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

No. 21-423

In the

Supreme Court of the United States

__________________

JASON CUNNINGHAM, Individually and as

Administrator ad Litem and Personal Representative

of the Estate of Nancy Jane Lewellyn, Deceased,

Petitioner,

v.

ROBERT PASCHAL, Individually and in his Official

Capacity as a Shelby County Sheriff’s Deputy and

MARVIN WIGGINS, Individually and in his Official

Capacity as a Shelby County Sheriff’s Deputy,

Respondents.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

__________________

BRIEF IN OPPOSITION

__________________

JOHN MARSHALL JONES

Counsel of Record

E. LEE WHITWELL

Shelby County Attorney’s Office

160 North Main Street, Suite 950

Memphis, Tennessee 38103

johnm.jones@shelbycountytn.gov

lee.whitwell@shelbycountytn.gov

(901) 222-2100

Counsel for Respondents

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

i

QUESTION PRESENTED

Police officers may use deadly force when, in the

face of rapidly evolving circumstances, they have

probable cause to believe the suspect poses a serious

physical threat to either the officers or members of the

public. Nancy Lewellyn called 911 and told dispatch

she was going to shoot herself or the next person she

saw (including any police that came to stop her) with a

.45 caliber handgun and then, less than a minute after

deputies arrived on the scene, she emerged from her

house with a silver pistol in her hand that she raised

multiple times both before and while being shot. Did

the Sixth Circuit correctly rule that the deputies did

not violate clearly established law in shooting Ms.

Lewellyn?

ii

PARTIES TO THE PROCEEDINGS

AND RULE 29.6 DISCLOSURE STATEMENT

The Respondents are Marvin Wiggins and Robert

Paschal, both Shelby County, Tennessee Sheriff’s

Deputies, and Defendants below. The Petitioner is

Jason Cunningham, adult son, administrator ad litem,

and personal representative of Nancy Lewellyn

(deceased), and Plaintiff below, who filed the

underlying action under 42 U.S.C. § 1983.

No corporations are involved in this proceeding.

iii

TABLE OF CONTENTS

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

PARTIES TO THE PROCEEDINGS AND RULE

29.6 DISCLOSURE STATEMENT . . . . . . . . . . . ii

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

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 1

1. The 911 call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2. The eleven-second event . . . . . . . . . . . . . . . . . . . . 3

3. Procedural history . . . . . . . . . . . . . . . . . . . . . . . 11

REASONS FOR DENYING THE PETITION. . . . . 12

I.

THE SIXTH CIRCUIT CORRECTLY

RULED THAT WIGGINS AND PASCHAL

ARE ENTITLED TO QUALIFIED

IMMUNITY . . . . . . . . . . . . . . . . . . . . . . . . . . 12

A. The law did not clearly establish the rules

Petitioner suggests. . . . . . . . . . . . . . . . . . 13

1. The deputies did not have to wait for

Lewellyn to aim her gun directly at

them. . . . . . . . . . . . . . . . . . . . . . . . . . . 14

2. Paschal was not required to give a

warning in these circumstances. . . . . 16

3. Clearly established law does not fault

officers for failing to perceive

immediately or accurately that a

suspect has discarded her weapon . . . 17

iv

4. Officers are not liable for firing a

volley of shots that continues even

after the suspect falls to the ground . . . 20

5. Officers are not liable even if some of

their shots strike a suspect in the back

during a fast-paced volley of fire . . . . 22

6. Petitioner’s cited cases do not support

reversal of the Sixth Circuit . . . . . . . . 23

B. In light of this case law, Wiggins and

Paschal did not violate clearly established

law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

1. Deputy Jayroe not firing is not

material . . . . . . . . . . . . . . . . . . . . . . . . 27

2. Petitioner asks the Court to conduct a

20/20 hindsight analysis. . . . . . . . . . . 28

II.

PETITIONER MISCONSTRUES THE

RELEVANT STANDARD OF REVIEW . . . . 29

III.

PETITIONER MAKES CONCLUSORY

ASSERTIONS THAT ARE UNSUPPORTED

BY THE RECORD AND EVEN BLATANTLY

CONTRADICTED BY THE VIDEO . . . . . . . 32

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

v

TABLE OF AUTHORITIES

CASES

Ashcroft v. al-Kidd,

563 U.S. 731 (2011). . . . . . . . . . . . . . . . . . . . . . . 13

Bletz v. Gribble,

641 F.3d 743 (6th Cir. 2011). . . . . . . . . . . . . . . . 24

Bouggess v. Mattingly,

482 F.3d 886 (6th Cir. 2007). . . . . . . . . . . . . . . . 23

Boyd v. Baeppler,

215 F.3d 594 (6th Cir. 2000). . . . . . . . . . . . . . . . 15

Brandenburg v. Cureton,

882 F.2d 211 (6th Cir. 1989). . . . . . . . . . . . . . . . 24

Burchett v. Kiefer,

310 F.3d 937 (6th Cir. 2002). . . . . . . . . . . . . . . . 13

Burgess v. Fischer,

735 F.3d 462 (6th Cir. 2013). . . . . . . . . . . . . . . . 23

Carlson v. Jetter,

No. 1:08-CV-991, 2013 WL 12177063

(W.D. Mich. Mar. 29, 2013) . . . . . . . . . . . . . . . . 28

Chavez v. Cty. of Kern,

No. 1:12-CV-01004 JLT, 2014 WL 412562

(E.D. Cal. Feb. 3, 2014). . . . . . . . . . . . . . . . . . . . 31

Ciminillo v. Streicher,

434 F.3d 461 (6th Cir. 2006). . . . . . . . . . . . . . . . 23

City & County of San Francisco, Calif. v. Sheehan,

135 S. Ct. 1765 (2015). . . . . . . . . . . . . . . . . . . . . 21

vi

Craighead v. Lee,

399 F.3d 954 (8th Cir. 2005). . . . . . . . . . . . . 24, 25

D.C. v. Wesby,

138 S. Ct. 577 (2018). . . . . . . . . . . . . . . . . . . . . . 27

Del Valle v. BellSouth Telecommunications, Inc.,

200 F. App’x 528 (6th Cir. 2006) . . . . . . . . . . . . 31

Dickerson v. McClellan,

101 F.3d 1151 (6th Cir. 1996). . . . . . . . . . . . . . . 24

Est. of Valverde by & through Padilla v. Dodge,

967 F.3d 1049 (10th Cir. 2020). . . . . . . . . . . . . . 19

Floyd v. City of Detroit,

518 F.3d 398 (6th Cir. 2008). . . . . . . . . . . . . . . . 23

Gaddis ex rel. Gaddis v. Redford Twp.,

364 F.3d 763 (6th Cir. 2004). . . . . . . . . . . . . 21, 22

Goodrich v. Everett,

193 F. App’x 551 (6th Cir. 2006) . . . . . . . . . . . . 34

Graham v. Connor,

490 U.S. 386 (1989). . . . . . . . . . . . . . . . . . 1, 13, 29

Harlow v. Fitzgerald,

457 U.S. 800 (1982). . . . . . . . . . . . . . . . . . . . 12, 19

Jean-Baptiste v. Gutierrez,

627 F.3d 816 (11th Cir. 2010). . . . . . . . . . . . . . . 22

Jones v. City of Cincinnati,

736 F.3d 688 (6th Cir. 2012). . . . . . . . . . . . . 29, 30

Jordan v. Howard,

987 F.3d 537 (6th Cir. 2021). . . . . . . . . . . . . . . . 15

vii

King v. Taylor,

694 F.3d 650 (6th Cir. 2012). . . . . . . . . . . . . . . . 24

Kisela v. Hughes,

138 S. Ct. 1148 (2018). . . . . . . . . . . . . . . . . . . . . 23

Leong v. City of Detroit,

151 F. Supp. 2d 858 (E.D. Mich. 2001) . . . . . . . 15

Liggins v. Cohen,

971 F.3d 798 (8th Cir. 2020). . . . . . . . . . . . . . . . 17

Livermore ex rel Rohm v. Lubelan,

476 F.3d 397 (6th Cir. 2007). . . . . . . . . . . . . . . . 15

Malley v. Briggs,

475 U.S. 335 (1986). . . . . . . . . . . . . . . . . . . . 13, 17

Margeson v. White Cty., Tenn.,

579 F. App’x 466 (6th Cir. 2014) . . . . . . . . . 23, 24

McCaig v. Raber,

515 F. App’x 551 (6th Cir. 2013) . . . . . . . . . . . . 23

McLenagan v. Karnes,

27 F.3d 1002 (4th Cir. 1994). . . . . . . . . . . . . . . . 16

Morrow v. Meachum,

917 F.3d 870 (5th Cir. 2019). . . . . . . . . . . . . . . . 26

Mullins v. Cyranek,

805 F.3d 760 (6th Cir. 2015). . . . . . . . . . . . passim

Nelson v. City of Battle Creek, Michigan,

802 F. App’x. 983 (6th Cir. 2020) . . . . . . 18, 23, 25

Nieves v. University of Puerto Rico,

7 F.3d 270 (1st Cir. 1993) . . . . . . . . . . . . . . . . . . 32

viii

Pearson v. Callahan,

555 U.S. 223 (2009). . . . . . . . . . . . . . . . . . . . . . . 17

Plumhoff v. Rickard,

572 U.S. 765 (2014). . . . . . . . . . . . . . . . . . . . 25, 26

Powell v. Mayhew,

165 F.3d 32 (7th Cir. 1998). . . . . . . . . . . . . . . . . 16

Reich v. City of Elizabethtown, Kentucky,

945 F.3d 968 (6th Cir. 2019). . . . . . . . . . . . . . . . 15

Russo v. City of Cincinnati,

953 F.2d 1036 (6th Cir. 1992). . . . . . . . . . . . 23, 30

Salaam v. Wolfe,

806 F. App’x 90 (3d Cir. 2020) . . . . . . . . . . . . . . 22

Saucier v. Katz,

533 U.S. 194 (2001). . . . . . . . . . . . . . . . . . . . . . . 13

Savage v. City of Memphis,

620 F. App’x 425 (6th Cir. 2015) . . . . . . . . . . . . . 4

Savage v. City of Memphis, Tennessee,

No. 2:13-CV-2614-SHL-CGC,

2014 WL 11515753

(W.D. Tenn. Nov. 13, 2014) . . . . . . . . . . . . . . . . 27

Sova v. City of Mt. Pleasant,

142 F.3d 898 (6th Cir. 1998). . . . . . . . . . . . . . . . 23

Stevens-Rucker v. City of Columbus, Ohio,

739 F. App’x 834 (6th Cir. 2018) . . . . . . . . . 21, 34

Swanson v. Town of Mountain View, Colo.,

577 F.3d 1196 (10th Cir. 2009). . . . . . . . . . . . . . 19

ix

Thomas v. City of Columbus, Ohio,

854 F.3d 361 (6th Cir. 2017). . . . 14, 17, 22, 23, 25

Thornton v. City of Columbus,

727 F. App’x 829 (6th Cir. 2018) . . . 14, 22, 23, 25

Tucker v. Marquette Cty., Michigan,

No. 20-1878, 2021 WL 2828027

(6th Cir. July 7, 2021). . . . . . . . . . . . . . . . . . . . . 24

U.S. Structures, Inc. v. J.P. Structures, Inc.,

130 F.3d 1185 (6th Cir. 1997). . . . . . . . . . . . . . . 32

Untalan v. City of Lorain,

430 F.3d 312 (6th Cir. 2005). . . . . . . . . . . . . . . . 18

White v. Pauly,

137 S. Ct. 548 (2017). . . . . . . . . . . . . . . . . . . . . . 15

Williams v. City of Chattanooga, Tennessee,

772 F. App’x 277 (6th Cir. 2019). . . 20, 23, 24, 25, 27

Wilson v. Layne,

526 U.S. 603 (1999). . . . . . . . . . . . . . . . . . . . 12, 19

STATUTES

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

1

STATEMENT OF THE CASE

Deputy Robert Paschal had four seconds from the

moment Nancy Lewellyn first walked out her door and

the moment he saw her begin to raise her silver

pistol—what she said was “a .45” with which she

intended to shoot the deputies, herself, or anyone else

she saw. Paschal opened fire as he saw her gun come

up. Deputy Marvin Wiggins pulled up as this was

happening, also saw Lewellyn raise the gun, and began

firing after taking cover and hearing shots. Once they

began firing, the deputies fired ten shots in a single

volley inside of eight seconds. The entire event—from

the moment Lewellyn opened her door to the deputies’

final shot—occurred in eleven seconds. The event was

captured via dashcam footage.

The District Court ruled that Wiggins and Paschal

were not entitled to qualified immunity. In doing so,

the Court relied on paused video freeze-frames of the

eleven-second encounter to analyze fraction-of-a-second

changes in Lewellyn’s movements and to speculate on

possible non-violent subjective motivations she might

have had for those movements. The Sixth Circuit

reversed, ruling that this freeze-frame analysis

amounted to the kind of 20/20 hindsight review of useof-force prohibited by Graham v. Connor, 490 U.S. 386

(1989). More fundamentally, the Sixth Circuit ruled

that no case law from either this Court or the Sixth

Circuit squarely proscribed Wiggins and Paschal’s

conduct in the circumstances they faced, and that they

therefore did not violate clearly established law.

Wiggins and Paschal respectfully submit that both of

2

these findings were correct and that there is no need to

grant this Petition.

1. The 911 call

Nancy Lewellyn called 911 in Shelby County,

Tennessee on March 17, 2017. She told the dispatcher

she was suicidal, had a gun, and would shoot anyone

who came to her residence to try and stop her. (Paschal

Dep., RE 83-7, PageID 373-74 (“Dispatch put out a

mental violent call . . . that she was basically going to

shoot herself or the first person she saw.”); accord

Wiggins Dep., RE 83-6, PageID 354 (“[W]e received a

call of a female white stating that she was armed with

a handgun, a silver pistol, and that she didn’t want to

do this anymore, and if anybody came to the house, she

would shoot them as well.”)). Lewellyn said she

believed the handgun was a .45 caliber pistol. (SUV 1,

2 Dashcam, 12:11:51). 1

Sheriff’s Deputies Wiggins, Paschal, and Justin

Jayroe responded to the call. (SUV 1, 2, 3 Dashcam;

Paschal Declaration, RE 83-4; Wiggins Declaration, RE

83-5). Each deputy drove in a separate, marked

Sheriff’s Office SUV, equipped with front and rear

video/audio cameras.

Paschal and Jayroe arrived at the front of

Lewellyn’s house in their SUVs within seconds of each

1

Wiggins and Paschal filed with the District Court the dashcam

footage on three (3) CDs—one from each of the three deputies’

vehicles. (RE No. 61-3). The SUVs will be referred to as “SUV 1,”

“SUV 2,” and “SUV 3” based on the order in which they arrived on

the scene.

3

other. (SUV 1, 2 Dashcam, 12:13:23-24). Jayroe parked

SUV 1 so that the front dashboard camera faced

Lewellyn’s front door and driveway. (SUV 1 Dashcam).

Paschal lined SUV 2 up roughly right behind SUV 1.

(SUV 2 Dashcam). SUV 2’s blue flashing lights were

on. (SUV 3 Dashcam). Before Wiggins arrived, Paschal

and Jayroe exited their vehicles and positioned

themselves on either side of Jayroe’s SUV—SUV 1.

(SUV 2, 3 Dashcam). Wiggins pulled up in SUV 3 (also

with blue lights flashing)2 behind Paschal’s vehicle.

Wiggins’ dashcam shows multiple civilian vehicles

parked at neighboring houses and at least one civilian

walking or standing outside a few houses down. (SUV

3 Dashcam, 12:14:08). Wiggins pulled up at roughly the

same moment Lewellyn emerged from her house. (SUV

3 Dashcam, SUV 2 Rear Dashcam).

2. The eleven-second event

Forty-four seconds after SUVs 1 and 2 arrived,

Lewellyn opened her front door and walked out of the

house at 12:14:07. (SUV 1 Dashcam). At that moment,

she had a silver handgun in her right hand and had it

raised at roughly chest or eye level. (SUV 1 Dashcam).

2

The clocks on the videos from SUVs 1 and 2 sync up. However,

the clock on SUV 3 is two or three seconds behind the others. For

purposes of this appeal, the times are cited as SUVs 1 and 2 reflect

them, unless otherwise specified.

4

(RE 83-8, PageID 391). This is a photograph of the gun

she held.3

As the District Court described it, at that moment

she appeared to “raise[ ] the gun in the SUV’s general

direction.” (District Court Order, RE 112, PageID 714)

(citing SUV 1 Dashcam, 12:14:08). Wiggins pulled up

as Lewellyn was walking through her front door and

testified that he saw her raising the gun. (Wiggins

Dep., RE 83-6, PageID 355) (“As soon as I put my car in

park . . . I went and took cover behind my truck

3

The parties now know it was, in fact, a bb gun. However, no

evidence in the record suggests the deputies knew or could have

known it was not a real .45 caliber pistol. (Wiggins Dep., RE 83-6,

PageID 368; Paschal Dep., RE 83-7, PageID 378). Petitioner claims

Wiggins “states in his deposition that the bb gun held by Nancy

Lewellyn was not a real gun.” (Pet’r’s Br. 9) (bold omitted) (citing

RE 100, PageID 586). Wiggins actually testified that he only later

learned it was not real. (RE 100, PageID 586). And Petitioner

stipulated in a prior hearing before the District Court to the fact

that the bb gun looked authentic. (RE 67, PageID 275). See Savage

v. City of Memphis, 620 F. App’x 425, 428 (6th Cir. 2015).

5

because I saw her raising the weapon up.”).

Nonetheless, the deputies did not fire.

Lewellyn then lowered the gun as she continued to

walk out of the house, stepping around a tree that sat

between her and the deputies. (SUV 1 Dashcam). Once

she cleared the tree, a deputy yelled what sounds like

“Hey, Ma’am!” (SUV 1, 2 Dashcam, 12:14:11-12). As he

yelled this, Lewellyn began to raise the gun again.

(SUV 1 Dashcam, 12:14:12). The District Court’s video

freeze-frame Figures 1, 2, and 4 most clearly depict this

sequence.

(District Court Order, RE 112, PageID 717, Figure 1).

6

(District Court Order, RE 112, PageID 718, Figure 2).

7

(District Court Order, RE 112, PageID 721, Figure 4).

This time Paschal (standing to the right of the SUV

in this image) saw Lewellyn raising the gun, roughly

four seconds after first seeing her walk out her front

door. (Paschal Dep., RE 92-1, PageID 462-63; RE 83-7,

PageID 376). Only when the gun was coming up for the

second time did Paschal fire, striking Lewellyn in the

side or back. (SUV 1 Dashcam, 12:14:12; Paschal Dep.,

RE 92-1, PageID 462-63). “I remember her turning,

lifting the gun. And then I started firing.” (Paschal

Dep., RE 83-7, PageID 376). Petitioner claims that

Lewellyn did not raise the gun until after the first shot.

(Pet’r’s Br. 12). This is not true, and is blatantly

contradicted by the video evidence. The video plainly

shows her raising the gun as seen in the image above

8

before Paschal fires his first shot. Both Courts below

agreed on this point. (District Court Order, RE 112,

PageID 717; Sixth Circuit Order, RE 117, PageID 767).

Paschal testified that he did not give a warning

because of how quickly Lewellyn raised her gun. (RE

92-2, PageID 476).

After Paschal’s first shot, Lewellyn began panning

the gun to her left (toward SUV 1), with her left hand

coming up to support her gun hand. The District

Court’s freeze-frame below of the video “Figure 5” most

clearly depicts this. (District Court Order, RE 112,

PageID 722). Paschal saw this as well. (RE 92-1,

PageID 463-64).

(District Court Order, RE 112, PageID 722, Figure 5).

As the District Court described it, Figures 4 and 5 show

9

that after the first shot “Lewellyn rotated her body

from her driveway toward Paschal . . . .” (District

Court Order, RE 112, PageID 723) (internal citations

omitted, emphasis added). “She pointed the gun in the

direction of all of us.” (Paschal Dep., RE 92-1, PageID

464). A fraction of a second later she again lowered the

gun. However, she did not drop the gun, and instead

continued moving swiftly toward her car. (SUV 1

Dashcam).

Paschal continued shooting in a volley. By this time,

Wiggins had gotten out of his SUV, run for cover, and

heard shots. (See SUV 2, 3 Dashcam; Wiggins Dep., RE

83-6, PageID 356-57) (“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.”). Wiggins then began firing

as Lewellyn moved towards her car and pushed herself

up off its front hood. (SUV 1 Dashcam). Although the

deputies continued to fire as she fell to the ground,

Lewellyn continued to shift her position on the ground

even after the last shot was fired. (SUV 1 Dashcam,

12:14:18-19). The deputies fired a total of ten shots in

a volley of quick succession, all in less than eight

seconds. (SUV 1, 2, 3 Dashcam). From the moment

Lewellyn opened the door with her gun raised to the

moment the last shot was fired, eleven seconds elapsed.

(SUV 1 Dashcam). Although Deputy Jayroe did not

fire, he did not realize that fact until later. (RE 90,

PageID 412-13) (“At the time I was unaware if I

[discharged my weapon] or not.”).

At the moment Lewellyn fell to the ground, Wiggins

and Paschal did not perceive that she ever lost control

10

of her gun. (Wiggins Dep., RE 83-6, PageID 362, 386;

Paschal Dep., RE 83-7, PageID 360, 362, 367-69, 378).

Neither did Jayroe. (RE 90, PageID 413). The parties

now know that, when she leaned onto the car,

Lewellyn deposited the gun on the car’s hood. But it is

undisputed that none of the three deputies on the scene

saw her do this, as the car was facing away from them

and the hood sloped downward and away from them.

(SUV 1 Dashcam). The District Court agreed that the

deputies did not “perceive[ ] Lewellyn put the gun on

the car’s hood.” (District Court Order, RE 112, PageID

736).

In the same vein, Petitioner correctly points out

that the video does not show Wiggins and Paschal’s

“sight line” from their perspective. (Pet’r’s Br. 3). Thus,

although a close inspection of the video includes a

moment in which both Lewellyn’s hands are empty as

she falls, the video does not show whether the deputies

could see the same thing through their own muzzle

flashes or against the backdrop of her dark shirt from

their respective angles. However, both deputies

testified, unequivocally, that they did not realize she

had ever lost control of the gun until they approached

her after the last shot. (Wiggins Dep., RE 83-6, PageID

362; Wiggins Declaration, RE 83-5, PageID 350;

Paschal Dep., RE 83-7, PageID 378; Paschal

Declaration, RE 83-4, PageID 347). In fact, one of the

deputies yelled “Put the gun down!” immediately after

the last shot was fired. (SUV 1 Dashcam). The other

two deputies similarly yelled for Lewellyn to show

them her hands as they approached her after the shots.

(SUV 1 Dashcam).

11

The deputies also testified to the difficulty in

processing what they were seeing as fast as it was

happening. As Wiggins described it, “tunnel vision

kicked in . . . .” (Wiggins Dep., RE 83-6, PageID 364).

As Paschal stated, “I don’t even remember hearing my

shots that well . . . I guess due to the adrenalin.”

(Paschal Dep., RE 92-1, PageID 463). “I just remember

the weapon being raised up and just how quick it

happened.” (RE 92-2, PageID 476).

Immediately after the deputies secured her gun,

they began trying to save Lewellyn’s life. One deputy

told another to go get some gauze and a “med kit.”

(SUV 1 Dashcam). The deputies attempted to stop the

bleeding until the paramedics arrived. Despite their

efforts to save her, Lewellyn died at the hospital.

3. Procedural history

Petitioner Jason Cunningham brought suit under

§ 1983 against Shelby County, Marvin Wiggins, and

Robert Paschal, alleging violations of Lewellyn’s Fourth

Amendment rights. (See RE 1). Defendants filed an

Answer, in which Wiggins and Paschal asserted

qualified immunity. (RE 29). Wiggins and Paschal then

filed a Motion for Summary Judgment based on the

video evidence. (RE 61). The Petitioner moved to take

limited discovery on the qualified immunity issue

before responding to the summary judgment motion,

(RE 66), which the District Court allowed, (Scheduling

Order, RE 68, PageID 287 n.1) (“[T]here is a video of

the shooting. And Wiggins’s and Paschal’s depositions

will show what they perceived as happening and what

they knew beforehand.”). At the conclusion of the

limited discovery period, Wiggins and Paschal filed

12

their Amended Summary Judgment motion. (RE 83).

The District Court on April 1, 2020 entered an order

denying their Motion. (RE 112). They timely appealed

to the Sixth Circuit, which reversed the District Court

on April 19, 2021. (RE 117).

REASONS FOR DENYING THE PETITION

Petitioner does not provide any reason why this case

is appropriate for certiorari. He complains only of

errors the Sixth Circuit allegedly committed. None of

these issues gives rise to Supreme Court review under

Supreme Court Rule 10.

In any event, Petitioner’s arguments are without

merit. The Sixth Circuit correctly ruled that Wiggins

and Paschal did not act objectively unreasonably. And

even if they did, the Court also correctly ruled that

their conduct was not clearly proscribed by on-point

decisions from either this Court or the Sixth Circuit.

Quite to the contrary, they faced more dangerous

circumstances than officers in other Sixth Circuit cases

who have also received qualified immunity.

I.

THE SIXTH CIRCUIT CORRECTLY RULED

THAT WIGGINS AND PASCHAL ARE

ENTITLED TO QUALIFIED IMMUNITY.

Qualified immunity shields government officials

“from liability for civil damages insofar as their conduct

does not violate clearly established statutory or

constitutional rights of which a reasonable person

would have known.” Wilson v. Layne, 526 U.S. 603, 609

(1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). This immunity “gives government officials

breathing room to make reasonable but mistaken

13

judgments” and protects “all but the plainly

incompetent or those who knowingly violate the law.”

Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting

Malley v. Briggs, 475 U.S. 335, 341 (1986)); Saucier v.

Katz, 533 U.S. 194, 206 (2001) (“Qualified immunity

operates . . . to protect officers from the sometimes

‘hazy border between excessive and acceptable force.’”).

Courts analyze excessive force claims under an

objective reasonableness standard. Graham v. Connor,

490 U.S. 386, 397 (1989). As the Graham Court

explained, the “‘reasonableness’ of a particular use of

force must be judged from the perspective of a

reasonable officer on the scene, rather than with the

20/20 vision of hindsight.” Id. at 396. Law enforcement

officers face “tense, uncertain, and rapidly evolving”

situations that require “split-second judgments.” Id. at

397. In analyzing an officer’s use of force, courts

therefore “must be careful not to substitute our

personal notions of proper police procedure for the

instantaneous decision of the officer at the scene.”

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

(citation, internal quotation marks omitted). Instead,

courts adopt a “built-in measure of deference to the

officer’s on-the-spot judgment about the level of force

necessary in light of the circumstances of the particular

case.” Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir.

2002).

A. The law did not clearly establish the

rules Petitioner suggests.

There is no case from either this Court or the Sixth

Circuit clearly establishing the rules Petitioner implies

are applicable. Specifically, it is not clearly established

14

in the Sixth Circuit that officers must wait for the

suspect to aim right at them before firing, or that they

must give a warning and await the suspect’s response

when the suspect is in the middle of raising a gun,

especially when that suspect has stated she intends to

shoot officers and others. To the contrary, the Sixth

Circuit has ruled that officers are entitled to qualified

immunity for fast-paced volleys of fire against armed

suspects, even when those suspects drop their guns,

turn their backs, or fall to the ground mid-volley. Even

if this Court overrules any of those findings, Wiggins

and Paschal are still entitled to qualified immunity

because the rules Petitioner attempts to impose on

them are not and were not clearly established at the

time of their actions.

1. The deputies did not have to wait for

Lewellyn to aim her gun directly at

them.

Petitioner devotes great attention to the fact that

Lewellyn was not constantly aiming the sights of her

handgun directly at the officers. But clearly established

law in the Sixth Circuit did not require them to wait for

such an event to fire in self-defense. Thomas v. City of

Columbus, Ohio, 854 F.3d 361, 365 (6th Cir. 2017)

(officer who encountered and fatally shot an individual

running out of a house with a firearm in hand was

“entitled to immunity regardless of whether Destin

raised the gun.”). And unlike this case, the suspect in

Thomas had not stated that he intended to shoot any

officers who arrived on the scene. See id. at 365-66;

Thornton v. City of Columbus, 727 F. App’x 829, 838

(6th Cir. 2018) (“The Officers also did not have to wait

15

for Thornton to raise his weapon before employing

deadly force.”); Leong v. City of Detroit, 151 F. Supp. 2d

858, 865-66 (E.D. Mich. 2001) (“Plainly, an armed and

gun-wielding suspect can turn and train his weapon on

an officer or bystander in an instant, with disastrous

consequences.”); see generally Jordan v. Howard, 987

F.3d 537 (6th Cir. 2021) (officers received qualified

immunity after firing ten shots at suspect, despite one

officer testifying he did not know whether suspect ever

pointed his gun at officers and despite fact that suspect

may have dropped gun mid-volley); Livermore ex rel

Rohm v. Lubelan, 476 F.3d 397, 405 (6th Cir. 2007);

Boyd v. Baeppler, 215 F.3d 594, 599-600 (6th Cir. 2000)

(“Whether [the suspect] actually fired the weapon is

wholly immaterial here. The issue is whether or not he

threatened to do so.”) (emphasis added). Officers may

shoot in self-defense to prevent the suspect from

aiming the weapon directly at them; they do not have

to wait for the suspect to aim and hope they are not

shot first.

Petitioner argues along the same lines that

Lewellyn was too far away, but there is no clearly

established law establishing a minimum safe distance

when suspects are armed with firearms. And this

Court’s ruling in White v. Pauly, 137 S. Ct. 548 (2017)

cuts against Petitioner’s argument. The White Court

found that the officer was entitled to qualified

immunity for shooting a suspect from 50 feet away

while the officer had cover behind a rock wall. Id. at

550; see also Reich v. City of Elizabethtown, Kentucky,

945 F.3d 968, 981 (6th Cir. 2019) (“Shooting [the knifewielding suspect] from a distance of twenty-five to

16

thirty-six feet would not have violated any clearly

established right.”).

Both deputies saw Lewellyn raising her gun at least

once. (Wiggins Dep., RE 83-6, PageID 355-57; Paschal

Dep., RE 92-1, PageID 462-63, 468). Although she was

pointing the gun outward, rather than directly at the

deputies, all she had to do was pan her wrist a few

inches and the gun would be trained on them—a gun

she said was a .45 with which she would shoot anyone

she saw. And in fact, such a panning motion was

exactly what Lewellyn did immediately after the first

shot—panning her wrist toward SUV 1. (District Court

Order, RE 112, PageID 722, Figure 5). No clearly

established law gave either deputy notice that using

deadly force in this situation was objectively

unreasonable.

2. Paschal was not required to give a

warning in these circumstances.

Petitioner suggests that, in the four-and-a-half

seconds between Paschal’s first realizing Lewellyn was

exiting the house and when he saw her begin to raise

her gun, he should have given her a warning and

waited longer to see what she did. But no clearly

established law provides that he was required to do

this in these circumstances. When the “hesitation

involved in giving a warning could readily cause such

a warning to be [the officer’s] last,” then a warning is

not feasible. McLenagan v. Karnes, 27 F.3d 1002, 1007

(4th Cir. 1994); see Powell v. Mayhew, 165 F.3d 32, at

*3 (7th Cir. 1998) (table opinion) (“Mayhew had only

seconds to react. Had he not shot at Powell, he would

have put his own life at risk, something the Fourth

17

Amendment does not require of officers. Under the

circumstances, a warning was not feasible . . . .”);

accord Liggins v. Cohen, 971 F.3d 798, 801 (8th Cir.

2020). Petitioner can point to no controlling case clearly

establishing that a warning is feasible when the

suspect is moving and raising a gun up that she has

stated she will use to shoot the first person she sees.

Paschal did not believe he had time to give a warning.

This belief was not wholly unreasonable or clearly

established as unconstitutional.

3. Clearly established law does not fault

officers for failing to perceive

immediately or accurately that a

suspect has discarded her weapon.

Qualified immunity applies not just to an officer’s

mistake as to what the law requires, but to mistakes of

fact as well, giving officers “ample room for mistaken

judgments . . . .” Malley v. Briggs, 475 U.S. 335, 343

(1986). This is true whether the mistake is a mistake

“of law, a mistake of fact, or a mistake based on mixed

questions of law and fact.” Pearson v. Callahan, 555

U.S. 223, 231 (2009) (citation omitted). Put another

way, the Fourth Amendment “does not require

[officers] to perceive a situation accurately.” Thomas v.

City of Columbus, Ohio, 854 F.3d 361, 365 (6th Cir.

2017).

In shooting cases, officers do not lose qualified

immunity or act unreasonably in failing to

instantaneously and accurately perceive that a suspect

has discarded her gun. Instead, “[w]ithin a few

seconds of reasonably perceiving a sufficient danger,

officers may use deadly force even if in hindsight the

18

facts show that the persons threatened could have

escaped unharmed.” Untalan v. City of Lorain, 430

F.3d 312, 315-16 (6th Cir. 2005) (emphasis added).

The Sixth Circuit’s opinion in Mullins v. Cyranek,

805 F.3d 760 (6th Cir. 2015) speaks directly to this

issue. The officer in Mullins engaged in a physical

altercation with the suspect during a stop and the

suspect pulled out a handgun. Id. at 763-64. During the

scuffle, the suspect threw his gun ten to fifteen feet

away from both him and the officer. However, the

officer did not perceive this immediately and, within

the following five seconds, shot the suspect twice. Id. at

764. The Sixth Circuit held that the officer acted

reasonably because he did not have enough time

between the suspect drawing the gun and discarding it

to reassess the situation and perceive or process that

the suspect was no longer armed:

The fact that Mullins was actually unarmed

when he was shot is irrelevant to the

reasonableness inquiry in this case. Rather,

what matters is the reasonableness of the

officer[’s] belief. Because only a few seconds

passed between when Mullins brandished his

firearm and when Cyranek shot Mullins, a

reasonable officer in the same situation could

have fired with the belief that Mullins still had

the gun in his hand.

Id. at 767-68 (internal citations, quotation marks, and

ellipsis omitted); accord Nelson v. City of Battle Creek,

Michigan, 802 F. App’x. 983 (6th Cir. 2020) (officer who

ordered suspect to show hands and then fired as

suspect was throwing bb gun away from him entitled to

19

qualified immunity); Est. of Valverde by & through

Padilla v. Dodge, 967 F.3d 1049, 1063 (10th Cir. 2020)

(collecting cases where officers acted reasonably in

continuing to fire despite hindsight realization that

suspect lost control of gun).4

In Mullins, the video footage showed that as many

as five seconds elapsed between the moment the

suspect threw his firearm away and when the

defendant officer ceased fire. Mullins, 805 F.3d at 764.

The officer nonetheless received qualified immunity.

See id. Here, a maximum of four seconds elapsed

between Lewellyn letting go of her gun, (SUV 1

Dashcam, 12:14:15), and the last shot being fired, (SUV

1 Dashcam, at 12:14:18). Under Mullins, that Wiggins

and Paschal continued firing for three to four seconds

after Lewellyn discarded her gun on the hood of the car

(which the District Court ruled the deputies could not

have seen) was not objectively unreasonable. At the

very least, their conduct was not clearly established

beyond debate as unconstitutional in light of Mullins.

The Sixth Circuit did not err in reversing the District

Court here.

4

Some of the cases discussed herein were issued after the events

of this case. Wiggins and Paschal recognize that cases decided

after-the-fact cannot deprive an officer of qualified immunity

because “an official could not reasonably be expected to anticipate

subsequent legal developments . . . .” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). But that door does not swing both ways.

Subsequent opinions can show that the law was not clearly

established at the time of the events at issue. See Wilson v. Layne,

526 U.S. 603, 618 (1999); Swanson v. Town of Mountain View,

Colo., 577 F.3d 1196, 1200 (10th Cir. 2009).

20

4. Officers are not liable for firing a

volley of shots that continues even

after the suspect falls to the ground.

Petitioner focuses on the fact that the deputies

continued to fire as Lewellyn continued to move and

fall to the ground, but this was not in violation of

clearly established law. Firing a volley of shots during

and after a suspect falls to the ground does not render

an officer’s use of force unreasonable. The Sixth Circuit

reaffirmed this point in a case with facts almost

identical to this case in Williams v. City of

Chattanooga, Tennessee, 772 F. App’x 277 (6th Cir.

2019). Officers in Williams responded to a home with

a report of a mental health issue after the

suspect—Javario Eagle—called 911 and made “several

bizarre statements” to the dispatcher, such as “I’m

fixing to stop all of this s---, y’all know that right?” Id.

at 278. Once officers arrived on the scene, Mr. Eagle

pulled out a handgun and, after coming in and out of

his apartment several times, charged out with the

handgun and a sword toward an officer. Id. The

officers fired two shots at Eagle, causing him to drop

both weapons and fall on the ground. Id. at 279. As one

officer then moved toward Eagle, “Eagle shifted his

position, rolling onto his stomach with both arms

outstretched in front of him on the ground. Eagle’s

head was tilted forward and looking up. At this point,

[five officers] fired their weapons.” Id. Eight bullets

struck Eagle, who later died as a result. Id.

The Williams Court found that the officers were

entitled to qualified immunity. Id. at 278. The plaintiffs

argued that the second volley, fired while Eagle was

21

unarmed and lying on the ground, was not reasonable.

But the Sixth Circuit disagreed:

[T]he circumstances show all defendant-Officers

acted reasonably when firing the second volley

. . . After the first volley, Eagle continued to shift

his position on the ground and Officers did not

know where Eagle’s pistol was at the time he

stretched his arms out. The Officers had

probable cause to shoot Eagle, even those

arriving later in time, because they could have

reasonably believed that Eagle was reaching for

his gun as he was moving on the ground,

consistent with his prior sprint toward

Churchwell. Accordingly, the Officers’ decisions

to fire a second volley were not objectively

unreasonable.

Id. at 281 (original internal brackets, quotation marks,

and citations omitted); accord Stevens-Rucker v. City of

Columbus, Ohio, 739 F. App’x 834 (6th Cir. 2018)

(officer entitled to qualified immunity for continuing to

shoot knife-wielding suspect at ten or fifteen feet as

suspect fell to ground because “a single shooting

consisting of four shots fired within a second of one

another . . . was not enough time for [officer] to stop

and reassess the threat level between the shots.”); see

also City & County of San Francisco, Calif. v. Sheehan,

135 S. Ct. 1765, 1771 (2015) (“There is a dispute

regarding whether Sheehan was on the ground for the

last shot. This dispute is not material: Even if Sheehan

was on the ground, she was certainly not subdued.”)

(citation and internal quotation marks omitted);

Gaddis ex rel. Gaddis v. Redford Twp., 364 F.3d 763,

22

777 (6th Cir. 2004) (“[Plaintiff] finally suggests that

even if his actions justified a lethal response, the

officers crossed the constitutional line by firing sixteen

shots at him. We disagree. While the two officers fired

a total of sixteen shots at him, it was a single volley.”);

see, e.g., Salaam v. Wolfe, 806 F. App’x 90, 94 (3d Cir.

2020); Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821-22

(11th Cir. 2010).

Petitioner’s argument ignores the reality recognized

in the cited cases that reaction time is not

instantaneous, and that in such a fast-paced,

adrenaline-fueled scenario deputies are not always able

to stop and reassess the situation in fractions of

seconds after perceiving a threat to their lives.

5. Officers are not liable even if some of

their shots strike a suspect in the

back during a fast-paced volley of

fire.

A use of deadly force is not unreasonable simply

because a suspect is struck in the back or side.

Thornton v. City of Columbus, 727 F. App’x 829 (6th

Cir. 2018); accord Gaddis, 364 F.3d at 777. As with a

suspect’s discarding of a weapon discussed above, an

officer may fail to perceive instantaneously that a

suspect is turning a few seconds after a volley of shots

has begun. Such a failure in perception during a splitsecond altercation does not amount to a constitutional

violation. Based on the principles established in

Mullins and Thomas discussed above, the deputies’

failure to perceive which direction Lewellyn’s body was

facing every instant does not equate to an objectively

unreasonable act, especially since she could have again

23

panned the gun back toward the SUVs and fatally shot

any one of the deputies.

6. Petitioner’s cited cases do not

support reversal of the Sixth Circuit.

The cases Petitioner relies on do not establish the

rules he suggests. First, Petitioner relies on a series of

cases which involved suspects armed with knives, or

who were not armed at all. See Burgess v. Fischer, 735

F.3d 462 (6th Cir. 2013); McCaig v. Raber, 515 F. App’x

551 (6th Cir. 2013); Floyd v. City of Detroit, 518 F.3d

398 (6th Cir. 2008); Bouggess v. Mattingly, 482 F.3d

886 (6th Cir. 2007); Ciminillo v. Streicher, 434 F.3d 461

(6th Cir. 2006); Sova v. City of Mt. Pleasant, 142 F.3d

898 (6th Cir. 1998); Russo v. City of Cincinnati, 953

F.2d 1036 (6th Cir. 1992). At a minimum, the suspects

in those cases were not armed with guns; thus, those

cases do not clearly establish Wiggins and Paschal’s

conduct as unconstitutional. See Kisela v. Hughes, 138

S. Ct. 1148, 1153 (2018) (“Use of excessive force is an

area of the law in which the result depends very much

on the facts of each case, and thus police officers are

entitled to qualified immunity unless existing

precedent squarely governs the specific facts at issue.”)

(citations, internal quotation marks omitted).

Petitioner also relies on Sixth Circuit cases where,

at the very least, the suspects were armed with guns.

However, none of those cases is so on-point as to

squarely govern the facts at issue here (or to nullify the

effect of the rulings in Williams, Thomas, Mullins,

Thornton, and Nelson). See Margeson v. White Cty.,

Tenn., 579 F. App’x 466 (6th Cir. 2014) (court found

that initial shooting of suspect inside his home was

24

reasonable, but that shooting him as many as 43 times

in separate volleys presented a jury question)5; King v.

Taylor, 694 F.3d 650, 654, 662-63 (6th Cir. 2012) (jury

question where officer shot suspect in his house

through a window while suspect was “lying on his

couch, not making any threatening gestures towards

the officers.”)6; Bletz v. Gribble, 641 F.3d 743 (6th Cir.

2011) (jury question where suspect was complying with

officer’s command to lower gun when shot and officers

had no reason to believe suspect would behave violently

before they arrived); Dickerson v. McClellan, 101 F.3d

1151, 1163 (6th Cir. 1996) (under plaintiff’s version of

events, suspect “had simply walked slowly to the front

door, with his hands at his side, and [ ] he was shot

while still inside his house before he opened his door.”);

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

(jury question where police shot property-owner while

serving a peace warrant on rural 30-acre property with

no mention of other houses or people nearby or in

potential danger, and where officers were not

responding to a call suggesting suspect intended to

shoot anyone he saw)7; see also Craighead v. Lee, 399

5

The Williams case, which is much more factually analogous to the

case at bar than Margeson, went to great lengths to explain how

Margeson was distinguishable. See Williams, 772 F. App’x at 281.

6

See Tucker v. Marquette Cty., Michigan, No. 20-1878, 2021 WL

2828027, at *4 (6th Cir. July 7, 2021) (explaining King).

7

The Brandenburg ruling hinged primarily on the fact that there

was a jury question as to whether the suspect was pointing his

weapon at the officer when shot. Whatever principle Brandenburg

may have established when issued in 1989 has, at the very least,

been muddied by subsequent Sixth Circuit cases finding that

25

F.3d 954 (8th Cir. 2005) (police officer encountered an

assault victim struggling with a perpetrator over a gun

and fired a shotgun blast that killed the innocent

victim). None of these cases dealt with someone moving

quickly out of their house into a populated cul-de-sac

and pointing a gun out toward houses and later

panning the gun back toward the officers after the

shooting began. The Sixth Circuit’s rulings in Thomas,

Williams, Mullins, Nelson, and Thornton provide much

closer sets of facts to this case, and in each of those

cases the officers received qualified immunity. At the

very least, these two sets of cases show that the rule

Petitioner seeks to impose was not so clearly

established that every reasonable official would have

recognized their conduct as unreasonable.

Lastly, Petitioner cites briefly to dicta from this

Court’s opinion in Plumhoff v. Rickard, 572 U.S. 765

(2014), but Plumhoff is more favorable to Wiggins and

Paschal. The Plumhoff Court found those officers

entitled to qualified immunity for firing fifteen shots

over ten seconds. Id. at 777. Petitioner cites to dicta

from Plumhoff where the Court mentioned that it

“would be a different case” if the officers had initiated

a second round of shots after the suspect had been

“clearly incapacitated.” Id. This does not deprive

Wiggins and Paschal of qualified immunity. First,

there was only one volley here—ten shots fired in less

than eight seconds. Once Lewellyn was clearly

incapacitated, the deputies ceased fire. Second,

officers do not have to wait for the suspect to point the gun at

them. See, e.g., Thomas v. City of Columbus, Ohio, 854 F.3d 361

(6th Cir. 2017).

26

Plumhoff’s dicta about a case involving a suspect

fleeing in a vehicle did not clearly establish Wiggins

and Paschal’s conduct as unconstitutional. See Morrow

v. Meachum, 917 F.3d 870, 875 (5th Cir. 2019)

(collecting cases showing that “clearly established law

comes from holdings, not dicta.”). Wiggins and Paschal

did not violate clearly established law.

B. In light of this case law, Wiggins and

Paschal did not violate clearly

established law.

Taken in the light depicted in the video, Wiggins

and Paschal’s actions were not objectively unreasonable

during the eleven-second scenario they faced. Before

Lewellyn exited the house, the deputies had been told

that she was in possession of a .45 caliber handgun,

and that she said she would shoot anyone who came to

the scene. Only as she was raising the gun for the

second time, and after Wiggins and Paschal had each

seen her raise it, did Paschal fire.

After the first shot, Lewellyn did not drop the gun,

nor did she stop moving. Whether she meant to take

cover behind the car or had some other purpose was

unknown to the deputies. She was still armed, and in

response to the first shot she began to pan the gun back

around to the SUV where Paschal was standing. Thus,

Paschal kept firing shots in quick succession,

perceiving that the threat was not over. Wiggins fired

based on what he had seen when he pulled up, and

based on the shots he heard from behind cover. All ten

shots were fired in under eight seconds. Even after

Lewellyn fell, the deputies did not know where her gun

was and she continued to shift her position on the

27

ground. If she had still been armed (as they thought

she was), a shot fired from the ground would have been

just as deadly to them as one fired from a standing

position.

Like in Williams, after dropping the gun Lewellyn

continued to move and, like in Williams, Mullins, and

Nelson, the deputies did not know she no longer had

the gun or have time to process that fact before it was

all over. It was not unconstitutional for them to fail to

perceive a fraction-of-a-second change in circumstances

accurately—mid-volley—or to reassess instantaneously

the situation between each shot against a perceived

deadly threat.

1. Deputy Jayroe not firing is not

material.

Petitioner attempts to make issue of the fact that

Deputy Jayroe did not fire, (Pet’r’s Br. 4), but that fact

is not material. Deadly force is not unreasonable

simply because officers were present who did not fire.

See Savage v. City of Memphis, Tennessee, No. 2:13-CV2614-SHL-CGC, 2014 WL 11515753, at *6 (W.D. Tenn.

Nov. 13, 2014) (“While the other officers on the scene

did not shoot their weapons, there is nothing in the

record to suggest that Officer Archie’s contention that

he perceived the threat of serious harm was

erroneous.”), aff’d 620 F. App’x 425 (6th Cir. 2015). The

question is whether “every reasonable official” would

have considered the conduct unreasonable. D.C. v.

Wesby, 138 S. Ct. 577 (2018) (emphasis added).

Moreover, Petitioner has produced no evidence to

suggest Jayroe’s reason for not shooting, or suggesting

28

that Jayroe even deliberately chose not to shoot.8

Wiggins and Paschal remain entitled to qualified

immunity.

2. Petitioner asks the Court to conduct

a 20/20 hindsight analysis.

Petitioner essentially asks the Court to review this

case with 20/20 hindsight. He argues that, after

discarding her gun on the hood of the car, Lewellyn

“stretches out both arms and it is obvious and you can

plainly see that both of her hands are open and empty

. . . .” (Pet’r’s Br. 13) (original bold omitted, emphasis

added). This quite plainly asks the Court to engage in

a 20/20 hindsight analysis based solely on what the

video shows (i.e., what “you can plainly see”) and

disregards the deputies’ unrebutted testimony as to

what they did see. It affords zero discretion to their onthe-spot judgment and perception of the events in the

moment, to their reaction time, or to what Petitioner

calls their “sight line” at that moment. The Sixth

8

Similarly, Petitioner attempts to make an issue out of the fact

that Jayroe was CIT trained, but that Wiggins and Paschal were

not. (Pet’r’s Br. 6). But neither clearly-established law nor Sheriff’s

Office policy required them to be specially-certified to respond to

a call about an armed suspect. See Carlson v. Jetter, No. 1:08-CV991, 2013 WL 12177063, at *4 (W.D. Mich. Mar. 29, 2013)

(“Whether the [Emergency Support Team] would have handled the

situation differently has minimal relevance to whether Defendant

used excessive force in November 2007.”). They were trained

Sheriff’s Deputies and they were the closest ones to the scene when

the call went out, so they responded. (See Wiggins BPSI

Statement, RE 89, PageID 405 (“I just happened to be in the east

end that day.”); Jayroe BPSI Statement, RE 90, PageID 410 (“. . .

there wasn’t anybody that was responding and we were close.”)).

29

Circuit correctly recognized that Wiggins and Paschal

did not have the ability to pause or rewind this event,

or to view it from the exact perspective of the dashcam.

They were given one chance to both process what was

happening and to react, knowing that making the

wrong decision could get them killed. These are the

kinds of split-second decisions Graham and qualified

immunity protect.

II.

PETITIONER MISCONSTRUES THE

RELEVANT STANDARD OF REVIEW

Petitioner argues that the Sixth Circuit misapplied

the standard of review because the video does not show

all of the genuinely disputed facts in this case, and

therefore that any genuinely disputed facts not shown

should be inferred in his benefit. (Pet’r’s Br. 24). While

that legal premise is correct in the abstract, Petitioner

does not actually identify any purported factual issues

that the video does not resolve.

Instead, Petitioner somewhat confusingly asserts

that the video does not show the events from Wiggins

and Paschal’s “perspective at all times.” (Pet’r’s Br. 3).

This is a red herring because the District Court solved

this purported problem by allowing Petitioner to depose

Wiggins and Paschal about the events of that day.

(Scheduling Order, RE 68, PageID 287 n.1) (“[T]here is

a video of the shooting at issue. And Wiggins’s and

Paschal’s depositions will show what they perceived as

happening and what they knew beforehand.”). Thus, to

the extent the video does not show the events from

Wiggins and Paschal’s “perspective at all times,” their

deposition testimony filled that gap in the record. See

Jones v. City of Cincinnati, 736 F.3d 688, 695-96 (6th

30

Cir. 2012) (an “officer’s explanation of his motivations

inform a court’s understanding about what an

objectively reasonable officer would have done under

such circumstances.”); Russo v. City of Cincinnati, 953

F.2d 1036, 1042 (6th Cir. 1992) (“[T]he reasonableness

of the officer’s action must be evaluated in light of the

information that the defendant officer possessed at the

time of the act, thus often requiring an examination of

the information possessed by the . . . officials.”)

(citation, internal quotation marks omitted).

Petitioner also argues that the Sixth Circuit

“refused to consider the deposition testimony and

photographic evidence offered and introduced through

Paschal . . . .” (Pet’r’s Br. 3). Again, Petitioner does not

actually say what material fact this evidence creates a

dispute over, just generically that this evidence creates

material disputes. (Pet’r’s Br. 3-4). And in any event,

the Sixth Circuit did not “refuse” to consider anything

in the record. It did not specifically reference the

photographs Petitioner mentions, but neither did it

rule that they were excluded.

Although Petitioner implies throughout his brief

that Wiggins and Paschal’s sworn deposition testimony

is unreliable, he presented no proof contradicting their

sworn statements. Nor did he submit a Rule 56(d)

affidavit in response to their summary judgment

motion asserting that more discovery was needed. So,

although Petitioner may take issue superficially with

Wiggins and Paschal’s credibility, for purposes of

summary judgment and this appeal, their sworn

depositions are unrebutted. “A respondent to a motion

for summary judgment may not defeat the motion

31

simply by arguing that the movant’s evidence may not

be credible. Rather, the respondent must present

affirmative evidence supporting its case.” Del Valle v.

BellSouth Telecommunications, Inc., 200 F. App’x 528,

533 (6th Cir. 2006).9

There are no genuine disputes of material fact as to

what happened that day because the video shows the

entire event. And there are no genuine disputes of

material fact as to what Wiggins and Paschal perceived

as happening that day because they gave sworn

deposition testimony as to what they saw (and did not

see). Petitioner has not refuted their sworn testimony

with any evidence and his purported “version” of what

the video shows is not entitled to any presumption of

correctness.

9

Along the same lines, Petitioner says (without any evidentiary

support) that “Wiggins and Paschal were not separated after the

shooting but kept together with Deputy Jayroe . . . so that they

could get their stories straight . . . .” (Pet’r’s Br. 18) (bold omitted).

However, Petitioner does not submit any affirmative evidence to

show that they actually conspired to misrepresent anything, or

what fact they misrepresent. Instead, he seemingly asks the Court

to infer general conspiring without any support in the record. See

Chavez v. Cty. of Kern, No. 1:12-CV-01004 JLT, 2014 WL 412562,

at *5 (E.D. Cal. Feb. 3, 2014) (“Plaintiff argues the deputies were

not separated after the shooting which gave them the opportunity

to conspire. Fatal to this argument, however, is that there is no

evidence whatsoever that they did so conspire.”).

32

III.

PETITIONER MAKES CONCLUSORY

ASSERTIONS THAT ARE UNSUPPORTED

BY THE RECORD AND EVEN BLATANTLY

CONTRADICTED BY THE VIDEO.

It is “well settled that the non-moving party must

cite specific portions of the record in opposition to a

motion for summary judgment . . . .” U.S. Structures,

Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1191 (6th

Cir. 1997); Nieves v. University of Puerto Rico, 7 F.3d

270, 276 n.9 (1st Cir. 1993) (“Factual assertions by

counsel in . . . briefs . . . are generally insufficient to

establish the existence of a genuine issue of material

fact at summary judgment.”). Here, Petitioner makes

numerous assertions that are either unsupported

entirely and appear to be conclusory assertions of

counsel, or are directly contradicted by the video

evidence. Those include the following:

i. Petitioner states, without any support, that

Lewellyn’s 911 call was a “cry for help or attention.”

(Pet’r’s Br. 6). This is nothing more than a conclusion

in the briefing. And it is contrary to what the record

shows Wiggins and Paschal were told they were

walking into. (Paschal Dep., RE 83-7, PageID 373-74

(“Dispatch put out a mental violent call . . . that she

was basically going to shoot herself or the first person

she saw.”); accord Wiggins Dep., RE 83-6, PageID 358

(Plaintiff’s Attorney: “You knew at that point that there

was a female white suspect who had been threatening

suicide or to kill herself prior to that time, right?

Wiggins: “Or any first responders that respond to the

scene, yes.”)).

33

ii. Petitioner states, contrary to the video evidence,

that “[t]here is no proof that there was anyone else

present at the scene or the immediate area prior to the

shooting except Lewellyn, Paschal, Wiggins, and

Deputy Jayroe.” (Pet’r’s Br. 7) (bold omitted). The video

evidence flatly contradicts this.

(SUV 3 Dashcam, 12:14:08). This image is from

Wiggins’ SUV just a few seconds before he pulls up and

Lewellyn walks out of her house. Lewellyn’s house is

the one on the right. In addition to the several civilian

cars parked all around, there is clearly a person

standing to the left in a red shirt, in the general

direction where Lewellyn would raise her gun.

iii.

Petitioner states repeatedly that Lewellyn

“was attempting to surrender the bb gun on the hood of

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

34

sight for all to see.” (Pet’r’s Br. 8). This is nothing more

than a conclusory (and speculative) opinion about

Lewellyn’s subjective motivations, unsupported by any

record evidence. Moreover, even if this conclusory

assertion were true, Lewellyn’s subjective intentions

are not material; what matters is what a reasonable

officer “could have reasonably believed” she was doing.

Goodrich v. Everett, 193 F. App’x 551, 557 (6th Cir.

2006); Stevens-Rucker v. City of Columbus, OH, 739 F.

App’x 834, 840 (6th Cir. 2018) (“. . . in the absence of

overt statements by [the suspect] to the officers, [the

suspect]’s actual motives for his movements are not

relevant to this inquiry because they are not known to

the reasonable officer at the time of the incident.”)

(citation omitted). Furthermore, once on the hood the

gun was not visible and in plain sight; quite the

opposite, even the District Court agreed that the

deputies did not “perceive[ ] Lewellyn put the gun on

the car’s hood.” (District Court Order, RE 112, PageID

736; Sixth Circuit Order, RE 117, PageID 767).

Petitioner presents no evidence to suggest that the

deputies should have inferred that Lewellyn exited her

house in order to surrender her gun, rather than to

shoot them or others as she said she would.

iv. Petitioner “alleges that Paschal shot Nancy

Lewellyn immediately before the bb gun was slightly

raised . . . while the bb gun was down by her side,

causing the reaction from Nancy Lewellyn to

involuntarily raise the bb gun . . . .” (Pet’r’s Br. 12)

(first emphasis in original, second emphasis added).

These conclusory, speculative assertions are found

nowhere except in Petitioner’s briefs, and are blatantly

contradicted by the video. The video plainly shows

35

Lewellyn begin to raise the gun up and out toward the

cul-de-sac before Paschal fired his first shot. (SUV 1

Dashcam, 12:14:11-13). Both Courts below disagreed

with Petitioner’s argument on this point and his

assertion to the contrary is blatantly contradicted by

the video.

v. Petitioner states that Lewellyn “never pointed

the bb gun at and/or in the vicinity where Wiggins and

Paschal [ ] were located at the time that the first shots

were fired.” (Pet’r’s Br. 17) (bold in original). The video

does not support Petitioner’s characterization.

Immediately after the first shot (and after she began to

raise the gun, pointed out toward the cul-de-sac),

Lewellyn began rotating her body and gun “from her

driveway toward Paschal . . . .” (District Court Order,

RE 112, PageID 723). 10

10

The District Court also found that, when she first walked

through her door, Lewellyn appeared to “raise[ ] the gun in the

SUV’s general direction.” (District Court Order, RE 112, PageID

714) (citing SUV 1 Dashcam, 12:14:08).

36

(District Court Order, RE 112, PageID 722, Figure 5).

Once again, Petitioner’s assertion is blatantly

contradicted by the record.

vi. Lastly, Petitioner claims in his Petition that

there is a dispute regarding how much information

Paschal actually had concerning the nature of the call.

(Pet’r’s Br. 5). This is a new argument that Petitioner

has not previously made, and should be deemed

waived.

CONCLUSION

In less time than it takes to read this sentence,

Nancy Lewellyn had walked out of her front door,

raised the gun once in the SUV’s general direction, and

was beginning to raise it again, this time pointed out

toward her surrounding neighborhood. That is the

37

amount of time Paschal had to see, process what he

was seeing, and react. Wiggins had even less time

because he arrived as Lewellyn was exiting the house,

gun raised. After being shot, Lewellyn then panned the

gun toward Paschal. The deputies could not pause or

rewind what they were seeing. In this haze, Wiggins

and Paschal responded reasonably to what they

perceived as a person ready to shoot them, herself, or

her neighbors. This is what qualified immunity

protects. Wiggins and Paschal request that this Court

deny the Petition. Alternatively, they request that the

Court summarily affirm the Sixth Circuit’s decision.

Respectfully submitted,

John Marshall Jones (TN BPR 13289)

Counsel of Record

E. Lee Whitwell (TN BPR 33622)

Shelby County Attorney’s Office

160 North Main, Suite 950

Memphis, Tennessee 38103

johnm.jones@shelbycountytn.gov

lee.whitwell@shelbycountytn.gov

(901) 222-2100

Counsel for Respondents