroom into the living room, . . . holding the

shotgun chest high, angled across his body.” Id. at 831.

The suspect was also “less than fifteen feet away from

the Officers when he entered the living room.” Id.

App. 47

The Sixth Circuit found that, “[t]hough [the suspect]

never pointed the shotgun at the Officers before they

fired their weapons, the undisputed manner in which

[the suspect] was holding the weapon combined with

the short distance between himself and the Officers,”

constituted strong evidence in support of the officers’

position. Id. at 837.

But, here, 60 feet separated Paschal from Lewellyn,

not 15. And unlike in Thornton, where the suspect

wielded his shotgun in threatening ways, Lewellyn did

not “hold[] the gun as though [she] could [move] it

toward them and fire at any moment” between the

moment of her arrival on the scene and the first shot.

Id. at 831. A review of the video evidence here shows

her movements appeared purposeless—almost

complacent—not menacing toward the officers, when

she started walking toward her driveway.

The Court can only find two obvious similarities

between the Sixth Circuit cases cited by Defendants

and the one here. First, like in Thomas and Thornton,

the deputies perceived Lewellyn carrying a gun. And

second, like in Thornton, the deputies knew Lewellyn

had made threats to use her gun against

someone—herself or anyone who approached her home.

But the conjunction of these two facts does not render

reasonable Paschal’s decision to shoot Lewellyn.

Being on notice of a threat of future—even near

future—harm against someone is not enough

justification to use lethal force. See Graham, 490 U.S.

at 396 (holding that a court must assess “whether the

suspect poses an immediate threat to the safety of the

officer or others.”) And perceiving a suspect with a gun

App. 48

is also not enough justification to use deadly force

against them. See Bouggess, 482 F.3d at 896; Thomas,

854 F.3d at 366.

In this way, the Sixth Circuit has held that police

use of lethal force is “reasonable when officers are

confronted with additional indicia of immediate

danger, such as a menacing gesture or other indication

that the individual intends to use his or her weapon.”

Knowlton v. Richland Cty., Ohio, 726 F. App’x 324,

330–31 (6th Cir. 2018). The Court finds that the

“additional indicia of immediate danger” here are

disputable. And because these indicia are disputable,

the grant of summary judgment on Paschal’s Fourth

Amendment violation is inappropriate.11

No disputes exist about the following material facts:

(1) The deputies knew Lewellyn was in mental health

distress; (2) the deputies knew that Lewellyn had made

threats to the 911 dispatch; (3) the deputies saw

Lewellyn walk out of her home with a gun in her right

hand; (4) Paschal waited no more than four seconds

before shooting Lewellyn; (5) the deputies did not warn

Lewellyn before firing; (6) the deputies did not wait for

Lewellyn to respond to their shouting before Paschal

11

The Court notes that much of Defendants’ motion for summary

judgment relates to the events after Paschal’s first shot. The Court

could venture into an analysis over the constitutionality of the

shots after Paschal’s first. But it finds unnecessary to do so.

As the Court shows in the section analyzing the constitutionality

of Wiggins’s use of lethal force, the threat posed by Lewellyn only

decreases after Paschal’s first shot. Thus, because summary

judgment is inappropriate over Paschal’s first shot, it is

inappropriate over Paschal’s later shots.

App. 49

fired; (7) Lewellyn was about 60 feet away from

Paschal when he fired; and (8) Lewellyn walked away

from Paschal before he fired.

But genuine disputes exist about the following

material facts: (1) whether Lewellyn’s mental illness

rendered her actions unpredictable; (2) whether

Paschal saw Lewellyn point her gun toward Jayroe’s

SUV when she walked out of her home; (3) whether

Paschal saw Lewellyn raise her gun in the deputies’

direction once she got to the driveway; and (4) whether

Lewellyn, once having reached the driveway, turned

her body in the deputies’ direction before Paschal shot

her.

Thus, in sum, because the undisputed facts here do

not establish that Lewellyn posed an immediate threat

to the deputies’ lives, and because the facts that could

consist of “additional indicia of immediate danger”

justifying Paschal’s use of lethal force are in dispute,

summary judgment is not appropriate. Knowlton, 726

F. at 330–31. “What exactly happened just before

[Lewellyn] was shot is a question for the jury, as both

sides’ theories of what transpired are sufficiently

supported by evidence in the record,” including the

video footage. King v. Taylor, 694 F.3d 650, 663 (6th

Cir. 2012).

The Court thus DENIES Defendants’ motion for

summary judgment about whether Paschal committed

a Fourth Amendment violation when he shot Lewellyn.

App. 50

B. Wiggins

1. Before Wiggins Arrives on the Scene

As was the case for Paschal, the 911 dispatch had

informed Wiggins that Lewellyn was in mental health

distress. (ECF No. 104-2 at PageID 645.) It also told

Wiggins that she had a gun and was ready to shoot

herself or anyone who approached her home. (Id.)

As shown in the picture below, by the time Wiggins

turned on the street that leads to Lewellyn’s home,

Jayroe and Paschal had parked their cars in front of it.

(See Figure 6.)

Figure 6. SUV Camera 3 at 12:14:08.

2. Lewellyn Steps Out of Her Home

Defendants claim that “Wiggins saw Lewellyn raise

her pistol as she first walked out of the house.” (ECF

No. 83-2 at PageID 342.) But Plaintiff disputes this

assertion. He says that “Wiggins never saw [Lewellyn]

App. 51

aim the bb gun at” the deputies. (ECF No. 104-2 at

PageID 651.)

As depicted by the picture below (Figure 7), the

video footage shows that several dozen feet separated

Wiggins’s SUV from Paschal’s SUV when Lewellyn

first walked out her front door.

Figure 7. SUV Camera 3 at 12:14:09.

The video footage does not show that Wiggins could

see Lewellyn step out of her home, as Defendants argue

was in fact the case. The tree in front of Lewellyn’s

front door could only obstruct Wiggins’s perception of

Lewellyn as she walked onto the scene. (See Figure 7.)

And the distance that separated Wiggins from

Lewellyn when she walked out of her home is much

larger than the distance that separated Paschal from

Lewellyn at that moment. (See id.) Most likely several

App. 52

hundred feet separated Wiggins from Lewellyn when

she stepped out of her home. (See id.)

The deposition testimony of Paschal and Wiggins

also muddles Defendants’ version of the facts. Although

Paschal had a clearer view of the scene than Wiggins

when Lewellyn first made her appearance, Paschal

said that he saw Lewellyn raise her gun for the first

time at the moment he first pulled the trigger when she

was on the driveway. (ECF No. 92-1 at PageID 463.) In

his deposition, he testified:

I had my gun out, and as soon as I saw her and

I saw she had a—I saw the side of her with a

silver handgun and I had my gun up and I saw

her turn and she raised her hand like this

(indicating), and that’s when I started shooting.

She raised her hand. The gun was pointed in our

direction.

(Id.) And Wiggins testified the same way in his

deposition:

I don’t recall seeing [Lewellyn turning right and

starting walking toward the driveway on the

sidewalk]. The last thing I saw before the

shooting took place was Ms. Lewellyn coming

out of her home, walking straight, raised the

gun. I went and took cover and came back out.

(ECF No. 83-6 at PageID 356) (emphasis added.)

Based on the video footage and the deputies’

deposition testimony, the Court thus finds that a

genuine dispute of material fact exists about whether

Wiggins could see Lewellyn raise her gun when she

App. 53

first walked out of her home. See Latits, 878 F.3d at

541 (explaining that the Court should defer to the

nonmoving party’s view of the facts when video footage

is unclear). Far more plausible is that Wiggins saw

Lewellyn raise her gun for the first time when she

reached the driveway. And once she reached the

driveway, there are genuine disputes of material fact

as to (1) which direction Lewellyn was facing and

(2) the direction of the gun when she allegedly raised it.

3. Wiggins Shoots Lewellyn

By the time Paschal fired at Lewellyn for the second

time, Defendants argue that Wiggins had run for “cover

behind the back of his parked vehicle (running away

from Lewellyn), turned round [sic], and began firing.”

(ECF No. 83-2 at PageID 342.)

Plaintiff largely agrees with this statement. (ECF

No. 104-2 at PageID 65.) But he disputes that Wiggins

ever said that he ran away from Lewellyn. (Id.)

The video footage is unclear about Wiggins’s

position when Paschal fired his first shot. (See Figure

8.) But it shows that Wiggins had opened his door and

exited the SUV by the time Paschal fired. (SUV

Camera 3 (Rear) at 12:14:13 to 12:14:14; see also Figure

8 (showing, in the reflection, Wiggins opening the door

and coming out of the SUV).). It also shows Wiggins

moving toward the rear of his SUV when Paschal fired

the second shot. (See Figure 9.)

App. 54

Figure 8. SUV Camera 3 (Rear) at 12:14:14.

Figure 9. SUV Camera 3 (Rear) at 12:14:15.

In this way, viewing the facts in the light most

favorable to Plaintiff—which the Court must do when

multiple interpretations of the video footage are

available, see Latits, 878 F.3d at 541—the Court finds

App. 55

disputable that Wiggins was “running away” from

Lewellyn before shooting, as Defendants suggest. (ECF

No. 83-2 at PageID 342.)

Another plausible interpretation of the footage was

that Wiggins simply tried to take cover behind his SUV

when he heard Paschal’s gunshots, to both have a clear

view of Lewellyn and use his SUV as a shield.

The Court recognizes that the difference between

both interpretations of the facts is slight. But the

difference still bears on Wiggins’s perception of

Lewellyn’s threat—specifically, whether it was

“immediate” or merely possible. Graham, 490 U.S. at

395. If Wiggins’s decision to move behind his SUV was

indeed merely precautionary—plausible from the

perspective of the video footage—then the Court would

find no sound basis to find that he was “running away”

from Lewellyn. (ECF No. 83-2 at PageID 342.)

Defendants further argue that Wiggins’s decision to

shoot Lewellyn was reasonable because she had a gun,

“she said she would kill anyone who came to the scene,”

and she raised her gun at the moment she reached her

driveway. (ECF No. 83-1 at PageID 333.) But Plaintiff

counters that, even if these facts are true, when the

officers fired at her, Lewellyn “posed no threat of death

or seriously bodily injury to [Wiggins] or anyone else.”

(ECF No. 104-1 at PageID 631.)

To assess the merits of the parties’ positions, the

Court must once again emphasize the so-called

segmenting approach that it must use when analyzing

excessive force claims.

App. 56

Under this approach, this Court “should first

identify the ‘seizure’ at issue here and then examine

‘whether the force used to effect that seizure was

reasonable in the totality of the circumstances, not

whether it was reasonable for the police to create the

circumstances.’” Lubelan, 476 F.3d at 406 (citing

Dickerson v. McClellan, 101 F.3d 1151, 1161 (6th Cir.

1996)).

Wiggins’s alleged seizure of Lewellyn began with his

first shot. (SUV Camera 3 (Rear) at 12:14:17; see also

Figure 9.) The issue for the Court to analyze is thus

whether, “in the totality of circumstances,” Wiggins’s

decision to shoot when he did was reasonable. And

because the threat posed by Lewellyn only decreased

after Paschal’s first shot, the Court finds there are

genuine disputes of material fact over whether she

posed an immediate threat to Wiggins’s safety when he

first pulled the trigger. Graham, 490 U.S. at 396.

a. Paschal Fires Two Shots

The video camera attached to Jayroe’s SUV shows

that, by the time Paschal fired twice at Lewellyn, she

had lost her balance and was visibly injured. The

picture below shows Lewellyn when Paschal shot her

for the first time:

App. 57

Figure 10. SUV Camera 1 at 12:14:12.

Paschal struck her; as the picture below (Figure 11)

shows, Lewellyn immediately grabbed her back with

her left hand, as if in pain, and began her gradual

tumble toward the car in her driveway:

Figure 11. SUV Camera 1 at 12:14:13.

App. 58

When Paschal shot for the second time as shown in

Figure 12 below, Lewellyn’s arms were parallel to her

body, her torso and legs fully rotated toward the car in

her driveway:

Figure 12. SUV Camera 1 at 12:14:13.

Once Paschal shot her twice, Lewellyn’s injury is

nothing short of obvious from the video footage’s

standpoint. She began tumbling toward her car, visibly

weakened by Paschal’s two shots:

App. 59

Figure 13. SUV Camera 1 at 12:14:14.

She then put her two hands on the car in the

driveway, one seemingly on the windshield and the

other on the car’s hood:

Figure 14. SUV Camera 1 at 12:14:15.

The Court can comfortably find, based on the

sequence of events depicted by Figures 10 through 15,

App. 60

that any threat posed by Lewellyn decreased after

Paschal’s first shot. The Court now proceeds with an

analysis of the pause between Paschal’s second shot

and Wiggins’s first.

b. The Pause

About three seconds separated Paschal’s second

shot and Wiggins’s first. Figure 10 above shows

Lewellyn when Paschal fired his first bullet. And

Figure 15 below displays Lewellyn as she turns from

the car when Wiggins pulled the trigger for the first

time:

Figure 15. SUV Camera 1 at 12:14:15.

The parties contest what happened during this

three-second pause. According to Defendants,

“Lewellyn leaned against her car and placed the pistol

on the hood of it.” (ECF No. 83-2 at PageID 342.) They

add that, “[o]nce on the hood, the pistol was not visible

from SUV 1’s perspective.” (Id.) Defendants thus claim,

under this interpretation of the facts, that “[n]either

App. 61

Wiggins nor Paschal realized that Lewellyn discarded

her pistol until after they stopped shooting and

approached her.” (Id. at PageID 343.)

Pointing to the video evidence captured by the video

camera attached to Jayroe’s car, Plaintiff disagrees

with Defendants’ interpretation. Plaintiff disputes

“whether the pistol was visible from SUV 1’s

perspective or Defendants’ perspective.” (ECF No. 14-2

at PageID 654.) Instead, Plaintiff argues that Lewellyn

left the gun on the hood of the car. He notes that

“Lewellyn clearly held out her two arms, with palms

and/or hands open, after surrendering the bb gun on

the hood of the car and Defendants continued to shoot

her multiple times.” (Id.)

Two fact issues emerge from the parties’

interpretations of Wiggins’s first shot: (1) Whether the

deputies perceived Lewellyn put the gun on the car’s

hood; and (2) whether the deputies saw that Lewellyn’s

hands were empty after leaning on her car.

As to the first issue, the video footage does not show

Lewellyn put the gun on the car’s hood. (See Figure 14.)

But the video footage does capture a loud noise when

Lewellyn reached for the car—a noise that appears to

be Lewellyn slamming the gun down on the car. (SUV

Camera 1 at 12:14:15.)

Although the Court must view facts in the light

most favorable to Plaintiff when multiple

interpretations of the video footage are possible,

Plaintiff cannot point to evidence other than the video

to support its claim that the deputies could see the gun

on the car’s hood. (ECF No. 104-2 at PageID 654.) And

App. 62

so the Court adopts Defendants’ position on this point

and finds that no genuine dispute of material facts

exists about whether the deputies perceived Lewellyn

put the gun on the car’s hood. See Tingle, 692 F.3d at

529.

That said, the Court finds that the second

issue—whether the deputies saw that Lewellyn’s hands

were empty after leaning on her car—raises a genuine

dispute of material fact. And as the Court will explain

below, this dispute bears on whether the deputies could

have inferred that Lewellyn had put her gun on the car

when she leaned on it.

The video footage shows that Lewellyn’s hands were

empty when Wiggins took his first shot. (See Figure

15.) And as displayed below in Figure 16, Lewellyn

reached down to the ground milliseconds after

Wiggins’s first shot with her palms open to the ground.

Figure 16. SUV Camera 1 at 12:14:16.

Viewing “the facts in the light depicted by the

videotape,” the Court can only conclude that a genuine

App. 63

dispute of material fact exists as to whether the

deputies saw that Lewellyn’s hands were empty after

leaning on her car. Scott, 550 U.S. at 381. To take

Defendants’ word on this issue would undercut

unequivocal video evidence that Lewellyn’s hands were

empty after she leaned on the car in her driveway.

And as mentioned above, this genuine dispute of

material fact bears heavy weight on whether Wiggins

and the other deputies could—or should—have known

that Lewellyn had put the gun on the car. After all,

where else could Lewellyn have placed her gun

between Paschal’s second shot and Wiggins’s first?

Based on the video footage, the Court finds that the car

seems like the only reasonable option.

c. The Shots After the Pause

The parties dispute some of the facts after Wiggins’s

first shot. For instance, they dispute the exact moment

when the deputies shot the tenth, and last, bullet at

Lewellyn. (ECF No. 104-2 at PageID 655.) They also

dispute whether, after falling to the ground, Lewellyn

“continued to shift her position.”12 (Id.)

12

For instance, Defendants point to Williams v. City of

Chattanooga, Tennessee, No. 18-5516, 2019 WL 2145649 (6th Cir.

May 15, 2019), to emphasize the importance of Lewellyn’s conduct

once she fell on the ground. They try to analogize the conduct of

the suspect in Williams—who, once shot twice by officers, “shifted

his position [on the ground], rolling onto his stomach with both

arms outstretched in front of him on the ground”—with that of

Lewellyn. Id. at *2.

But like Defendants cite in their own brief, the Sixth Circuit found

that the officers “had probable cause to shoot [the suspect], even

those arriving later in time, because they could have reasonably

App. 64

But the Court finds that resolving these disputes

does not help the Court analyze Wiggins’s alleged

violation under the Fourth Amendment. As shown

below in Figure 17, Lewellyn was visibly incapacitated,

and thus unthreatening, by the time deputies shot for

the sixth time:

Figure 17. SUV Camera 1 at 12:14:17.

The Court thus finds it appropriate to analyze

Wiggins’s alleged constitutional violation when he first

pulled the trigger. As the Court will explain below, this

moment was when Lewellyn’s alleged threat was at its

believed that [the suspect] was reaching for his gun as he was

moving on the ground, consistent with his prior sprint toward [one

of the officers].” Id. at *4 (emphasis added). The Court finds that

the facts there cannot compare to those here. The video footage

shows that, when Lewellyn started crumbling to the ground, no

gun was in sight, and she displayed nothing to suggest imminent

danger. (See Figure 15; Figure 16; Figure 17.) The threat she posed

then was thus nothing like that of the suspect in Williams when

the suspect there kept moving on the ground.

App. 65

highest from Wiggins’s perspective. But, as the Court

will also explain, the imminence of Lewellyn’s alleged

threat is subject to genuine disputes of material fact.

The Court thus DENIES Defendants’ motion for

summary judgment over whether Paschal committed a

Fourth Amendment violation when he shot Lewellyn.

4. The Reasonableness of Wiggins’s

Shooting Is Subject to Dispute

To assess whether Wiggins had “probable cause to

believe that [Lewellyn posed] a significant threat of

death or serious physical injury to the officer or others,”

the Court must first parse out the undisputed and

disputed facts relevant to his decision to shoot

Lewellyn. Garner, 471 U.S. at 3.

The undisputed material facts relevant to Wiggins

are generally similar to those relevant to Paschal. They

include the following: (1) Wiggins knew Lewellyn was

in mental health distress; (2) Wiggins was aware of the

threatening phone call that Lewellyn had made to the

911 dispatch; (3) Wiggins saw Lewellyn walk from her

home to the driveway with a gun in her right hand;

(4) Wiggins stood at more than 60 feet away from

Lewellyn when he fired13; (5) Wiggins did not give

13

Because Paschal stood about 60 feet away from Lewellyn when

he first took fire, the Court finds undisputed that Wiggins’s

distance is several feet farther away when he decided to do the

same. Wiggins parked his SUV behind Paschal’s, and he stood

behind it when he shot Lewellyn. As the Court explained for

Paschal, this fact bears on the reasonableness of Wiggin’s decision

to shoot Lewellyn. See Thomas, 854 F.3d at 366–67 (noting the

importance of assessing the space available to an officer before

deciding to use deadly force in excessive force cases).

App. 66

Lewellyn any warning before firing; (6) Wiggins did not

directly perceive Lewellyn put the gun on the car’s

hood; and (7) Lewellyn had pushed off the car in the

driveway before Wiggins first pulled the trigger.

And about the disputed material facts relevant to

Wiggins, the Court finds that they include the

following: (1) whether Lewellyn’s mental illness

rendered her actions unpredictable; (2) whether

Wiggins saw Lewellyn step out of her home with the

gun raised in the deputies’ direction; (3) whether

Wiggins ran away from Lewellyn or simply decided to

take cover behind his SUV before shooting; (4) whether

Paschal saw Lewellyn raise her gun in the deputies’

direction once she got to the driveway; (5) whether

Lewellyn, once having reached the driveway, turned

her body in the deputies’ direction before he shot her;

and (6) whether Wiggins saw that Lewellyn’s hands

were empty after leaning on the car in the driveway.14

The Court finds, like it did for Paschal, that the

undisputed facts relevant to Wiggins do not establish

that his use of lethal force toward Lewellyn was

reasonable.

That Wiggins knew Lewellyn had made threats

when calling the 911 dispatch is not enough

14

As the Court already noted, the Court finds undisputed that

Wiggins did not directly perceive Lewellyn drop her gun on the

car’s hood. But the Court does not find undisputed that Wiggins

could have inferred that Lewellyn had done so before he shot his

first bullet. This inference was available to Wiggins because

Lewellyn’s hands were empty when she pushed herself off the car

in the driveway.

App. 67

justification to use lethal force against her. See

Graham, 490 U.S. at 396. That he perceived her walk

from her door to her driveway with a gun in her right

hand similarly does not justify his conduct. See

Bouggess, 482 F.3d at 896; Thomas, 854 F.3d at 366.

The Court stresses that undisputed facts must suggest

something more—an “additional indicia of immediate

danger”—for the use of force to be reasonable.

Knowlton, 726 F. at 330–31. Based on the video

footage, as well as the facts outlined by the parties, the

Court finds that no such undisputed indicia work in

favor of Wiggins’s conduct here.

Even if Wiggins saw Lewellyn raise the gun when

she reached her driveway, the Court’s analysis does not

stop there. The Court must assess several other factors:

(1) the warnings given by the deputies, see Garner 471

U.S. at 11–12; (2) the distance between Lewellyn and

Wiggins at the time of the shooting, see Thomas, 854

F.3d at 366–67; (3) the direction in which Lewellyn was

facing and pointed her gun, see King, 694 F.3d at 663;

(4) how and whether Lewellyn wielded her weapon, see

Thornton, 727 F. App’x at 831; and (5) any “other

indication that the individual intends to use his or her

weapon,” Knowlton, 726 F. App’x at 330–31.

The Court finds that these factors are either

undisputed in Plaintiff’s favor or disputed. The Court

thus DENIES Defendants’ motion for summary

judgment over whether Wiggins committed a Fourth

Amendment violation when he shot Lewellyn.

App. 68

II.

Clearly Established Law

A. Standard

Defendants argue that, even if enough evidence

shows that Defendants violated Plaintiff’s Fourth

Amendment rights, Defendants are entitled to qualified

immunity. (See ECF No. 83-1 at PageID 335.)

“Police officers are immune from civil liability,

unless, in the course of performing their discretionary

functions, they violate the plaintiff’s clearly established

constitutional rights.” Mullins v. Cyranek, 805 F.3d

760, 765 (6th Cir. 2015) (citing Messerschmidt v.

Millender, 565 U.S. 535, 546 (2012)). “Qualified

immunity allows police officers ‘breathing room to

make reasonable but mistaken judgments and protects

all but the plainly incompetent or those who knowingly

violate the law.’” Nelson v. City of Battle Creek,

Michigan, No. 18-1282, 2020 WL 916966, at *2 (6th

Cir. Feb. 26, 2020) (quoting Stanton v. Sims, 571 U.S.

3, 6 (2013) (per curiam)).

The Sixth Circuit “has long recognized that the

purpose of this doctrine is to protect officers ‘from

undue interference with their duties and from

potentially disabling threats of liability.’” Id. (quoting

Sample v. Bailey, 409 F.3d 689, 695 (6th Cir. 2005)).

“Once the defending officer raises qualified immunity,

the plaintiff bears the burden of showing that the

officer is not entitled to qualified immunity.” Id. (citing

Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013);

Coble v. City of White House, 634 F.3d 865, 870–71 (6th

Cir. 2011)).

App. 69

“There need not be ‘a case directly on point’ for the

law to be clearly established, ‘but existing precedent

must have placed the statutory or constitutional

question beyond debate.’” Id. at *3 (quoting Ashcroft v.

al–Kidd, 563 U.S. 731, 741 (2011)). “To violate a

plaintiff’s clearly established right, an officer’s conduct

must be such that, at the time of the allegedly-violative

conduct, the contours of that right were sufficiently

defined that every ‘reasonable official would have

understood that what he is doing violates that right.’”

Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). “Whether an asserted constitutional right was

‘clearly established’ at such time ‘presents a question of

law,’ not fact.” Id. (quoting Elder v. Holloway, 510 U.S.

510, 516).

B. Supreme Court

Precedent

and

Sixth

Circuit

The Court has established above that, when viewing

the record in the light most favorable to either the

video footage or Plaintiff, Defendants may have

violated Plaintiff’s Fourth Amendment right to be free

from excessive force. The Court must then turn to

“whether that right was clearly established at the time

of the challenged conduct.” Id. (citing Burgess, 735 F.3d

at 472; Saucier v. Katz, 533 U.S. 194, 201 (2001)).

Defendants argue that “Plaintiff can cite no

Supreme Court or Sixth Circuit case law that put

Wiggins and Paschal on notice that their actions that

day, in light of the particular circumstances they faced,

were unreasonable.” (ECF No. 83-1 at PageID 336.)

They add that, “[a]t a minimum, their conduct was not

established ‘beyond debate’ as unconstitutional.” (Id.)

App. 70

In response, Plaintiff cites several Sixth Circuit

cases before the day of Lewellyn’s seizure “to show that

the constitutional right was clearly established,” and

that “existing precedent . . . squarely governs the

specific facts at issue.”15 (ECF No. 104-1 at PageID

636–37.)

The Court finds Plaintiff’s position well-taken.

When Paschal and Wiggins used lethal force against

Lewellyn, “existing precedent . . . placed the . . .

constitutional question beyond debate.” Ashcroft, 563

U.S. at 741.

To start with, “[i]t 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, 694 F.3d at 664

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

Cir. 2006)). And the Sixth Circuit has also held that

using lethal force against a suspect only because they

have a gun in their hand is also a basis for finding a

constitutional violation. See Bouggess, 482 F.3d at 896.

“Still, ‘the qualified immunity inquiry . . . must be

undertaken in light of the specific context of the case,

not as a broad general proposition.’” McDonald, N2014

WL 12656975, at *6 (quoting Lyons v. City of Xenia,

15

Plaintiff cites these cases, which the Court orders

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

1989); Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992);

Sova v. City of Mt. Pleasant, 142 F.3d 898 (6th Cir. 1998);

Ciminillo v. City of Cincinnati, 434 F.3d 461 (6th Cir. 2006); King

v. Taylor, 694 F.3d 650 (6th Cir. 2012); and Margeson v. White

County, Tennessee, 579 Fed. App’x. 466 (6th Cir. 2014).

App. 71

417 F.3d 565, 572 (6th Cir. 2005)). But “there need not

be a case with the exact same fact pattern, or even

‘fundamentally similar’ or ‘materially similar’ facts;

rather, the question is whether the defendants had ‘fair

warning’ that their actions were unconstitutional.”

Cummings v. City of Akron, 418 F.3d 676, 687 (6th Cir.

2005) (quoting Hope v. Pelzer, 536 U.S. 730, 741

(2002)).

Even so, when looking closer at the facts here and

comparing them to other cases in the Sixth Circuit, the

Court comfortably finds that precedent has “placed

the . . . constitutional question beyond debate.”

Ashcroft, 563 U.S. at 731. The Court thus finds that

Defendants had a “fair warning” that the allegations

stated against them, if true, would constitute a Fourth

Amendment violation. Hope, 536 U.S. at 741.

Among the panoply of Sixth Circuit cases to which

Plaintiff cites to support his position, the Court finds

that three among them apply with force here. These

cases show that the use of lethal force against an

armed suspect who does not pose an imminent threat

of harm constitutes a Fourth Amendment violation.

1. Brandenburg v. Cureton

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

Cir. 1989), three officers came to the plaintiff’s home to

serve a peace warrant. One of the officers shot and

killed the plaintiff after he had refused to submit to the

officers’ instruction to “submit to the peace warrant”

and “to not pick up his rifle” that he had temporarily

laid down. Id. at 213.

App. 72

Emphasizing the principle that “[t]he use of deadly

force is reasonable if an officer believes that there is a

threat of serious physical harm to the officer or others,”

the Sixth Circuit focused its analysis in part on

conflicting evidence about whether the plaintiff had

pointed his gun directly in the officer’s direction. Id. at

215 (citing Young v. City of Killeen, Tex., 775 F.2d

1349, 1353 (5th Cir. 1985)). The Sixth Circuit also

found important that the defendants’ expert did not see

evidence that the plaintiff “was . . . grasping the

trigger,” and that only one of the three officers chose to

shoot the plaintiff. Id.

The fact issues in Brandenburg are much like those

here. First, conflicting evidence exists about whether

Lewellyn ever pointed her gun directly in Defendants’

direction. Second, little to no evidence suggests that

Lewellyn was ready or willing to shoot her gun. And

third, only two of the three deputies on the scene shot

Lewellyn, even if Jayroe were presumably under the

same threat as Paschal and Wiggins.16

Thus, because the Sixth Circuit “recognize[d] that

a reasonable person might believe that [the defendant

there] acted unreasonably in firing the shot that killed

[the plaintiff],” the Court finds that Defendants here

were on notice that behaving similarly could lead to a

violation under the Fourth Amendment. Id.

16

The Court notes that, at least according to a news report written

after the incident, Jayroe was the only of the three deputies who

was a member of the Crisis Intervention Team allegedly “a

specialized group of deputies trained to use empathy and

negotiation to defuse tense situations involving mental illness.”

(ECF No. 101.)

App. 73

2. Dickerson v. McClellan

Second, in Dickerson, 101 F.3d, two officers

responded to a call that suggested that the plaintiff,

allegedly intoxicated at the time, had fired his weapon

nine times. One of the officers shot and killed the

suspect, whom the officer had heard yell threats at the

officers, as the suspect ran toward his front door. Id. at

1154–55. The suspect had a revolver when the officer

shot him, but he had neither cocked nor shot it in the

officers’ presence. Id. at 1155.

As in Brandenburg, the Sixth Circuit in Dickerson

considered “the crucial question of whether [the

shooting officer’s colleague] saw [the suspect] point his

gun at [the shooting officer].” Id. at 1163 (emphasis

added). Partly because the evidence used to answer

this question was inconsistent, the Sixth Circuit held

that it was without jurisdiction to review the qualified

immunity issue. Id. at 1164.

As the Court mentioned above, the crucial fact issue

present in Dickerson is present here. The evidence is at

best inconclusive about whether Lewellyn ever pointed

her gun toward the deputies.

But what appears clear, under Brandenburg and

Dickerson, is that an officer has committed a Fourth

Amendment violation when they use lethal force

against a suspect who has not directly threatened the

officer with their weapon. Cf. Margeson v. White Cty.,

Tenn., 579 F. App’x 466, 471 (6th Cir. 2014). Paschal

and Wiggins were thus on notice of this rule the day of

the incident.

App. 74

3. King v. Taylor

Third and finally, in King, 694 F.3d, several officers

sought to arrest the plaintiff at his home because he

had allegedly made life threats to his ex-wife. “Through

two glass doors, [one of the officers] saw [the plaintiff]

lying on his couch in his underwear, with a blanket

partially covering him.” Id. at 654. The officer shot and

killed the plaintiff after the latter allegedly learned of

the officer’s presence and pointed a gun at him. Id.

The Sixth Circuit reversed the district court’s grant

of summary judgment because “a jury could find, based

upon the forensic evidence, expert testimony, and

common sense, that [the plaintiff] did not threaten the

officers by pointing a gun at them just before he was

shot.” Id. at 662.

Relying on Brandenburg, the Sixth Circuit

“conclude[d] that a factual dispute exists whether [the

officer] reasonably believed that [the plaintiff] posed a

threat of serious physical harm to Taylor or the other

officers.” And so it “ha[d] little trouble concluding that

if [the defendant] shot [the plaintiff] while he was lying

on his couch and not pointing a gun at the officers, [the

defendant] violated [the plaintiff’s] clearly-established

right to be free from deadly force.” Id. at 664.

B. The Law Was Clearly Established When

the Deputies Shot Lewellyn

The Court here can only reach the same conclusion

as the Sixth Circuit did in King. Using lethal force

when a disputed view of the evidence suggests that

Lewellyn neither pointed her gun toward the officers

nor used the gun in a threatening way violates a clearly

App. 75

established Fourth Amendment right under Sixth

Circuit precedent. See King, 694 F.3d at 663; see also

Brandenburg, 882 F.2d at 215 (6th Cir. 1989).

Furthermore, as the Court explained above,

Defendants never waited for Lewellyn to respond to

their shouting, even if Garner explained long ago that

law enforcement must use warnings when feasible

against suspects before using lethal force. See 471 U.S.

at 11–12; Bouggess, 482 F.3d at 892 (6th Cir. 2007)

(citing Craighead, 399 F.3d at 962) (denying qualified

immunity partly because Defendant “Mattingly never

warned [the suspect] that he might shoot, as required

by Garner when feasible under the circumstances.”).

Although the parties did not argue extensively over

the feasibility of the warning, the Court still finds that

a jury could find that a warning was indeed feasible.

This finding would also support that Defendants

violated Plaintiff’s clearly established right to be free

from lethal force without prior feasible warnings.

All in all, “[h]aving established a clearly established

right, ‘if genuine issues of material fact exist as to

whether the defendants actually did commit acts that

would violate a clearly established right, then

summary judgment on qualified immunity is

improper.’” McDonald, 2014 WL 12656975, at *6

(quoting Poe v. Haydon, 853 F.2d 418, 426 (6th Cir.

1988)). And because these genuine issues of material

fact exist here, the Court thus finds that qualified

immunity does not apply for Defendants. The Court

thus DENIES Defendants’ motion for summary

judgment over whether Paschal and Wiggins violated

App. 76

Lewellyn’s clearly established Fourth Amendment

right when they use lethal force against her.

III.

The Reasonableness of Defendants’ Actions

in Light of Clearly Established Law

The third and final question that the Court must

answer is whether Plaintiff has put forth enough

evidence “to indicate that what [Defendants] allegedly

did was objectively unreasonable in light of the clearly

established constitutional rights.” Feathers, 319 F.3d at

848 (6th Cir. 2003) (quoting Williams, 186 F.3d at 691).

As the Court has explained above, a question exists

“as to the reasonableness of [Defendants’] actions

toward the Plaintiffs in this case.” McDonald, 2014 WL

12656975, at *6. This question pertains to several fact

issues already spotlighted above by the Court. The

Court thus finds that summary judgment as to the

qualified immunity is not appropriate here. The Court

thus DENIES Defendants’ motion for summary

judgment as to whether Paschal and Wiggins’s actions

were reasonable given clearly established law.

CONCLUSION

For the above reasons, the Court DENIES

Defendants’ motion for summary judgment.

SO ORDERED, this 1st day of April, 2020.

s/Thomas L. Parker

THOMAS L. PARKER

UNITED STATES DISTRICT JUDGE