Palma v. Johns

• Citation: 27 F.4th 419
• Decision Date: 28 February 2022
• Docket Number: No. 21-3315,21-3315
• Parties: Salvatore PALMA, Jr., individually and as administrator of the estate of Vincent Dominic Palma; Melissa Palma; Alisha Palma, Plaintiffs-Appellants, v. Matthew JOHNS, Deputy Sheriff, in his individual and official capacity as an employee of the Ashtabula County Sheriff's Department ; Ashtabula County, Ohio, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

27 F.4th 419

Salvatore PALMA, Jr., individually and as administrator of the estate of Vincent Dominic Palma; Melissa Palma; Alisha Palma, Plaintiffs-Appellants,

v.Matthew JOHNS, Deputy Sheriff, in his individual and official capacity as an employee of the Ashtabula County Sheriff's Department ; Ashtabula County, Ohio, Defendants-Appellees.

No. 21-3315

United States Court of Appeals, Sixth Circuit.

Argued: December 10, 2021

Decided and Filed: February 28, 2022

ARGUED: Richard J. Perez, PEREZ LAW, Willoughby, Ohio, for Appellants. Timothy T. Reid, MANSOUR GAVIN LPA, Cleveland, Ohio, for Appellees. ON BRIEF: Richard J. Perez, PEREZ LAW, Willoughby, Ohio, Leslie S. Johns, MARTINEZ LAW FIRM, Willoughby, Ohio, for Appellants. Timothy T. Reid, MANSOUR GAVIN LPA, Cleveland, Ohio, for Appellees.

Before: MOORE, CLAY, and READLER, Circuit Judges.

CLAY, J., delivered the opinion of the court in which MOORE, J., joined. READLER, J. (pp. 444–61), delivered a separate dissenting opinion.

CLAY, Circuit Judge.

On February 8, 2017, Defendant Deputy Matthew Johns ("Johns"), a deputy sheriff for Defendant Ashtabula County (collectively "Defendants"), shot and killed Vincent Palma ("Palma"), a mentally ill individual, while responding to a 9-1-1 call about a family dispute over a television remote. Palma's family members ("Plaintiffs") sued Defendants under 42 U.S.C. § 1983 and various state tort laws. The district court granted summary judgment to Defendants on all claims. For the reasons set forth below, we REVERSE the district court's order granting Defendants’ motion for summary judgment and REMAND for further proceedings consistent with this opinion.

BACKGROUND

On February 8, 2017, Johns shot and killed Palma after responding to a 9-1-1 call at the Palma home, where Palma lived with his father, Salvatore, his stepmother, Melissa, and his stepsister. Although some facts are undisputed, each witness recounted a different version of events. At this stage, we must view the facts in the light most favorable to Plaintiffs and draw all reasonable inferences in their favor, Wright v. City of Euclid , 962 F.3d 852, 864 (6th Cir. 2020) (quoting Burgess v. Fischer , 735 F.3d 462, 471 (6th Cir. 2013) ), and we note at the outset that we are not required to "accept the officers’ subjective view of the facts," Jacobs v. Alam , 915 F.3d 1028, 1041 (6th Cir. 2019). Similarly, "credibility judgments and weighing of the evidence are prohibited." Godawa v. Byrd , 798 F.3d 457, 462 (6th Cir. 2015) (quoting Schreiber v. Moe , 596 F.3d 323, 333 (6th Cir. 2010) ).

I. Deputy Johns’ Statements

On February 8, 2017—a cold winter day in Geneva, Ohio—Johns responded to a 9-1-1 call at the Palmas’ home. The 9-1-1 dispatcher told Johns of an "unwanted person," Vincent Palma, at the house. Johns knew that Palma "had been unhappy with the TV show that was on TV and that he had broken the television remote." (Matthew Johns Dep., R. 50-1, Page ID #732.) Dispatch also told Johns that Palma was a "Code 76," meaning Palma suffered from mental health issues. (Id. ) Johns did not know that Palma was bipolar and schizophrenic. While en route to the Palma house, Johns saw Palma's driver license and knew that Palma was the subject of the call. Before arriving, Johns removed his weapon from his ankle holster because he anticipated that he might need it.

Johns pulled up to the house and parked his patrol car in the Palmas’ driveway, about forty to fifty feet away from the house. Johns saw Palma standing outside on the porch with a hood up over his head and his hands in his pockets, which immediately "concerned" Johns. (Id. at Page ID ##740–41, #744.) Johns got out of his car and loudly greeted Palma before walking about ten to fifteen feet towards the house. Palma did not respond. Johns tried greeting Palma two more times, but Palma did not respond. When Johns was standing ten to fifteen feet in front of his car, and about thirty feet from where Palma was on the porch, Palma came down the porch stairs and began walking towards Johns. Johns described Palma's walk as "determined" and "aggressive." (Id. at Page ID #776; Johns Aff., R. 46-2, Page ID #571, #574.) But Palma "wasn't walking at a fast pace." (Johns Dep., R. 50-1, Page ID #776.)

Johns repeatedly told Palma to stop walking and to take his hands out of his pockets, but Palma did not respond and continued approaching Johns. When Palma got within twenty to twenty-five feet of Johns, Johns started backing up towards the passenger side of his patrol car. Palma's parents, who had come outside, told Palma to "Just stop" and "[d]o what [Johns] says to do." (Id. at Page ID #768.) Johns radioed for backup; calling a "Code 10." (Id. at Page ID #769, #771.) Code 10 means "intermediate" priority. (Id. at Page ID ##771–72.) In more serious situations, officers would call a "Code 44." (Id. )

After retreating backwards towards the side of his patrol car, Johns pulled out his taser. Johns warned Palma he would use his taser if Palma did not stop approaching. Palma did not stop and Johns tased him. The taser had little impact, and Palma kept walking towards Johns, so Johns tased him again. This time Palma fell to the ground and landed in a puddle on the driver's side of Johns’ patrol car, near the front bumper. Palma fell onto his side with his back facing Johns. Johns told Palma to rollover and show his hands. They were six to ten feet apart at this point. Johns took a few steps towards Palma, but he stopped when Palma did not respond to commands. Johns called for backup again, asking them to "step up" their response. (Id. at Page ID #797.) As Palma got up from the ground, Johns tased him a third time. This time Johns saw Palma use one hand to pull out the taser probes. Johns did not see a weapon or any other object in Palma's visible hand, and he did not know where Palma's other hand was. After Palma pulled out the probes, Johns holstered his taser.

Palma got up and started walking towards Johns, and Johns continued retreating backwards across the driveway. Palma was still not responding to commands. Johns then pulled out his baton. He raised it over his head and prepared to strike Palma with it, but Johns did not use it because Palma momentarily turned away from Johns and looked back towards his parents. A moment later, Palma turned back around and started walking towards Johns again. Johns said that Palma had a "crazed look on his face," and that Palma's "appearance, demeanor, and behavior told [him] that [Palma] was not going to stop." (Johns Aff., R. 46-2, Page ID #576.) Johns kept retreating by walking backwards up a hill on the Palmas’ lawn. It was muddy, and at one point Johns’ boot slipped as he backed up the hill. After he almost fell, Johns believed that Palma's "intention was to physically reach [him], assault [him], and perhaps obtain [his] weapon." (Id. at Page ID #576.)

Johns continued to tell Palma to stop and warned him that "this is how people get shot." (Johns Dep., R. 50-1, Page ID #842.) Palma was about six to seven feet away at this point. Johns then unholstered his gun and pointed it at Palma while still retreating. Palma did not stop. After Palma took about ten more steps, Johns shot him. Johns first shot at Palma's leg "in an attempt not to kill [Palma] but to stop him." (Id. at Page ID #857.) After the first shot, Palma continued to walk towards Johns, so Johns fired again, this time aiming for Palma's "[c]enter mass." (Id. at Page ID #858.) Johns continued shooting until, after several shots, Palma "leaned over at the waist" and got "down on the ground" in "a bear crawl stance." (Id. at Page ID #859.) While Palma was in this stance, Palma "lunge[d]" at Johns, so Johns continued shooting. (Id. at Page ID #860, #863.) Johns shot at Palma until "the moment that [Palma] no longer came towards [him]." (Id. at Page ID #857.)

Throughout the entire encounter, Palma never said anything to Johns, he never reached out towards Johns, and he never verbally threatened Johns. Palma did not raise his fists or make any threatening gestures. But because Palma did not respond to commands, and kept walking towards Johns, Johns believed the situation "was more than a friendly encounter." (Id. at Page ID #854.) Backup arrived shortly after the shooting. Johns then approached Palma and searched him. Palma was unarmed.

II. Salvatore Palma's Statements

Salvatore Palma, Jr. ("Salvatore"), Vincent Palma's father, recounted many of the same facts. However, he remembered the taser applications differently. As Palma approached Johns, Johns was yelling "stop walking, I'll tase you." (Salvatore Palma Dep., R. 50-5, Page ID #1034.) Palma did not stop and Johns tased him from "across the hood of the car to the other side." (Id. ) Salvatore reported seeing Palma convulsing on the ground "for minutes" after Johns tased Palma twice. (Id. at Page ID #1046.) Eventually, Salvatore saw Palma get up and pull the taser wires out. Palma then looked back at his father as Johns pulled out his firearm and warned Palma that he would shoot.

Palma then turned back around and continued walking towards Johns, Johns continued to retreat, and Johns repeatedly ordered Palma to stop. Johns then shot some "warning shot[s]." (Id. at Page ID #1038.) After those shots, Palma "didn't keep approaching. He was still standing there." (Id. at Page ID #1042.) Salvatore said that Palma never got within ten feet of Johns.

III. Melissa Palma's Statements

Melissa Palma ("Melissa"), Vincent Palma's stepmother, also saw the encounter. She had called 9-1-1 that day after Palma took the remote out of his sister's hands. She told the dispatcher that she wanted Palma removed from her house and that Palma had "mental issues." (Melissa Palma Dep., R. 50-6, Page ID #1165.) Melissa testified that she told the police that Palma was unarmed. However, it is unclear when she said this and whether she shared this information with Johns before the shooting.

Melissa's written statement, on the day of...