Mullins v. Cyranek

• Decision Date: 09 November 2015
• Docket Number: No. 14–3817.,14–3817.
• Citation: 805 F.3d 760
• Parties: Leona MULLINS, Individually and as the Administratrix of the Estate of Davon L. Mullins, Plaintiff–Appellant, v. Oscar CYRANEK, City of Cincinnati Police Officer, Individually, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

805 F.3d 760

Leona MULLINS, Individually and as the Administratrix of the Estate of Davon L. Mullins, Plaintiff–Appellant
v.
Oscar CYRANEK, City of Cincinnati Police Officer, Individually, Defendant–Appellee.

No. 14–3817.

United States Court of Appeals, Sixth Circuit.

Argued: April 22, 2015.
Decided and Filed: Nov. 9, 2015.

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ARGUED:Christopher D. Roach, The Deters Firm, Cincinnati, Ohio, for Appellant. Peter J. Stackpole, City of Cincinnati, Cincinnati, Ohio, for Appellee. ON BRIEF:Christopher D. Roach, The Deters Firm, Cincinnati, Ohio, for Appellant. Peter J. Stackpole, City of Cincinnati, Cincinnati, Ohio, Donald E. Hardin, Hardin, Lefton, Lewis & Marks, LLC, Cincinnati, Ohio, for Appellee.

Before: DAUGHTREY, GIBBONS, and GRIFFIN; Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Leona Mullins brought this 42 U.S.C. § 1983 action on behalf of the estate of her sixteen-year-old son, Davon Mullins, after Oscar Cyranek—a Cincinnati police officer—fatally shot Mullins during a stop and frisk. Mullins's mother alleges Cyranek used excessive force in violation of the Fourth Amendment by firing two shots at Mullins, despite Mullins having already released his weapon. She now appeals the district court's grant of summary judgment to Cyranek based on the court's determination that he was entitled to qualified immunity. For the reasons that follow, we affirm the district court.

I.

On the afternoon of August 20, 2011, Cyranek, a police officer with the Cincinnati Police Department, was assigned to provide security outside the Black Family Reunion at Sawyer Point. During this time, Cyranek and the other officers on duty were informed that some young African American males were throwing guns over the fence to individuals who were

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already inside the event. After Cyranek and the other officers approached, the suspected individuals ran towards downtown Cincinnati.

Cyranek and the other officers were then told to provide extra security at Government Square and Fountain Square. While at Government Square, Cyranek saw Davon Mullins walking from Fountain Square. Although Cyranek did not recognize Mullins, he recognized the two other individuals with Mullins from Sawyer Point. Cyranek observed Mullins holding his right side, which led Cyranek to suspect that Mullins possessed a weapon. Cyranek continued to observe Mullins and followed him back toward Fountain Square. According to Cyranek, each time Mullins saw Cyranek he would position the right side of his body away from Cyranek. This movement made Cyranek even more suspicious that Mullins had a weapon. Despite his concern, Cyranek did not alert any other officers or radio in any reports of his concern.

Cyranek turned into the breezeway from Fountain Square as Mullins and his friend Recardo Sims entered the breezeway walking towards Fountain Square. Cyranek testified that he was surprised to see Mullins because, in his experience, most people carrying illegal items flee when they see a police officer. Cyranek told Mullins to stop and Mullins complied. Cyranek then approached Mullins and grabbed his wrists because he wanted to prevent Mullins from pulling out a gun, fighting him, or running away.

According to Cyranek, Mullins resisted when Cyranek grabbed his wrists. In response, Cyranek pushed Mullins into an L-shaped corner of the breezeway to ensure the safety of the people in Fountain Square. Recardo Sims, the only witness present, testified in his affidavit that it was Cyranek who started “tussling” with Mullins. Sims Aff. 1:7, ECF No. 34–2. As evidenced in the security footage, while still holding onto Mullins, Cyranek pushed Mullins to the ground and ended up behind Mullins's back. Cyranek testified that he was able to keep Mullins down on the ground because he was bigger than Mullins. And according to Sims, Mullins was struggling to protect himself as he was much smaller than Cyranek. During this time, Cyranek checked one side of Mullins's cargo pants as Mullins said something along the lines of “I didn't do anything.” Cyranek Dep. 161–62, ECF No. 27. The entire confrontation lasted nearly two minutes.

While Cyranek held Mullins to the ground, Mullins yelled something to Sims and Sims approached. According to Sims, he asked Cyranek what was going on and what Mullins did wrong, but Cyranek did not recall Sims saying anything to him. Cyranek claims that when he told Sims to step away, he saw that Mullins had a weapon in his right hand with the finger on the trigger. According to Sims, Cyranek told Mullins to drop the gun and, in response, Mullins threw it over Cyranek's left shoulder.¹

Cyranek testified that for nearly the entire encounter with Mullins he had his right hand on Mullins's right bicep and was able to control his arms. Sims also testified that Cyranek “was always in control of Davon.” Sims Aff. 2:11, ECF No. 34–2. But at some point after Mullins brandished the gun, he gained enough freedom from Cyranek's grip to throw his weapon ten to fifteen feet behind Cyranek.

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At the same time Mullins threw his gun, Sims turned and sprinted away from where Cyranek and Mullins were engaged. Likewise, other surveillance footage shows patrons at a crowded patio bar nearby visibly reacting to the events at this time.

As Mullins threw his gun, Cyranek quickly rose from his crouched position and fired twice. The footage shows that, at most, five seconds elapsed between when Mullins threw his firearm and when Cyranek fired his final shot. J. Scott Spicer, an Ohio police officer trained in the same procedures as Cyranek, testified that an officer is trained to fire twice only in a “ ‘body armor take-down’ situation,” otherwise an officer may fire to stop the aggressive action but then must reassess the threat, re-evaluate, and fire again if necessary. Spicer Aff. 6:39, ECF No. 34–1.

Surveillance video of the incident does not show precisely when, within the five second window, Cyranek fired his two shots. The only evidence of the timing of the shots are the bullet casings, which can be seen flying across the screen in one of the surveillance videos. The first casing appears approximately three seconds after Mullins threw his gun. The second casing appears approximately two seconds after the first. However, it bears noting that the bullet casings are not conclusive evidence of the precise timing of Cyranek's shots. The footage shows Cyranek first turn away from Mullins in the direction of where Mullins's gun landed while the second bullet casing flies into view. If we were to assume that the bullet casings appear instantaneously with the actual shots, then we would also have to assume that Cyranek fired his second shot while he was turned away from Mullins, but there is nothing in the record to support such an assumption.

After firing the two shots, Cyranek retrieved the gun that Mullins had thrown and placed it near Mullins's feet. Cyranek claims to have done so to secure the weapon so that no one else could pick it up. He acknowledged that in doing so he changed the scene of the shooting. As other officers arrived on the scene, Cyranek handcuffed Mullins.

Medics transported Mullins to a hospital where he was pronounced dead. An autopsy found the cause of death to be a gunshot wound to the torso. The post-mortem examination revealed that Mullins was shot in the back of his left shoulder and that the bullet traveled a downward path from left to right.

On May 16, 2012, alleging violations of rights guaranteed under the United States Constitution, Leona Mullins filed suit on behalf of her son's estate under § 1983.² She also asserted four state causes of action: wrongful death, negligence, assault, and battery. Cyranek moved for summary judgment, asserting qualified immunity. The district court determined that Cyranek was entitled to qualified immunity because he acted reasonably under the circumstances. Mullins v. Cyranek, No. 1:12CV384, 2014 WL 3573565, at *11–12 (S.D.Ohio July 21, 2014).

II.

A district court's grant of summary judgment is reviewed de novo. Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir.2006). Summary judgment is appropriate where the evidence in the record, viewed in its entirety, shows that there is

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no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(a). The court must assume the truth of the non-moving party's evidence, drawing all inferences in a light most favorable to that party. Ciminillo, 434 F.3d at 464. If, in doing so, there is sufficient evidence for a trier of fact to find for the non-moving party, a genuine dispute of material fact exists. Id.

III.

Police officers are immune from civil liability unless, in the course of performing their discretionary functions, they violate the plaintiff's clearly established constitutional rights. Messerschmidt v. Millender, ––– U.S. ––––, 132 S.Ct. 1235, 1244, 182 L.Ed.2d 47 (2012). Qualified immunity provides police officers “breathing room to make reasonable but mistaken judgments and protects all but the plainly incompetent or those who...