Jacobs v. Alam, 020819 FED6, 17-2159

Docket Nº:17-2159, 18-1124
Opinion Judge:GRIFFIN, CIRCUIT JUDGE.
Party Name:Eduardo Jacobs, Plaintiff-Appellee, v. Raymon Alam and Dave Weinman (18-1124); Damon Kimbrough (17-2159), Defendants-Appellants.
Attorney:Linda D. Fegins, CITY OF DETROIT LAW DEPARTMENT, Detroit, Michigan, for Appellant in 17-2159. Davidde A. Stella, WAYNE COUNTY, Detroit, Michigan, for Appellants in 18-1124. Kassem M. Dakhlallah, HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC, Dearborn, Michigan, for Appellee. Linda D. Fegins, CITY OF DET...
Judge Panel:Before: DAUGHTREY, GIBBONS, and GRIFFIN, Circuit Judges.
Case Date:February 08, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Eduardo Jacobs, Plaintiff-Appellee,

v.

Raymon Alam and Dave Weinman (18-1124); Damon Kimbrough (17-2159), Defendants-Appellants.

Nos. 17-2159, 18-1124

United States Court of Appeals, Sixth Circuit

February 8, 2019

Argued: December 4, 2018

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:15-cv-10516-Denise Page Hood, Chief District Judge.

ARGUED:

Linda D. Fegins, CITY OF DETROIT LAW DEPARTMENT, Detroit, Michigan, for Appellant in 17-2159. Davidde A. Stella, WAYNE COUNTY, Detroit, Michigan, for Appellants in 18-1124.

Kassem M. Dakhlallah, HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC, Dearborn, Michigan, for Appellee.

ON BRIEF:

Linda D. Fegins, CITY OF DETROIT LAW DEPARTMENT, Detroit, Michigan, for Appellant in 17-2159. Davidde A. Stella, WAYNE COUNTY, Detroit, Michigan, for Appellants in 18-1124.

Kassem M. Dakhlallah, HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC, Dearborn, Michigan, for Appellee.

Before: DAUGHTREY, GIBBONS, and GRIFFIN, Circuit Judges.

OPINION

GRIFFIN, CIRCUIT JUDGE.

Defendant law enforcement officials Raymon Alam, Dave Weinman, and Damon Kimbrough searched for a fugitive in a house in which plaintiff Eduardo Jacobs lived. Following the search, plaintiff returned home from work, and according to the officers, confronted, pointed a gun at, and then shot at them. The officers returned fire and arrested plaintiff. But that is not the version of the facts we have before us in this interlocutory appeal. Plaintiff admits he had a holstered pistol, but denies that he touched it-let alone drew, pointed, and shot it at the officers.

After a jury acquitted plaintiff of a variety of state criminal charges, he commenced this Bivens[1] action against the law enforcement officials, alleging excessive force, false arrest, malicious prosecution, fabrication of evidence, and civil conspiracy. In relevant part, the district court denied defendants qualified immunity. They appeal, contending plaintiff's Bivens claims are not viable after the Supreme Court's decisions in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), and Hernandez v. Mesa, 137 S.Ct. 2003 (2017) (per curiam), and even if they are, the district court erred in denying them qualified immunity. We affirm in part and dismiss in part for lack of jurisdiction.

I.

A.

The events leading to this lawsuit stem from the U.S. Marshals Service's efforts to apprehend a federal fugitive through its Detroit Fugitive Apprehension Team task force. On the evening of January 3, 2014, a task force comprised of City of Detroit Police Officers Damon Kimbrough and Michael Knox and Wayne County Sheriff's Office Deputies Raymon Alam and Dave Weinman-all deputized as Special Deputy U.S. Marshals-arrived at the Detroit residence of Javier Vargas, Sr., the brother of a fugitive. The officers entered the house, found three individuals (Vargas, Sr., Javier Vargas, Jr., and Michelle Dotson), but not the fugitive. They also swept the house's basement apartment, one leased by plaintiff Eduardo Jacobs.

Following the search, Knox and Weinman escorted Vargas, Sr. outside, and Alam and Kimbrough remained inside with Vargas, Jr. and Dotson. While Knox and Weinman were outside the house, Jacobs arrived. He entered his basement apartment through a back entrance and did not notice the officers' presence (although they were aware of his). Jacobs found a broken mirror leaned against a stairwell door leading to the house's dining room (designed to alert Jacobs to an unauthorized entry from the house) and, in his words, a "ransacked" living space-"[a]ll the doors were on the floor, all the cabinets were on the floor, all the stuff was torn up, somebody [went] through everything." The parties hotly contest what happened next.

Plaintiff's version is straightforward. He bounded up the stairs shouting "who the f---went into my house?" As he opened the door to the dining room, he saw an unidentified black male (Kimbrough) who was "not supposed to be there," and "spun to run at the same time. . . . [He] reached for [his] pistol in [his] holster and as [he] turned [he] fell down the stairs and never got a chance to get the pistol out of [his] holster." At no time did plaintiff "rack" his gun to chamber a live round, or point or fire his gun, 2 and no one informed him that they were police or gave him a police command. Contemporaneous with turning to flee and reaching for his holster, Jacobs fell down the steps and was shot three times-in the stomach, shoulder, and leg. The entire exchange lasted only a few seconds. Jacobs retreated to his apartment, learned that it was law enforcement officers who shot him, and eventually surrendered. He received medical treatment (including the removal of one bullet), and testing later determined that bullet came from Kimbrough's handgun.

The officers involved in the shooting, Kimbrough and Alam, tell a remarkably different version. As Kimbrough recalled, he was interviewing Dotson and Vargas, Jr. in the dining room when he "heard a loud bang behind" him-Jacobs slamming the door open from the basement. Kimbrough rose, turned around and saw that Jacobs "had a gun pointed at [Kimbrough's] face." Jacobs said, "You're the mother f ----- that robbed me last week." Kimbrough instructed Jacobs three times to put the gun down and identified himself as a Detroit Police Officer. Instead, Jacobs fired his gun, and Kimbrough returned fire and sought cover. After exchanging several shots, Jacobs eventually "obeyed the commands from where he was in the basement to come out" after "a few minutes."

Alam's version is similar. He heard Jacobs slam the door open, and saw Jacobs enter the dining room from the basement with his "gun raised at an eye level," pointed at Kimbrough. Alam heard Kimbrough say "police, drop the weapon," "heard two shots . . . being fired and, at that time, . . . returned fire." However, Alam did not witness who fired the shots, and stated he did not see Jacobs fire a gun.

The other two individuals in the dining room, Dotson and Vargas, Jr., offer little else. They recalled sitting in the dining room, hearing "a big boom" and then Jacobs asking, "who the f--- broke into my house." They heard the officers identify themselves, heard gunshots and fled for safety. Contrary to defendants' assertions, neither Dotson nor Vargas, Jr. saw Jacobs hold or fire a gun.

One other person, Detroit Police Sergeant Joseph Abdella, provided testimony about the shooting. Abdella interviewed Jacobs at the Detroit Detention Center after Jacobs's arrest. Abdella testified at Jacobs's preliminary hearing that Jacobs made the following unsolicited statement about pointing a gun at Officer Kimbrough: [Jacobs] told me that he could have shot the officer that was in the house, that he had a jump on him, more or less, that he got up there and had a gun right on him. He could have shot that man, but he did not. And that he was looking for some understand[ing] - you know, that he did not pull the trigger when he had the opportunity to.

Abdella's testimony at Jacobs's subsequent criminal trial was more specific: [H]e told me when he went in to the house, . . . that his room had been broken into in the basement. He told me that he got his gun and went upstairs to confront the people that broke into his house. . . . He insisted that he did not pull the trigger or fire a shot. . . [H]e said he had the gun, he pointed at them and he could've pulled the trigger, . . . but he did not.

Jacobs unequivocally denied telling Abdella that he pointed a gun at anyone.3

B.

The Wayne County Prosecuting Attorney's office brought eleven criminal charges against Jacobs for his role in the shooting: four counts of assault with intent to do great bodily harm less than murder, in violation of M.C.L. § 750.84; four counts of assault with a dangerous weapon, in violation of M.C.L. § 750.82; two counts of resisting and obstructing, in violation of M.C.L. § 750.81d; and one count of possessing a firearm during the commission of a felony, in violation of M.C.L. § 750.227b. Following a preliminary examination at which defendants Alan and Kimbrough testified (among others), a state district court judge found probable cause existed to arrest and charge Jacobs and bound him over to circuit court for trial. A jury subsequently acquitted Jacobs on all charges.

C.

Jacobs commenced this civil rights action thereafter. The operative complaint and claims relevant to this appeal are as follows. Jacobs alleges five Bivens actions against Alam, Kimbrough, and Weinman: (1) excessive force against Alam and Kimbrough; (2) fabrication of evidence against Alam, Kimbrough, and Weinman; (3) civil conspiracy against Alam, Kimbrough, and Weinman; (4) false arrest against...

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