Smith v. Freland

• Decision Date: 06 January 1992
• Docket Number: 91-3470,Nos. 91-3469,s. 91-3469
• Citation: 954 F.2d 343
• Parties: Patricia SMITH, Individually and as Administratrix of the Estate of Brent Robin Smith, Plaintiff-Appellant, v. James FRELAND; Peter Schulcz; and the City of Springdale, Ohio, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 343

954 F.2d 343

Patricia SMITH, Individually and as Administratrix of the Estate of Brent Robin Smith, Plaintiff-Appellant, v. James FRELAND; Peter Schulcz; and the City of Springdale, Ohio, Defendants-Appellees.

Nos. 91-3469, 91-3470.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 21, 1991.

Decided Jan. 6, 1992.

Marc D. Mezibov (argued and briefed), Matthew Brownfield, Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, Ohio, for Patricia Smith.

William R. Ellis, David Alan Caldwell (argued and briefed), Wood & Lamping, Cincinnati, Ohio, for James Freland and City of Springdale.

Robert J. Gehring (briefed), Law Firm of Robert J. Gehring, Cincinnati, Ohio, for Peter Schulcz, III.

Before BOGGS and SUHRHEINRICH, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

BOGGS, Circuit Judge.

Patricia Smith appeals the district court's grant of summary judgment for the defendants in this action, based on 42 U.S.C. § 1983. The case concerns the death of her son, who was shot by a policeman while fleeing in his car after a high-speed chase. She contends that the shooting was an unreasonable seizure violating his fourth amendment rights. Because the district court did not err in holding that the seizure was not unreasonable as a matter of law, we affirm the judgment of the district court.

I

The following facts are essentially undisputed. At approximately 9:28 p.m. on October 31, 1988, Officer Peter Schulcz of the Springdale police department saw a "Monte Carlo-type vehicle" come speeding out of an apartment complex. The car, driven by Brent Robin Smith, ran a stop sign, and Officer Schulcz gave pursuit. Rather than pulling over, Mr. Smith tried to escape, and led Officer Schulcz on a wild chase at speeds in excess of ninety miles per hour. At one point, Mr. Smith backed up in a field at the edge of an asphalt roadway. His car was spinning its tires and throwing up grass and dirt, and Officer Schulcz assumed that he was stuck and began to pull his police cruiser in front of Mr. Smith's car. Suddenly, Mr. Smith's car leaped forward and swerved toward Officer Schulcz's car. Officer Schulcz pulled his car to the right to avoid a collision and again tried to position himself in front of Mr. Smith. However, Mr. Smith once more swerved toward the police cruiser. Officer Schulcz allowed Mr. Smith to get in front of him, but told the county dispatcher that Mr. Smith was now wanted for assault on a police officer.

By this time, the cars had left Springdale and entered Sharonville, another Cincinnati suburb in the northern part of Hamilton County, Ohio. Janice Gordon, a Sharonville police officer, had heard Officer Schulcz's description of the chase. She placed her car in Mr. Smith's path, attempting to block him. However, she had left room for him to maneuver around her, and he did so, driving past at high speed with Officer Schulcz still in pursuit.

After fleeing Officer Schulcz for approximately 2.6 miles, Mr. Smith pulled onto Woodbine Avenue in Sharonville, a dead-end residential street approximately fifteen to twenty feet wide. At the end of the street, Mr. Smith tried to turn his car around on a lawn. Officer Schulcz, attempting to prevent Mr. Smith from escaping, placed his car as close to Mr. Smith's as possible. Eventually, the cars came nose to nose. A building associated with a local swimming pool was behind Mr. Smith's car, and a fence with a gate was on Mr. Smith's left. Officer Schulcz then got out of his car and moved around its rear, intending to remove Mr. Smith from his car.

Suddenly, Mr. Smith backed up his car, then sped forward and crashed into Officer Schulcz's car. He backed up again and zoomed around the police car, smashing into the fence and gate as he did so. As Mr. Smith's car drove past, Officer Schulcz pulled his gun and fired one shot at it. The bullet entered the passenger side of the car, pierced the passenger seat, then struck Mr. Smith in his right side, killing him. The entire incident, beginning with Officer Schulcz's first sighting of Mr. Smith, lasted about four minutes. The parties were on Woodbine Avenue for approximately sixty-seven seconds.

On August 30, 1989, Patricia Smith, individually and as administratrix of the estate of her son, Mr. Smith, filed a complaint in the Southern District of Ohio. She sought punitive and compensatory damages, and alleged violations of 42 U.S.C. § 1983 by Officer Schulcz, Acting Springdale Police Chief James Freland, and the City of Springdale. Specifically, she claimed that (1) Officer Schulcz's use of deadly force was excessive and unreasonable; (2) Springdale and Chief Freland had in effect ratified Officer Schulcz's actions by failing to discipline him or take any corrective action with regard to their policies and procedures; and (3) by their actions the defendants had violated Mr. Smith's rights under the fourth, eighth, and fourteenth amendments. She also claimed that they had deprived her of her liberty interest in her relationship with her son. Finally, the complaint alleged state claims under the Ohio wrongful death and survival of actions statutes. Ohio Rev.Code Ann. §§ 2125.01, 2305.21.

On December 7, 1990, Springdale and Chief Freland filed a joint motion for summary judgment. They claimed that a single incident of unconstitutional conduct by a municipal employee is insufficient to impose municipal liability upon them under § 1983, and that state law makes them immune from liability with respect to state law claims. Officer Schulcz subsequently filed a motion for summary judgment, claiming that he should receive qualified immunity because he reasonably believed that Mr. Smith represented a major threat to his safety. On May 9, 1991, the district court held that Officer Schulcz had not deprived Mr. Smith of his constitutional rights, and granted his motion for summary judgment. Since it concluded that Mr. Smith had not suffered any constitutional deprivation, it also dismissed the claims against Springdale and Chief Freland. Having dismissed the federal claims, it concluded that it no longer had jurisdiction over Ms. Smith's state claims. This timely appeal followed.

II

In reviewing grants of summary judgment, we use the same test as used by the district court. See Equal Employment Opportunity Comm'n v. University of Detroit, 904 F.2d 331, 334 (6th Cir.1990). As a respondent to a motion for summary judgment, Ms. Smith is required by Fed.R.Civ.P. 56(e) to "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.' " Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

To determine whether Ms. Smith has demonstrated the existence of a genuine issue for trial, we must set forth the legal requirements that govern her claim. To collect damages under § 1983, Ms. Smith must show that Officer Schulcz violated her son's fourth amendment right to be free from unreasonable searches and seizures, which has been applied to states and municipalities by the fourteenth amendment. As the Supreme Court has stated, "all claims that law enforcement officers have used excessive force--deadly or not--in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard, rather than under a 'substantive due process' approach." Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989) (emphasis in original). The eighth amendment does not apply to this case, because "Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions." Ingraham v. Wright, 430 U.S. 651, 671 n. 40, 97 S.Ct. 1401, 1412 n. 40, 51 L.Ed.2d 711 (1977).

Thus, to survive a motion for summary judgment, Ms. Smith must designate specific facts demonstrating that Officer Schulcz acted unreasonably in shooting her son. In Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 1701, 85 L.Ed.2d 1 (1985), the Supreme Court addressed the issue of when policemen may reasonably use deadly force. It struck down a state statute that authorized the use of deadly force against fleeing suspected felons, including those who were unarmed and presented no danger. However, the Court did not forbid all use of deadly force in seizing suspects. Instead, it established the following rule:

Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.

471 U.S. at 11, 105 S.Ct. at 1701. In the proceedings below, the district court held that Officer Schulcz's actions met this standard, even though it decided that "Officer Schulcz was not in any immediate personal danger at the time he discharged his weapon." It concluded that a "reasonable officer in those circumstances would certainly believe that if Mr. Smith continued this escape attempt, he posed a significant threat of physical injury to numerous others." Thus, it determined that Officer Schulcz did not violate Mr. Smith's rights.

On appeal, Ms. Smith claims that the district court overlooked certain issues of material fact in its decision. Specifically, she avers that at the very moment Officer Schulcz shot Mr. Smith, a police roadblock at the end of Woodbine Avenue prevented any escape by Mr. Smith and rendered the use of deadly force completely unnecessary. Moreover, she argues, a reasonable officer could have known about the roadblock when he shot Mr. Smith. To support this argument, Ms. Smith notes that Officer Schulcz first radioed the Hamilton County Communications Center that he was "in pursuit" of Mr. Smith's car soon after he began to give chase. Having done so, he should...