Kirby v. Duva

• Citation: 530 F.3d 475
• Decision Date: 27 June 2008
• Docket Number: No. 06-1976.,06-1976.
• Parties: The Estate of Thomas KIRBY and Brenda Kirby, Plaintiffs-Appellees, v. Deputy DUVA, Deputy Carrier, and Sergeant Buckley, Defendants-Appellants, St. Clair County Sheriff's Department, Defendant.
• Court: U.S. Court of Appeals — Sixth Circuit

530 F.3d 475

The Estate of Thomas KIRBY and Brenda Kirby, Plaintiffs-Appellees, v. Deputy DUVA, Deputy Carrier, and Sergeant Buckley, Defendants-Appellants, St. Clair County Sheriff's Department, Defendant.

No. 06-1976.

United States Court of Appeals, Sixth Circuit.

Argued: March 18, 2008.

Decided and Filed: June 27, 2008.

ARGUED: Marcia L. Howe, Johnson, Rosati, LaBarge, Aseltyne & Field, Farmington Hills, Michigan, for Appellants. Hugh M. Davis, Jr., Constitutional Litigation Associates, Detroit, Michigan, for Appellees. ON BRIEF: Marcia L. Howe, Johnson, Rosati, LaBarge, Aseltyne & Field, Farmington Hills, Michigan, for Appellants. Hugh M. Davis, Jr., Constitutional Litigation Associates, Detroit, Michigan, Patrick J. McQueeney, Thomas R.

Present, Law Offices, Clinton Township, Michigan, for Appellees.

Before: BOGGS, Chief Judge; ROGERS, Circuit Judge; SHADUR, District Judge.^*

OPINION

ROGERS, Circuit Judge.

Defendant police officers bring this interlocutory appeal from the district court's denial of their motion for summary judgment on grounds of qualified immunity. Plaintiffs, Thomas Kirby's widow and estate, filed this § 1983 excessive force action after defendants fatally shot Kirby as he tried to flee a traffic stop. Because it was clearly established at the time of the shooting that deadly force could not be used against a non-dangerous fleeing felon, qualified immunity was properly denied on the facts as presented in this case.

I.

At the time of the events giving rise to this case, defendants Deputy Damon Duva, Deputy Jason Carrier, and Sergeant Thomas Buckley were employed as police officers in the St. Clair County Sheriff's Department¹ and were participants in the St. Clair County Drug Task Force ("DTF"). Sometime in 2003, the DTF received reports that Kirby was selling methamphetamine and crack cocaine out of his home in rural St. Clair County, Michigan. After setting up two controlled drug sales with Kirby, the DTF obtained a warrant to search both Kirby's residence and person. On November 4, 2003, the DTF held a strategy meeting to discuss executing the warrant. The DTF had been told by informants that Kirby was a violent, paranoid individual who was often high, kept numerous weapons around his home, and had outfitted his residence with surveillance equipment. According to one source, Kirby opened the door to his home only with a pointed gun, made visitors undress to prove that they were not wearing police wires, and stated constantly that the police were watching him. Based on these reports, the DTF decided that it was safest to apprehend Kirby when he was on the road.

After canvassing area roads for Kirby that afternoon, the DTF located Kirby driving westbound on Lapeer Road, apparently having left the scene of a drug sale not long before. Kirby, in a green Ford Ranger truck, was traveling approximately 55 m.p.h., right around the speed limit. Carrier and Buckley followed the Ranger for a short while before activating the overhead lights and siren on their police cruiser. After about a half mile or "maybe even a bit less than that," Kirby pulled onto the shoulder of the road. Carrier, who was driving the cruiser, parked the cruiser a few feet behind Kirby, positioning his vehicle halfway onto the shoulder. A few seconds later, Duva arrived in an unmarked black Chevrolet Silverado truck. Duva pulled in front of both vehicles and parked his truck at an angle of approximately forty-five degrees with the Ranger, with its front half resting off of the road, and on the shoulder. Duva estimates that the front of the Silverado was approximately ten feet in front of the Ranger. A few feet to the side of the road, running adjacent to it, was a ditch. This arrangement essentially sandwiched the Ranger between the police vehicles and the ditch so that Kirby could not easily flee.

Observing this scene were motorists Paul Moore and Rose Kornieck, who had been driving behind Kirby's Ranger and the cruiser. Moore parked his vehicle six to ten feet behind the cruiser, and Kornieck parked behind Moore. Moore could see the parties' positions, but could not actually observe what Kirby was doing in the Ranger. Kornieck could see only Buckley and the Ranger.

After parking the cruiser, Deputy Carrier approached the Ranger. Yelling, he ordered Kirby to turn off his vehicle and to raise his hands. Kirby did not obey. It is unclear whether Kirby had heard the orders; however, his windows were up and the cruiser's siren was sounding. At this time, Sergeant Buckley had already exited the cruiser on the passenger side and had begun to move forward toward the Ranger. Deputy Duva had also gotten out of the Silverado by then and was walking around its rear toward the Ranger.

The parties' accounts of the events that next unfolded, and that led to the fatal shooting, diverge significantly. According to Buckley, as he was walking on the shoulder of the road, the Ranger began to "back[] up towards [him]." He states that he heard the Ranger's engine revving, observed the truck's backup lights come on, and saw gravel flying from its tires. There was a distance of less than two feet between himself and the Ranger, Buckley estimates, as it came at him in reverse, traveling seven to eight miles per hour. Buckley testified that he tried to get to the Ranger's side by stepping backwards and sideways, but could not avoid the vehicle, which backed up approximately twelve feet. Buckley claims that as he was pushed backward by the Ranger, he was forced to hang on to its tailgate. Buckley states that he then began to lose his balance and slipped down a muddy embankment towards the ditch. Fearing for his life, Buckley fired his gun into the Ranger four to five times. Buckley aimed at Kirby's head with each shot, "shooting to kill him."

Seeing the Ranger move towards Buckley and hearing gunshots, Carrier and Duva also opened fire on Kirby. Both officers testified that they had seen Buckley slip behind the Ranger and feared that he would be run over as that vehicle reversed. At this time, Carrier was standing a few feet to the side of the Ranger, near its driver-side door. Carrier admits that he was not in danger. Duva claims to have been standing at the Silverado's rear passenger-side wheel well, and was similarly not then at risk.

Defendants claim that the Ranger briefly came to a stop after this first round of shots. They state that the Ranger then, however, lurched forwards towards Duva, its engine again revving. By one of the defendant's estimates, the truck drove forward at seven to eight miles per hour, and moved perhaps five feet. Fearing that he would be crushed between the Silverado and the Ranger, Duva again opened fire on Kirby. Carrier and Buckley followed suit. Buckley admits that he could see Carrier and knew that Carrier was neither in front nor back of the vehicle, and that Buckley could not actually see Duva to know whether he was in the Ranger's path.

According to defendants, these events were nearly instantaneous. Carrier, for example, testified that the entire incident occurred over the span of only 15-45 seconds.

Defendants' account is largely supported by Kornieck's testimony. Kornieck stated that she observed Buckley hanging off of the Ranger as it reversed and that the Ranger was kicking up gravel. She does state, however, that Buckley was at the Ranger's rear passenger-side wheel well, not its back tailgate. Nonetheless, Kornieck still believed that Buckley was going to be killed by the moving vehicle.

Plaintiffs, relying primarily on the testimony of Moore, tell a different story. By Moore's account, the Ranger was moving in a non-threatening manner around the vehicles and officers. Moore testified that after Kirby initially pulled over, the Ranger began to roll backwards at an angle, almost as though Kirby "was trying to pull out of a parallel parking spot to get around [the Silverado]." Moore states that the Ranger was slowly rolling in reverse and that its backup lights were not on. It was "[n]ot [going] very fast." Moore also disputes that the Ranger's engine was revving and that its wheels were spinning and throwing gravel.

More importantly, under Moore's version of the story, none of the officers was ever in harm's way. From Moore's view, the Ranger was parked only three to six feet in front of the cruiser. When the Ranger began to reverse, Moore claims that Buckley was at the cruiser's front passenger-side tire, placing him at least six to seven feet behind the Ranger's rear. Because the Ranger would have hit the cruiser had it gone any further back, it "could have never come in contact with [Buckley]." The Ranger backed up a few feet at most, Moore estimates.

Rather than staying in his position of safety, as Moore saw it, however, Buckley approached the moving vehicle. Moore claims that Buckley continued to walk towards the rear of the Ranger as it rolled backwards before Buckley stepped sideways down onto the embankment. Buckley did not "dive" out of the way as though he were in danger, but merely stepped aside and kept moving forward. When the Ranger then changed direction and moved a few feet forward, Buckley continued to "walk [forward] towards Mr. Kirby's vehicle." As he got closer to the Ranger, Buckley turned and tried to "scurry" back up the embankment toward the road and that vehicle, at this point raising his gun. However, as Buckley "scurried back up," he began to slip in the mud and grabbed onto the Ranger at its rear passenger-side wheel well to pull himself up. Thus, Buckley was never, Moore asserts, pushed backwards by the Ranger, but was actually using it for balance.

Moore likewise asserts that Duva was not in the path of the Ranger as it moved forward, which movement he claims occurred before Buckley began firing. According to Moore, after going backwards for a few feet, the Ranger reversed and began to move slowly forward a few feet "as if it was trying to steer ......