Sample v. Bailey
| Decision Date | 09 May 2005 |
| Docket Number | No. 04-4174.,04-4174. |
| Citation | 409 F.3d 689 |
| Parties | Christopher SAMPLE, Plaintiff-Appellee, v. Jason BAILEY, Defendant-Appellant, |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Patricia Ambrose Rubright, City of Akron Department of Law, Akron, Ohio, for Appellant. David C. Sheldon, John Brooks Cameron & Associates, Medina, Ohio, for Appellee.
ON BRIEF: Patricia Ambrose Rubright, Bruce H. Christensen, Jr., City of Akron Department of Law, Akron, Ohio, for Appellant. David C. Sheldon, John Brooks Cameron & Associates, Medina, Ohio, Craig T. Weintraub, Beachwood, Ohio, for Appellee.
Before: NELSON and MOORE, Circuit Judges; RESTANI, Judge.*
Defendant-Appellant, Officer Jason Bailey ("Bailey"), appeals from the district court's denial of his motion for summary judgment on the ground that he is entitled to qualified immunity with respect to Plaintiff-Appellee Christopher Sample's Fourth Amendment claim of excessive force. The court held that summary judgment was inappropriate because Christopher Sample ("Sample") alleged a violation of a clearly established constitutional right and there was a genuine factual dispute regarding whether Bailey's actions were objectively reasonable in light of that right. On appeal, Bailey argues that the constitutional right at issue is not clearly established within the factual context of this case and therefore, he should be entitled to qualified immunity. For the reasons set forth below, we AFFIRM the district court's denial of Bailey's motion for summary judgment.
The following facts are undisputed. At approximately 9:20 p.m. on January 15, 2003, an alarm company alerted the Akron Police Department dispatch center that a rear motion detector had been activated at B & G Designs International ("B & G"), a commercial business located on Kenmore Boulevard in Akron, Ohio. After being notified by the dispatcher, Officer Bailey and his partner, Officer Shawn Prexta ("Prexta"), responded to the alarm. Upon arrival at B & G, the officers checked that the front door was locked, and then proceeded to the rear of the building. Because it was night, the officers used flashlights to guide their way. Once they had arrived at the back of the building, Prexta noticed that a window on the second floor was broken. Prexta also found footprints in the snow on top of a dumpster, located below the broken window. In the back of B & G, there was a small staircase leading to a second floor door with a small window. Bailey climbed the stairs to the door. Looking through the window into the building, Bailey could see a white male carrying computer equipment. Because he thought the person rightfully belonged there, Bailey tapped on the window with his flashlight to get the man's attention. When the man noticed Bailey's tapping, "he turned around and took off." Joint Appendix ("J.A.") at 103 (Bailey Dep. at 72). Bailey then realized the person was a burglar. Sample admitted in his deposition that he was the person Bailey saw and that he took off because he had an outstanding misdemeanor warrant for his arrest.
After Sample ran, Bailey descended the stairs and informed Prexta that a suspect was in the building. Prexta called additional units for assistance and returned to the front of B & G, where he discovered that Officer Mobley ("Mobley") had arrived. Mobley secured the front of the building while Prexta returned to the back with Bailey. At approximately the same time, William Huber ("Huber"), the key holder for B & G, arrived on the scene. Huber informed Bailey that no one was supposed to be inside the building. Police Sergeant Christopher Brewer ("Brewer") also arrived on the scene and took control of the situation. After securing the area outside, Brewer directed Huber to open the rear entrance of the first floor of the building so that Bailey and Prexta could secure the immediate area inside. Once they had done so, Huber entered the building to deactivate the alarm, which had been continuing to sound. After that, Brewer directed Bailey and Prexta to search the building.
Bailey and Prexta began searching the first floor. Each officer had his firearm in one hand and a flashlight in the other. The interior lights of the building were not on, so the flashlights were the only source of light. As the officers searched, they repeatedly announced that they were members of the Akron police and requested that the suspect show himself. After securing the entire first floor, the officers ascended the stairs to the second floor of B & G. On the second floor, there was a large room which was cluttered with machines and other equipment. The officers noticed a long table towards the back of the room with a large white sign leaning against it. Because the sign blocked any view of what was behind the table, the officers carefully approached the table from either side. As Bailey walked by a black cabinet near the end of the table, he smelled a foul odor, including what smelled like alcohol. Prexta smelled it as well. Recalling an earlier experience, Bailey suspected that Sample might be hiding in the black cabinet.
The black cabinet had two doors which opened from the center and was approximately five feet wide, two feet deep and two and a half feet high. The front of the cabinet was approximately three feet from the end of the table. Without informing Prexta, Bailey opened the left cabinet door with his left hand, while his right hand held his gun. Bailey was careful to open the door from the left side so as not to stand directly in front of the open cabinet. When the cabinet door was opened, Sample was revealed hiding inside. Sample was crouched inside the cabinet with his back towards the left wall and his legs curled up tight towards his chest. Both of his hands were clearly visible on the ground near the opening of the cabinet. Upon discovering Sample, Bailey directed his firearm and flashlight towards Sample and ordered him to make sure his hands were visible at all times and to come out of the cabinet. The precise sequence of events after this point is disputed among the parties.
Bailey claims that after he ordered Sample out of the cabinet, Sample did not say anything or immediately respond. Unbeknownst to Bailey, Prexta had approached the cabinet from the right side of the table and crouched down on his knees. When he was within two feet of the cabinet, Prexta holstered his weapon and tried to effect an arrest. Prexta claims he did so because he believed that Bailey was covering him and that Sample no longer posed a danger to the officers. Prexta stated in his deposition that he attempted to grab Sample's left arm to pull him out of the cabinet and handcuff him, but that Sample pulled away, rolled his body, and attempted to pull his left arm underneath himself. Bailey stated in his deposition that he was aware that Prexta was somewhere to his right but did not see Prexta either holster his weapon or grab Sample's left hand. Bailey did see Sample roll his body towards the inside of the cabinet and move his right hand up towards his torso. Bailey stated that Sample's actions concerned him, and he shouted "Show me your hands" several times. J.A. at 120 (Bailey Dep. at 89). Bailey claims that Sample did not heed his commands, but instead Sample reached inside his jacket with his right hand.1 According to Bailey, "[a]t that point, that's when [he] feared for [his] life" and he instinctively fired his gun at Sample. J.A. at 121 (Bailey Dep. at 90). Prexta stated in his deposition that he never saw Sample reach inside his jacket. Prexta was crouched near the cabinet when the shots were fired and quickly retreated towards the staircase when the gunfire began because he had holstered his weapon.
In all, Bailey fired his weapon seven times at Sample, hitting him in several places on his body. Bailey stated in his deposition that he did not realize the number of times he fired his gun. He claims that the sound of the shots echoed in the room giving him the impression that Sample was firing back. As he was firing his gun, Bailey was moving away from the cabinet down the side of the table. Bailey stated that he stopped firing when Sample and the cabinet were out of his sight line. Once he stopped firing, he stated that he rounded the table to check on Sample and Prexta, who by then was on the staircase calling for an ambulance. According to Bailey, Sample was sitting in the cabinet and said to him, "I don't even have a gun." J.A. at 132 (Bailey Dep. at 106). Bailey claims that at that point Sample fell partially out of the cabinet and Bailey saw blood coming from the wounds. In his deposition, Bailey stated that he continually asked Sample why he reached into his jacket, to which Sample responded he wanted a cigarette. Bailey claims that Sample continued to reach into his pocket while he lay on the floor bleeding, and that Bailey kept knocking Sample's hand away from his jacket.
Sergeant Brewer, who was outside at the time of the incident, heard the shots and ran up the stairs to the second floor. He stated in his affidavit that Sample kept pulling his hands up to his body despite the fact that Bailey was ordering him otherwise. Brewer reached into the cabinet and dragged Sample out onto the floor. Sample was not immediately searched because of the blood. Brewer stated that J.A. at 187 (Brewer Aff. at 2). Mike Fagan ("Fagan"), an Akron firefighter-paramedic, arrived on the scene. Fagan stated in his affidavit that Sample was attempting to place his hand inside his jacket pocket as well. Using rubber gloves, Fagan searched Sample and did not find anything in his jacket pockets.
Sample stated in his deposition that on the night of ...
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