Smith v. Kim

PER CURIAM.

Defendants Walter Kim and Michael Yankowski appeal the denial of their motion for summary judgment in this case. Kim and Yankowski are Lansing police officers who claim they are entitled to qualified immunity in this suit filed by Leon Smith, who is asserting, among other things, a claim of excessive force under 42 U.S.C. § 1983. For the following reasons, we AFFIRM the judgment of the district court.

*819On July 27, 2001, Dana Wigton, a community mental health worker, obtained an order from the county probate court for the hospitalization of the plaintiff, Leon Smith. Smith is a paranoid schizophrenic who was under Wigton’s treatment. Wig-ton took the order to the Lansing Police Department, where she spoke with a sergeant. She explained that Smith was not taking his medication, had threatened her, and had become a danger to himself and others. She further explained that he could be violent and “didn’t like the police.”

The sergeant informed Officer Yankowski of the court order to take Smith into custody for transport to a mental health evaluation. The sergeant conveyed Wig-ton’s warnings about Smith’s state of mind to Yankowski. Yankowski asked Officer Kim to assist him in taking Smith into custody, but he did not tell Kim any information about Smith’s mental illness or proclivity to violence.

The two officers drove separately to Smith’s home. Smith was sitting in the front yard with a few other men. There were other people nearby who saw the events that transpired. From this point on, however, the evidence is in some dispute as to what happened. The officers present one set of facts, while Smith, via his two neighbor-witnesses, presents another.

The officers’ version of events begins with Smith standing up as the officers got out of their cruisers and began to approach. The officers observed that Smith kept his hand in his right pocket. The officers asked who lived there, and Smith responded it was his mother’s house. The officers asked if he was Leon Smith, and he “grunted” in the affirmative. As the officers continued to approach Smith, Yankowski asked Smith to take his hand from his pocket. Initially Smith failed to comply, but he did eventually remove his hand. The officers observed a small knife, with a blade about an inch and a half long, in Smith’s right hand. Smith pointed the knife at Yankowski, and as the officers began to retreat, Smith lunged at Yankowski. The officers then backed further away from Smith, who picked up a brick and started running toward the officers with the brick over his head. The officers yelled for Smith to stop and drop the knife and brick, but he did not. Smith made a move as to throw the brick at Kim while he was between ten and twenty feet from the officer. Kim shot twice at Smith, striking him once. A knife and a brick were found next to Smith.

The witnesses’ versions of events differ from the officers’. Loise Luster was standing in her driveway talking to her daughter when the events at issue transpired. Shyla Keys is the other witness, the young woman standing in Luster’s yard. Luster was standing in her driveway when the two police cruisers arrived. Smith was sitting in the driveway of his mother’s house with his brother and some other men. Luster had been talking across the fence with them. The officers approached the men, and Smith acknowledged that the home was his mother’s, in a conversational tone. The officers told Smith that they had to take Smith into custody and said something about his medication. Smith “just jerked away.” Both officers at this point pulled their guns. Smith and the officers were about four feet apart. Smith began to try to distance himself from the officers.

Luster was meanwhile pleading with the officers, shouting, “Don’t shoot him. He has a problem .... his mother is in the house. Please talk to her.” Luster claims she did not see anything in Smith’s hand, and she continued to plead with the officers not to shoot. Luster says Smith retreated back to the fence and was shot *820there. She never saw Smith make a threatening motion or have anything in his hand. She claims she never saw Smith do anything that put any of the bystanders or officers in fear for their lives. She claims Kim shot Smith while she was standing very close by; he fell into the fence when he collapsed.

Shyla Keys, a fourteen year-old neighbor, claims she observed the incident from the front yard of Luster’s home. She says that Smith did pick up a brick and make a gesture at the officers, but he was about eighteen feet away from them at the time. At no time, she says, however, did Smith “run at, advance toward or move closer to the Lansing police officers before he was shot.”

As a result of the shooting, Leon Smith spent nineteen weeks in the hospital recuperating from a gunshot wound to the abdomen. The local prosecutor charged Smith with assault with intent to do great bodily harm less than murder, but the judge found at the preliminary hearing that Smith lacked the requisite intent. Instead, the judge bound Smith over on the charge of felonious assault with a knife and a brick, finding probable cause on the issue.

The question presented by this case is a complex one. Excessive force cases, considered in the context of qualified immunity challenges, create a distinctive intersection of the laws. The Supreme Court recently held “that the ruling on qualified immunity requires an analysis not susceptible of fusion with the question whether unreasonable force was used in making the arrest.” Saucier v. Katz, 538 U.S. 194, 197, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The issue presented by this case regards the intersection of our jurisprudence on qualified immunity, on our appellate jurisdiction, and on excessive force.

Fortunately, this court has considered this intersection on several occasions. We turn for guidance to Sova v. City of Mt. Pleasant, 142 F.3d 898, 902 (6th Cir.1998), which warned as a preliminary matter that “[qualified immunity in cases involving claims of deadly force is difficult to determine on summary judgment because liability turns upon the Fourth Amendment’s reasonableness test.” With that warning in mind, we seek to determine the appropriate outcome in this case.

The seminal case on deadly force is Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), in which the Supreme Court held that deadly force is inappropriate unless “it is necessary to prevent [ ] escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Id. at 3. As we said in Sova, 142 F.3d at 903, quoting Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Fourth Amendment reasonableness inquiry

is an objective test, to be “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” and making “allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.”

The Supreme Court held in Malley v. Briggs that an officer, sued in a civil suit, will be entitled to immunity if reasonably competent officers could disagree as to the reasonableness of the defendant officer’s response. 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). If a reasonably competent officer would not agree that the behavior was reasonable, however, then the defendant officer is not entitled to *821qualified immunity. Id. We went on to explain the effect of this rule in Sova, 142 F.3d at 902-03:

This Court has established that summary judgment is inappropriate where there are contentious factual disputes over the reasonableness of the use of deadly force. When “the legal question ... is completely dependent upon which view of the facts is accepted by the jury,” the District Court cannot grant a defendant police officer immunity from a deadly force claim. Brandenburg v. Cureton, 882 F.2d 211, 215-16 (6th Cir. 1989). This is because the reasonableness of the use of force is the linchpin of the case. If the jury determines the officer shot the suspect without a reasonable belief that he posed a significant threat of death or serious physical injury to the officer or others, then the officer’s actions were legally unreasonable under the Fourth Amendment. Id. at 216. On the other hand, if the jury believes the officer’s version of the facts and finds the officer’s conduct was reasonable, then he will be entitled to qualified immunity. Id. Where, as here, the legal question of qualified immunity turns upon which version of the facts one accepts, the jury, not the judge, must determine liability. See Buckner v. Kilgore, 36 F.3d 536, 540 (6th Cir.1994); Adams v. Metiva, 31 F.3d 375, 387 (6th Cir.1994); Walton v. City of Southfield, 995 F.2d 1331, 1342 (6th Cir.1993); Washington v. Newsom, 977 F.2d 991, 995-96 (6th Cir.1992); Yates v. City of Cleveland, 941 F.2d 444, 447 (6th Cir. 1991).

As Smith points out, should we hold that “material issues of fact precluded the grant of summary judgment based on qualified immunity on plaintiffs’ excessive force claim, we [would be] without jurisdiction to review this issue.” Dickerson v. McClellan, 101 F.3d 1151, 1164 (6th Cir. 1996). Thus the question before us today is whether material facts are actually in dispute. This inquiry must come before any substantive discussion of the objective reasonableness of the officers’ actions.

Yankowski and Kim claim that the pertinent facts are not in dispute; the officers claim that it is undisputed that Smith was resisting arrest, Smith wielded dangerous weapons against the officers, and Kim reasonably feared for his safety and the safety of others. Smith, on the other hand, claims that the germane facts are in dispute, as evidenced by the differences between the testimony of the officers and the testimony of the plaintiffs witnesses. Smith says that to find the facts undisputed is to credit all of the testimony of the officers and none of the testimony of Loise Luster and the deposition of Shyla Keys. Luster claims that Smith never had a weapon and that he was retreating from the officers. Keys claims that Smith never advanced toward the officers in a menacing way.

We believe that the difference in the testimony of the officers’ and that of Smith’s witnesses as to Smith’s behavior during the incident is material. At minimum, the difference in the evidence is germane to the ultimate question of the officers’ objective reasonableness. The jury must be the arbiter of the credibility of the evidence. We refuse to make such a determination today.

Because we find that material facts are in dispute in this case, we hold that we have no jurisdiction to hear the appeal. For that reason, we do not reach the question of the objective reasonableness of the officers’ behavior, nor do we reach the question of collateral estoppel on the issue of probable cause.

For the foregoing reasons, we AFFIRM the judgment of the district court.