101 F.3d 1151 (6th Cir. 1996), 94-5206, Dickerson v. McClellan
|Citation:||101 F.3d 1151|
|Party Name:||Chad Timothy DICKERSON and Deon Denay Dickerson, a minor, by her mother and legal guardian, Sharon Dale Stephens, Plaintiffs-Appellees, v. Cory D. McCLELLAN and Charles L. Stevens, Individually and in their Official Capacities as Police Officers for the Metropolitan Government of Nashville and Davidson County, Tennessee, Defendants-Appellants, Metr|
|Case Date:||December 09, 1996|
|Court:||United States Courts of Appeals, Court of Appeals for the Sixth Circuit|
Argued Oct. 17, 1995.
[Copyrighted Material Omitted]
Jeffrey Zager (argued and briefed), Thomas H. Peebles, Trabue, Sturdivant & DeWitt, Nashville, TN, for Plaintiffs-Appellees.
James L. Charles (briefed), the Metropolitan Government of Nashville & Davidson County, Department of Law, Nashville, TN, E. Joseph Fitzpatrick, Jr. (briefed), Jones, Rogers & Fitzpatrick, Nashville, TN, William S. Helfand (argued), Hirsch, Robinson, Sheiness & Glover, Houston, TX, for Defendants-Appellants.
Before: BATCHELDER and MOORE, Circuit Judges; ENSLEN, Chief District Judge. [*]
MOORE, Circuit Judge.
Appellants, Officer Cory D. McClellan and Sergeant Charles L. Stevens (the "officers"), appeal the district court's denial of their motion for summary judgment based on qualified immunity in this 42 U.S.C. § 1983 action, brought by the appellees, children of Joel Dickerson who was fatally shot by McClellan when the officers responded to a "shots fired" call at his house. The plaintiffs allege Fourth Amendment violations under § 1983 premised upon the officers' failure to knock and announce their presence before entering Dickerson's residence and their claim that the officers used excessive force by shooting Dickerson. For the reasons that follow, we reverse in part and dismiss in part for lack of jurisdiction.
The following facts are undisputed. At 1:00 a.m. on February 1, 1992, while en route to a call involving a drunk prowler, Officer McClellan heard the dispatcher put out a "shots fired, in progress" call in the vicinity of Harlin Drive in Nashville, Tennessee. The dispatcher stated: "Margie George is calling in from 3015. Male subject is 1042 [drunk] is inside 3011 and just fired 9 shots." The call was coded "3", the highest priority code possible. Upon arriving at the vicinity within approximately six minutes after the dispatcher's call, McClellan turned off his headlights so that he could proceed stealthily. McClellan mistakenly drove past 3011 and was flagged down by George at 3015 Harlin Drive. She confirmed that the person inside, who the officers later learned was Joel Dickerson, had fired at least nine shots and was still inside the house. McClellan did not ask George whether anyone else was inside the house or whether she had any other information about the incident. 1 McClellan turned around, parked near the driveway of 3011 and waited for backup assistance.
Sergeant Stevens arrived to assist McClellan. McClellan relayed to Stevens that at least nine shots had been fired, that the suspect was believed to be drunk, and that he was still inside. As the officers approached the front door of Dickerson's residence, they could see that the front door was open and the storm door, which they could see through, was closed. Lights were on in the living room in the front of the house and on the front porch. The officers could not see anyone inside. They could hear one male voice yelling in a threatening tone but could not understand what he was shouting. The officers also saw a telephone cord stretched from the kitchen through the living room to the back of the house, the same direction from which the yelling emanated. Without knocking or announcing their presence, the officers entered the house with their guns drawn through an unlocked storm door at the front of Dickerson's residence. Upon opening the storm door, they smelled freshly burnt gunpowder. The officers quickly looked around the front of the house to be sure that no one was there. Stevens then moved towards the back of the house, with McClellan close behind him. As they did, they heard a man scream "I've got something for your ass" and Stevens immediately heard the cylinder close on a revolver. Stevens took cover in a position that placed him behind Dickerson as he passed. McClellan could not find immediate cover in the house, so he ran out the front door and took cover around the side of the house. Both officers heard Dickerson yell "I'll get you motherfucker" as he ran toward the front door.
The precise sequence of events at this point is disputed. 2 According to Sharon Sanford, who witnessed the incident from across
the street, "[a]s Mr. Dickerson walked slowly toward his front door, he had his arms down by his sides" and "[b]efore Mr. Dickerson opened his front storm door and while he was still inside his house, a gunshot was fired." See Sanford Aff. p 8-9, J.A. I. at 137. Sanford further states that "[i]n the next instant" she was "struck in the mouth by a bullet" and "observed nothing further...." Sanford Aff. p 10, J.A. I. at 137. In contrast, Sergeant Stevens described a different sequence of events:
This individual [Dickerson] then exited the house in the direction of Officer McClellan whereupon I observed the individual point the blue steel, large caliber handgun towards the direction where Officer McClellan had just retreated. Upon seeing this I fired my weapon from the kitchen area towards Dickerson who was standing outside of the screen door near the front porch.
Stevens Am. Aff. p 6, J.A. I. at 87. Officer McClellan had a similar recollection:
The occupant of the house followed me and pointed what I knew to be a handgun at me, whereupon I fired my service weapon at the person who was pointing the handgun at me.
McClellan Aff. p 6, J.A. I. at 74. McClellan fired nine times, killing Dickerson. A medical examiner confirmed that McClellan's shots inflicted the fatal wound. Stevens fired a total of four times from inside the house. One of Stevens's shots hit Sanford. Dickerson was struck with nine bullets. The officers estimated that after they arrived on the scene, this entire sequence of events took place within about one minute. McClellan Aff. p 9, J.A. I. at 75; Stevens Am. Aff. p 7, J.A. I. at 87.
After the shooting ended, McClellan recovered Dickerson's revolver, which was not cocked. Dickerson had not fired his gun at McClellan or Stevens. 3 The telephone receiver was found on the living room floor within several feet of the front door. No one else was present in the house. The officers later learned that Dickerson had been home alone arguing with his girlfriend on the telephone.
II. PROCEDURAL HISTORY
Before trial, the district court denied the police officers' motion for summary judgment based on qualified immunity. Order dated January 12, 1994, J.A. I. at 38. The officers appealed that order, but the district court certified the appeal as frivolous, dismissed the appeal, and ordered the trial to proceed. See Dickerson v. McClellan, 844 F.Supp. 391 (M.D.Tenn.1994), vacated in part, 37 F.3d 251 (6th Cir.1994) (vacating district court's decision insofar as it "purports to dismiss the defendants' appeal"). This court denied the officers' emergency motion to stay the trial date pending appeal. See Order dated March 24, 1994. The jury returned a verdict in favor of both officers on the issue of whether the unannounced entry was reasonable, and returned a verdict in favor of McClellan on the issue of whether it was reasonable for him to shoot Dickerson in self-defense without attempting to warn him. J.A. IV. at 1001-02. The jury was unable to reach a unanimous verdict as to whether it was reasonable under the circumstances for Stevens to shoot Dickerson without attempting to warn him. J.A. IV. at 1002, 1004.
On May 17, 1994, a panel of this court ordered that the briefing of the defendants' qualified immunity appeal be held in abeyance pending the district court's rulings on post-trial motions. On May 20, 1994, the district court set aside the jury's verdict, ordered a new trial and returned the case to its jury docket. J.A. I. at 44. On June 16,
1994, the defendants moved this court for permission to supplement the record on appeal with evidence produced at trial and to reverse the district court's order certifying their appeal as frivolous. The defendants filed a motion to supplement the record on appeal pursuant to Federal Rule of Appellate Procedure 10(e) in the district court, as directed by the Sixth Circuit case manager, but the district court denied the defendants' motion to supplement the record on appeal without opinion. On October 14, 1994, another Sixth Circuit panel vacated the district court's decision to dismiss the defendants' appeal, finding that the district court was without authority to dismiss the appeal in the first instance. Dickerson v. McClellan, 37 F.3d 251 (6th Cir.1994). In a second order, which was unpublished, the same panel stayed the retrial of this action pending this appeal and ordered the parties to address in their appellate briefs whether this court should consider any evidence adduced at trial in determining the issue of qualified immunity. Dickerson v. McClellan, 1994 WL 577519 (6th Cir. October 14, 1994).
As a threshold matter, we must determine whether we have jurisdiction to consider the officers' interlocutory appeal of the district court's denial of their motions for summary judgment based on qualified immunity. In Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985), the Supreme Court held "that a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within...
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