Walker v. Davis, 09–5949.

• Citation: 649 F.3d 502
• Decision Date: 12 October 2011
• Docket Number: No. 09–5949.,09–5949.
• Parties: Denise WALKER, as Administratrix of the Estate of Thomas Brian Germany, Deceased, and Next Friend of T.A.G., a minor, Plaintiff–Appellee,v.Danny DAVIS, Allen County Deputy Sheriff, in his Individual Capacity; Sam Carter, Allen County Sheriff, in his Individual and Official Capacities, Defendants–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

649 F.3d 502

Denise WALKER, as Administratrix of the Estate of Thomas Brian Germany, Deceased, and Next Friend of T.A.G., a minor, Plaintiff–Appellee,

v.Danny DAVIS, Allen County Deputy Sheriff, in his Individual Capacity; Sam Carter, Allen County Sheriff, in his Individual and Official Capacities, Defendants–Appellants.

No. 09–5949.

United States Court of Appeals, Sixth Circuit.

Argued: March 10, 2011.Decided and Filed: Aug. 22, 2011.Rehearing and Rehearing En Banc Denied Oct. 12, 2011.*

ARGUED: Charles E. English, Jr., English, Lucas, Priest & Owsley, LLP, Bowling Green, Kentucky, for Appellants. Trevor W. Wells, Miller Wells PLLC, Lexington, Kentucky, for Appellee. ON BRIEF: Charles E. English, Jr., English, Lucas, Priest & Owsley, LLP, Bowling Green, Kentucky, for Appellants. Ross T. Turner, Madisonville, Kentucky, for Appellee.Before: KEITH, McKEAGUE, and KETHLEDGE, Circuit Judges.KETHLEDGE, J., delivered the opinion of the court, in which KEITH, J., joined. McKEAGUE, J. (pp. 504–11), delivered a separate dissenting opinion.

OPINION

KETHLEDGE, Circuit Judge.

The facts of this case, as we are required to view them on appeal, are that Thomas Germany was killed while riding a motorcycle across an empty field, in the middle of the night, after a low-speed chase, when Deputy Sheriff Danny Davis intentionally rammed the motorcycle that he was riding. The district court held that Davis's actions, so viewed, violated Germany's clearly established constitutional rights, thereby precluding qualified immunity for Davis. We affirm.

We take the district court's view of the facts in the light most favorable to Germany's Estate. See Hayden v. Green, 640 F.3d 150, 152 (6th Cir.2011). Shortly after midnight in rural Kentucky, a police officer clocked Germany riding his motorcycle at 70 miles per hour in a 55 miles per hour zone. That officer (who is not a defendant here) tried to pull over Germany for speeding, but Germany refused to stop. Deputy Davis then heard about the pursuit over the radio. As Germany approached Davis's location, Davis blocked the road with his cruiser. Germany maneuvered around him cleanly. Davis then gave chase. The entire pursuit lasted about five minutes and took place on empty stretches of highway. Germany never went above 60 miles per hour during the chase itself. He ran one red light.

Germany eventually turned off the road and cut across a muddy field. Davis followed close behind in his cruiser. According to the Estate's reconstruction expert—who analyzed, among other things, the location of paint transfers between the two vehicles—Davis then intentionally rammed Germany's motorcycle. Germany was thrown from the motorcycle and dragged underneath the cruiser, crushing him to death.

Denise Walker brought this 42 U.S.C. § 1983 suit on behalf of Germany's estate and minor son, claiming that Davis's use of force against Germany violated the Fourth Amendment. Davis moved for summary judgment on the basis of qualified immunity. The district court denied the motion. This appeal followed.

We review the court's denial of qualified immunity de novo. Harrison v. Ash, 539 F.3d 510, 516 (6th Cir.2008). Our jurisdiction is limited to the question whether the evidence, considered in the light most favorable to the Estate, shows a violation of a clearly established constitutional right. See id. at 517.

It has been settled law for a generation that, under the Fourth Amendment, “[w]here a suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Here, Germany posed no immediate threat to anyone as he rode his motorcycle across an empty field in the middle of the night in rural Kentucky. That fact, among others, renders this case patently distinguishable from Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), in which Harris had led the police on a “Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury.” Id. at 380, 127 S.Ct. 1769. The chase here was a sleeper by comparison.

Nor does it matter that, at the time of Davis's actions, there were few, if any, reported cases in which police cruisers intentionally rammed motorcycles. It is only common sense—and obviously so—that intentionally ramming a motorcycle with a police cruiser involves the application of potentially deadly force. This case is thus governed by the rule that “general statements of the law are capable of giving clear and fair warning to officers even where the very action in question has not previously been held unlawful.” Smith v. Cupp, 430 F.3d 766, 776–77 (6th Cir.2005) (internal marks omitted).

Whether, in fact, the collision here was intentional is for a jury to decide. Davis insists it was not. But the facts, as we must view them, make out a violation of Germany's clearly established constitutional rights. The district court's denial of qualified immunity is affirmed.

McKEAGUE, Circuit Judge, dissenting.

I respectfully dissent because I think that the majority has significantly downplayed the level of risk that Germany posed to the public, and defined clearly-established law at too high a level of generality. Because I do not believe that Davis's alleged conduct was prohibited by clearly-established law, I would find that Davis is entitled to qualified immunity.

Qualified immunity shields “government officials performing discretionary functions ... from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The doctrine acknowledges “that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts,” thus, if the officer makes a reasonable mistake as to what the law requires, the officer is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Ultimately, it is the plaintiff's burden to prove that the officer is not protected by the doctrine. See Ciminillo v. Streicher, 434 F.3d 461, 466 (6th Cir.2006).

To determine if an officer is entitled to qualified immunity, the Supreme Court has established a two-prong test. First, the reviewing court “must decide whether the facts that a plaintiff has alleged ... make out a violation of a constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (citing Saucier, 533 U.S. at 201, 121 S.Ct. 2151). Second, the court “must decide if the right at issue was clearly established at the time of the defendant's alleged misconduct.” Id. (internal quotation marks omitted). For a right to be clearly established, “the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In other words, pre-existing law must “dictate, that is truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what the defendant is doing violates federal law in the circumstances.” Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958, 964 (6th Cir.2002) (emphasis in original) (citation and internal quotation marks omitted); see also Akers v. McGinnis, 352 F.3d 1030, 1042 (6th Cir.2003) (noting that the right must be “so clearly established when the acts were committed that any officer in the defendant's position, measured objectively, would have clearly understood that he was under an affirmative duty to have refrained from such conduct”). “If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151. Pursuant to Pearson, “the courts of appeals [are] permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” 555 U.S. at 236, 129 S.Ct. 808.

As the Supreme Court explained in Scott, before diving into the law, it is necessary “to determine the relevant facts.” 550 U.S. at 378, 127 S.Ct. 1769. At the summary judgment stage, the relevant facts are the plaintiff's version of the facts, as well as those facts that are undisputed, viewed in the light most favorable to the plaintiff. See id. at 380, 127 S.Ct. 1769 (noting that the plaintiff's version of the facts is accepted only when there is a “genuine” dispute as to those facts).

Here, Officer Tabor was patrolling an apartment complex in Scottsville, Kentucky when he noticed Germany traveling 15 miles per hour over the speed limit on a four-lane highway. Tabor attempted to stop Germany by activating his lights and sirens, but Germany refused, and continued to drive away. As Tabor pursued Germany, Davis joined the chase from the opposite direction, and positioned his police car in Germany's path in another attempt to stop him. Instead of stopping, Germany swerved into the lane for oncoming traffic, and went around Davis's car. Shortly thereafter, Germany sped through a red light at a four-way intersection. Tabor then stopped in the intersection to clear traffic, for the officers' safety, and the safety of other possible motorists, which allowed Davis to take over lead of the pursuit. On at least two occasions, Germany slowed down “and then all of a sudden ... [took] off again ... at an...