Pollard v. City of Columbus
| Citation | 780 F.3d 395 |
| Decision Date | 05 March 2015 |
| Docket Number | No. 13–4142.,13–4142. |
| Parties | Kathryn POLLARD, Individually and as the Executrix of the Estate of Abram Bynum, Plaintiff–Appellee, v. CITY OF COLUMBUS, OHIO; Nathan Amstutz; Emanuel Edwards; William Edwards; James Estepp; Timothy O'Donnell; Michael Yinger, Defendants–Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
OPINION TEXT STARTS HERE
ARGUED:Paula J. Lloyd, City of Columbus, Columbus, Ohio, for Appellants. J. Eric Holloway, Eric Holloway Law Group, LLC, Dublin, Ohio, for Appellee. ON BRIEF:Paula J. Lloyd, Pamela J. Gordon, City of Columbus, Columbus, Ohio, for Appellants. J. Eric Holloway, Eric Holloway Law Group, LLC, Dublin, Ohio, for Appellee.
BEFORE: McKEAGUE and KETHLEDGE, Circuit Judges; HOOD, District Judge.*
On July 7, 2009, a rape suspect led Columbus, Ohio police officers on a highway car chase before crossing the median, accelerating the wrong way, and ramming head on into a semitrailer. Officers surrounded the suspect's car and fatally shot the suspect after he reached down into the car, despite police commands to “show his hands,” and then clasped his hands into a shooting posture, pointing them at the officers. The suspect's mother, Kathryn Pollard, brought a 42 U.S.C. § 1983 suit against the officers, alleging excessive force in violation of the Fourth Amendment. We reverse the district court's denial of qualified immunity because the suspect's conduct gave the officers probable cause to believe the suspect had a gun and thereby posed a threat of serious physical harm.
During the summer of 2007, Abram Bynum became a suspect in several rapes around Los Angeles, California. A swab of Bynum's DNA matched samples from five different crime scenes, and a warrant was issued for Bynum's arrest on several charges, including forcible rape, assault with a deadly weapon, burglary, and kidnapping. Because Bynum had moved to Columbus, Ohio, where his twin brother lived, the Columbus Division of Police (CPD) was called to assist with the arrest.
On the morning of July 7, 2009, a team of Columbus officers, including Michael Yinger and John O'Donnell, began surveillance on Bynum. L.A. detectives were scheduled to arrive in Columbus that afternoon, and the plan was to arrest Bynum following their arrival. The team set up outside the brothers' apartment and tracked the brothers as they drove around Columbus before returning to their apartment at 3:35 PM. While the brothers were in the apartment, Yinger and another officer phoned supervisor Sergeant Terry McConnell. McConnell told the officers to arrest Bynum and detain his brother if they left again. Moments later, the brothers left the apartment, driving in separate vehicles and in different directions.
The surveillance team split up and Yinger and O'Donnell began following Bynum from their unmarked vehicle. As they drove, McConnell radioed for a marked cruiser to make the arrest. The arrest charges, McConnell explained, were out of the sexual abuse squad and Bynum was potentially armed. Nathan Amstutz, driving in Cruiser 91, responded and drove behind Bynum's Cadillac, his lights and siren activated. Bynum refused to stop, leading Amstutz through several streets and running five stop signs. Two other cruisers, Cruiser 144 carrying James Estepp and Curtis Kinney and Cruiser 143 carrying William Edwards and Emanuel Edwards, later joined the pursuit. At this point, a total of four vehicles were following Bynum—the surveillance car with Yinger and O'Donnell and the three cruisers with Amstutz, Estepp, Kinney, W. Edwards, and E. Edwards.
Around 3:55 PM, Bynum entered I–70 East, zigzagging through highway traffic. Bynum drove for some time before eventually crossing the median. But instead of making a U-turn, Bynum drove against traffic down I–70 West and accelerated toward a semitrailer in the center lane. The semitrailer swerved to avoid Bynum but Bynum swerved to meet it, leading to a head-on collision. The Cadillac spun to a halt on the inside shoulder. The car's front end was badly damaged, the car's hood was jammed upward, the doors were smashed in, and the windows were shattered.
After the collision, the cruisers and surveillance car approached the Cadillac as it was radioed that the Cadillac's driver had a concealed-carry permit, information which later proved false as the permit was possessed by Bynum's brother. Video from Cruiser 91's dashboard camera shows that Kinney and Estepp were the first on the scene (15:59:12 1). Seconds later, Amstutz exited his cruiser and approached as well (15:59:15). Amstutz and Estepp stood on the driver's side while Kinney stood on the passenger's side (15:59:23). The video shows the officers peering into the Cadillac and two officers unsuccessfully trying to open the car doors (15:59:28). One officer can also be seen sticking his hands through the passenger-side window (15:59:28).
Yinger and O'Donnell next approached while Amstutz radioed that Bynum appeared unconscious and that Amstutz would leave to check on the semitrailer driver (15:59:33). Then the video shows the officers surrounding the Cadillac all take a pronounced step away from the Cadillac (15:59:52), in apparent response to Bynum moving inside. The inside of the Cadillac and any movement from Bynum are not visible from the video.
According to the officers' testimony and eyewitness reports, after Bynum regained consciousness, he reached down into the Cadillac. Several described Bynum appearing to reach toward the floorboard as though searching for something. ( See R. 33–5, Page ID # 338, ¶ 29; R. 33–8, Page ID # 349, ¶ 25; R. 51–15, Page ID # 1383.) The officers ordered Bynum to “show his hands.” But instead of showing his open palms, Bynum extended his arms and clasped 2 his hands into a shooting posture, pointed at the officers. Several officers called out “Don't do it” and a civilian eyewitness heard one officer order Bynum to “Drop it.” Bynum responded by reaching down into the Cadillac again before making the same shooting posture. ( See R. 33–5, Page ID # 338, ¶ 30; R. 33–8, Page ID # 350, ¶ 29.) At 16:00:06, roughly eight seconds after Bynum's initial movement, Yinger and O'Donnell shot at Bynum. The volley lasted roughly three seconds.
After the volley, Amstutz, E. Edwards, and W. Edwards raced in, weapons drawn. (16:00:20.) According to the officers and eyewitnesses, Bynum again reached down into the Cadillac and pointed his hands in the clasped shooting posture. ( See R. 33–13, Page ID # 385.) A second volley of shots was then fired at 16:00:21 by Yinger, Estepp, Amstutz, E. Edwards, and W. Edwards. 3
In total, the officers fired 80 shots at Bynum, killing him. The autopsy report states that 23 of the bullets struck Bynum. No gun was ever recovered from the Cadillac.
Kathryn Pollard, Bynum's mother, brought this § 1983 claim as administrator of her son's estate. Pollard also brought a Monell claim against the City of Columbus and state-law claims against the officers, including wrongful death. The officers and the City moved for summary judgment. The district court granted the motion as to all state-law claims except for wrongful death and denied the motion on the § 1983 and Monell claims, declining to grant qualified immunity. This interlocutory appeal followed.
The threshold question we face is whether we have jurisdiction to entertain the officers' interlocutory appeal. Pollard claims we do not and has filed a motion to dismiss this appeal for lack of jurisdiction. Ordinarily, the denial of summary judgment is not a “final order” and thus not immediately appealable. 28 U.S.C. § 1291. But under the “collateral order” doctrine, any summary judgment order denying qualified immunity is immediately appealable to the extent it is “based on a pure issue of law.” Leary v. Livingston Cnty., 528 F.3d 438, 447–48 (6th Cir.2008).
The district court denied the officers summary judgment, finding a “genuine issue of material fact as to whether Defendants' actions were objectively reasonable.” We, however, are not bound by a district court's findings when deciding the availability of our own jurisdiction. See Chappell v. City of Cleveland, 585 F.3d 901, 906 (6th Cir.2009). Pollard disagrees. Pointing to Romo v. Largen, 723 F.3d 670 (6th Cir.2013), she argues an appeals court must accept a district court's findings of genuine dispute.
But in Romo, the dispute barring summary judgment was a classic factual dispute. That is, a dispute over which set of facts to believe: whether the officer saw the arrestee's pickup pass a semitanker before arresting him or whether the officer made the story up. Id. at 674. Under those circumstances, the Romo court was properly bound by the district court's finding that competing factual narratives existed and that it could not, at summary judgment, choose between them. Id.
Unlike in Romo, we are not presented with “dueling accounts of what happened.” Id. at 670. Pollard asserts that, at the time the officers fired, Bynum was unarmed, injured, and trapped in the Cadillac. However, the officers do not dispute that account. See Appellant Br. at 20 (), 37 (no gun in the Cadillac), 51 (Bynum could not escape). They simply maintain that, despite being unarmed, injured, and trapped, Bynum was still a threat, first, because he appeared to have a gun and, second, because they had strong reason to believe he would use the gun. Because the officers “concede the facts in the light most favorable to [the appellee], they ‘raise a pure issue of law,’ ” Mingus v. Butler, 591 F.3d 474, 479 (6th Cir.2010), which this court may entertain on appeal. Thus, we deny Pollard's motion to dismiss for lack of jurisdiction with respect to the officer-defendants.
Because a municipality is not entitled to qualified immunity, Owen v. City of Independence, 445 U.S. 622, 657, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), the...
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