Pleasant v. Zamieski

• Decision Date: 28 March 1990
• Docket Number: No. 88-1378,88-1378
• Citation: 895 F.2d 272
• Parties: Anna PLEASANT, Personal Representative of the Estate of Jeffrey Pleasant, Deceased, Plaintiff-Appellant, v. Michael ZAMIESKI and City of Detroit, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 272

895 F.2d 272

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.

Argued May 26, 1989.

Decided Feb. 8, 1990.

Rehearing and Rehearing En Banc Denied March 28, 1990.

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 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

Pleasant also argues that the district court erred in failing to grant her judgment notwithstanding the verdict for her section 1983 claim against Zamieski. At the very least she suggests that a new trial should be ordered because the verdict below was against the great weight of the evidence. She argues that the facts establish all the requirements for a fourth amendment excessive force claim under Garner. We review the factual determinations of the jury under a standard of clearly erroneous. See, e.g., Connaughton v. Harte Hanks Communications, Inc., 842 F.2d 825 (6th Cir.1977).

In Garner the Supreme Court held that "[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable." 471 U.S. at 11, 105 S.Ct. at 1701. That is, "[a] police officer may not seize an unarmed, nondangerous suspect by shooting him dead." Id. Because Jeffrey Pleasant did not attempt to commit a violent crime, and because he never presented a physical threat to Zamieski or anyone else, Anna Pleasant asserts that Zamieski's use of deadly force constituted an unconstitutional fourth amendment seizure under Garner.

Zamieski argues that Garner does not apply to the present case. The facts in Garner involved the intentional use of deadly force to prevent the escape of an unarmed fleeing felon. Garner, 471 U.S. at 3-4, 105 S.Ct. at 1697-98. The present case involves the allegedly negligent use of a handgun in the course of apprehending a suspected felon. Anna Pleasant concedes that the shooting death of Jeffrey Pleasant was accidental, the product of negligence, not the deliberate use of deadly force. Zamieski argues, however, that negligence is not enough to sustain a section 1983 action. In Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986), the Court held that " 'deprive' in the Due Process Clause connote[s] more than a negligent act...." The Court in Daniels overruled its holding in Paratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) "to the extent that it states that mere lack of due care by a state official may 'deprive' an individual of life, liberty or property under the Fourteenth Amendment." Daniels, 474 U.S. at 330-31, 106 S.Ct. at 664-65. Zamieski also argues that "intent" was an implicit element of the Court's holding in Garner. ¹

Fortunately, the Supreme Court has recently clarified its holding in Garner so that the application of its principles is nonproblematic in this case. In Graham v. Connor, --- U.S. ----, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Court held that excessive force claims brought against law enforcement officials are to be analyzed under the "objective reasonableness" standard of the fourth amendment. Graham involved an investigative stop of Dethorne Graham, a diabetic who had quickly entered and exited a convenience store in Charlotte, North Carolina. Id. 109 S.Ct. at 1867-68. Graham had originally entered the store to purchase some orange juice to counteract an insulin reaction, but was dissuaded by the line of people ahead of him at the checkout counter. Id. at 1868. Connor, a Charlotte police officer, made an investigative stop of the vehicle in which Graham was travelling after observing Graham's suspicious movements. Back up assistance arrived shortly thereafter. According to Graham, the police refused to listen as he explained of his diabetic need for sugar. Sometime during the course of the stop, Graham sustained several injuries including a broken foot, several cuts and a bruised forehead. Id. Graham was released when the police...