Opposition Brief — Rhodes v. McDannel

«ial taf - a a IO th a a ia eo

Guprems Court, U.S.

FiLED

No. 91-692

GLERK

An Che

Supreme Court of the United States

Wectober Cerm, 199)

——o iain

TONYA RHODES, Personal Representative of the Estate

of JAMES EDWARD WEST, Deceased,

‘ Petitioner,

CRAIG MCDANNEL, H. CAL ROSEMA, in his official capa-

city as Van Buren County Sheriff. VAN BUREN COUNTY

SHERIFF'S DEPARTMENT and VAN BUREN COUNTY,

Respondents.

RESPONSE TO > PETITION

FOR WRIT OF CERTIORARI

ro THE MICHIG AN SU PREME COUl RI

CUMMINGS, MCCLOREY, Davis & ACHO, PC.

By: MARCIA L. HOWE (P-37518)

Counsel of Record

33900 Schoolcraft Road

Livonia, Michigan 48150-1392

(313) 261-2400

Atiorneys for Respondents

Interstate Brief & Record Company, a division of North American Graphics, Inc

1629 West Lafayette Boulevard, Detroit, MI 48216 (313) 962-6230

COUNTER-STATEMENT OF QUESTIONS

PRESENTED FOR REVIEW

iF

WHETHER THE TRIAL COURT PROPERLY CONCLUDED

THAT ADDITIONAL DISCOVERY WAS UNNECESSARY BECAUSE

THE PLAINTIFF COULD NOT SUGGEST AN OUTCOME

DETERMINATIVE FACT THAT WOULD HAVE BEEN REVEALED

THROUGH ADDITIONAL DISCOVERY, AND SUFFICIENT OPPOR

TUNITY FOR DISCOVERY HAD OCCURRED?

WHETHER THE DEPUTIES’ ENTRANCE WITH IMPLICIT CON

SENT AND UNDER EXIGENT CIRCUMSTANCES INTO THE

HOME WAS PERMISSIBLE WHERE THEY WERE ESCORTED IN

BY THE COMPLAINANT, WHO HAD INDICATED SHE WAS

BEING CHASED BY A MACHETE-WIELDING ASSAILANT?

If.

WHETHER THE TRIAL COURT PROPERLY GRANTED SUM

MARY JUDGMENT TO THE DEFENDANTS ON THE ISSUE O|

EXCESSIVE FORCE WHERE REASONABLE MINDS COULD ONLY

CONCLUDE THAT THE DEPUTIES WERE ACTING TO PROTECT

\ CITIZEN AND IN SELF DEFENSE WHEN CONFRONTED BY

THE PLAINTIFF'S DECEDENT, WHO WAS ATTACKING WITH A

23-24 INCH MACHETE WHILE IGNORING ANY REQUEST TO

HALT?

TABLE OF CONTENTS

PAGE.

COUNTER-STATEMENT

Cee Me FPR BED sac e cis csccncasecedecensonensedsantatesenss i

pi SS Bye 8 gl A vdaduasa inde sbeeiaaeana iv

CRF PURE CIE OPED CIA oniisc esc ecesccsssesnscsseosnpesnoes 4

IE PNIIINE f se lca ceavatpmnckeratiasecenrieenecsssissenes ean em |

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SURELY GP FEE, AIMIUIMIEIND oon. 0. cc cecctcssvcecsccseesetcossesseree

REASONS FOR DENYING THRE WRIT:

THE TRIAL COURT PROPERLY CONCLUDED THAT

ADDITIONAL DISCOVERY WAS UNNECESSARY

BECAUSE THE PLAINTIFF COULD NOT SUGGEST

AN OUTCOME-DETERMINATIVE FACT THAT

WOULD HAVE BEEN REVEALED THROUGH ADDI

TIONAL DISCOVERY, AND SUFFICIENT OPPORKTUN

ITY FOR DISCOVERY HAD OCCURRED

THE DEPUTIES ENTRANCE INTO THE HOME WAS

PERMISSIBLE WHERE THEY WERE ESCORTED IN

BY COMPLAINANT, WHO HAD INDICATED SHE WAS

BEING CHASED BY A MACHETE-WIELDING ASSAIL

ANT. THEREBY ENTERING WITH IMPLICEE CON

SENT AND UNDER EXIGENT CIRCUMSTANCES

THRE TRIAL COURT PROPERLY GRANTED SUM

MARY JUDGMENT TO THE DEFENDANTS ON THE

ISSUR OF EXCESSIVE FORCE WHERE REASONABLE

MINDS COULD ONLY CONCLUDE THAT THE

DEPUTIES WERE ACTING TO PROTECT A CITIZEN

AND IN SELF DEFENSE WHEN CONFRONTED BY

THE PLAINTIFF'S DECEDENT, WHO WAS ATTACK-

ING WITH A 23-24 INCH MACHETE WHILE IGNOK

SUES PRUWE WORK PUIESS ECP TRALEE. cisccesctovessvecgcnarcsioess

oo a be , nD eidaisk Fbacdscien ave mucvaicivesisler

RELIEF REQUESTED

|

iv

TABLE OF AUTHORITIES

PAGE

STATE CASES:

Butler v. City of Detroit, 149 Mich. App. 708; 386

Fee SI ND Leds aintedssundeb eset varkansrnninceoninonens 15, 27

Davis v. Chrysler Corp., 151 Mich. App. 463; 391

Pe Es desc act daa arisestacnrnaiee ane 12

Ford v. Nicol, 261 Mich. 307; 246 NW. 130 (1933) ....... 29

Isereau v. Stone, 3 A.2d 243; 160 NYS.2d 336; 3

PE iii errreee iti tiornetoonnadios 23

Kelly v. Ogilivie, 35 Ill. 2d 297; 220 NE2d 174 (1966) = 29

McPherson vy. Fitzpatrick, 63 Mich. App. 461; 234

ANT NE A crs tocrdilinta Ss Hany ceearek caucsbenssitecnis cots 12

People v. Gray, 150 Mich. App. 446; 387 NW.2d &&87

RTE PA ena Pete acy MAREN AEE icuckveesres 19

Portice v. Otsego Co., 169 Mich. App. 563; 426

NW.2d 706 (1988); le. den. 431 Mich. 895 (1988) .. 12, 24

Sandman v. Hagan, 261 lowa 560; 154 NW.2d 113

0 aS A Dear NR Ee eee NO AO Sc = ne ARN Ea 27

Zope v. Howe, 179 Mich. App. 91; 445 NW.2d 452

UME alicasttsagonrehsieennstassnats aaaadeiceusnieseee il iaeessaeasadicaoers 19

FEDERAL CASES:

Anderson v. Creighton, 483 U.S. 635; 107 S. Ct.

Ns FE ERA BOE CBOE D kesencivcccsvcsessecenvsncrepess 8, 22

Ball v. State of Georgia, 733 F2d 1557 (1th Cir.

MEY erodes eednavescictan tavedpamedaaescse tated olathe tolcieresioalintlonstens 13

Barone v. United States, 330 F.2d 543 (3rd Cir. NY.

1964), cert. den. 84S. Ct. 1940; 377 US. 1004; 12

Sy I a IU ED cre eaten aa gs 13

PAGE

Bell v. Wolfish, 441 US. 520; 99'S. Ct. 1861; 60° L.

le Ee SOUR | san iivecscatacccsucsersncaneacsasainessstovianigniae: 14

Bowens v. Kanzze, 237 F Supp. 826 (ED. Il 1965);

ONG. FB F260 BES CI Cie, IGS) sovcccvcenscecsosseovncnsess 12

Celotex Corp. v. Catrett, 477 US. 317; 106 S. Ct.

Ee, HR hej A PU Oe CED sisessicessevvndcanccevsevesarsdcedes y

Clark v. Evans, 848 F2d 876 (lth Cir. 1988) oo. 22

Dominique vy. Telb, 831 F2d 673 (6th Cir, 1987)... 21

Estate of Belew v. Ruppert, Jr, 694 F Supp. 1214

CR its II ioocdccwiacer hacpcclnaucoeiguatam ede venudeteven) 27

Graham v. Connor, 490 US. 386; 109 S. Ct. 1865:

RB ee ee CRED i drcctcnckiccpalinnarem ores. 26-27

Harlow v. Fitzgerald, 457 US. 800; 102 S$. Ct. 2727:

22h: Se ee es oe ee 20)

Hayes v. Jefferson County, Kentucky, 668 F.2d 869)

(6th Cir. 1982): reh. den. 673 F2d 152 (6th Cir.

1982): cert. den. 459 US. 833; 103 S. Ct. 75; 74. L

se Fe CID Widacdctatecevand voce bm Suaee cae terricens 24

Jones v. Lewts, 875 F2d 1125 (6th Cir. 1989) 0000... 15, 24

Jones v. Shertll, 827 F2d 1102 (6th Cir, 1982) ooo. 20

Languirand v. Hayden, 717 F2d 220, 227-228 (C.A.

Mi MED. naepcecasJucaccessseiteava pete pelea lin eylacaeanat hot 24

Maryland v. Bute, 494 US. 325; 108 L. Ed. 2d 276:

110 S. Ct. 1093; 58 US.LW. 4281 (1990) ................-.. 15

Moffett v. Wainwright, 512 F2d 496 (5th Cir. 1975) ..... 14

Monell v. Department of Soctal Services, 436 US.

658: 98 S. Ct. 2018; 56 L. Ed. 2d 611 (1978) ............ 24

Mooney v. City of Holland, 490 F Supp. 188 (W.D.

NN UEP scxuscanenscisnaiTcodserssereascaelignmaeedieeeeks 12

a a ee

vi

PAGE

Newcomb vy. Troy, 719 FE Supp. 1408 (E.D. Mich. 1989) ... 28

Nishiyama vy. Dickson Co., Tenn., 814 E2d 277 (6th

CAE, BED vcciiecsxeenescccsesctvanarecpvaveeieinvisieiauectbaaatantente 20

Pleasant v. Zamieski, 895 E2d 272 (6th Cir. 1990) ..... 28

Rawlings v. Kentucky, 448 U.S. 98; 100 S. Ct. 2556;

GS £.. Ed. Del GES CUBR vccescsictcctergcnennenens 13

Rheaume vy. Texas Department of Public Safety,

666 F2d S25 (BUs Ce TOR iceeineonsecen 21

Spear v. Lee, 728 F Supp. 1408 (E.D. Mich. 1989) ...... 24

Tennessee v. Garner, 471 US. 1; 105 S. Ct. 1694: 84

L. Ge: Belt OR cick eee ee

United States v. Bulman, 667 F.2d 1374 (11th Cir

OY coos onc ce cuciiakcbasdaes racial eee 19

United States v. De Bose, 419 E2d 1273 (6th Cir

1969) ...... -cpbeaesdostisduaceuddadaacubpeeGelin tai a eee 13

United States v. DNT, 747 E2d 263 (4th Cir. 1984) ..... 14

United States v. Jensen, 432 K2d 861 (6th Cir.

BP GEY | sonibncsliencccsncentdsbevensbenbiedaaee 16

United States v. Mark Polus, 516 F2d 12909 (1st Cir.

1975): cert. den. 423 US. 895; 46 L. Ed. 2d 127;

OG SS. CY. WS Pee ee vasiccsessccconssnonsdeeaeee 19

United States v. Matlock, 415 US. 164; 94S. Ct. 9&8:

So L.. BG, Oe Be CEO) cxvetctwisorssenneens 14, 18

United States v. Morgan, 743 E2d 1158 (6th Cir. 1984) ... 15

Vizbaras v. Prieber, 761 E2d 1013 (4th Cir. 1985):

cert. den. 474 US. 1101; 106 S. Ct. 8803; 8&8 L.

ik, Bel Sie CI « hakcssshg nec encanto carcino acieeee 2]

Whitt v. Smith, 832 F2d 451 (7th Cir. 1987)

Wilkins v. Whitaker, 714 E2d 4 (4th Cir. 1983), cert

PAGE

den. 468 US. 1217; 104 S. Ct. 3586; 82 L. Ed. 2d

%84 (1984)

STATUTES AND OTHER AUTHORITIES:

ae Bain RI pdsccicesevncasvacasecenveasacsevasavreess earaas 12,

Fed. KR. Civ. B36 ......

M.C.L. 51.70; MUS.A. 5.863. .

M.C.L.A. 764.154; M.S.A. 28.874(1) .

Personal Injury: Actions, Defenses, Damages,

“Assault and Battery” (Mathew Bender 1976)

Police Cro Lrability, “Duty to Protect”

(Mathew Bender 1989)

Prosser and Keeton, Jorts (5th Ed. 1984)

pp. 129-130

af

7-28

No. 91-692

In Che

Supreme Court of the United States

Mectober Cerm, 1991

= =

TONYA RHODES, Personal Representative of the Estate

of JAMES EDWARD WEST, Deceased,

Vv. Petitioner,

CRAIG MCDANNEL, H. CAL ROSEMA, in his official capa-

city as Van Buren County Sheriff, VAN BUREN COUNTY

SHERIFF'S DEPARTMENT and VAN BUREN COUNTY,

Respondents.

RESPONSE TO PETITION

FOR WRIT OF CERTIORARI

TO THE MICHIGAN SUPREME COURT

Respondents, CRAIG MCDANNEL, CAL ROSEMA, VAN BUREN

COUNTY SHERIFF’S DEPARTMENT, and VAN BUREN COUNTY,

request that this Honorable Court deny Petitioner's,

TONYA RHODES: Personal Representative of the Estate of

JAMES EDWARD WEST, Request for Writ of Certiorari to

review the Order of the 6th Circuit Court of Appeals

dated June 10, 1991. The Petition was docketed at the

United States Supreme Court on October 28, 1991.

ORDERS AND OPINIONS BELOW

Respondents rely on the Order and Opinions sub-

mitted in the Petitioner’s Petition for Writ of Certiorari

and its Appendices.

JURISDICTION

This case involves allegations of federal civil rights

violations brought pursuant to 42 U.S.C. 1983 asserting a

violation of the 4th Amendment as a result of a fatal

shooting that occurred when the individual Deputies

fatally wounded the Plaintiff's Decedent as a result of

the Plaintiff's Decedent’s unyielding confrontation and

attack with a 23-24 inch machete upon the deputies and

a female citizen.

COUNTER-STATEMENT OF THE CASE

The Plaintiff/Petitioner has clearly misconstrued the

facts in her favor and for that reason, Defendants/

Respondents request this Court’s patience in permitting

the Respondents the opportunity to set forth those

facts that were discovered and known to the trial court

at the time he granted summary judgment.

On March 7, 1989, Deputy Craig McDannel and Deputy

Shaw were summoned to the home at 311 East Street in

Hartford, Michigan by Shari Heffington. Ms. Heffington

returned home after a day of visiting and drinking to

find the Plaintiff's Decedent angry. He began assaulting

her with a 23-24 inch machete. Ms. Heffington perceived

Mr. West to be acting crazy, perhaps because of his jeal-

ousy or perhaps because of his excessive drinking that

day. Ms. Heffington indicated that he had previously

assaulted her at the home on several occasions. On one

other occasion, a Hartford police officer was sum-

moned after Mr. West had assaulted Ms. Heffington. Ms.

Heffington had to save herself by hitting Mr. West in the

head with a beer bottle.

On this particular night, Ms. Heffington escorted the

Deputies into the house because she was scared, she

could not reason with Mr. West, and he was threatening

her with a knife. Shortly after the Deputies were

escorted into the living room, Mr. West entered the

room and continued to advance with a raised machete

toward Ms. Heffington and the two Deputies. The

Deputies told him to stop at least three times. When Mr.

West failed to heed the Deputies’ warnings and con-

tinued to advance on them with the machete, Deputy

McDannel shot. Mr. West died as a result of the gunshot

wound. Ms. Heffington said that Mr. West had walked

within 5 feet of them raising the machete as if to swing

it when the Deputies shot.

Mr. West was not employed because of disabling

arthritis. Ms. Heffington understands that he was taking

prescriptions for the arthritis. These prescriptions were

not supposed to be mixed with alcohol. When he did

mix the prescriptions with alcohol he became mad,

crazy, unreasonable. “He ain't got his right mind.” Yet,

she cannot stay away from him and every time she

leaves him, she goes right back to him.

Deposition of Defendant Deputy Craig McDannel

The statement given by Ms. Heffington is substantially

similar to the facts testified to by the Defendant Deputy

at his deposition. Deputy McDannel testified that Ms.

Shari Heffington met them at the doorway. In fact, Ms.

Heffington led the Deputies into the house. She

informed the Deputies that the man with the knife was

still in the house and motioned for the Deputies to

come into the home.

Deputy McDannel testified that he did not have time

to investigate nor even consider arrest because of the

short amount of time that passed between the time

they entered and the appearance of Mr. West. The

Deputies entered the house because the Complainant

invited them in. Ms. Heffington informed the Deputies

again that she was being pursued by a man with a

knife. The Deputies saw Mr. West come into the living

room holding the knife so the lower portion of his arm

a

was parallel with the floor, or approximately parallel

with the floor. The machete was parallel with the floor,

but the tip was pointing toward the back. When asked

why the Deputies did not retreat, Deputy McDannel

responded that he did not have time. Deputy McDannel

testified that they did not have any time to do anything

else. Mr. West was standing within 4 to 6 feet from

Deputy McDannel at the time he shot.

Although Deputy Shaw also drew his weapon, he did

not shoot and held the gun at his side. He also stated

that the Deputies repeatedly told West to “stop.” Deputy

McDannel did not shoot until Mr. West continued to

come forward with the raised machete.

Answer’ “When he began to raise the machete, |

raised my arm, my revolver, took aim,

and told him to drop it again another

time after | had aimed. And when he

didn't, that’s when I fired

Question. He never said a word?

Answer: No.

Question’ And Shari Heffington, until he gets shot,

isnt saying anything or is she?

Answer She is.

Question. What does she say?

Answer’ She is telling him to ‘drop it, James.”

Plaintiff's Decedent was obviously committing a crime

in the presence of the Deputies, felonious assault. At no

time did Mr. West stop the process of raising his

machete as he approached the group until the time the

Deputy fired the gun. It did not appear to the Deputy

that he was going to stop advancing or release the

machete. Deadly force was required for the purpose of

protecting the Deputies and Ms. Heffington.

Deputy McDannel testified that he was a certified

Deputy who had attended the Michigan Law Enforce

ment Officer’s Training Council Basic Recruit School in

1974. It was sponsored by the State of Michigan. He

attended Basic Narcotic School in April, 1975. He

attended the Michigan Law Enforcement Officer's

Training Council Advance Police Academy. He attended a

seminar on interrogations, admissions and confessions

He attended a training for supervisory development

Deputy McDannel had received a commendation by

the Department and by the Optimist Club for work in

instituting a program to utilize tracking and narcotics

dogs. Deputy McDannel had never been reprimanded

The only other time Deputy McDannel discharged his

weapon in the line of duty was to kill a deer that had

been hit by a car, but had not died. Contrary to the

Plaintiff's Statement of Facts, an investigation by the

Michigan State Police Department did occur in regard to

this incident.

The Deposition Testimony of Herbert C. Rosema, Sheriff

Sheriff Rosema brought the General Operating Policy

and Procedural Manual of the Department to his deposi

tion. The Sheriff's Department does have a procedure

for conducting internal investigations. If a Deputy

shoots at someone, the manual requires notification

from the State Police. The Michigan State Police assist

in investigating the Complaint. The manual requires that

the Deputies involved make a report which goes into a

file. The Sheriff reviews the reports. contacts the prose-

cutors, and makes a determination in regard to the inci-

dent. Although the State Police do the investigation, the

report is turned over to the Sheriff or Under-sheriff to

determine whether they will take the disciplinary

action. Exhibit 17 outlined the written internal investiga-

tion procedures. Although Sheriff Rosema did go to the

catia aaa,

6

house on the evening after the shooting, he did not

leave his vehicle. He had taught his Deputies that when

they are not involved in the investigation, they should

not go into the scene or they could contaminate

evidence.

With regard to this incident, the prosecutor did con-

duct an investigation to determine whether or not

Deputy McDannel should be charged. The only other

incident that he could recall that involved a shooting

occurred in 1982-83 where the State Police officers

asked for assistance in handing a hostage situation.

The Department is currently experimenting with a

procedure of self-evaluation. In that procedure, the indi-

vidual Deputy would be evaluated and then he wou!d

have the opportunity to respond to his evaluation.

Moreover, Sheriff Rosema testified that if, upon inves-

tigation, he had concluded that the Deputy had done

something wrong to violate a policy, then Deputy

McDannel would have been disciplined as a result of the

incident. He made the determination of whether disci-

pline was deserving after he returned from his vacation,

which lasted approximately 23 weeks. He concluded that

no disciplinary action was warranted after sitting down

discussing the matter with the Undersheriff and later,

the prosecutor. The Sheriff also reviewed a number of

documents. The Sheriff concluded that Deputy

McDannel used good judgment.

Plaintiff's counsel was provided with a Complaint

number and file class, 180-1212-89. The file contained a

standard crime report, UD 104. It included reports made

by Mr. Svilpe, Mr. Craft and Sandra Hagg, the dispatcher.

It also included a report from Deputy Lux, a report from

Lawrence Police Department by Kirk Goodrich, a

Michigan Municipal Authority Incident Report, a L.ELN.

~

report on James West, and a booking card on Mr. West.

It contained handwritten notes by Deputy McDannel. It

contained a Department of State Forensic Division

Report. There was a Department of State Laboratory

Report from James Bullock. The Standard Crime Report

was signed by John Gillespie. It also included a Hartford

Police Investigation Report signed by Mr. Gress. The

Hartford Department Investigation Report contained the

transcript of Shari Heffington. An envelope contained a

report on the autopsy by Dr. Glaser. The report from

the Michigan State Police was written by Mr. Wallace,

which includes the transcripts of his meetings with Mr.

Lux. Mr. Craft, and Sari Heffington. The policy manual

contained a policy with regard to the use of deadly

force. As new employees arrived, they are provided

with a copy of the policy book. The new employees

review the policy manual with their sergeant. If they

have any questions, they contact the Undersheriff or

the Sheriff. In addition to the local policies, the manda-

tory guidelines of the Michigan Law Enforcement

Officer’s Training Counsels’ Rules and Regulations apply

to the Deputy. The Officers or Deputies learn about

those policies, practices and procedures of that agency

through their school certifications program.

SUMMARY OF THE ARGUMENT

The trial court properly granted summary judgment

to the Defendants in the instant case. Additional dis-

covery would not have uncovered any outcome-

determinative fact. Plaintiff had adequate time for

discovery and presentation of the evidence discovered

to the experts prior to the Motion for Summary Judgment.

Therefore, dismissal of the matter was not premature

The trial court properly granted summary judgment

on the substantive matters where the Sheriff's Depart-

8

ment received an excited, hysterical phone call indi-

cating that a citizen was involved in a life-threatening

situation. Upon arrival at the home, the Deputies were

escorted into the house by a woman who indicated that

her life was being threatened by a resident with a 23-24

inch machete. In the next few moments, the Plaintiff's

Decedent entered the room raising the machete and

advanced upon this individual and the two Deputies

Notwithstanding the continued request to stop, drop

the machete, and please to not advance any further, the

assailant continued forward. One of the Deputies shot.

One of the Deputy’s bullets fatally wounded Plaintiff's

Decedent. Respondents asserted, and the trial court

properly agreed, that the constitutional rights of the

Plaintiff's Decedent were not violated under the facts of

the instant case.

REASONS FOR DENYING THE WRIT

THE FRIAL COURT PROPERLY CONCLUDED THAT ADDI-

TIONAL DISCOVERY WAS UNNECESSARY BECAUSE

THE PLAINTIFF COULD NOT SUGGEST AN OUTCOME-

DETERMINATIVE FACT THAT WOULD HAVE BEEN

REVEALED THROUGH ADDITIONAL DISCOVERY, AND SUF-

FICIENT OPPORTUNITY FOR DISCOVERY HAD OCCURRED.

Fed. R. Civ. P. 56 permits the remedy of summary

judgment where there is no genuine issue of material

fact. Without a material fact in controversy, the movant

is entitled to judgment as a matter of law. Anderson v.

Creighton, 483 US. 635; 107 S. Ct. 3034, 3042; 97 L. Ed. 2d

923 (1987). Rule 56 “is properly regarded not as a disfa-

vored procedural shortcut, but rather as an integral

part of the Federal Rules ... designed to secure the

just, speedy and economical determination of every

Y

action.” Celotex Corp. v. Catrett, 477 US. 317 at 327, 106

S. Ct. 2548: 91 L. Ed. 2d 265 (1986). There, the Court

noted

In our view, the plain language of Rule 56(C)

mandates the entry of summary judgment, after

adequate time for discovery and upon motion

avainst a party who fails to make a showing suffi

cient to establish the existence of an element

essential to the partys case, and on which that

party will bear the burden of proof at trial. In

such a situation, there can be ‘no genuine issue

of material fact, since a complete failure of proof

concerning an essential element of the moving

party's case necessarily renders all other facts

immaterial. The moving party is ‘entitled to sum

mary of judyment as a matter of law because

the non-moving party has failed to make a suffi

cient showing on an essential element of her

case with respect to which she has a burden of

proof” Celotex Corp. supra, 477 | at 322-323 :

(1986)

In the instant case. a review of the Statement of Facts

as set forth by the Defendants clearly provides that dis

covery in this matter did occur. The incident occurred

on March 7, 1989. The Complaint was filed on August 14

1989. The summary judgment hearing was heard o1

November 21. 1989. and the Judge filed his Opinion dis

missing the claim on December 13

A review of the docket entry sheet and the Defer

Respondents Statement of Facts illustrates

number of depositions were in fact taken in this matter

Plaintiff filed the deposition of Defendant Sheriff Ca

Rosema. Plaintiff also filed the deposition of Defendant

r

McDannel and Deputy Shaw, the Deputies involved

the incident. In addition, the Plaintitf has take

10

deposition of other deputies that arrived on the scene,

Deputy Craft and Deputy Lux.

A statement by the eyewitness, Ms. Heffington, is very

similar to the rendition of the pertinent facts described

by the Deputies. Contrary to the Plaintiff's assertion,

the trial court did not rely on merely self-serving state-

ments of the Deputies. To the contrary, it is the Plaintiff

who relies on bare assertions and unsubstantiated

conclusions.

The trial court, in fact, reviewed the evidence pre-

sented by the parties, including numerous documents

and reports that were filed, in reference to the Defen-

dants’ Motion for Summary Judgment. The trial court

gave the Plaintiff an Opportunity to file a supplemental

brief. However. the trial court concluded that the allega-

tions that the Defendant Deputy did not formulate a

plan prior to his action did not rise to the level of gross

negligence. The court also concluded that as a matter

of law the entry into the house where the man was

wielding a machete was not “of a magnitude such that it

was highly probable that harm would follow.” It is not

reasonable that a man with a knife would advance on

two Deputies with drawn guns. It is undisputed that

Plaintiff's Decedent advanced on the Deputies and Ms.

Heffington with a 23-24 inch machete raised in the air

and that he failed to heed any warnings to stop.

Notwithstanding the Plaintiff's attempt to create a dis-

puted issue of fact, the Plaintiff was unable to provide

any support for a genuine material issue of fact that

would affect the outcome of this case. At oral argument

before the 6th Circuit and in her Brief in Support of her

Petition, the Plaintiff asserts that additional expert testi-

mony would have revealed that the Plaintiff's Decedent

was not 4-6 feet away from the Deputies and Ms. Heffing-

ton, but that the Plaintiff's Decedent was 8-9 feet away

1]

from the Deputies and Ms. Heffington. However, the dif-

ference of a few feet does not alter the outcome of this

case where the assailant is advancing on Ms. Heffington

and the Deputies, ignoring their requests to stop,

extending a 23-24 inch machete in an attack position.

Therefore, the Petitioner’s assertion that sufficient

opportunity for discovery did not occur is completely

without merit. Petitioner has failed to support any facts

that would contradict the outcome-determinative facts

in this case.

\s noted by the 6th Circuit Court of Appeals’ Opinion:

“The District Court has broad discretion in regu-

lating discovery, and its ruling will not be over-

turned unless there is a clear abuse. of

discretion. Misco, Inc. v. United States Steel Corp.,

784 k2d 198 (6th Cir. 1986); see also Little v. City

of Seattle, 863 F.2d 681 (9th Cir. 1988).” (Opinion,

py. 3).

The trial court did not abuse this discretion in not per-

mitting Plaintiff's counsel additional time. The trial

court judge did give Plaintiff's counsel an opportunity

to file a Supplemental Brief. Plaintiff was unable to pro-

duce any factual support for his position or present suf-

ticient justification to extend discovery. Based upon the

materials and arguments the Plaintiff presented, the

trial court properly concluded that further discovery

was not warranted.

Il.

THE DEPUTIES’ ENTRANCE WITH IMPLICIT CONSENT AND

UNDER EXIGENT CIRCUMSTANCES INTO THE HOME WAS

PERMISSIBLE WHERE THEY WERE ESCORTED IN BY THE

COMPLAINANT, WHO HAD INDICATED SHE WAS BEING

CHASED BY A MACHETE-WIELDING ASSAILANT.

A. Van Buren County Sheriff's Department Is Not A

Separate Entity Subject To Liability.

It is well established that the Sheriffs Department is

not a legal entity which may be sued in its own name.

Mooney v. City of Holland, 490 EF Supp. 188 (W.D. Mich.

1980); Davis v. Chrysler Corp., 151 Mich. App. 463; 391

NW.2d 376 (1986), citing McPherson vy. Fitzpatrick, 63

Mich. App. 461, 464; 234 NW.2d 566 (1975). Therefore,

the claims against the Van Buren Sheriffs Department

must fail and the Sheriffs Department is not a proper

party to this lawsuit under any theory of recovery,

Portice vo Otsego Co, 169 Mich. App. 563; 426 NW.2d) 706

(1988): de den 431 Mich. 895 (1988)

B. The Deputies’ Entrance Into The Home Is Per-

missible Where They Were Escorted In By The

Complainant Who Indicated She was Being

Chased By A Machete-Wielding Assailant.

Defendants agree with the trial courts conclusion

that the entry into the home was proper. Defendants

assert that a warrantless search for purposes. of

exploratory investigation and the furtherance of a

prosecution of a criminal action is not at issue in the

instant case.' In the instant case, the Deputies were not

on the premises to effectuate an arrest, but were sui

moned on an emergency basis to aid an individual in a

life-threatening situation,

kor purposes of analysis, it should be noted that the instant

case is a civil matter pursuant to 42 U.S.C. 1983 and a request for

damages. To the contrary, this matter does not involve criminal pro-

ceedings and the determination of whether the proffered evidence

would be excluded from the criminal proceedings as a result of the

violation of the search and seizure rule. Improperly procured evi-

dence for purposes of criminal matters is carefully scrutinized, but

the proposition that the allegedly illegally-obtained evidence is

excluded does not automatically provide the Plaintiff with the cor-

responding right to damages on that matter. Bowens v. Kanzze, 237 F.

Supp. $26 (B.D. Tl. 1965); aff d. 318 F.2d 828 (7th Cir. 1965).

13

The courts have held that police, in the exercise of

their duties as police officers, have a right to enter and

investigate in an emergency without an accompanying

intent to either search or arrest. Barone v. United States,

330 E2d 543 (3rd Cir. NY. 1964): cert, den. 84S. Ct. 1940:

377 US. 1004, 12. L. kd. 2d 1053 (1964). Officers are not

required to delay the course of an investigation if failure

to do so would vravely endanger their lives or lives of

others. United States vo De Bose, 40 E2d 1273 (6th Cir

1969)

“First, the party asserting his Fourth Amendment

right must establish that a search or seizure

occurred of his person, house, papers or affects

and that said search was conducted by an agent

of the government: stated differently, there must

be an invasion of the claimants reasonable

expectation of privacy. Katz vo United States, 389

US. 347, 388 S. Ct. 507; 19 L. Ed. 2d 576 (1967)

United States vo Vachaner, (06 b2d WZ) Olith Cir

19843). Second, the claimant must establish that

the challenged search and seizure was ‘unreason

able, because all searches and seizures are not

prescribed by the Fourth Amendment. Elkin

United States, 364 U.S. 206, 222, $0.5. Ct. 1437

1446: 41. Ed. 2d 1669 (1960)

doth of the aforementioned requirements are sepa

rate and distinet. and both must be met before violation

of an individual's rights guaranteed by the Fourth

Amendment can occur. Rawlings v. Kentucky. 445% US. 9X

112: 100 S. Ct. 2556. 2565: 65 L. Ed

In Ball v. State of Georgia, 733 F2d 1557 (llth Cir

1984). the Court concluded that trespass was not a

Fourth Amendment constitutional violation. In Ba

plaintiff became angry with his daughter and his

friends, which resulted in the vandalizing ot a

neighbor's bicycle. The parents of the neighbor child

called the police, who went to the Ball residence.

Officer Putnam remained on the porch, although he was

invited into the house by Ball. The officer requested the

full name of Mr. Ball, but Mr. Ball indicated he was

going to call his lawyer when in fact he found a 6-inch

blue steel revolver which he pointed at the officer as he

stood behind the door at the top of the stairs. A

shooting resulted.

There, the Court assumed for purposes of argument

only that a search and seizure had occurred, but con-

cluded that the challenged search was not unreasonable

since Ball implicitly consented to the presence of the

officer on his property. To determine the reasonable-

ness of a practice, the Court weighed the public interest

promoted by the practice versus the personal rights of

the individual protected by the Fourth Amendment. Bel/

v. Wolfish, 441 US. 520, 588; 99'S. Ct. 1861, 1884: 60 Lb. Ed.

2d 447, 481 (1979). Consideration of the following factors

is relevant.

1) The scope of the particular intrusion;

2) The manner in which it is conducted;

3) The justification for initiating it; and

4) The place in which it is conducted. Bell,

supra, 441 US. at 559; 99'S. Ct. at 1884.

The Appellate Court properly concluded that Ms.

Heffington did have apparent authority to permit entry

into the house, relying on United States v. Matlock, 415

U.S. 164; 94 S. Ct. 98; 39 L. Ed. 2d 242 (1974), to distin-

guish this case from Moffett v. Wainwright, 512 F2d 496

(5th Cir. 1975). The Appellate Court also ac .iowledged

that search of a private residence without a warrant is

permissible if it is in response to an emergency. United

States v. DNT, 747 E2d 263, 267 (4th Cir. 1984). Likewise,

15

in Jones v. Lewis, 875 E2d 1125 (6th Cir. 1989), the Court

affirmed the proposition that a liability could not attach

if the warrantless entry was precipitated by exigent cir-

cumstances, i.e., that the suspect represented an imme-

diate threat to the arresting officer or public.

Recently, this Court acknowledged that officers may

search a house after the officers have found the items

or persons listed on the warrant in order to insure their

safety while making the arrest. The interest of the offi-

cers’ safety outweighs the intrusion. Maryland v. Buie,

494 US. 325; 108 L. Ed. 2d 276; 110 S. Ct. 1093; 58 U.S.LW.

4281 (1990).

In United States v. Morgan, 743 F2d 1158 (6th Cir. 1984),

the Appellate Court recognized the validity of a war-

rantless entry where there is an urgent need for imme-

diate action, a compelling reason to justify the lack of a

warrant and a serious, demonstrable potential for

danger.

In Butler v. City of Detroit, 149 Mich. App. 708; 386

NW.2d 645 (1986), the police were called to a party at a

residence. The live-in girlfriend called the emergency

number and requested assistance at the address when

the son and the father became involved in a fight. The

officers were escorted into the apartment by the girl-

friend. Thereafter, the decedent advanced toward the

officers holding a knife in a threatening manner. The

officers shot and killed Dink Butler. The Court con-

cluded that the officer was entitled to governmental

immunity under the state claims, but also concluded

that the plaintiff failed to state a 42 U.S.C. 1983 claim

under the Eighth or Fourteenth Amendment. The Court

recognized in that case that a Fourth Amendment claim

was neither pled nor tried, but reversed the 1983 dam-

ages against the Defendant. 386 NW.2d at 651-652.

16

In the instant case, the police were called to the resi-

dence. When they arrived, Ms. Heffington was in the

house, opened the door, and escorted the Deputies into

the house. Ms. Heffington’s statement implied that she

and Mr. West have had a relationship for a long period

of time which she has been unable to terminate not-

withstanding his abuse.

Additionally, the Deputies were not entering the home

for purposes of searching out evidence to seize for

criminal prosecution. The Deputies were called there to

respond to the life-threatening situation and were sum-

moned by a hysterical phone call. Pursuant to M.C.L.A.

764.15a; MLS.A. 28.874(1), “a police officer who has rea-

sonable cause to believe that a violation [citations

omitted] ... has taken place or is taking place and that

the person who committed or is committing the viola-

tion is a spouse, a former spouse, or a person residing

or having resided in the same household as the victim,

may arrest the violator without a warrant for that viola-

tion, irrespective of whether the violation was com-

mitted in the presence of the peace officer”

Moreover, contrary to the Plaintiff's argument,

hearsay from named persons who supply detailed infor-

mation with direct knowledge of the fact is admissible

for determining probable cause for a search warrant.

United States v. Jensen, 432 F.2d 861 (6th Cir. 1970).

Therefore, these Deputies had a reasonable belief that

they had the consent to enter to perform their duty,

and their entry was required where exigent cireum-

stances included danger to the lives of others. These

facts were known before the Deputies arrived at the

scene. The Deputies were informed that a grave offense

may be taking place; the suspect was reasonably

believed to be armed; the emergency call provided a

clear showing of probable cause; and the Deputies had

a strong reason to believe the suspect was in the

dwelling. A peaceable entry was permitted at a reason-

able time. These considerations support the position

that the entry into the home was lawful.

Petitioner, however, asserts that the victim, Shari

Heffington, did not have authority to admit an outsider

into the dwelling, thereby implying that if they had

inquired and she indicated she was just visiting, that

the Deputies should turn around and leave the area.

Respondents submit that it is that type of reasoning

which resulted in the trial court’s characterization of

the Plaintiff's argument as “absurd.” The Deputies had

the obligation to maintain peace. Mr. West had no right

to use deadly force against Ms. Heffington or the

Deputies.

Moreover, Plaintiff continually concludes that the

alleged unlawful entry into the home is the cause of the

injury. However, assuming for purposes of argument

that the entry was unlawful, the injury was not a direct

cause Of that activity. The injury was a direct cause of

Mr. West's continued advancement upon the victim and

the Deputies in a threatening manner with a large

machete. Plaintiff fails to cite any authority to support

the principle that Mr. West had the right to attack or

threaten anyone in his house with a machete. No one

threatened Mr. West until he advanced and ignored

their continued requests to halt.

Moreover, the fact that the third party, Shari

Heffington, invited the Deputies into the home entirely

supports the defense of consent. It is undisputed that

Ms. Heffington asked and escorted the Deputies into the

home because she was frightened because she was

being chased by a wild, crazed man with a knife. The

courts have concluded that a consent to the search of a

room was binding on the Defendant where the two

18

people were co-inhabitants. United States v. Matlock, 415

U.S. 164, 171; 94 S. Ct. 98; 39 L. Ed. 2d 242 (1974).

Ms. Heffington had apparent authority to permit the

Deputies’ entry into the house. Where Deputies are

called to a home and escorted into a home under such

circumstances, the trial court was correct to conclude

that the entry was reasonable and, further, that it was

unnecessary for the Deputies to ask for tithework or

lease papers. In the instant case, the Deputies were not

given the opportunity to investigate, but were required

to respond immediately to a life-threatening situation.

Plaintiff has been unable to support any allegations

or conclusions to the contrary. Plaintiff has not sub-

stantiated his position that Ms. Heffington did not have

aright to be in that house or had no right to escort the

Deputies into the house. Plaintiff failed to establish

who, in fact, did have ownership interest, etc. Ms.

Heffington escorted the Deputies into the home and Mr.

West did not indicate otherwise.

Such evidence is irrelevant to the issue at hand.

There was no “search” for purposes of criminal investi-

gation. Plaintiff relies on case law which concludes that

evidence obtained under improper circumstances would

be inadmissible to support a criminal conviction. If it is

later determined that evidence is excludable, such a

determination for a criminal proceeding does not auto-

matically give rise to a constitutional violation for civil

damages. Plaintiff, even assuming for purposes of argu-

ment that a search had occurred, failed to support evi-

dence that would permit the Plaintiff to meet the

requisite standard for establishing her claim.

Ms. Heffington contacted the police and invited them

into the house. She had apparent authority to be in the

house and by her own admission had resided there and

19

had on other occasions contacted the police from that

address because of Mr. West's abuse of her. There, even

assuming for purposes of argument a “search” under

the Fourth Amendment could have occurred rather than

a mere trespass, at best, the Deputies were rightfully in

the room by her consent. See also Tope v. Howe, 179

Mich. App. 91; 445 NW.2d 452 (1989); People v. Gray, 150

Mich. App. 446; 387 NW.2d 887 (1986).

Moreover, the Plaintiff's argument that the individual.

Mr. West, had the right to come after the Deputies with

deadly force is absurd. There is absolutely no evidence

by the testimony of either Ms. Heffington or the

Deputies that Mr. West had requested that the Deputies

leave, even assuming for purposes of argument that the

Deputies had sufficient time to question or leave. The

evidence unequivocally established that their guns were

not drawn until after Mr. West advanced toward them.

Mr. West had no justification for advancing upon these

people with a raised machete, even if they were all

trespassers.

As acknowledged by the Petitioner in her Brief, exi-

gent circumstances do arise “where officers have a jus-

tifiable belief that felony is being committed,” United

States v. Mark Polus, 516 F.2d 1290 (1st Cir. 1975); cert.

den. 423 US. 895; 46 L. Ed. 2d 127; 96 S. Ct. 195 (1975).

Here, it is undisputed that the Deputies received a call

indicating that Ms. Heffington was fearing for her life

because she was being pursued by a man with a knife.

Moreover, the description of the circumstances was ver-

ified when the Deputies arrived, and later, when Mr.

West walked into the room with a machete and pro-

ceeded to raise the machete as he approached the

three individuals, ignoring any warnings to stop his

actions. Exigent circumstances exist where there is a

real danger to the police or the public. United States v.

Bulman, 667 E2d 1374, 1383-1384 (11th Cir. 1982).

20

Under the facts of this case, objective, reasonable

minds could not disagree that the Deputies, informed of

a dangerous circumstance, acted reasonably under the

circumstances. Plaintiff's claims constitute a second-

guessing of the Deputies’ handling of the situation,

asserting alternatives in hindsight which, in essence,

amount to an attempted claim for negligence, at best,

but fall short of a constitutional violation. Jones v.

Sherill, 827 F2d 1102, 1106 (6th Cir. 1982); Nishiyama v.

Dickson Co., Tenn., 814 F.2d 277, 282 (6th Cir. 1987).

Therefore, as the trial court correctly concluded, the

Plaintiff's assertion that the entry was improper was

insufficient to rise to the level of a constitutional viola-

tion and was without merit.

C. Alternatively, The Individual Deputies Are En-

titled To Qualified Immunity For Any Acts Of

Alleged Illegal Search And Seizure.

Police officers, and other executive officials, are

granted “qualified immunity.” At one time, this immunity

required that an officer show a lack of personal malice

toward the plaintiff and objectively-reasonable belief

that his actions were legal. However, the landmark case

of Harlow v. Fitzgerald, 457 U.S. 800; 102 S. Ct. 2727; 73 L

Ed. 2d 395 (1982), changed the nature of this defense.

The sole inquiry is now whether the defendant knew or

should have known that he was violating the plaintiff's

clearly-established rights.

“... we therefore hold that governmental officials

performing discretionary functions generally are

shielded from liability for civil damages unless

their conduct ... violates clearly established

statutory or constitutional princin! 5 of which a

reasonable person would have known.”

Plaintiff has not and cannot present any evidence that

the Defendant acted in bad faith when he shot Plaintiff's

Decedent. This proof is essential to hold a government

official or agent liable for damages arising out of a vio-

lation of constitutional rights.

Rheaume v. Texas Department of Public Safety, 666 F.2d

925 (Sth Cir. 1982), states:

“Once an official has shown that he was acting in

his official capacity and within his scope of

authority, the burden shifts to the plaintiff to

breach the official’s immunity by showing that

the officer lacked good faith.”

In Rheaume, the plaintiff was incarcerated for traffic

violations. Plaintiff claimed the arrest was false and thus,

a violation of his constitutional rights. The Court held

that the defending officer was clearly acting within the

scope of his authority. Since plaintiff did not present any

evidence that defendant lacked good faith, defendant's

actions were protected by qualified immunity.

Whether qualified immunity applies is purely a ques-

tion of law for the District Court. Dominique v. Telb, 831

F.2d 673, 677 (6th Cir. 1987). In Vizbaras v. Prieber. 76]

F2d 1013 (4th Cir. 1985); cert. den. 474 US. 1101; 106 S.

Ct. 8803; 88 L. Ed. 2d 918 (1986), the Court held that in

deciding whether defendants used reasonable force to

subdue an arrestee who died of asphyxiation as a result

of “cradle cup,” wherein his legs were at 45-degree

angles to the floor in shackles, an honest belief that the

procedure was necessary was relevant to “qualified

immunity.”

In Whitt v. Smith, 832 F.2d 451 (7th Cir. 1987), an

officer who did not speak with the victim or witnesses

to a shooting incident, but recalled a similar event

involving a plaintiff who lived nearby, entered the plain-

tiffs home, saw him with a shotgun, and wounded him.

There, a denial of “qualified immunity” was reversed

22

and remanded because of the inadequacy of findings by

the District Court. The immunity inquiry is separate

from the Fourth Amendment issues.

In Clark v. Evans, 848 F2d 876 (1ith Cir. 1988), a dan-

gerous escaping prisoner was killed after scaling an

outer fence. The “information available” to the guard

that shot him could lead the guard to believe that

another officer was not in the position to subdue the

decedent. This principle has been expressed in

Anderson vy. Creighton, 483 U.S. 635, supra, as being, if the

officers’ conduct could reasonably have been thought to

be consistent with the rights they allegedly violated,

they would be entitled to qualified immunity. The Court

should not use hindsight judgment as its test to deter-

mine what force was necessary. (/d_)

In the instant case, the undisputed facts show that

Defendant Deputy McDannel feared for his own lite and

the lives of others. This fear was reasonable under the

circumstances where Mr. West continued to advance

them, brandishing an upraised machete and ignoring the

warnings to stop. The Deputy use of deadly force was

justified. Deputy McDannel’s conduct was also consis-

tent with the Van Buren Sheriff's Department policy and

regulations providing for the use of deadly force. Compli-

ance with these regulations is further evidence of

McDannel’s good faith. The undisputed, objective, mate-

rial facts support the conclusion that Deputy McDannel

could only reasonably believe that he was not violating

Plaintiff's clearly-established rights but, rather, that he

was justifiably acting in defense of himself and others.

D. The Sheriff Is Not Responsible For Acts Of His

Deputy Under Respondeat Superior Liability.

The common law doctrine of “respondeat superior”

holds the employer liable for torts committed by ser-

23

vants or employees if they occur within the scope of

the employee’s duties. Historically, municipal and

county employers of police were not held liable on this

theory for two reasons. First, vicarious liability would

invade the realm of sovereign immunity established by

the courts. Second, police officers were not even

regarded as employees of the entity which paid them

because they were sworn to uphold the law and were

agents of the law itself.

Indeed, since respondeat superior liability, even if

applicable. only held an employer liable, superior offi-

cers were not responsible for the acts of subordinate

personnel since they were fellow officers and not

employers of their subordinates. Wilkins v. Whitaker, 714

E2d 4 (4th Cir. 1983); cert. den. 468 U.S. 1217; 104 S. Ct.

3586; 82 L. Ed. 2d 884 (1984). There, a police chief was

not liable for a detective’s allegedly wrongful search in

iaking a plaintiffs property. In Kelly v. Ogilivie, 35 Il. 2d

297; 220 N.E.2d 174 (1966), the respondeat superior

theory was not available to plaintiff in an action against

a jail warden and sheriff for the torts of subordinates. In

Isereau v. Stone, 3 A.2d 243; 160 NYS.2d 336; 3 A.2d 243

(1947), the sheriff was not liable for the torts of a

sheriff's deputy. “The fact that [the sheriff] may have

acted through his deputies does not change the situa-

tion, for of necessity he must act through them in most

instances, for he and they are considered one in the

same officer.”

In Michigan, no sheriff is responsible for the acts of

misconduct in office of any deputy sheriff. M.C.L. 51.70:

M.S.A. 5.863 specifically states:

Each sheriff may appoint 1 or more deputy

sheriffs at his pleasure, and may revoke such .

appointments at any time: and persons may also

be deputed by any sheriff, by an instrument in

24

writing, to do particular acts, who shall be

known as special deputies and each sheriff may

revoke such appointments at any time. No sheriff

shall be responsible for the acts, defaults and

misconduct in office of any deputy sheriff...”

See also Portice, supra at 708, citing Bayer v. Macomb Co.

Sheriff, 29 Mich. App. 171, 174; 185 NW.2d 40 (1970).

Under the authorities stated above, it is clear that the

trial court properly granted summary judgment to the

Sheriff and the Sheriff's Department in this case. Portice,

supra.

Moreover, a claim for supervisory liability under 42

U.S.C. 1983 does not lie where that individual did not

actively participate in the incident and there is no con-

nection between the alleged violation and the individual

Defendant. Jones v. Lewis, supra; see also Spear v. Lee,

728 F Supp. 1408 (E. D. Mich. 1989).

Therefore, the trial court properly granted summary

judgment of these issues.*

2 Although it is unclear as to which specific Defendants the

Petition includes, it is abundantly clear that the claims of inade-

quate training as to either the entity or the Sheriff have been aban-

doned. Notwithstanding, there is no policy of inadequate training in

the instant case as clearly established by Sheriff Cal Rosema’s depo-

sition testimony. Monell vy. Department of Social Services, 436 U.S. 658;

98 S. Ct. 2018; 56 L. Ed. 2d 611 (1978). Secondly, as to the indi-

vidual, Sheriff Cal Rosema, the decision in Hayes v. Jefferson County,

Kentucky, 668 F.2d 869 (6th Cir. 1982); reh. den. 673 F.2d 152 (6th

Cir. 1982); cert. den. 459 U.S. 833; 103 S. Ct. 75; 74 L. Ed. 2d 73

(1982) is controlling. It held that a supervisory official of a munici-

pality cannot be liable for failure to train unless there is a complete

failure to train such that future police misconduct is almost

inevitable or substantially certain to result in a constitutional viola-

tion. Clearly, Officer Rosema established in the instant case that

the Deputies were trained. Therefore, assuming {ur purposes of

argument only that the Plaintiff has not in fact abandoned these

claims, Defendants argue that such claims are totally without merit.

See also Languirand vy. Hayden, 717 F.2d 220, 227-228 (C.A. 5, 1983).

25

THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDG-

MENT TO THE DEFENDANTS ON THE ISSUE OF EXCESSIVE

FORCE WHERE REASONABLE MINDS COULD ONLY CON-

CLUDE THAT THE DEPUTIES WERE ACTING TO PROTECT A

CITIZEN AND IN SELF DEFENSE WHEN CONFRONTED BY

THE PLAINTIFF'S DECEDENT, WHO WAS ATTACKING WITH

A 23-24 INCH MACHETE WHILE IGNORING ANY REQUEST

TO HALT.

Defendants incorporate by reference those arguments

in the preceding argument relating to the availability of

qualified immunity for the individuals, the lack of a

policy as to the municipal liability, Monell, supra, the

lack of respondeat superior liability of the Sheriff, and

the lack of an independent status for purposes of

bringing an action against the Sheriff's Department, into

this argument. Those same arguments apply in the

instant case, but to avoid redundancy Defendants rely

upon adoption of those same arguments and authorities

herein. The trial court properly concluded that the

Deputies’ actions in the instant case were reasonable as

a matter of law. Plaintiff could not provide any support

for any substantive evidence that would affect the out-

come of this case in regards to those actions taken by

the Deputy in response to an unyielding assailant

attacking with a 23-24 inch machete.

The United States Supreme Court has set forth the

standard for the use of deadly force in the case of

Tennessee vy. Garner, 471 US. 1; 105 S. Ct. 1694: 84 L. Ed.

2d 1 (1985). Deadly force can be used only “where the

officer has probable cause to believe that the suspect

poses a threat of serious physical harm, either to the

officer or others.” The Court amplified on the rule in

the following terms:

26

“If the suspect threatens the officers with a

weapon or there is probable cause to believe

that he has committed a crime involving the

infliction or threatened infliction of serious phys-

ical harm, deadly force may be used if necessary

to prevent escape, and if, where feasible, some

warning has been given.” 7ennessee v. Garner,

105 S. Ct. at 1701.

It has been alleged that Defendant Deputy McDannel

used excessive and deadly force in violation of the

Fourth Amendment's prohibition against unreasonable

seizure of the person. The validity of the claim must

then be judged by reference to the specific consti-

tutional standard which governs that right, rather than

to some generalized “excessive force” standard. See

Tennessee v. Garner, supra; Graham v. Connor, 490 US.

386; 109 S. Ct. 1865; 104 L. Ed. 2d 443 (1989).

“Because ‘the test of reasonableness under the

Fourth Amendment is not capable of precise defi-

nition or mechanical application,” Bell v. Wolfish,

441 US. 520, 559 (1979), however, its proper

application 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 by flight.”

Se 8 F

“The ‘reasonableness of a particular use of force

must be judged from the perspective of a reason-

able officer on the scene, rather than with a 20-

20 vision of hindsight.” (citation omitted).

x * *

“As in other Fourth Amendment contexts, how-

ever, the ‘reasonableness’ inquiry in an excessive

27

force case is an objective one: the question is

whether the officer's actions are ‘objectively rea-

sonable’ in light of the facts and circumstances

confronting them, without regard to their under-

lying intent or motivation. See Scott v. United

States, 436 U.S. 128, 137-139 (1978), see also Terry

v. Ohio, 392 US. 1, 21.” Graham v. Connor, supra,

27 Law Week 4513, 4516 (1989).

In a case quite similar to the instant case, the United

States District Court in Maryland held that the officer's

use of deadly force to protect himself was entirely justi-

fied. Estate of Belew v. Ruppert, Jr, 694 F Supp. 1214 (D.C.

Md. 1988). In that case, after attempting to arouse the

decedent from a drunken stupor in a parking lot, the

decedent struggled with the deputy and disarmed him

of his night stick. Once he had the night stick, decedent

raised it over his head and relentlessly advanced on the

deputy with the stick upraised in the threatening posi-

tion, ignoring the deputy’s repeated orders to “STOP.”

The deputy expressly warned the decedent several

times that if he did not stop, he would be shot.

Nonetheless, the decedent continued advancing on the

deputy until the deputy shot and killed him. The Court

noted that these facts were undisputed in the deposi-

tions, determined that the deputy’s use of deadly force

to protect himself was entirely justified, and granted

summary judgment to the defendant under Fed. R. Civ.

P. 56(C). See also Butler, supra.

The traditional right to use the same amount of force

permissible in self defense to protect third persons is,

of course, applicable to police officers, who have the

authority (if not the duty) to protect the public at large.

Sandman v. Hagan, 261 lowa 560; 154 NW2d 113 (1967).

see also Personal Injury: Actions, Defenses, Damages,

“Assault and Battery” (Mathew Bender 1976): Prosser

28

and Keeton, Jorts (Sth Ed. 1984), pp. 129-130; and Police

Civil Liability, “Duty to Protect” (Mathew Bender 1989);

Pleasant v. Zamieski, 895 F. 2d 272 (6th Cir. 1990);

Newcomb vy. Troy, 719 F. Supp. 1408 (E.D. Mich. 1989).

(Officer's actions in shooting a burglary suspect were jus-

tified because he was perceived as an immediate threat to

the public, where the suspect was running toward a store

clerk whom he had previously held as a hostage. )

The undisputed, material facts in this case show that

while Deputy McDannel was answering the call con-

cerning an assailant with a knife, Plaintiff's Decedent

began to approach him and two others holding a 23-24

inch machete in a threatening manner. Although told to

stop and drop the weapon numerous times by Deputy

McDannel and the others, Plaintiff's Decedent made no

response to these requests and continued to advance

without a change in facial expression. His eyes were

fixed upon Shari Heffington, who stood immediately to

the left of Deputy McDannel. In the belief that Plaintiff's

Decedent was going to use the machete, Deputy

McDannel drew his gun. When Plaintiff's Decedent was

no more than five to six feet from the three of them,

Deputy McDannel raised his weapon and pointed it at

Plaintiff's Decedent. He told him one final time to drop

the weapon. The machete continued to ascend and

when Plaintiff's Decedent was between four and six teet

away, Deputy McDannel fired his revolver, fatally

wounding the assailant.

Thus, the undisputed facts show, as a matter of law,

that Defendant Deputy McDannel was justified in his

use of deadly force against Plaintiff's Decedent, Mr.

West. Police assistance was requested because of West's

threatening use of the machete. Now at the scene, Mr.

West was advancing upon Ms. Heffington and Deputies

McDannel and Shaw, with an upraised machete, a

29

weapon Capable of inflicting serious injury or even

death. Under all the circumstances, the Deputy reason-

ably could, and did, fear for his life, and his use of

deadly force to protect himself and others was legally

justified.

The Petitioner, however, attempts to discredit the

Deputies’ credibility, attempting to use this alleged dis-

crepancy as a stepping stone to create a genuine mate-

rial issue of fact. Respondents first assert that Plaintiff

is attempting to improperly stack an improper inference

based upon an inference.* The Criminologist’s affidavit

provided by the Petitioner does not dispute or contra-

dict the fact of a continued attack on the Deputies and

Ms. Heffington in complete disregard for their warnings

to stop. The facts as set forth in the affidavit do not

controvert Ms. Heffington’s or the Deputies’ statements

that the assailant was advancing on the individuals with

a raised machete with a 23-24 inch blade in order to

inflict immediate, serious bodily harm. (R41, Opinion of

the Court, p. 7)

CONCLUSION

Respondents assert that the trial court properly

granted summary judgment in this matter. Respondents

respectfully submit that the 6th Circuit Court of

Appeals properly affirmed the granting of summary

judgment to the Defendants in this matter. Notwith

standing the Petitioner's bare assertions to the con-

trary, the discovery conducted provided that the

individual Deputies’ actions were clearly reasonable and

within the constitutional parameters outlined by this

Court in previous decisions. The unfortunate death of

Ford v. Nicol, 261 Mich. 307, 310: 246 N.W. 130 (1933).

30

Plaintiff's Decedent was the result of the Plaintiff's

Decedent's own voluntary and intentional act to attack

the two deputies and Ms. Heffington.

RELIEF REQUESTED

3ased upon the foregoing, (he Respondents, Craig

McDannel, Cal Rosema, Van Buren County Sheriff's

Department and Van Buren County, respectfully pray

that this Court deny the Petitioner's Petition for Writ of

Certiorari, or alternatively, if the Court grant the Peti-

tion, that this Court enter an order afiirming the trial

court’s Order Granting Summary Judgment and the 6th

Circuit Court of Appeals’ decision affirming the trial

court’s Order Granting Summary Judgment.

Respectfully submitted,

CUMMINGS, McCLOREY, DAVIS & ACHO, PC.

By s/ MARCIA L. HOWE (P-37518)

Counsel of Record

33900 Schoolcraft Road

Livonia, Michigan 48150-1392

(313) 261-2400

Attorneys for Respondents

Dated: November 21, 199]