Shumate v. City of Adrian

• Decision Date: 10 August 2022
• Docket Number: 21-2795
• Citation: 44 F.4th 427
• Parties: Robert Allen SHUMATE, Plaintiff-Appellee, v. CITY OF ADRIAN, MICHIGAN; Jeremy Powers, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

44 F.4th 427

Robert Allen SHUMATE, Plaintiff-Appellee,

v.CITY OF ADRIAN, MICHIGAN; Jeremy Powers, Defendants-Appellants.

No. 21-2795

United States Court of Appeals, Sixth Circuit.

Argued: April 28, 2022

Decided and Filed: August 10, 2022

ARGUED: Christian C. Huffman, GARAN LUCOW MILLER, P.C., Detroit, Michigan, for Appellant. Robert G. Kamenec, FIEGER, FIEGER, KENNEY & HARRINGTON, P.C., Southfield, Michigan, for Appellee. ON BRIEF: Christian C. Huffman, GARAN LUCOW MILLER, P.C., Detroit, Michigan, for Appellant. Kierston D. Nunn, FIEGER, FIEGER, KENNEY & HARRINGTON, P.C., Southfield, Michigan, for Appellee.

Before: SUHRHEINRICH, MOORE, CLAY, Circuit Judges.

CLAY, Circuit Judge.

In this civil rights action under 42 U.S.C. § 1983, Defendants Officer Jeremy Powers and the City of Adrian appeal the district court's denial of their motion for summary judgment on qualified immunity, state law immunity, and municipal liability grounds. We hold that neither qualified nor state law immunity shields Officer Powers from liability. Consequently, we lack appellate jurisdiction to review the municipal liability claim against Defendant City of Adrian. The district court's denial of summary judgment to Defendant Powers is AFFIRMED , and Defendant City of Adrian's municipal liability appeal is DISMISSED for lack of appellate jurisdiction.

I. BACKGROUND

A. Factual Background

The following events giving rise to the three-count complaint occurred on September 27, 2019, in a CVS parking lot in Adrian, Michigan. The core of the resulting dispute happened over approximately four minutes and was captured on the officer's body camera. The video, along with the record as a whole, indicates that Powers deployed a Taser against Plaintiff three times (once in drive-stun mode) and applied physical force by allegedly kneeing, punching, and kicking Plaintiff.

On September 27, 2019, at 9:35 a.m., Officer Powers conducted a traffic stop on a Chevrolet Impala operated by Plaintiff's daughter, Amy Shumate. After Amy drove her vehicle into a CVS parking lot, Powers approached and informed Amy that the Impala's license plates were registered to an Oldsmobile and thus did not match the Impala's registration. Amy, visibly pregnant, told Powers she removed the license plates from her old, recently sold Oldsmobile and placed them on her Impala, which she had purchased in July. Amy further admitted that the Impala did not have valid insurance. Powers informed Amy he would have to impound the vehicle, "mainly for no insurance." (13:27).¹ He instructed Amy to exit the vehicle and "give somebody a call," presumably so the now vehicle-less Amy could be picked up. (14:30). The officer issued Amy an "over-the-counter" misdemeanor citation requiring Amy to pay a fee at the courthouse. When Powers asked Amy if she knew where the courthouse was, she responded, "I'm done answering your questions," to which the officer replied, "Okay, then go away." (14:59). While still in the vehicle and just out of the view of the body camera footage, Amy can be heard speaking to someone on her cell phone, asking "can you come get me." (14:59; see also Compl. R., 1, PageID # 4 ("[Plaintiff] responded to a telephone call from his daughter requesting a ride[.]")).

Officer Powers then says, his voice suddenly rising, "Do not start reaching in the car. Take yourself and walk over there. Stop resisting, or I'm going to arrest you." (15:09; Hr'g Tr., R. 49, PageID # 455 ("[T]here was really nothing remarkable about that transaction up to that point until she wanted to get some of her things out of the car, and then he kind of exploded at her.")). Amy tells the officer she is trying to gather her medical papers. Amy exits her vehicle, cell phone at her ear; Powers tells her to "go stand over there on the sidewalk," seemingly referring to the walkway in front of the CVS storefront, not the sidewalk adjacent to the street. (15:15). Amy replies, "you know what, I'll sit right there," apparently referring to the street-side grassy area. Powers says, "no, you're going to go stand over there." (15:17). Amy stops walking and faces Powers. The officer says, "I don't care—you'll go to jail. You want to push it?" (15:22). And, gesturing towards Amy's stomach, Powers says, seemingly referring to her pregnancy, "you think that's going to dissuade me? Go stand over there." (15:23). Amy walks towards the sidewalk abutting the drugstore. Officer Powers tells Amy to "grow up." (See Powers Dep., R. 21-3, PageID # 143 ("She was on the phone partially yelling at me, partially yelling on the phone, disparaging things, so ... that's why I said it.")). Amy replies, "fuck you," prompting Powers to say, "you heard me." (15:35). Over the next six minutes, Powers searches the Impala and its trunk and gathers items for Amy's retrieval in preparation for the vehicle impoundment.

At timestamp 22:09, while Powers is gathering the particulars from the driver's side of the Impala, Plaintiff Robert Shumate, Amy's father, pulls his pickup truck into the lot. He stops in the parking spot adjacent to the Impala, and Officer Powers turns around and yells, "What?" to Shumate. Shumate exits his vehicle and yells to Powers, "You. You're the one that had a problem with me. You got a problem with me now?" Powers tells Plaintiff to "leave," and Plaintiff responds, "I ain't leaving nowhere[,] this is a private property." (22:18–:20). Powers then instructs Plaintiff to "stand over here" and not interfere with what he is doing. Some unintelligible dialogue is heard from Shumate and Amy before Shumate points to Powers and says, "You're an asshole. Yeah, you are." (22:29).

Off camera, Amy is heard saying, "I knew it was him, I knew it." (22:30). Shumate replies, "It's the same one, that's the one that threatened me at the house." (22:33).

It turns out that this was not Shumate's and Powers’ first encounter. The record indicates two prior interactions. The first involved Shumate's son, who was in an argument over a car. Powers recalled knocking on Shumate's door, only to be "met with hostility," "unpleasant[ness]," and "very loud and very argumentative" yelling. (Powers Dep., R. 21-3, PageID # 141). However, Shumate did not appear to recall this prior incident. The other encounter was more recent and was more front of mind for the parties. "The week before this [CVS] incident," Shumate called the City of Adrian Police Department over a neighborhood spat. (R. Shumate Dep., R. 29-5, PageID # 262). Some tree branches and rosebushes had grown over the fence and onto Shumate's neighbor's property, and the neighbor trimmed the overgrowth. Shumate called the police, and Officer Powers was dispatched. Upon the officer's arrival, Plaintiff showed Powers a paper with the property line. Powers recalled informing Shumate that there was nothing the police could do to remedy a civil dispute; this answer made Shumate "visibly unhappy," and there was "[a] lot of yelling, screaming, [and] gesticulating," and Shumate snatched the papers back.² (Powers Dep., R. 21-3, PageID # 142). Their reunion in the CVS parking lot was not a happy one. (See id. at PageID # 140 ("I recognized his face [immediately] but I could not remember his name until later.")).

As Powers calls into his radio, Plaintiff says, "call backup, I don't give a fuck. ... You can't do shit to me, cause I ain't done shit, motherfucker." (22:35–:42). Plaintiff continues, "do that on the car so we can get going." Powers responds, "don't tell me what to do." (22:45–:48).

The encounter escalates seconds later. Plaintiff, who had been standing toward the middle of the parking lot, near the sidewalk in front of the store, now turns to walk towards his pickup truck. (22:50). Although he ordered Shumate to leave forty seconds prior, Powers now yells, "stay out of your car, don't go near [the car]." (22:51). Shumate, standing near the bed of his truck, yells, "fuck you," gives Powers the middle finger, but takes no step closer to his vehicle. The two are facing each other, a bit more than an arms-length distance apart. Powers tells Plaintiff to turn around and put his hands behind his back and reaches out to grab Shumate, but Shumate takes a few steps back, his arms slightly elevated near his side, avoiding the officer's grasp, stating, "I ain't done shit." (22:55–:56). At 22:58, Powers raises his Taser and yells, "put your hands behind your back right now ... lie down." Shumate slowly backs away in the direction of the CVS and says, "I ain't doing shit cause I ain't done nothing." At timestamp 23:05, about 47 seconds since Shumate first arrived on the scene, Powers fires his Taser, and the probes strike Plaintiff in his chest, abdominal areas, and upper leg. Shumate falls backward, his head narrowly missing the sidewalk curb, and screams in pain. Powers’ police report recalled the next few moments as follows:

[Shumate] then fell backwards then rolled to his right, I ran to him and, with my Taser in my left hand, I switched the Taser to my right hand and attempted to take control of his left arm by grabbing it with my left hand. [Shumate] pulled his arm away from me by using his strength. I ordered [Shumate] to stop resisting. [Shumate] continued to actively resist me by using his strength to pull his arm away from me in an attempt to defeat my attempts to physically control him. [Shumate] then rolled to his back with his arms bent at the elbows in front of him. I had my Taser in my left hand and attempted to gain control of his left hand with my right hand by grasping it.

(Police Rep., R. 21-1, PageID ## 123–24; see also Powers Dep., R. 21-3, PageID # 147 (stating that he believed he delivered palm strikes against Shumate before the use of the second Taser)). Powers straddles the fallen and prone Shumate and tells him to "turn the fuck around" and "put your hands behind your back now." (23:09–:13; see A. Shumate Dep., R. 29-6, PageID # 275 ("He got to my dad, and he put his whole body on his chest ... and h...