895 F.2d 272 (6th Cir. 1990), 88-1378, Pleasant v. Zamieski

Docket Nº:88-1378.
Citation:895 F.2d 272
Party Name:Anna PLEASANT, Personal Representative of the Estate of Jeffrey Pleasant, Deceased, Plaintiff-Appellant, v. Michael ZAMIESKI and City of Detroit, Defendants-Appellees.
Case Date:February 08, 1990
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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895 F.2d 272 (6th Cir. 1990)

Anna PLEASANT, Personal Representative of the Estate of

Jeffrey Pleasant, Deceased, Plaintiff-Appellant,

v.

Michael ZAMIESKI and City of Detroit, Defendants-Appellees.

No. 88-1378.

United States Court of Appeals, Sixth Circuit

February 8, 1990

Argued May 26, 1989.

Rehearing and Rehearing En Banc Denied March 28, 1990.

Page 273

Frank G. Becker (argued), Southfield, Mich., Mark Granzotto, Detroit, Mich., for plaintiff-appellant.

Marion Jenkins (argued), Stuart Trager, Law Dept. for the City of Detroit, Detroit, Mich., for defendant-appellee.

Before MERRITT, Chief Judge, MARTIN, Circuit Judge, and LIVELY, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

This case arose from the accidental shooting death of Jeffrey Pleasant by Michael Zamieski, a Detroit police officer. This appeal follows a directed verdict for the City of Detroit and a jury verdict in favor of Zamieski. For the reasons stated below, we affirm.

The shooting occurred on the night of August 11, 1985, shortly after Pleasant unsuccessfully attempted to steal an automobile located in the parking lot of the Taystee Bakery in Detroit. Michael Zamieski, an off-duty Detroit police officer, was called to the scene by a bakery employee who observed Pleasant's actions. Zamieski approached the car in which Pleasant was seated. He identified himself as a police officer and showed Pleasant his badge and gun. Zamieski told Pleasant to get out of the car. Initially, Pleasant refused. Pleasant then left the car and began to climb over a fence located near it. As Zamieski grabbed Pleasant from behind, Zamieski's gun accidentally discharged, firing a fatal shot into Pleasant's back.

Anna Pleasant, Jeffrey Pleasant's mother and the personal representative of his estate, originally filed this action in Wayne County Circuit Court on July 1, 1986. In her complaint, Pleasant alleged that Zamieski and the City of Detroit violated certain provisions of the Michigan Constitution. She further alleged that Zamieski and the City injured Jeffrey Pleasant through their negligent acts and by assault and battery.

Anna Pleasant also complained that Officer Zamieski and the City of Detroit violated Jeffrey Pleasant's rights guaranteed under the federal Constitution. These claims were brought under 42 U.S.C. Sec. 1983. Specifically, Pleasant alleged that Zamieski's conduct deprived Jeffrey Pleasant "of

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constitutionally protected rights, privileges and immunities including the right to be free from the unreasonable seizures of his person through the use of grossly excessive and unnecessary force as protected by the Fourth Amendment ... and to be free from summary punishment and the use of force protected by the Fifth and Fourteenth Amendments of the United States Constitution." Similarly, she complained that the City of Detroit failed to instruct its police officers, including Officer Zamieski, "with regard to constitutional protections afforded to persons ... to be free from deadly force pursuant to the Fourth, Fifth and Eighth Amendments to the United States Constitution." She alleged that this failure resulted in the deprivation of Jeffrey Pleasant's right "to be free of unreasonable searches and seizures...."

The case was removed to United States District Court for the Eastern District of Michigan in August 1986. A jury trial was held in November 1987. At the conclusion of Pleasant's case, the court granted the defendant's motion for directed verdict on all claims as it applied to the City of Detroit. The motion was denied as applied individually to Zamieski. On November 19, 1987, the jury returned a verdict in favor of Zamieski on all claims. Pleasant filed a timely appeal shortly after her motions for judgment not withstanding the verdict and for a new trial were denied.

I. Claim Under Section 1983 Against the City of Detroit

Anna Pleasant here asserts that the district court erred in granting a directed verdict in favor of the City of Detroit on the section 1983 claim. She argues that Detroit's stated general policy regarding the use of deadly force by its police officers violates the constitutional requirements articulated in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), and that it proximately caused the death of Jeffrey Pleasant. In Garner the Supreme Court held unconstitutional Tennessee's statute governing the use of force during arrest insofar as it authorized the use of deadly force against unarmed, nondangerous suspects. 471 U.S. at 11, 105 S.Ct. at 1701.

Before Anna Pleasant can succeed in her claim against Detroit, she concedes that Detroit, as a municipality, can be held liable only for constitutional violations that occur as a result of its policy or custom. Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Zamieski testified that he acted pursuant to the City of Detroit's policy regarding the use of force during arrest when he attempted to arrest Jeffrey Pleasant. Pleasant argues that this testimony shows that a directed verdict in favor of Detroit was improper.

We disagree. Pleasant reads one sentence of Detroit's policy regarding the use of force wholly out of context. Pleasant would have us believe that Detroit authorizes the use of deadly force against suspected felons who are merely obstinate in resisting arrest. In fact, Detroit's policy states, in part, that "[n]o amount of force is too great in making an arrest if it is necessary to overcome obstinate and dangerous resistance." (emphasis added). This same policy elsewhere provides that deadly force "is not to be used in misdemeanor cases. It may be used in felony cases where absolutely necessary and set forth in department rules, regulations, order and procedures."

When reviewing a motion for directed verdict, we must consider the evidence in the light most favorable to the non-moving party. Rockwell International Corp. v. Regional Emergency Medical Services, 688 F.2d 29, 31 (6th Cir.1982). Taken as a whole, Detroit's policy, unlike the policy in Garner, does not authorize police officers to shoot unarmed, fleeing suspects. As such, Detroit has no policy condoning violations of the Constitution. Monell, 436 U.S. 658, 98 S.Ct. at 2019. A directed verdict in favor of Detroit was proper.

II. Claim Under Section 1983 Against Officer Zamieski

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