Turner v. Scott

• Decision Date: 16 July 1997
• Docket Number: No. 96-6071,96-6071
• Citation: 119 F.3d 425
• Parties: Eva TURNER, Plaintiff-Appellee, v. Michael SCOTT, individually and in his official capacity, Defendant-Appellant, City of Newport; Tom Fromme, James Kane, and Howard Niemeier, in their official capacities; John Doe I and John Doe II, individually and in their official capacities, Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 425

119 F.3d 425

Eva TURNER, Plaintiff-Appellee, v. Michael SCOTT, individually and in his official capacity,

Defendant-Appellant,

City of Newport; Tom Fromme, James Kane, and Howard

Niemeier, in their official capacities; John Doe

I and John Doe II, individually and in

their official capacities, Defendants.

No. 96-6071.

United States Court of Appeals,

Sixth Circuit.

Argued April 28, 1997.

Decided July 16, 1997.

William H. Van Herp (argued and briefed), Van Herp & Howell, Covington, KY, for Plaintiff-Appellee.

David Whalin (argued and briefed), Landrum & Shouse, Louisville, KY, David R. Steele (briefed), Spalding, Hanna, Rouse & Steele, Covington, KY, for Defendant-Appellant.

Before: NELSON and NORRIS, Circuit Judges; COHN, District Judge. ^*

DAVID A. NELSON, J., delivered the opinion of the court, in which ALAN E. NORRIS, J., joined. COHN, D.J. (pp. 430-433), delivered a separate dissenting opinion.

OPINION

DAVID A. NELSON, Circuit Judge.

This is an interlocutory appeal from an order denying qualified immunity to defendant Michael Scott, a police officer. The plaintiff, Eva Turner, alleges that Officer Scott failed to prevent a fellow officer from using excessive force against her. Concluding that Scott is entitled to qualified immunity as a matter of law, we shall reverse the order of the district court.

I

Officer Scott, a member of the Newport (Kentucky) Police Department, learned in December of 1993 that a Cincinnati resident whose pickup truck had been stolen had received several calls from people purporting to have information about the truck. The truck owner agreed to meet the latest of these callers at a Newport restaurant, where, the caller said, the pickup would be returned "for a price."

After verifying that the truck had been reported stolen, Officer Scott arranged surveillance for the meeting. The upshot was that four members of the Turner family--plaintiff Eva, her husband Jesse, her son Victor, and her daughter-in-law Christina--were arrested.

The Turners were taken to the Newport police station. There they were placed in the squad room, seated in chairs arranged in a semi-circle. Officer Scott interviewed the Turners individually, taking each to a separate room while the other three waited in the squad room. When he completed all four interviews, Officer Scott returned to the squad room to complete the paperwork on the arrests. He seated himself at a counter along the wall of the squad room, with his back to the Turners.

Officer Michael Daly, who was just beginning his shift, entered the squad room while Officer Scott was doing his paperwork. Daly picked up a shotgun and walked to the counter where Officer Scott was working. With the shotgun in his left hand and his back to the Turners, Officer Daly began rummaging through a bag he had brought with him.

As Daly fiddled with the bag, the butt of his shotgun bumped Eva Turner in the back of her head. In her own words, it was a "light bump." Although Jesse Turner was looking at Mrs. Turner, he did not notice that the shotgun touched her. He saw only a slight movement of her head. Victor Turner did see the bump, but thought it was just an accident. No one in the room said anything about this incident.

Eva Turner hunched her chair forward in order to move away from Daly. Within a few seconds of the first bump, however, she felt a blow to the back of her head. According to Jesse Turner, "[i]t was just like a bolt of lightning. You never expected it." Eva fell forward, grabbing the chair sides to keep from falling. As she turned to the left, she saw the shotgun butt. Officer Daly still had his back turned to her, as did Officer Scott.

When she felt the second blow, Mrs. Turner exclaimed, "Oh my head!" Victor Turner yelled at Officer Daly, "[W]atch what the hell you're doing with the gun!" Daly merely replied, "Oh, did I hit you?" He then left the squad room. After ordering Victor Turner to sit down, Officer Scott placed him in a holding cell. Jesse Turner described the incident to Officer Scott, who instructed the Turners to be quiet and returned to his paperwork.

Eva Turner showed no outward sign of injury. She now alleges that she felt dizzy and nauseous and had chills, but she did not tell any officer that she was injured or felt ill. Neither did she request any medical treatment. The Turners were taken to the local jail about fifteen minutes after the incident. They were released early that same evening.

Mrs. Turner brought the present civil rights action in federal district court against the City of Newport, the city's chief of police and first and second shift police commanders in their official capacities, and Officer Scott and two unknown police officers individually and in their official capacities. The complaint alleged that the defendants had used excessive force against her while she was in custody.

In December of 1995 Mrs. Turner filed an amended complaint, substituting Lieutenant Pat Moore and Officer Michael Daly for the unknown defendants. The amendment proved unproductive; the district court dismissed the claims against Moore and Daly as barred by the one-year statute of limitations.

Officer Scott moved for summary judgment on the claims asserted against him in his individual capacity. He claimed, among other things, that he was entitled to qualified immunity.

At a hearing on the summary judgment motion the district court concluded that although "[t]here's no evidence that [Scott] knew" about the blows, the motion should be denied:

"[I]t could be there was a conspiracy. Now, Scott, I know myself, has got a record of misbehaving and could have--you know, if there was a conspiracy and then he condoned it, you know, if they believe that these blows were struck, then they could believe, then, there was a coverup."

Following denial of his motion for summary judgment, Officer Scott perfected a timely interlocutory appeal. ¹

II

Mrs. Turner suggests that we do not have jurisdiction over the appeal. We disagree.

A denial of qualified immunity on purely legal grounds is immediately appealable. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985). A denial of qualified immunity that turns on evidentiary issues is not. In Johnson v. Jones, 515 U.S. 304, 318-20, 115 S.Ct. 2151, 2159, 132 L.Ed.2d 238 (1995), the Supreme Court held that a "defendant, entitled to invoke a qualified-immunity defense, may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record set forth a 'genuine' issue of fact for trial." Interlocutory appeals are limited to rulings presenting "neat abstract issues of law." Id. at 316-18, 115 S.Ct. at 2158 (quotation and citation omitted); see also Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817-18 ("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' ") (emphasis added).

Mrs. Turner argues that summary judgment was denied in the case at bar because of the existence of genuine issues of material fact, and that this court therefore lacks jurisdiction under Johnson. The district court's order and the transcript of the summary judgment hearing make clear that the district judge was of a like mind.

In our view, however, this case presents a "neat abstract issue of law." For purposes of his motion, Officer Scott accepted the plaintiff's version of the facts as true. The question whether the uncontested facts demonstrated a constitutional violation is a pure question of law--and one from which an immediate appeal can be taken where qualified immunity has been denied. Cf. Christophel v. Kukulinsky, 61 F.3d 479, 485 (6th Cir.1995) ("the factual dispute does not affect defendants' right to qualified immunity. The legal question squarely presented by defendants' motion was whether the facts alleged by [the plaintiff] demonstrate that defendants violated her constitutional right"); Sanderfer v. Nichols, 62 F.3d 151, 153 n. 2 (6th Cir.1995) ("the plaintiff's version of events, regardless of the sufficiency of the supporting evidence, does not state a claim"). If the evidence, viewed in the light most favorable to Mrs. Turner, does not establish a prima facie case against Officer Scott, then Officer Scott is entitled to qualified immunity as a matter of law.

The district court's assertion that there were genuine issues of material fact does not, standing alone, destroy the appealability of a qualified immunity ruling.

"Denial of summary judgment often includes a determination that there are controverted issues of material fact ... and Johnson surely does not mean that every such denial of summary judgment is nonappealable.

* * * * * *

Johnson permits petitioner to claim on appeal that all of the conduct which the District Court deemed sufficiently supported for purposes of summary judgment met the Harlow [v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ] standard of 'objective legal reasonableness.' " Behrens v. Pelletier, 516 U.S. 299, ----, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996).

See also Christophel, 61 F.3d 479, 485 (6th Cir.1995)("[a] defendant's right to appeal the denial of qualified immunity does not turn on the phrasing of the district court's order").

If we determine, as we do here, that asserted factual disputes are not material, what remains for decision is a purely legal issue. If it were otherwise a district court could always insulate its qualified immunity rulings from interlocutory review by mouthing the appropriate shibboleth. Such a result would jeopardize the immunity from suit that the qualified immunity doctrine is designed to protect. See Johnson, at 310-12, 115 S.Ct. at 2155 (qualified immunity protects defendants "not simply from liability, but also from standing trial"). We conclude that we have jurisdiction to decide any purely legal issue presented by the denial of...