437 F.3d 527 (6th Cir. 2006), 05-3035, Sigley v. City of Parma Heights

Docket Nº:05-3035.
Citation:437 F.3d 527
Party Name:Peggy SIGLEY, Plaintiff-Appellant, v. CITY OF PARMA HEIGHTS, et al., Defendants-Appellees.
Case Date:February 10, 2006
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 527

437 F.3d 527 (6th Cir. 2006)

Peggy SIGLEY, Plaintiff-Appellant,


CITY OF PARMA HEIGHTS, et al., Defendants-Appellees.

No. 05-3035.

United States Court of Appeals, Sixth Circuit.

February 10, 2006

Argued: Oct. 25, 2005.

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 03-00595—Donald C. Nugent, District Judge.

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Nicholas A. DiCello, SPANGENBERG, SHIBLEY & LIBER, Cleveland, Ohio,

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for Appellant.

John T. McLandrich, MAZANEC, RASKIN & RYDER, Cleveland, Ohio, for Appellee.


Nicholas A. DiCello, Dennis R. Lansdowne, Peter J. Brodhead, SPANGENBERG, SHIBLEY & LIBER, Cleveland, Ohio, for Appellant.

John T. McLandrich, James A. Climer, Frank H. Scialdone, MAZANEC, RASKIN & RYDER, Cleveland, Ohio, for Appellee.

Before: KEITH and BATCHELDER, Circuit Judges; OBERDORFER, District Judge.[*]


DAMON J. KEITH, Circuit Judge.

This is a 42 U.S.C. § 1983 action for the use of deadly force arising out of Detective Wayne Mockler's ("Mockler") fatal shooting of Daniel P. Davis, dec'd ("Davis") in the back, as he was attempting to flee an undercover drug bust. Plaintiff-Appellant Peggy Sigley ("Sigley" or "Plaintiff"), Davis' mother and the administratix of Davis' Estate, sued the City of Parma Heights and Mockler asserting constitutional claims under 42 U.S.C. § 1983 and supplemental claims under the Ohio constitution and Ohio tort law. After discovery, the district court entered summary judgment in favor of the Defendants holding that Mockler acted reasonably, as a matter of law. Sigley appealed. The central issue on appeal is whether the district court erred when it granted Defendants' motion for summary judgment holding that there were no genuine issues of material fact and that the Defendants were entitled to a judgment as a matter of law on Plaintiff s Fourth Amendment excessive force claim. We find there are genuine issues of material fact regarding whether Davis posed a significant threat of death or serious injury to Mockler or others. For the foregoing reasons, we REVERSE the district court's granting of summary judgment and REMAND for trial on Sigley's federal constitutional claims.


In 2001, the Parma Heights Police Department ("Parma Heights" or "police department") began investigating Davis, who was thought to be a high-level ecstasy dealer in Parma Heights. The investigation began when the police found Matthew Benedict ("Benedict") in possession of ecstasy, which he obtained from Davis. The police asked Benedict to become a confidential informant and cooperate in a controlled buy-bust operation to arrest Davis.

In February 2002, Davis contacted Benedict to tell him that he had ecstasy for sale. At the urging of the police, Benedict arranged a controlled purchase of five hundred dollars worth of ecstasy pills from Davis. Benedict agreed to meet Davis on March 9, 2002, in the parking lot behind Topps Bar and Grill in Parma Heights.

On March 9, 2002, Mockler assembled a team of six Parma Heights police officers to assist in the undercover operation. The plan was to position Benedict's vehicle in the parking lot behind Topps Bar and Grill and wait for Davis to arrive. Before the controlled bust, Davis called Benedict and expressed concerns over meeting in Parma Heights. Following some negotiations regarding where the meeting should take

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place, Davis finally agreed to meet Benedict in the parking lot behind Topps Bar and Grill.

Benedict arrived on the scene at approximately seven o'clock p.m. When Benedict arrived, Davis was already parked in the lot, preventing the police from selecting the precise location for the transaction. Patrolman Jackson, an undercover officer, was riding in the Jeep with Benedict. Patrolman Jackson was wearing a concealed recording device.

When Benedict parked, his vehicle and Davis' vehicle were facing in opposite directions and positioned so that their drivers' side windows were side-by-side and about three feet apart. Benedict and Davis exchanged five hundred dollars in cash, and a black film cannister containing twenty-five ecstasy pills. When the transaction was complete, Patrolman Jackson signaled the other officers to arrest Davis.

Two unmarked police cars pulled up to block Davis' vehicle. One car was driven by Detective Scharschmidt and Patrolman Mehlman ("Mehlman") was a passenger. They pulled their car behind Davis' vehicle. Mehlman told Scharschmidt to stop the vehicle short of blocking Davis' vehicle because Benedict's headlights were blinding him. Mockler drove the other car, which blocked Davis. In short, Detectives Scharschmidt and Mockler attempted to box in Davis to prevent him from escaping from the parking lot. Officers Walls and Kravanis were driving marked police cruisers that blocked the ingress and egress to the parking lot.

When the police cars came to a stop, Patrolman Mehlman exited his car and approached the passenger side of Davis' vehicle. Mockler exited his vehicle with his weapon drawn. He positioned himself in front of Davis' car, between his vehicle and Davis' vehicle. Mockler and Mehlman, both, dressed in plain clothes, identified themselves. Mehlman yelled "Parma Heights police," "stop police," and "you're under arrest." Davis began to yell "it's a bust" and attempted to flee the scene. (J.A. at 130, 135).

Davis backed his car up enough to pull out of his current position and free himself from the block created by Mockler and Scharschmidt's vehicles. While backing up, Davis' car made contact with Mehlman's hand. Mehlman stated that he sustained a bruise for which he was given an ice pack. (J.A. at 213).

The remaining facts in this case are highly disputed.

A. Mockler's Version of the Facts

Mockler claims that he was standing directly in front of Davis' car, with his gun drawn, before Davis started to reverse and accelerate. (J.A. at 136-37). As the car began to reverse, Officer Mockler allegedly stepped east to realign himself with the vehicle and position himself to fire upon the vehicle if it continued to back up and pose a serious risk to the officers behind Davis' vehicle. (J.A. at 136).

Davis, however, stopped his backward movement and accelerated quickly forward. In his deposition, Mockler later testified that he began running east, with his back to Davis' car, to a nearby fence at the edge of the parking lot to avoid Davis' vehicle. (J.A. at 137, 140). He alleges that when he began running, he was in front of Davis' vehicle. His focus was on getting to safety and avoiding the danger of Davis' vehicle. He claims he wanted to get to the fence to avoid Davis and put the action in front of him.

Mockler realized he could not make it to the edge of the lot quickly enough to avoid the vehicle. Davis' vehicle was on top of him and turning into his path. Mockler claims that this put him in danger of being

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hooked by the vehicle. (J.A. at 141). Mockler estimates that Davis' vehicle was traveling at approximately 30 to 40 m.p.h.. (J.A. at 142). Mockler fired one shot, as the car was swerving into him. At the time the shot was fired, Davis was leaning into the steering wheel toward the passenger's side, away from Mockler. (J.A. at 143).

Mockler indicated that as he fired, he "jumped out of the way, pulled one round, just jumped out of the way and twisted." (J.A. at 144). He claimed that he was jumping back and twisting in the air at the same time. He stated that he fired through Davis' open driver's side window and did not have time to aim. Mockler believed that if he had not fired, he would have been run over, sucked under the car and killed, and alleges that he fired in self-defense. (J.A. at 121, 133).

Mockler also alleges that Officer Kravanis, who was approaching the scene to effectuate the arrest, was in danger of being rammed by Davis' speeding vehicle in his effort to escape. (J.A. at 241).

B. Sigley's Version of the Facts

In the Plaintiff's version of the facts, she contends that Mockler chased after her son as he drove away from the scene, pointed his gun down into Davis' open driver's side window, and shot him in the back. (J.A. at 326) (Plaintiff's Br. at 4).

Specifically, Plaintiff alleges that Mockler sprang from his vehicle with his weapon drawn and moved to the area near his unmarked vehicle's front right headlight. (J.A. at 135, 136). Davis backed up and repositioned his vehicle so that he could travel forward (East/Northeast) and drive around Mockler and his vehicle. As Davis' car passed him, Mockler shot Davis in the back though his open driver's side window. (J.A. at 145). In his deposition, Mockler recounted that "And the car's [sic] going past me, and I'm just coming up and fired." (J.A. at 144). Mockler was less than two and one half feet from the car. (J.A. at 82).

Immediately after the shooting, the police took a statement from Benedict. In his deposition explaining his statement, Benedict stated "whoever it was . . . who pointed a weapon down and into the window and when you heard a pop was running alongside of the Davis vehicle." (J.A. at 330-331). Benedict testified that the only thing he was unsure of was which officer was alongside Davis' car. (J.A. at 91). He stated that prior to the officer firing that it "appeared that he was off towards his driver's side...

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