878 F.3d 541 (6th Cir. 2017), 15-2306, Latits v. Phillips

Docket Nº:15-2306
Citation:878 F.3d 541
Opinion Judge:JANE B. STRANCH, Circuit Judge.
Party Name:Debbie Jean LATITS, as Personal Representative of the Estate of Laszlo John Latits, Deceased, Plaintiff-Appellant, v. Lowell PHILLIPS, Police Officer for the City of Ferndale, Defendant-Appellee.
Attorney:Kevin Ernst, ERNST LAW FIRM, Detroit, Michigan, Dean Elliott, DEAN ELLIOTT, PLC, Royal Oak, Michigan, for Appellant. Lindsey A. Peck, SEWARD PECK & HENDERSON, Royal Oak, Michigan, for Appellee.
Judge Panel:Before: CLAY and STRANCH, Circuit Judges; BLACK, District Judge. CLAY, Circuit Judge, concurring in part and dissenting in part.
Case Date:December 27, 2017
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Ferndale Officer Jaklic stopped Latits for turning the wrong way onto a divided boulevard after midnight. Latits opened his glove box to retrieve his registration. Jaklic testified that he saw bags that he suspected to contain marijuana, which Latits attempted to move. A dashboard video shows that Jaklic pointed his gun at the ground for about 30 seconds, then pointed it, point-blank. Jaklic... (see full summary)


Page 541

878 F.3d 541 (6th Cir. 2017)

Debbie Jean LATITS, as Personal Representative of the Estate of Laszlo John Latits, Deceased, Plaintiff-Appellant,


Lowell PHILLIPS, Police Officer for the City of Ferndale, Defendant-Appellee.

No. 15-2306

United States Court of Appeals, Sixth Circuit

December 27, 2017

Page 542

[Copyrighted Material Omitted]

Page 543

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:12-cv-14306— Stephen J. Murphy III, District Judge.


Kevin Ernst, ERNST LAW FIRM, Detroit, Michigan, Dean Elliott, DEAN ELLIOTT, PLC, Royal Oak, Michigan, for Appellant.

Lindsey A. Peck, SEWARD PECK & HENDERSON, Royal Oak, Michigan, for Appellee.

Before: CLAY and STRANCH, Circuit Judges; BLACK, District Judge.


JANE B. STRANCH, Circuit Judge.

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Lowell Phillips, then a Ferndale Police Officer, ended a car chase on the outskirts of Detroit by ramming Laszlo Latits's car off the road and then shooting and killing Latits as he tried to resume flight. Latits's widow sued former Officer Phillips under 42 U.S.C. § 1983 alleging that Phillips's actions violated the Fourth Amendment. The district court granted summary judgment to Phillips, concluding that the shooting was reasonable. We determine that Phillips's use of deadly force was objectively unreasonable, in violation of the Fourth Amendment. Caselaw existing at the time of the events, however, did not clearly establish the objective unreasonableness of Phillips's actions in the circumstances of this case. Phillips is therefore entitled to qualified immunity and we must AFFIRM.


The events of this case were recorded by video cameras mounted on the dashboards of four separate police cars. Consequently, we describe the facts " in the light depicted by the videotape." Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Because this appeal arises from the Defendant's motion for summary judgment, we view any relevant gaps or uncertainties left by the videos in the light most favorable to the Plaintiff. See

Godawa v. Byrd, 798 F.3d 457, 463 (6th Cir. 2015) (accepting the plaintiff's version of the facts because they were not " clearly contradict[ed]" by the video). Facts are also provided by deposition testimony and other evidence presented in the district court.

After midnight on June 24, 2010, Ferndale Police Officer Kenneth Jaklic stopped Latits for turning the wrong way onto a divided boulevard. Jaklic approached the car with a flashlight. Latits produced his driver's license and opened his glove box to retrieve his registration and insurance documents. Officer Jaklic testified that inside the box he saw one or more bags that he suspected to contain marijuana and a pill bottle, all of which Latits attempted to move under the passenger seat. Jaklic testified that he then told Latits to get out of the car. The video recorded by the officer's dashboard camera shows that Jaklic took out his gun about eight seconds after walking up to the car, and then stood at Latits's window shining his flashlight into the car and pointing the gun at the ground for about thirty seconds. Officer Jaklic then raised his gun and pointed it at Latits's head at point-blank range. Latits drove away, and Jaklic ran back to his police car to pursue him.

Officer Jaklic broadcast that he was pursuing a fleeing vehicle and other officers headed in that direction to join the chase. Jaklic announced that he was chasing a suspect for a traffic violation and possible health code violation, including " stashing some narcotics underneath his chair." After fleeing from Jaklic for nearly two minutes (during which time Latits's car cannot be seen clearly on video), Latits entered an empty parking lot. Officer Jaklic's car entered the parking lot and slowly moved into the path of Latits's car, at which time Latits can be seen steering away from

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Jaklic's car to avoid colliding. Officer Jaklic then broadcast that Latits " tried to ram my vehicle." Another officer can be heard asking to clarify whether Latits rammed the patrol car, to which Jaklic responded: " He tried to." At his deposition, Officer Jaklic admitted that Latits in fact turned his wheel and got out of the way to avoid hitting the patrol car.

At the moment of the near miss of the cars of Latits and Jaklic, the dashboard camera of the Defendant, Officer Phillips, shows that the parking lot where Latits was located was just ahead of Phillips. The district court determined that a reasonable jury could find from the video that Officer Phillips could see that Latits did not try to ram Jaklic and therefore knew that Officer Jaklic's statement otherwise was false.

After avoiding Officer Jaklic's car, Latits fled the parking lot, turning south on to a ten-lane divided highway. Three officers were now chasing close behind Latits: Officer Andrew Wurm first, Officer Jaklic second, and Officer Phillips third.1 All three had dashboard cameras recording their perspectives of the chase.

For approximately thirty seconds, Latits led the three officers southbound down the highway at about sixty miles per hour, passing through two red lights. No pedestrians or other cars are visible on the nighttime highway except one parked car two lanes away from Latits. The highway was bounded by a cemetery on one side and a commercial zone and vacant state fairgrounds on the other.

Latits next attempted to make a U-turn but partially ran over the curb of the grassy highway median. Wurm, still the first officer behind Latits, also attempted to make the U-turn, and collided with the rear driver's side of Latits's car.2 Officer Wurm then broadcast over the police radio: " Oh, I just hit him." Officer Phillips was following shortly behind Officers Wurm and Jaklic, and the district court determined that a jury could find that Phillips knew that Wurm's car hit Latits's car. As the cars tried to reorient on the highway, Officer Wurm again collided with the rear of Latits's car, at which time an officer (presumably Wurm) can be heard exclaiming: " Shit!" Officer Phillips, close behind Wurm and Jaklic, could see Wurm hit Latits a second time. An officer can then be heard saying: " This guy's all over the road, he's hit me several times." The videos, however, show that Latits had not hit any police cars; rather, he had turned to avoid hitting Officer Jaklic and had been hit twice by Officer Wurm.

The two impacts by Officer Wurm's car apparently caused Latits to lose control of his car, which swerved to the right and then back left across three lanes. No pedestrians or cars besides those of Latits and the officers are visible on the video during this time. Latits's car then straightened out and traveled northbound for nearly five seconds. While Latits was swerving, Officer Phillips sped past Officers Jaklic and Wurm and, nearly five seconds after Latits's car had straightened out, Phillips rammed Latits's car from the

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back left, pushing it across two lanes of traffic and off the road.3 Officer Phillips's ramming caused Latits's car to spin out onto an area of grass and concrete to the right.

When Latits's car stopped it was parallel and to the right of Officer Phillips's car. Officer Wurm pulled onto the grass parallel to the opposite side of Latits's car. Latits slowly began to drive forward through the opening between the cars of Phillips and Wurm, while Officer Jaklic slowly drove towards the same opening from the opposite direction in an apparent attempt to block it. Latits's and Jaklic's cars then had a very low-speed head-on collision. Officer Jaklic testified that he was not injured and his police car suffered minimal damage to the push bar on its front end.

At about the same time, Officer Phillips jumped out of his car and ran toward Latits's car from behind it.[4] Phillips was alongside Latits's front passenger-side door when Latits started reversing away from Officer Jaklic's car.5 Latits's car can be seen reversing past Officer Phillips and out of the frame of one dashboard camera with Phillips following on foot. One second later, Latits's car can be seen reversing into the frame of Phillips's dashboard camera, and what is apparently gunshots can be heard. Latits's car rolls to a stop as Phillips enters the frame with his gun raised. The dashboard camera of a fourth officer arriving at the time Latits was shot shows that no cars or persons were immediately behind Latits as he reversed. Officer Phillips, following in the same direction in which Latits was reversing, could see that no one was in Latits's direct path.

Seven shell casings were recovered from the scene matching Officer Phillips's gun.6 Latits was struck by three bullets and died at the hospital later that morning. The autopsy reported that the...

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