476 F.3d 397 (6th Cir. 2007), 06-1465, Livermore ex rel Rohm v. Lubelan

Docket Nº:06-1465.
Citation:476 F.3d 397
Party Name:Geraldine LIVERMORE, Personal Representative for the Estate of Roland E. ROHM, deceased, Plaintiff-Appellee, v. Daniel LUBELAN and Jerry Ellsworth, Defendants-Appellants.
Case Date:February 07, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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476 F.3d 397 (6th Cir. 2007)

Geraldine LIVERMORE, Personal Representative for the Estate of Roland E. ROHM, deceased, Plaintiff-Appellee,


Daniel LUBELAN and Jerry Ellsworth, Defendants-Appellants.

No. 06-1465.

United States Court of Appeals, Sixth Circuit.

February 7, 2007

Argued: December 8, 2006

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 04-00552—Richard A. Enslen, District Judge.

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Margaret A. Nelson, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Lansing, Michigan, for Appellants.

Herbert A. Brail, KEANE & KEANE, Dearborn, Michigan, for Appellee.


Margaret A. Nelson, Mark E. Donnelly, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Lansing, Michigan, for Appellants.

Christopher J. Keane, KEANE & KEANE, Dearborn, Michigan, for Appellee.

Before: BATCHELDER and GRIFFIN, Circuit Judges; PHILLIPS, District Judge[*]


GRIFFIN, Circuit Judge.

Defendants Daniel Lubelan and Jerry Ellsworth appeal the denial of their motion for summary judgment brought pursuant to FED. R. Civ. P. 56(c). Defendants argue that the district court mistakenly concluded that genuine issues of material fact precluded the entry of summary judgment and that it failed to consider whether defendants were entitled to qualified immunity from plaintiff Geraldine Livermore's Fourth Amendment claims. Defendants argue further that Livermore's state law claims of gross negligence fail as a matter of Michigan law. For the reasons set forth below, we reverse the district court's denial of defendants' motion for summary judgment.


Thomas Crosslin and decedent Roland Rohm operated the Rainbow Farms Campground ("Rainbow Farms") in Cass County, Michigan. Crosslin and Rohm advocated the legalization of marijuana and often sponsored concerts and camp-outs on Rainbow Farms to espouse their views. After receiving complaints about illegal drug use occurring on Rainbow Farms, the Cass County Sheriffs Department initiated an undercover investigation of Crosslin and Rohm. Crosslin, as owner of Rainbow Farms, was sub sequently charged with violating public health laws and forfeiture proceedings against Crosslin and his property were initiated.

After a search warrant was issued, investigators discovered a "marijuana grow operation" in the basement of Crosslin's and Rohm's residence on Rainbow Farms. Consequently, more criminal charges were filed and a Family Independence Agency investigation began, resulting in the court-ordered removal of Rohm's young son, Robert, from Crosslin's and Rohm's residence on Rainbow Farms. In August 2001, Crosslin and Rohm violated an injunction prohibiting them from sponsoring any more events on the farm and were subsequently held in contempt by the Cass County Circuit Court.

On August 31,2001, after failing to appear at a scheduled show cause hearing in

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connection with their contempt order, Crosslin and Rohm set fire to the outbuildings on Rainbow Farms and barricaded themselves in their residence. The Cass County Sheriff s Department set up observation points around Rainbow Farms, closed off the perimeter, and requested assistance from the Michigan State Police's Emergency Services team ("Emergency Services") to resolve the standoff at Rainbow Farms and to arrest Crosslin and Rohm. Crosslin confronted the arriving police officials armed with a gun and refused them permission to enter his property.

That evening, Crosslin shot at and struck a news helicopter as it flew over his property, taking aerial footage of the fires. Emergency Services, commanded by defendant Lieutenant Jerry Ellsworth, and FBI personnel responded to Cass County's request for assistance and began arriving on the morning of September 1. On September 3, Crosslin and an accomplice--later identified as Bradon Peoples--exited their residence and walked through the woods to a neighboring home, where they broke in and stole supplies. On their return, Crosslin was shot and killed by an FBI agent in self-defense. Peoples was arrested.

During the early morning hours of September 4, Emergency Services began negotiating with Rohm by phone. Rohm indicated that he would come out of the house and surrender at 7:00 a.m. if he were allowed to speak with his son. The negotiator agreed, and Rohm was instructed to come out to the street unarmed with his hands up. The Rainbow Farms residence began burning at 6:00 a.m. that morning, apparently set on fire by Rohm. At approximately 6:30 a.m., Rohm exited the house armed with a rifle and hid between two trees in the backyard, near the northwest corner of the house. What happened next is the subject of dispute between the parties.

After Rohm fled his residence and hid between the trees, Emergency Services members Sergeant Steven Homrich, Sergeant David Bower, and Lt. Ellsworth approached Rohm in a Light Armored Vehicle ("LAV").1 Because of the LAV s armor plating, Emergency Services's radios did not work inside the vehicle. To allow radio communication, Sgts. Homrich and Bower were placed in open hatches in the roof of the LAV, exposed from their mid-torsos to the tops of their heads. The LAV approached Rohm's residence as Lt. Ellsworth identified himself via a loudspeaker and directed Rohm to surrender, but Sgts. Homrich and Bower were unable to see him due to the lack of daylight and the smoke emitting from the house.

Emergency Services snipers on an observation point approximately 150 yards northwest of the house, however, were able to see Rohm. Defendant Sgt. Daniel Lubelan, a Michigan State Police Trooper, observed Rohm in a crouched or kneeling position, holding his rifle at waist level and turning his torso back and forth as if looking for someone. According to Sgt. Lubelan, Rohm identified the LAV and aimed his gun in its direction, tracking the LAV as it moved. Sgt. Lubelan believed that Rohm was pointing his gun toward an exposed officer in the LAV and fired two shots at Rohm, killing him.2

On August 17, 2004, plaintiff Geraldine Livermore, Rohm's mother and personal representative, filed a complaint in the

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Eastern District of Michigan. Livermore alleged that Sgt. Lubelan used excessive force in shooting Rohm, and that Lt. Ellsworth acted negligently in creating the circumstances that led to Rohm's death. On November 29, 2005, defendants moved for summary judgment, arguing that Sgt. Lubelan's use of force was reasonable, that defendants were entitled to qualified immunity, and that Livermore's gross negligence claims failed as a matter of Michigan law on the facts of this case. The district court demed defendants' motion on February 17, 2006, finding that genuine issues of material fact existed.3

Defendants filed this interlocutory appeal on March 17, 2006.


We first consider whether we have jurisdiction to address defendants' interlocutory appeal. Title 28 U.S.C. § 1291 limits this court's jurisdiction to "final decisions of the district courts of the United States. ..." A district court's denial of qualified immunity is an appealable final decision pursuant to 28 U.S.C. § 1291, but only "to the extent that it turns on an issue of law." Estate of Carter v. City of Detroit, 408 F.3d 305, 309 (6th Cir. 2005) (quoting Mitchell v. Forsyth, Ml U.S. 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)) A defendant raising 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, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); see also Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998) ("A defendant who is denied qualified immunity may file an interlocutory appeal with this Court only if that appeal involves the abstract or pure legal issue of whether the facts alleged by the plaintiff constitute a violation of clearly established law."). Nevertheless, that the district court here denied defendants' motion for summary judgment on the grounds that genuine issues of material fact exist does not necessarily preclude this court's jurisdiction over defendants' appeal. Rather, as this court has recognized,

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"regardless of the district court's reasons for denying qualified immunity, [this court] may exercise jurisdiction over the [defendants'] appeal to the extent it raises questions of law." Williams v. Mehra, 186 F.3d 685, 689-90 (6th Cir. 1999) (en banc); see also Turner v. Scott, 119 F.3d 425, 428 (6th Cir. 1997).

Language in our earlier decisions interpreting Johnson suggests that where, as here, the appellant fails to concede the facts as alleged by the appellee, this court is completely deprived of jurisdiction over the appellant's interlocutory appeal. See Berryman, 150 F.3d at 563 ("If... the defendant disputes the plaintiff s version of the story, the defendant must nonetheless be willing to concede the most favorable view of the facts to the plaintiff for purposes of the appeal."). Subsequent cases, however, have rejected that approach and clarified that we may consider a pure question of law, despite the defendants' failure to concede the plaintiffs version of the facts for purposes of the interlocutory appeal: "If . . . aside from the impermissible arguments regarding disputes of fact, the defendant also raises the purely legal question of whether the facts alleged . . . support a claim of violation of clearly established law, then there is an issue over which this court has jurisdiction." Estate of Carter, 408 F.3d at 310 (internal quotations and citation omitted); see also Smith v. Cupp, 430 F.3d 766, 772 (6th Cir. 2005); but see McKenna v. City of Royal Oak, et al., 469 F.3d 559, 561 (6th Cir. 2006) (holding this court lacks jurisdiction to consider...

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