430 F.3d 766 (6th Cir. 2005), 04-5783, Smith v. Cupp

Docket Nº:04-5783.
Citation:430 F.3d 766
Party Name:Gabrielle SMITH; Elijah Smith, minor children of Glen Smith, by their mother Cheri Janine Smith, widow of Glen Smith; Cheri Janine Smith, widow of Glen Smith, Plaintiffs-Appellees, v. John CUPP, Individually and as Sheriff of Hamilton County, Tennessee, Defendant, Marty Dunn, Individually and as Deputy Sheriff of Hamilton County, Tennessee, Defenda
Case Date:December 02, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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430 F.3d 766 (6th Cir. 2005)

Gabrielle SMITH; Elijah Smith, minor children of Glen Smith, by their mother Cheri Janine Smith, widow of Glen Smith; Cheri Janine Smith, widow of Glen Smith, Plaintiffs-Appellees,


John CUPP, Individually and as Sheriff of Hamilton County, Tennessee, Defendant,

Marty Dunn, Individually and as Deputy Sheriff of Hamilton County, Tennessee, Defendant-Appellant.

No. 04-5783.

United States Court of Appeals, Sixth Circuit.

December 2, 2005

Argued: March 15, 2005.

Appeal from the United States District Court for the Eastern District of Tennessee at Chattanooga, No. 03-00139--Curtis L. Collier, Chief District Judge.

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[Copyrighted Material Omitted]

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W. Jeffrey Hollingsworth, Chambliss, Bahner & Stophel, Chattanooga, Tennessee, for Appellant.

Peter B. Murphy, McCarthy & Murphy, Chattanooga, Tennessee, for Appellees.


W. Jeffrey Hollingsworth, Bret S. Alexander, Chambliss, Bahner & Stophel, Chattanooga, Tennessee, for Appellant.

Peter B. Murphy, McCarthy & Murphy, Chattanooga, Tennessee, for Appellees.

Before: MERRITT and ROGERS, Circuit Judges; DUPLANTIER, District Judge.[*]

ROGERS, J., delivered the opinion of the court, in which DUPLANTIER, D.J., joined.

MERRITT, J. (p. 777), delivered a separate opinion concurring except as to Section II.A. on jurisdiction.


ROGERS, Circuit Judge.

Deputy Sheriff Marty Dunn appeals the district court's denial of his motion for summary judgment based on the defense of qualified immunity. On April 28, 2002, Dunn shot and killed Glen Smith, an arrestee who had gained control of Dunn's police cruiser. The district court denied Dunn qualified immunity. Because Smith's right not to be seized by deadly force when fleeing arrest was clearly established at the time he was killed, we affirm the district court's denial of summary judgment.


On April 27-28, 2002, Deputy Sheriff Marty Dunn was on patrol in north Hamilton County, Tennessee. During his shift, Dunn responded to a report of harassing telephone calls being received at the home of Janice Quarles, the mother of plaintiff-appellee Cheri Smith. Cheri Smith was living with Quarles at the time because she was separated from her husband, the decedent Glen Smith. Dunn spoke with Quarles about the calls and left.

Later in his shift, Dunn coincidentally observed Glen Smith driving erratically. Dunn initiated a traffic stop and had Smith perform several field sobriety tests. Although Dunn believed that Smith had been drinking, he came to the conclusion that Smith was not so impaired as to justify an arrest. Consequently, Dunn suggested that Smith find a friend to pick him up, and Smith left his car in the parking lot of an adjacent McDonald's restaurant.

Later that evening, Dunn responded to another report from Quarles's home concerning harassing telephone calls. In this second encounter, Quarles told Dunn that some of the calls had been recorded by the answering machine, and that she recognized Smith's voice and heard the name "Dustin" in the background. Dunn listened to some of these recordings and

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heard someone in the background refer to an item being "smothered and covered," an apparent reference to a method of hash brown preparation at Waffle House restaurants. The calls continued in Dunn's presence, with Dunn answering a few of the calls and identifying himself as a police officer.

Dunn left Quarles's home and went by the McDonald's parking lot where he had left Smith earlier. Dunn observed that Smith's car was still in the lot; however, the car had been moved to a different spot, and Dunn saw a man that looked like Smith get into another car parked nearby. Dunn approached the second vehicle and spotted Smith in the backseat. Dunn questioned the driver of the vehicle, Kate Smith (Smith's sister), and another passenger, Dustin Craig, and these persons indicated that Glen Smith had used Craig's cell phone to make several calls from a Waffle House restaurant. At this point, Dunn proceeded to arrest Smith for making harassing telephone calls in Dunn's presence.

Pursuant to the arrest, Dunn advised Smith of his Miranda rights, cuffed Smith's hands behind his back, double-locked the handcuffs, put Smith in the back seat of Dunn's police cruiser, and secured the seat belt around Smith. Additionally, Dunn patted Smith down to be sure that he did not have any weapons or other contraband. Dunn also called for a tow truck to pick up Smith's car. During this period of time, Smith was cooperative with Officer Dunn. However, Dunn did believe Smith to be somewhat impaired. Dunn left the engine running to provide air conditioning. Unfortunately, Dunn's police cruiser was not equipped with a security partition separating the front seat from the back seat. When Dunn left the vehicle to talk to the tow truck driver, named Richard Rutherford, Smith climbed into the front seat and took control of Dunn's cruiser. The facts from this point forward are heavily disputed. The Supreme Court and this court have repeatedly held, however, "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 sets forth a 'genuine' issue of fact for trial. "Johnson v. Jones, 515 U.S. 304, 319-20 (1995); see also Carter v. City of Detroit, 408 F.3d 305, 309 (6th Cir. 2005). Accordingly, although we note the presence of disputes, we take the facts in a light most favorable to the plaintiffs, the family of Glen Smith. The district court carefully set out the differing versions of events leading to Smith's death.

[W]hen the wrecker arrived Dunn got out of the patrol car to speak to its driver, Richard Rutherford, and fill out the necessary paperwork to have Smith's vehicle towed. During this time, Smith was left unsupervised in the patrol car with the engine running and the keys in the ignition.

As they were going about the business of preparing Smith's car to be towed, both Dunn and Rutherford claim they heard the patrol car being placed into gear and turned to see Smith had made his way into the front seat and was now behind the wheel of the vehicle. Because Dunn had left the dome light in the patrol car on, Dunn claims he was able to clearly see Smith "looking directly at him" while Rutherford claims he could see Smith "in the driver's seat turning the steering wheel." Dunn asserts he heard tires squealing and the sound of hard acceleration. Rutherford does not believe the patrol car "went into a pe[e]l out," but does confirm Smith "floorboarded" the accelerator.

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Rutherford states his immediate reaction was to move backwards and around to the front of Smith's vehicle while Dunn claims he [Rutherford] ran in the opposite direction towards the McDonald's restaurant. Rutherford asserts Dunn ran towards the moving patrol car with his firearm drawn and recalls thinking he "was fixing to watch Officer Dunn get run over." Rutherford claims Smith was turning the patrol car to the left, but stated he was not sure whether Smith's swerve to the left was for the purpose of redirecting the car at Dunn or following the roadway around the building (and presumably out of the parking lot). Dunn claims he and Rutherford were standing not more than a vehicle's length from [the patrol car's] original position and that Smith was clearly trying to run him and Rutherford over rather than attempting to leave the parking lot.

Dunn claims Smith "rapidly accelerated directly at [him] and Rutherford" and, "fearing for his life and that of Mr. Rutherford," he "drew his gun and fired four times in rapid succession at Smith." According to Dunn, three of the shots hit the car, the fourth hit Smith "above the left ear," and the patrol car "shot past [Officer] Dunn barely missing him and ran off the parking lot and collided with a tree." Plaintiffs, however, contend Dunn was not acting in self-defense and fired at least the final, fatal shot after the car had passed by Dunn. Plaintiffs claim the fatal shot entered through the driver's side window of the patrol car and struck [Smith] in the ear. For his part, Rutherford recalls Dunn firing "three or four" shots in rapid succession from a position near the drive-thru lane as "the vehicle was going by him." Dunn appears to concede that he fired while the patrol car was passing him, but claims he did so while jumping out of the direct path of the vehicle. Rutherford did indicate Dunn was moving out of the way of the passing patrol car as he fired and, at least at one point, Rutherford believed Dunn had actually been hit by the vehicle.

Smith v. Cupp, No. 1:03-CV-139, slip op. at 5-7 (E.D. Tenn. Apr. 22, 2004).

In short, Dunn essentially argues that Smith directed the cruiser at him and Rutherford, or at least Dunn perceived the events in this manner, and that he shot Smith in self-defense as the cruiser was bearing down on them. Dunn continues to argue this version of facts on appeal. The plaintiffs, on the other hand, describe a scene where Smith was merely trying to flee in the cruiser and Dunn purposefully shot Smith under circumstances of no threat to Dunn or others. In addition to the testimony of Rutherford and Dunn described above, the plaintiffs point to the autopsy report as proof that all of the shots were fired either after the cruiser had passed Dunn or, at the very earliest, while the cruiser was passing Dunn with the officer on the driver-side of the vehicle. The autopsy report described the path of the fatal gunshot; the bullet entered "into the left ear ..., direction left to right, slightly back to front, and downward, passing through the left ear" (emphasis added)...

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