Washington v. Newsom, 91-2355

• Decision Date: 21 December 1992
• Docket Number: No. 91-2355,91-2355
• Parties: Jacqueline WASHINGTON, Plaintiff-Appellee, v. L. NEWSOM; R. Phillips; J. Thomas; the City of Southfield; and the Southfield Police Department, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 991

977 F.2d 991

Jacqueline WASHINGTON, Plaintiff-Appellee, v. L. NEWSOM; R. Phillips; J. Thomas; the City of Southfield; and the Southfield Police Department Defendants-Appellants.

No. 91-2355.

United States Court of Appeals Sixth Circuit.

Argued Aug. 10, 1992.

Decided Oct. 15, 1992.

Rehearing and Rehearing En Banc

Denied Dec. 21, 1992.

Joseph L. Hardig, Jr. (briefed), Bradley S. Stout (argued), Hardig & McConnell, Bloomfield Hills, Mich., for plaintiff-appellee.

Marcia L. Howe (argued and briefed), Cummings, McClorey, Davis & Acho, Livonia, Mich., for defendants-appellants.

Before: KEITH and BATCHELDER, Circuit Judges; and WELLFORD, Senior Circuit Judge.

WELLFORD, Senior Circuit Judge.

During the evening hours of October 26, 1989, two brothers, Mark Preston and Marcus Preston, were leaving the Northland Mall in Southfield, Michigan. As they approached a nearby bus stop, William Ellington, Jr. and his companion, Jerry Blessit, approached the Prestons in a black Ford Escort. A gun was brandished from inside the car toward Marcus, who was then robbed. Mark ran into the Northland parking lot and there encountered Southfield Police officers, Newsom and Durbin, part of a surveillance team stationed there.

Mark described the robbery of his brother and advised that the occupants of the Escort were armed. ¹ Marcus then confirmed that the passenger in the car had a long black gun. There is a dispute as to whether either of the Prestons talked about a handgun. The district court found, however, that they told the officers they had seen only one gun. Durbin relayed information about the armed robbery over the police radio to others in the surveillance team, while Newsom, a defendant in this case, left to look for the Escort. Officer Clifford, another member of the surveillance operation, also began to search for the vehicle and its occupants, accompanied by the Prestons. Officers Phillips and Thomas, also defendants, heard the radio transmissions and joined the search.

Clifford observed the black Escort in the parking lot, and advised the Prestons to exit the unmarked police car. Members of the police surveillance team followed and observed the suspects in their car, who then approached a lone woman walking across the parking lot that was described by the district court as "well lighted." The police officers then watched as the suspects proceeded in an attempt to commit a second armed robbery. Defendants Phillips and Thomas saw Blessit, the passenger, lean out the Escort window and point a gun at the intended victim, Sylvia Harding. Clifford did not see either of the suspects with a weapon, but heard on a police radio transmission that Blessit possessed a gun.

Defendant Newsom then intentionally drove his unmarked car into the front of the Escort to interrupt the robbery in progress and prevent flight as the other police approached. The police exited their vehicles, and Blessit pointed the gun in Phillips' direction. Simultaneously, Newsom, Phillips, and Thomas fired on the Escort. ² Ellington, the driver, immediately exited the car to flee from the scene. Newsom fired five to seven rounds and Phillips fired two rounds at Ellington as he ran away from them. Thomas did not fire any rounds at Ellington after he exited the Escort. ³ Newsom or Phillips hit Ellington as he fled with at least one of their shots. He suffered serious injuries and died several months later from complications resulting from the gunshot wound or wounds. It was later determined that Ellington was not armed and the police uncovered only one weapon from the scene--Blessit's rifle. ⁴

Plaintiff Jacqueline Washington brought this suit as Ellington's personal representative under 42 U.S.C. § 1983 and Michigan tort law alleging that the individual defendants used excessive force; that the City and its Police Department failed adequately to train the three officer-defendants; and that the Police Department maintained an unconstitutional deadly-force policy. There was also a count of negligence and gross negligence. A joint motion for summary judgment was filed by all defendants, contending that the plaintiffs cannot make out an excessive use of force claim against the City or the individual officers because the City has a deadly force policy which is constitutionally sound, the City's police officers are trained in the use of deadly force in compliance with the policy, the individual defendants' actions in this case were reasonable, and those defendants are entitled to qualified immunity. The district court denied the motion for summary judgment as to all defendants, and both the City and the individual defendants have appealed that denial.

The district court assumed "the existence of a causal link between the [Southfield] policy and the alleged deprivation of Ellington's constitutional rights." The district court denied Southfield's summary judgment motion to the effect that it had adopted and followed a constitutional policy on use of deadly force. Southfield has also appealed this decision.

The only basis for appellate review of the district court's opinion and denial of defendants' motions for summary judgment at this juncture is the interlocutory appeal by defendants, Newsom and Phillips, on their claims of qualified immunity. We dismiss the appeal of the City of Southfield for lack of appellate jurisdiction, because its claims are not based on qualified immunity. See Rich v. Mayfield Heights, 955 F.2d 1092, 1094 (6th Cir.1992).

Review of the district court's qualified immunity decision is de novo. Yates v. City of Cleveland, 941 F.2d 444, 446 (6th Cir.1991). We employ the same summary judgment standard employed by the district court. Summary judgment is appropriate when the depositions, affidavits, and other evidence, taken in the light most favorable to the non-moving party, demonstrate that there are no genuine issues of material fact left for resolution at trial, and the moving party is entitled to a decision in its favor as a matter of law. Fed.R.Civ.P. 56(c); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Police officers performing " 'discretionary functions, generally are shielded 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.' " Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir.1992) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)).

When a claim to qualified immunity is raised within the context of a motion for summary judgment, the non-movant must allege facts sufficient to indicate that the act in question violated clearly established law at the time the act was committed. See Dominque v. Telb, 831 F.2d 673, 677 (6th Cir.1987).... Thus, the plaintiff must effectively pass two hurdles when facing a defendant on summary judgment who claims qualified immunity. First, the allegations must "state a claim of violation of clearly established law." Mitchell v. Forsyth, 472 U.S. 511, 526 [105 S.Ct. 2806, 2815, 86 L.Ed.2d 411].... (1985). Second, the plaintiff must present "evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts."

Russo, 953 F.2d at 1043. The real issue in this case, then, is whether, under the circumstances, the defendant police officers violated the decedent's clearly-defined constitutional right which would be known to reasonable officers in defendants' position.

The Supreme Court has determined that

[w]here ... [an] excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right "to be secure in their persons ... against unreasonable ... seizures" of the person.

Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). ⁵ Police conduct is examined to determine "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their intent or motivation ... judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. at 397, 396, 109 S.Ct. at 1872.

"The intrusiveness of a seizure by means of deadly force is unmatched. The suspect's fundamental interest in his own life need not be elaborated upon." Tennessee v. Garner, 471 U.S. 1, 9, 105 S.Ct. 1694, 1700, 85 L.Ed.2d 1 (1985). Garner is the leading case on the constitutionality of the use of deadly force by police officers in the situation involving a fleeing felon. The Court reasoned:

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the 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. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead....

Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally...