482 F.3d 886 (6th Cir. 2007), 06-5619, Bouggess v. Mattingly
| Citation | 482 F.3d 886 |
| Party Name | Angela BOUGGESS, Plaintiff-Appellee, v. McKenzie MATTINGLY, Defendant-Appellant. |
| Case Date | April 16, 2007 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit |
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Argued: March 5, 2007.
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ARGUED:
Kent Wicker, Reed Wicker, Louisville, Kentucky, for Appellant.
Garry R. Adams, Clay, Kenealy, Wagner, Adams & Hall, Louisville, Kentucky, for Appellee.
ON BRIEF:
Kent Wicker, Steven S. Reed, Reed Wicker, Louisville, Kentucky, for Appellant.
Garry R. Adams, Clay, Kenealy, Wagner, Adams & Hall, Louisville, Kentucky, for Appellee.
Before BOGGS, Chief Judge; and DAUGHTREY and GIBBONS, Circuit Judges.
BOGGS, Chief Judge.
This civil rights case stems from the shooting death of Michael Newby by Officer McKenzie Mattingly in West Louisville. It comes before us on an interlocutory appeal from the district court's denial of the appellant's motion for summary judgment on qualified immunity and state-law immunity grounds. Before the district court, Angela Bouggess, the administrator of Newby's estate, raised a Fourth Amendment claim under 42 U.S.C. § 1983 and various state-law tort claims. To decide this case, we need only ask whether an officer who employs deadly force against a fleeing suspect without reason to believe that the suspect is armed or otherwise poses a serious risk of physical harm is entitled to either qualified immunity or immunity under the law of Kentucky. We hold that he is entitled to neither. Accordingly, we affirm the judgment of the district court.
I
Bouggess raises a Fourth Amendment claim under 42 U.S.C. § 1983, a statute that provides a cause of action for redress against persons acting under color of law for "deprivation[s] of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. The Supreme Court has held that defendants in such suits are entitled to qualified immunity from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights. Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). A plaintiff can overcome that immunity only by showing that (1) the defendant violated his constitutional or statutory rights and (2) the right at issue was sufficiently clear that a reasonable official would have understood that what he was doing violated that right. Baranski v. Fifteen Unknown Agents of the BATF, 452 F.3d 433, 438 (6th Cir.2006) (en banc).
The availability of interlocutory appeal from the denial of qualified immunity is an exception to the general rule that an appeal can be taken only from a final judgment. But that exception is a limited one. We have jurisdiction to consider an interlocutory appeal only if that appeal raises a pure question of law. Johnson v. Jones, 515 U.S. 304, 319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Thus, we have jurisdiction to consider a defendant's claim that the facts alleged by the plaintiff, if proven, would not show a violation of clearly established constitutional law, Estate of Carter v. City of Detroit, 408 F.3d 305, 309-10 (6th Cir.2005), but not to consider a defendant's claim that the district court erred in constructing its view of the facts in the light most favorable to the plaintiff, Johnson, 515 U.S. at 317-20, 115 S.Ct. 2151. At times in this appeal, Mattingly could be taken to raise a mix of factual and legal arguments. To retain our jurisdiction under Johnson, we consider only the legal issues and interpret Mattingly's appeal as conceding, for these purposes only, the facts as given by Bouggess.
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II
Because this case comes to us on summary judgment, we construe the facts in the light most favorable to Bouggess. Fed.R.Civ.P. 56(c). If Bouggess can prevail under those facts, the case is inappropriate for resolution on interlocutory appeal and must be remanded. As we have held, when "the legal question of immunity is completely dependent upon which view of the facts is accepted by the jury," the "jury becomes the final arbiter of [a] claim of immunity." Brandenburg v. Cureton, 882 F.2d 211, 215-16 (6th Cir.1989).
On the evening of January 3, 2004, Officer McKenzie Mattingly of the Louisville Metro Police Department was involved in a drug-sting operation. He had planned to stage a drug transaction with some individuals in the parking lot of H & S Foods at 46th and West Market Streets in Louisville. Mattingly had backup officers listening over a wire transmitter. Officer Thomerson was the "eye" of the operation. As Mattingly waited in his vehicle, he was approached by a number of individuals who may have offered to sell him narcotics. Nineteen-year-old Michael Newby was one of those individuals. Mattingly did not think Newby was armed. 1
During the operation, the other suspects on the scene reached into Mattingly's car and took some of Mattingly's money. They then ran away. Mattingly thought at this point that none of the suspects remained near the car. He then got out of the car to see which way the suspects ran so that he could radio that information to his fellow officers. Mattingly did not radio for help or in any way indicate to other officers that they should be concerned that any of the suspects (including Newby) might be armed.
Upon Mattingly's exit from the vehicle, he saw Newby nearby, bending down to pick up a twenty-dollar bill. Mattingly sought to arrest Newby, but a struggle ensued between the two men. No guns were drawn and no shots were fired during the struggle. 2
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After the struggle, Newby broke free from Mattingly and ran directly away from Mattingly toward three eyewitnesses in a car, and also within view of the H & S Foods manager. Mattingly then drew his gun and fired at least three shots at Newby. 3 According to the medical examiner's report, three shots struck Newby in the back.
Newby, now struck three times by bullets from Mattingly's firearm, fled around a corner and sat down. Mattingly and Thomerson then approached Newby. Mattingly did not warn Thomerson that Newby might have a weapon. JA 156. Another officer on the scene, with his gun holstered, then approached Newby to handcuff him. Mattingly did not warn that officer that Newby might be armed. When Newby struggled with the officers during handcuffing and following handcuffing, Mattingly did not alert the officers that Newby might be armed. Newby died from his injuries soon after the shooting.
Newby was, in fact, carrying a firearm in his waistband. JA 227.
III
Viewing the facts as given above, the question is whether Mattingly violated Newby's clearly established constitutional rights.
A
"[A]pprehension by use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). This court assesses the reasonableness of a seizure in distinct stages. An officer's prior errors in judgment do not make a shooting unreasonable as long as the officer acted reasonably during the shooting itself and the few moments directly preceding it. Dickerson v. McClellan, 101 F.3d 1151, 1161 (6th Cir.1996). In other words, whether the use of deadly force at a particular moment is reasonable depends primarily on objective assessment of the danger a suspect poses at that moment. The assessment must be made from the perspective of a reasonable officer in the defendant's position. Brosseau v. Haugen, 543 U.S. 194, 197, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). That objective assessment requires asking whether "the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others." Garner, 471 U.S. at 11, 105 S.Ct. 1694. Under that standard, "if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given." Ibid. Absent such probable cause, however, a police officer may not seize a fleeing felon by employing deadly force. Id. at 11-12, 105 S.Ct. 1694.
In applying Garner's "probable cause" standard, the Sixth Circuit has focused on the following non-exhaustive list of factors: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Sigley v. City of Parma Heights, 437 F.3d 527, 534 (6th Cir.2006)
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(citing Dunigan v. Noble, 390 F.3d 486, 492 (6th Cir.2004)) (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). 4 Using those factors and other relevant facts, it is our task to determine whether Mattingly had an objectively reasonable belief that Newby posed an imminent threat of serious physical harm to him or to others. If Mattingly did not have such a belief, then his use of deadly force violated the Fourth Amendment. Saucier, 533 U.S. at 205, 121 S.Ct. 2151.
B
Thus, the question in this case is whether, under the foregoing standard, Mattingly had probable cause to believe that Newby posed a threat of serious physical harm to Mattingly or to others. Garner, 471 U.S. at 11-12, 105 S.Ct. 1694; Dickerson, 101 F.3d at 1161-63. The facts, when viewed in the light most favorable to Bouggess, demonstrate that Mattingly did not have such probable cause.
1
It is crucial for the purposes of this inquiry to separate Officer Mattingly's decision-points and determine whether each of his particular decisions was reasonable. Dickerson, 101 F.3d at 1162. Officer Mattingly made two decisions. First, he decided to arrest Newby, and second, after Newby broke free, he decided to shoot Newby. It cannot reasonably be contended (and plaintiff-appellee does...
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