Simmonds v. Genesee Cnty.

• Decision Date: 17 August 2012
• Docket Number: No. 10–1470.,10–1470.
• Citation: 682 F.3d 438
• Parties: Daniel SIMMONDS, as Personal Representative of the Estate of Kevin Joseph Simmonds, Deceased, Plaintif–Appellant, v. GENESEE COUNTY; Josh Dirkse; James Comstock; Kevin Shanlian; Douglas George Stone, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

682 F.3d 438

Daniel SIMMONDS, as Personal Representative of the Estate of Kevin Joseph Simmonds, Deceased, Plaintif–Appellant,

v.GENESEE COUNTY; Josh Dirkse; James Comstock; Kevin Shanlian; Douglas George Stone, Defendants–Appellees.

No. 10–1470.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 12, 2012.

Decided and Filed: June 19, 2012.

Rehearing and Rehearing En Banc Denied Aug. 17, 2012.^*

ARGUED: Heather Anne Glazer, Fieger, Fieger, Kenney, Johnson & Giroux, P.C., Southfield, Michigan, for Appellant. John G. Fedynsky, Office of the Michigan Attorney General, Lansing, Michigan, Mary Massaron Ross, Plunkett Cooney, Detroit, Michigan, for Appellees. ON BRIEF:Victor S. Valenti, Fieger, Fieger, Kenney, Johnson & Giroux, P.C., Southfield, Michigan, for Appellant. James T. Farrell, Office of the Michigan Attorney General, Lansing, Michigan, Mary Massaron Ross, Hilary A. Ballentine, Plunkett Cooney, Detroit, Michigan, for Appellees.

Before: MERRITT and COLE, Circuit Judges; VARLAN, District Judge. ^*

COLE, J., delivered the opinion of the court, in which VARLAN, D.J., joined. MERRITT, J. (pp. 446–48), delivered a separate dissenting opinion.

OPINION

COLE, Circuit Judge.

Daniel Simmonds appeals the district court's grant of the defendants' motions for summary judgment on the basis of qualified immunity. As the defendants' actions entitled them to qualified immunity, we AFFIRM.

I.

A. Factual Background

On November 23, 2007, Genesee County police received multiple 911 calls regarding Kevin Simmonds's threatening behavior. Kevin's father, Daniel Simmonds (“Simmonds”), called to report that Kevin had threatened to kill his ex-girlfriend's parents. Beverly Carey, the mother of Kevin's ex-girlfriend, also called 911 to report Simmonds's death threat. Michigan State Police Troopers Doug Kaiser and Joshua Dirkse were dispatched, and received backup assistance from Richfield Township Officer Michael Bernard, Genesee County Lieutenant Kevin Shanlian, Genesee County Sheriff Deputy James Comstock, Genesee County Deputy Douglas Stone, and Genesee County Sergeant William Tucker. Kaiser, Bernard, Shanlian, and Comstock responded to the Carey residence; meanwhile, Dirkse, Stone, and Tucker responded to the Simmondses's home. When the officers arrived at the Carey residence, they confirmed that Kevin was not at the home, and Carey informed them that Kevin had left a message on her answering machine saying that “he was coming over to kill them and send them to the promised land.” Kaiser remained at the Carey residence to complete paperwork, while the other three officers went to the Simmondses's residence to assist Dirkse, Stone, and Tucker.

The officers arrived at the Simmondses's property and first met with Simmonds to formulate a plan to apprehend Kevin. When the officers arrived, it was dark out and they were unfamiliar with the rural property, which was surrounded by a heavily-wooded area. Simmonds told the officers that he was worried about Kevin's mental state, as Kevin had been drinking, “wasn't acting right,” and was possibly suicidal. Simmonds further cautioned the officers that Kevin owned a pistol and a shotgun, although he did not know whether Kevin was armed. After speaking with Simmonds, the officers planned to prevent Kevin's escape from the property by blocking the private road from the home to the public road and attempting to negotiate with him, using shields and helmets for their own protection. Dirkse and Tucker positioned their vehicles at the beginning of the long private road that led from the Simmondses's home into the heavily-wooded part of the property.

Before the officers could fully implement their plan, Kevin drove up the private road, approaching the location where Dirkse's and Stone's patrol cars were stationed. The two officers activated their overhead lights and ordered Kevin to raise his hands and exit the vehicle. A patrol video camera captured these requests clearly. Instead, Kevin shifted his pick-up truck into reverse and backed down the private roadway into a heavily-wooded area. Dirkse, Tucker, Comstock, Bernard, and Stone followed Kevin in their patrol cars. During the pursuit, Kevin's truck became stuck in the snow, so the officers exited their patrol cars and began approaching Kevin's vehicle while repeatedly ordering Kevin to show his hands—a command Kevin ignored. At that point, the situation quickly escalated.

Because Kevin refused to comply, Stone approached Kevin's truck, opened the door, yelled “Taser, Taser,” and then deployed his state-issued taser with the hopes of subduing Kevin. At first, Stone believed the taser had successfully subdued Kevin because immediately following its deployment, Kevin leaned toward the center console and passenger seat as if he had been tranquilized. In fact, Kevin's thick winter jacket prevented the taser from properly functioning.

According to the five officers on the scene, Kevin arose from the passenger seat after the failed taser attempt, yelled that he had a gun and turned toward the officers with his hands extended in a firing position. Stone testified in his deposition that after he deployed the taser, “Kevin roll[ed] to the passenger side of his vehicle, [and] seconds later he yell[ed] that he ha[d] a gun.” Stone further testified that, fearing he would be shot in the face, he turned around and attempted to make his way back to his patrol vehicle. Bernard and Tucker both testified in their depositions that they heard Kevin yell “I got a gun” or “I have a gun” immediately after Kevin reared up from the console area. Tucker also reported that Kevin extended his arm, as if he had a gun in his hands. Comstock testified that Kevin punched his hands out of the open car window, in a shooting position, with what Comstock believed was a silver handgun. Fearing for his safety, Comstock did not hesitate and immediately fired several shots at Kevin. Dirkse similarly reported seeing a silver object in Kevin's hand, but recalled that Kevin was attempting to exit the car through an open door when he pointed the weapon. Dirkse testified that he observed Kevin yelling “I have a gun, I have a gun,” while holding his hands “together as if he was pointing or holding a gun, point[ing] it in the direction of me and the other officers.” After Kevin allegedly threatened the officers, Dirkse immediately fired shots at Kevin.

Immediately after the shooting, Comstock and Stone began administering lifesaving procedures on Kevin until an ambulance arrived to take him to the hospital. Despite these efforts, Kevin did not survive. As the police removed Kevin from the vehicle, they found a silver and blue cell phone with the antenna extended on the front passenger seat. The police also later found a .22 caliber rifle lying in the snow on the ground, several car lengths away from Kevin's truck.

B. Patrol Car Video

The video camera in Dirkse's patrol car captured a portion of these events. The video begins with Dirkse arriving at the Simmondses's property, and soon thereafter exiting the vehicle to confer with Simmonds and the other officers. This conversation with Simmonds was not captured on videotape. When Dirkse reenters the car, the video clearly picked up—over the sound of music on the radio—his statements on the patrol radio informing fellow officers that Kevin may be mentally unstable and may have been drinking. The video next shows Dirkse's patrol car driving down the Simmondses's private roadway. When Dirkse first encountered Kevin's vehicle, the video makes clear that Dirkse exited his car and yelled “Let me see your hands” and “Get out of the car.” After Kevin failed to comply with these orders and drove his car in reverse down the private road, the video shows Dirkse returning to his car, turning it around, and following Kevin and the other patrol cars down the road.

As Dirkse arrived at Kevin's car which was stuck in the snow, the video shows that Dirkse parked and exited, again leaving the car running, including the video camera and car radio. Because a police SUV parked directly in front of Dirkse's car, and obstructed the view, the video does not visually capture any more of the relevant events. Rather, the video shows only the hood of Dirkse's car and the rear of the police SUV—neither Kevin nor his vehicle are visible. Additionally, because there was music playing on the radio, the video could not capture any audible statements from either the officers or Kevin. Over the music, the only audible sound is Dirkse cocking his gun as he opens the driver's side door and, later, the gunshots. The video picks up no further sound, including the officer's commands to Kevin to show his hands, Stone's “Taser, Taser” warning, or Kevin's threat that he had a gun. After the shots were fired, the video shows officers returning to their vehicles to retrieve medical and lifesaving equipment. The video could not capture the lifesaving procedures unfolding at Kevin's car, however, it does show a few officers conversing at this time, again with no audible conversation.

C. Procedural Background

Simmonds, as the personal representative of Kevin's estate, filed a lawsuit under 42 U.S.C. § 1983 against the County of Genesee, Michigan, alleging failure to supervise, monitor, and train its officers, as well as Dirkse, Comstock, Shanlian, and Stone, alleging Fourth, Eighth, and Fourteenth Amendment violations. Simmonds later amended this complaint to remove the Eighth and Fourteenth Amendment claims. The officers all filed individual answers, asserting qualified immunity and later moved for summary judgment on this basis. The district court granted a continuance to permit Simmonds to depose the officers present.

Following their depositions, the officers filed supplemental briefing in support of their motions for summary judgment, arguing that the depositions failed to disclose any genuine issue of material fact. Simmonds opposed the motion, on the basis of two...