Rush v. City of Lansing, 022916 FED6, 15-1225

Docket Nº:15-1225
Opinion Judge:McKEAGUE, Circuit Judge.
Party Name:MARY RUSH, Personal Representative of the Derrinesha Clay Estate, Plaintiff-Appellee, v. CITY OF LANSING, Defendant, OFFICER BRIAN RENDON, Defendant-Appellant.
Judge Panel:BEFORE: BATCHELDER, McKEAGUE, and STRANCH, Circuit Judges. STRANCH, Circuit Judge, dissenting.
Case Date:February 29, 2016
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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MARY RUSH, Personal Representative of the Derrinesha Clay Estate, Plaintiff-Appellee,

v.

CITY OF LANSING, Defendant,

OFFICER BRIAN RENDON, Defendant-Appellant.

No. 15-1225

United States Court of Appeals, Sixth Circuit

February 29, 2016

         NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

         ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

          BEFORE: BATCHELDER, McKEAGUE, and STRANCH, Circuit Judges.

          OPINION

          McKEAGUE, Circuit Judge.

         Three Lansing Police Department officers responded to an early morning alarm at a bank and found Derrinesha Clay hiding in a storage closet armed with scissors. Officers Brian Rendon and Jillian Johnson struggled with Clay and eventually got the scissors away from her, but Clay drew a knife and slashed at Rendon. While backing away, Rendon shot Clay twice, first in the stomach and then in the head. Clay died from her wounds, and Mary Rush, the representative of Clay's estate, sued the City of Lansing and Officer Rendon for violating Clay's civil rights. The district court denied summary judgment to Rendon, holding that he was not entitled to qualified immunity because there is a genuine dispute of material fact about whether it was reasonable for Rendon to fire the second shot. But qualified immunity is intended to protect officers in situations where they must make split-second, life-or-death decisions, and based on the record evidence, we conclude as a matter of law that Officer Rendon's actions were not objectively unreasonable. Accordingly, we reverse.

         I

         In the early morning on March 14, 2011, Officers Brian Rendon, Jillian Johnson, and David Burke of the Lansing Police Department responded to an alarm call from a local bank. Rush v. City of Lansing, No. 13-CV-1317, 2015 WL 632321, at *1 (W.D. Mich. Feb. 13, 2015). Once inside the bank, Johnson and Rendon approached a storage room behind the teller counter, declared that they were the police, and ordered anyone in the storage room to come out with their hands up. Id. The officers discovered Derrinesha Clay, a "very small" seventeen-year-old woman, hiding inside the room. Id. at *1–2.

         Officer Rendon, gun drawn, noticed that Clay was holding and waving a pair of scissors and forced her to the ground while holstering his gun. Id. at *2. Officer Johnson attempted to pry the scissors from Clay's hand, and both Rendon and Johnson ordered Clay to let go of the scissors. Id. Clay rose to her knees while still holding and waving the scissors and moved toward Rendon. Id. Johnson testified that Clay "was frantic, shaking, and saying 'I'm sorry, I'm sorry.'" Id. After a struggle between Johnson, Rendon, and Clay, Johnson was able to get the scissors out of Clay's hand. Id. At that point, Johnson was in the storage room behind Clay, Rendon was at the door's threshold, facing Clay, and Burke was just outside the room, one to two feet to the side of Rendon. Id.

         After Johnson forced the scissors away from Clay, Rendon was standing in the doorway with one hand on Clay's shoulder when Clay pulled a serrated steak knife from her coat. Id. Rendon yelled "knife, " Johnson backed away from Clay, and Clay, still kneeling, slashed the knife back and forth at Rendon at stomach height from about an arm's length away. Id. at *2–3. Rendon let go of Clay's shoulder, stepped backwards out of the room, pulled his gun from its holster, and fired one shot into Clay's stomach. Id. at *3. After the shot, Rendon was just out of arm's reach from Clay. Id.

         The officers' testimony varies as to Clay's reaction to Rendon's first shot. In Rendon's deposition, he testified that he shot Clay in the stomach, "[a]nd then right simultaneously when I shot her in the stomach area she lunged at me with the knife, and I shot her again." R. 29-3, Rendon Dep. at 48, Page ID 333. When questioned further, he confirmed that Clay lunged again after the first shot. Officers Johnson and Burke, however, testified that Clay did not lunge at Rendon after the first shot. Johnson testified that Clay's body "tensed up and fell backwards after the first shot." Rush, 2015 WL 632321, at *3. Burke testified that Clay "slouched over" after the first shot. Id. But all three officers agreed that Rendon then fired his weapon a second time, shooting Clay in the head-a wound that proved fatal. Id.

         Although the district court made no mention of the time between shots, all three officers also agreed that Rendon's two shots occurred very close together in time. Officer Johnson gave the following testimony in her deposition:

A: As I stood up, I pulled my firearm out. As I got it up, I heard two shots.

A: It all kind of happened at the same time. She-I want to say her whole body just kind of tensed up and went backwards. Q: And that's when you heard a second shot?

A: Yes. The two shots were very close together.

R. 29-2, Johnson Dep. at 35–36, Page ID 262–63 (emphasis added). In the police report, Johnson stated in her first interview that "the noise of the gunshots were close to one another" and that "at the time that she drew her weapon, was the exact same time as when she heard the two gunshots." R. 31-2, Police Rep. at 5, Page ID 436. And in the follow-up interview for the report, she stated that the shots were "immediate and there was no lapse of time between the first and second gun shot[s]." Id. at 7, Page ID 438.

         Officer Burke did not discuss the time between shots in his deposition, but in his initial interview for the police report he stated that Rendon "drew his weapon and fire[d] two shots at the suspect . . . the shots were one after the other." Id. at 8, Page ID 439. He reiterated this in the follow-up interview, stating that "the two shots that Rendon fired were quick and immediate." Id. at 10, Page ID 441.

         Officer Rendon's testimony aligns with the other officers'. In his interview for the police report, Rendon stated that "he drew his gun, and he fired, and then he fired again." Id. at 12, Page ID 443. At his deposition, he testified: "And then I shot her in the stomach area. And then right simultaneously when I shot her in the stomach area she lunged at me with the knife, and I shot her again." R. 29-3, Rendon Dep. at 49, Page ID 333.

         Mary Rush, acting on behalf of Clay's estate, sued Officer Rendon and the City of Lansing. The only claim on appeal is Rush's claim, under 42 U.S.C. § 1983, that Rendon used excessive force in firing the second shot. The district court denied Rendon's motion for summary judgment, holding there is a genuine dispute of material fact about whether it was objectively unreasonable for Rendon to fire the second shot, as the evidence did not establish that Clay continued to pose a significant threat after the first shot. Officer Rendon timely appealed.

         II

         As a threshold matter, we must address whether we even have jurisdiction to hear this appeal. As a general rule, the denial of summary judgment is not immediately appealable because it is not a final decision within the meaning of 28 U.S.C. § 1291. DiLuzio v. Village of Yorkville, Ohio, 796 F.3d 604, 609 (6th Cir. 2015). However, the "denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of [] § 1291 notwithstanding the absence of a final judgment." Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).

         We have jurisdiction to decide an appeal challenging the district court's legal determination that the defendant violated a constitutional right or that the right was clearly established. Mitchell, 472 U.S. at 530. We may also decide an appeal challenging a legal aspect of the district court's factual determinations, such as whether the district court properly assessed the incontrovertible record evidence. See Plumhoff v. Rickard, 134 S.Ct. 2012, 2019 (2014). But we may not decide an appeal challenging the district court's determination of "evidence sufficiency"-facts that a party may, or may not, be able to prove at trial. Johnson v. Jones, 515 U.S. 304, 313 (1995). Because such challenges are purely fact-based, they do not present purely legal questions and are therefore not appealable. Plumhoff, 134 S.Ct. at 2019. In other words, "we may not decide a challenge directly to the district court's determination of the record-supported evidence or the inferences it has drawn therefrom, but we may decide a challenge with any legal aspect to it, no matter that it might encroach on the district court's fact-based determinations." DiLuzio, 796 F.3d at 610 (citing Roberson v. Torres, 770 F.3d 398, 402 (6th Cir. 2014)). We are permitted, however, to "ignore the defendant's attempts to dispute the facts and nonetheless resolve the legal issue, obviating the need to dismiss the entire appeal for lack of jurisdiction." Estate of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005).

         At times, Officer Rendon makes impermissible factual challenges. His brief on appeal notes his perception that...

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