Gambrel v. Knox Cnty.

• Citation: 25 F.4th 391
• Decision Date: 08 February 2022
• Docket Number: No. 20-6027,20-6027
• Parties: Pearlie Sue GAMBREL, Personal Representative of the Estate of Jessie J. Mills, Plaintiff-Appellant, v. KNOX COUNTY, KENTUCKY; Mikey Ashurst, Officer, Knox County Sheriff's Department, in his individual capacity; Brandon Bolton, Knox County Constable, in his individual capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

25 F.4th 391

Pearlie Sue GAMBREL, Personal Representative of the Estate of Jessie J. Mills, Plaintiff-Appellant,

v.KNOX COUNTY, KENTUCKY; Mikey Ashurst, Officer, Knox County Sheriff's Department, in his individual capacity; Brandon Bolton, Knox County Constable, in his individual capacity, Defendants-Appellees.

No. 20-6027

United States Court of Appeals, Sixth Circuit.

Argued: June 10, 2021

Decided and Filed: February 8, 2022

ARGUED: Debra Loevy, LOEVY & LOEVY, Chicago, Illinois, for Appellant. Jason E. Williams, WILLIAMS & TOWE LAW GROUP, PLLC, London, Kentucky, for Appellees. ON BRIEF: Debra Loevy, Jon Loevy, Elliot Slosar, Amy Robinson Staples, LOEVY & LOEVY, Chicago, Illinois, for Appellant. Jason E. Williams, WILLIAMS & TOWE LAW GROUP, PLLC, London, Kentucky, for Appellees.

Before: GIBBONS, KETHLEDGE, and MURPHY, Circuit Judges.

OPINION

MURPHY, Circuit Judge.

In Scott v. Harris , 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the Supreme Court disregarded a plaintiff's claim that he had been driving safely during a high-speed chase because the claim was "blatantly contradicted" by objective video evidence showing his dangerous maneuvers. Id. at 380, 127 S.Ct. 1769. This case requires us to decide how far Scott goes in allowing courts at the summary-judgment stage to ignore a plaintiff's evidence about what happened during a police encounter on the ground that the evidence conflicts with the bulk of the summary-judgment record.

Responding to a 911 call, two officers came upon Jessie Mills bizarrely and dangerously carrying his kidnapped daughter down the middle of an unlit road on a dark night. After a struggle, one of the officers shot and killed Mills. The ensuing police investigation initially revealed a largely consistent story from the officers and bystanders: Mills had threatened to harm the officers, fought them with "super-human" strength, and charged at one of them just before the shooting. In this litigation, however, one of the bystanders, Ricky Hobbs, claimed that he had lied to the police during that investigation. He now says that the officers brutally beat Mills even though Mills did not resist, that they could have easily handcuffed him, and that the shooting should not have happened. The officers ask us to disregard Hobbs's testimony because it conflicts with the testimony from several others. But we do not think Scott reaches so far. This testimonial dispute instead raises a classic jury question. We thus respectfully disagree with the district court's decision to grant summary judgment to the officers outright. Even accepting Hobbs's testimony, however, the officers are still entitled to qualified immunity with respect to their initial use of force to recover the child, and the relevant local government is entitled to summary judgment on the federal claim against it. We thus affirm in part, reverse in part, and remand for further proceedings.

I

For years, Mills and his ex-wife struggled with drug addictions that led them to neglect their four young children. James and Geneva Helton, the children's maternal grandparents, obtained custody of the children and began raising them at their home in Knox County, Kentucky. Mills would occasionally visit.

Around 10:00 p.m. on June 29, 2016, he showed up unannounced at the Heltons’ home. Mrs. Helton let Mills in, but his children were already asleep. Without saying a word, Mills helped himself to a jug of juice and woke up his sons. During the commotion, Mills's two-year-old daughter walked out crying. Mills carried her outside. Mrs. Helton thought that Mills was simply walking her around as he had done on prior visits. On this visit, though, Mills walked to his car. When Mrs. Helton heard his engine start, she alerted her husband. The couple rushed out to stop Mills from leaving; he almost ran them over as he drove off with their granddaughter. The Heltons feared for her safety given Mills's abnormal behavior and the risk that he was on drugs. Mrs. Helton called the police while Mr. Helton jumped in his car to pursue the fleeing Mills.

Mills ran out of gas after only a few miles. He abandoned his vehicle and started walking up the road carrying his daughter. Mr. Helton caught up to Mills just as an acquaintance, Ricky Hobbs, was offering Mills a ride. Helton described the kidnapping to Hobbs and persuaded him not to let Mills in his truck. After parking their vehicles, Helton and Hobbs followed Mills on foot. Mills continued to walk down the middle of an unlit, two-lane road on a dark night. Hobbs and Helton persisted in their pursuit for over a mile, staying about five feet behind Mills. Although Helton tried to convince Mills to return to his home, Mills did not respond. He simply muttered to himself or sang to his daughter. Hobbs flickered his cellphone light to signal the group's presence to oncoming cars. A passerby later began walking with the group and used a flashlight to better divert traffic.

As these events were unfolding, Knox County Sheriff's Deputy Mikey Ashurst and Knox County Constable Brandon Bolton ("the Officers") received a call from dispatch that a male suspect had kidnapped his daughter from the grandparents who had custody of her. The Officers arrived at the scene to see the passerby directing traffic and Mills walking in the road. They exited their cruiser and ordered Mills to stop, but he ignored their commands. Ashurst caught up with Mills, slapped him on the elbow to get his attention, and asked him to put his daughter down so they could talk. According to Ashurst, Mills responded by saying something like they could pry her out of his "cold, dead hands[.]" Ashurst Dep., R.108-1, PageID 4280. Some witnesses then saw Mills throw a punch; others did not. All agree, however, that the Officers’ efforts to recover the child without force had failed. Mills refused to hand her over and quickly moved in the opposite direction.

At this point, two conflicting stories emerge. It is undisputed that Mills fell to the ground. But witnesses differ about how he got there. Under the account told by Hobbs and Helton, one or both of the Officers hit Mills in the back of the head with a flashlight or other dark object. Under a different account—one told by several witnesses, including the Officers—Ashurst discharged his taser's cartridge at Mills's back when Mills got about six feet away. Whatever the cause of Mills's fall, Bolton immediately took the child from him and returned her to Helton.

It is next undisputed that the Officers engaged in a five-minute struggle with Mills that left them covered in his blood. During this altercation, Ashurst twice reactivated his taser (the prongs of which were still in Mills's back) and tased Mills directly in drive-stun mode (how many times he does not recall). Ashurst also struck Mills with a flashlight multiple times, kneed Mills in the face and head, and repeatedly hit Mills with his baton. While Ashurst landed these blows, Bolton struck Mills with a flashlight many times, tased Mills in the neck, and hit Mills with his baton.

What generated this substantial use of force? For a second time, stories diverge. According to Hobbs, the Officers "just kept hitting" Mills even though he was not fighting back. Hobbs Dep., R.108-4, PageID 4400. Hobbs added that the Officers took a break from hitting Mills only because they ran out of breath, at which point Mills was nearly unconscious. During this beating, Hobbs believed, the Officers had "every opportunity" to handcuff Mills. Id. , PageID 4425. Several others paint a far different picture. According to the Officers, they commanded Mills (who was twice Bolton's size) to quit resisting, turn onto his stomach, and put his hands behind his back. But they asserted that he refused and repeatedly kicked and punched them. Other bystanders likewise saw Mills vigorously fighting with the Officers.

All agree that Ashurst next killed Mills by shooting him twice shortly after he got up. For a third time, however, disagreement exists over how this shooting came about. As Hobbs recounted things, the Officers returned from their rest break and brought Mills to his feet by kicking him. Although Ashurst shouted a warning, Hobbs stated that he fired after Mills took just a step or two—at a walking pace—toward him. At the time of the shooting, Hobbs further recalled, Mills had his arm extended toward Ashurst but was looking behind himself in the opposite direction. Mills was at least six to eight feet away.

The Officers view things quite differently. According to them, Mills showed no signs of pain at the end of their struggle. He also said: "When I get up from here, I'm going to hurt you." Ashurst Dep., R.108-1, PageID 4292. As Mills got up, Ashurst switched from his baton to his firearm and backpedaled to put distance between them. Staring at Ashurst with a clenched fist, Mills began toward him. According to Bolton, a running Mills gained ground "very, very fast[ ]" on a backpedaling Ashurst. Bolton Dep., R.108-3, PageID 4362. Ashurst pointed his gun at Mills and warned that he would shoot if Mills kept approaching. Mills refused to stop, and Ashurst fired two rounds when Mills got within a few feet. Another witness testified that Mills was running toward Ashurst, that he had "backed" Ashurst up "a long ways before the shots were fired," and that Mills was "really close" (perhaps within an arm's reach) when Ashurst shot him. Smith Dep., R.108-7, PageID 4585, 4595–96. Others agreed that Mills had gone after Ashurst at the time of the shooting.

* * *

Pearlie Gambrel, Mills's mother, sued the Officers and Knox County under 42 U.S.C. § 1983 and Kentucky law. As relevant now, she alleged that the Officers unreasonably seized Mills in violation of the Fourth Amendment and sought to hold the County liable for this seizure under Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Gambrel also brought state-law claims against the Officers for,...