Boyd v. Baeppler, No. 99-3234

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: HARRY W. WELLFORD; MARTHA CRAIG DAUGHTREY
• Citation: 215 F.3d 594
• Parties: (6th Cir. 2000) Bertha Boyd, Plaintiff-Appellee, v. Matthew Baeppler; David Wilsman, Defendants-Appellants. Argued:
• Decision Date: 04 February 2000
• Docket Number: No. 99-3234

Page 594

215 F.3d 594 (6th Cir. 2000) Bertha Boyd, Plaintiff-Appellee, v. Matthew Baeppler; David Wilsman, Defendants-Appellants. UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 99-3234 Argued: February 4, 2000
Decided and Filed: June 6, 2000

Appeal from the United States District Court for the Northern District of Ohio at Cleveland; No. 98-00047--Paul R. Matia, Chief District Judge.

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Jaye M. Schlachet, Cleveland, Ohio, for Appellee.

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Thomas J. Kaiser, Joseph John Jerse, CITY OF CLEVELAND LAW DEPARTMENT, OFFICE OF DIRECTOR OF LAW, Jennifer Sorce, ASSISTANT DIRECTOR OF LAW, Cleveland, Ohio, Dawn M. Tarka, Office of the Attorney General, Corrections Litigation Section, Columbus, Ohio, for Appellants.

Before: WELLFORD, BATCHELDER, and DAUGHTREY, Circuit Judges.

WELLFORD, J., delivered the opinion of the court, in which BATCHELDER, J., joined. DAUGHTREY, J. (pp. 604-06), delivered a separate dissenting opinion.

OPINION

HARRY W. WELLFORD, Circuit Judge.

Plaintiff Bertha Boyd, administratrix of the estate of decedent Adolph Boyd, Jr. ("Boyd"), filed a 42 U.S.C. § 1983 action against Cleveland police officers Matthew Baeppler and David Wilsman, police chief Rocco Pollutro, and the City of Cleveland, asserting constitutional claims arising out of the shooting death of Boyd. The case was removed from state court to the federal district court. Subsequently, defendants moved for summary judgment, which plaintiff opposed. The district court denied defendants' motion for summary judgment with respect to officers Baeppler and Wilsman and reserved judgment as to defendants Pollutro and the City of Cleveland, concluding that:

Based upon the evidence presented by plaintiff, the Court finds that genuine issues of fact exist as to whether the amount of force used by the offices was justified.

. . . A genuine issue of fact exists as to whether it was objectively reasonable to use deadly force where (1) a suspect is running away from the officers in an attempt to escape; (2) the officers did not witness the suspect fire the weapon; and (3) no verified proof exists as to whether the suspect committed a crime.

Defendants had moved for judgment on the accompanying state law claims and the district court indicated that it would not decide the state claims on their merits but would dismiss them without prejudice "upon the resolution of the federal claims."

I. JURISDICTION

Regarding this court's jurisdiction over an interlocutory appeal from a denial of summary judgment based on qualified immunity, we recently stated:

A district court's order denying summary judgment that is based on qualified immunity and turns on an issue of law is immediately appealable as a final judgment under the collateral order doctrine. However, as this court has previously explained, "[u]nder the doctrine of Johnson v. Jones, [515 U.S. 304 (1995),] this court cannot review on interlocutory appeal a district court's determination that a genuine issue of fact exists for trial, but we retain jurisdiction over the legal question of qualified immunity, i.e., whether a given set of facts violates clearly established law." We review de novo the district court's denial of qualified immunity.

Hoard v. Sizemore, 198 F.3d 205, 211 (6th Cir. 1999) (citations omitted). Plaintiff contends we lack jurisdiction, because the district court denied summary judgment to defendants on qualified immunity upon finding "that genuine issues of fact exist" as to the use of deadly force. Defendants argue, however, that the "genuine issues of fact, found by the district court are not genuine and material, and that this appeal presents purely legal questions based on essentially uncontroverted material facts." Specifically, defendants assert that the district court:

erroneously applied a fleeing felon analysis, and misidentified the governmental interest at stake in this self defense case. The facts cited by the District

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Court as precluding summary judgment under its erroneous analysis are not relevant to a self defense inquiry, where the government interests at stake are the lives of police officers. In this regard, Appellants [defendants] do not dispute the facts identified by the District Court as the basis for the denial of summary judgment because those facts are not material to the relevant qualified immunity issues in this case.

We agree, and therefore, as we shall explain, we believe that the district court's assertion that there were genuine issue of material fact does not destroy the appealability of its qualified immunity ruling under the circumstances set forth.

Denial of summary judgment often includes a determination that there are controverted issues of material fact . . . and Johnson surely does not mean that every such denial of summary judgment is nonappealable.

Johnson permits petitioner to claim on appeal that all of the conduct which the District Court deemed sufficiently supported for purposes of summary judgment met the Harlow [v. Fitzgerald, 457 U.S. 800 (1982)] standard of "objective legal reasonableness."

Turner v. Scott, 119 F.3d 425, 428 (6th Cir. 1997) (quoting Behrens v. Pelletier, 516 U.S. 299, 312, 313 (1996). We determined in Turner that we had jurisdiction over purely legal questions despite a district court's order stating that genuine issues of material fact existed; "[i]f it were otherwise a district court could always insulate its qualified immunity rulings from interlocutory review by mouthing the appropriate shibboleth." 199 F.3d at 428. Defendants assert that "whether Boyd had committed a crime, fired shots, or was running away are irrelevant to the reasonableness of both Officer Wilsman's and Office Baeppler's reactions to the threats with which they were faced." Again, we agree. The issues in this case are whether Boyd posed a threat to officers Wilsman and Baeppler and, if so, whether their use of force in response was reasonable. The district court made no finding that there remained in dispute facts material to those issues. Nonetheless, we will review the record to decide whether, as plaintiff maintains, we lack jurisdiction under the district court's decision, or otherwise, as defendants assert.

Witness, Steve J. Arvai, submitted an affidavit stating that on April 14, 1997, around 11:10 or 11:15 p.m., he heard a gunshot from his home and looked out the window and saw a black male armed and walking west on Buckeye near East 122nd. Arvai stated that the male was about six feet tall, wore a dark blue jacket, blue jeans and white tennis shoes and appeared to be holding a dark colored automatic. Arvai added that he saw the man point the gun at three people outside of Wendy's but that he then lost sight of him¹. In any event, Arvai promptly called the police operator and reported his observations. This evidence was undisputed.

Defendant police officers Baeppler and Wilsman submitted affidavits to the effect that on the night in question, they were on duty together, Baeppler driving the police car, and that shortly after Arvai's call, they were called to respond to a "Code One" emergency radio dispatch which indicated that there was a male with a gun in the area of East 120th and Buckeye Road, who met the general description given by Arvai. Defendants proceeded to the area and Wilsman notified radio headquarters of their arrival. As they approached East 119th and Buckeye, Baeppler and Wilsman "heard a broadcast from Officer Zbikowski that he had just seen the male, that the

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male was armed with a gun, and that the male was running towards us."

There is no dispute but that this was the information furnished these two defendant officers: a dangerous and emergency situation on Cleveland public streets at a time near midnight involving an armed man who had reportedly fired shots, potentially endangering others in the area.

Baeppler and Wilsman testified that they then saw Boyd, who sufficiently met the description given them and was in the immediate area reported, running toward them with a gun in hand. Baeppler stopped the marked police car in the intersection of Buckeye Road and East 119th Street, and both exited with their weapons drawn, Wilsman with a shotgun. Both officers testified that they ordered Boyd to stop and identified themselves as police, although it seems clear to us that this should have been obvious to anyone present at the time.

Cleveland police officers Zbikowski and Nabowski, who also arrived on the scene pursuant to the police broadcast, testified that at Buckeye and East 120th Street they saw a person matching the description given of the suspect walking west on Buckeye and into a parking lot and that he was armed with a gun. Zbikowski added that the suspect ran down Buckeye and that he reported his information on his car radio. Both of these officers also drew their weapons when they observed the suspect at close range.

Boyd did not stop, as ordered, nor did he drop the gun which had been observed in his hand by a disinterested witness and by four different police officers at close range. We do not deem it to be a genuine issue of disputed fact that Boyd was the suspect so observed and that he was armed. We therefore do not give credence to Boyd's counsel's contention that since forensic testing after Boyd's death was either inconclusive or negative as to whether Boyd had held or fired a weapon, a genuine issue remained regarding whether Boyd had carried, pointed, or fired the gun that five persons testified that he held in his hand when they observed him that fateful night². The district court indicated no genuine dispute as to whether Boyd was armed.

The district court made the following brief factual findings that are pertinent at this juncture:

1.There was reported to the police that an "African-American male had allegedly fired a gun."

2.A description of the suspect was furnished, and "[t]his man turned out to be decedent Adolph...