James England v. City of Columbus, Ohio

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0247n.06

No. 22-3055

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jun 01, 2023
JAMES J. ENGLAND, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee,
)
) ON APPEAL FROM THE UNITED
v.
) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
CITY OF COLUMBUS, OHIO; KEITH
) OHIO
ABEL, in his individual and official
)
capacity,
) OPINION
Defendants-Appellants. )
)

Before: STRANCH, MURPHY, and DAVIS, Circuit Judges.

JANE B. STRANCH, Circuit Judge. On February 6, 2015, Defendant Officer Keith

Abel shot Plaintiff James England twice while apprehending him on a felony warrant. England

sued Abel and the City of Columbus pursuant to 42 U.S.C. § 1983, and the Defendants moved for

summary judgment. Relevant here, Defendants contended that Abel was entitled to qualified

immunity and that England’s claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994).

After the district court denied their motions, the Defendants filed this interlocutory appeal.

England moved to dismiss, arguing that this court lacks jurisdiction because the Defendants’

appeal does not raise purely legal issues. We DISMISS Defendants’ appeal for lack of

jurisdiction.
No. 22-3055, England v. City of Columbus, et al.

I. BACKGROUND

A. Factual Background

On February 6, 2015, Officer Abel discovered an outstanding warrant for James England

for felonious assault. After gathering three other officers—Douglas Fulwider, Armando Dungey,

and Kenneth Griffis—Abel went to England’s house to execute the warrant. Abel covered the

back of the house, and Fulwider and Dungey stood outside the front door. They told England that

they had a warrant for his arrest and ordered him to open the door. England responded that he

wanted to secure his two dogs first. But England never opened the front door; instead, he went

out the back door of the house onto a patio. There, he encountered Officer Abel, who was armed

with a TASER. Abel was in the driveway, separated from England by a patio door that was nailed

or bolted shut. Abel could see into the patio only through an uncovered square-shaped opening

at the top of the patio door. The bottom two-thirds of the patio door were boarded with what

appeared to be plywood.

Abel ordered England not to move, and England complied. He also ordered England to

come toward the door and put his hands up; England complied again, approaching the door with

his hands above his head. With his TASER still drawn, Abel grabbed England’s hands. At that

point, the officers at the front of the house had heard Abel’s orders and joined him in the back of

the house behind the patio door. Fulwider joined Abel in securing England through the window

opening. Fulwider placed the first handcuff on England himself and he and Abel secured the

second handcuff together. The handcuffs were secured but not “locked or double locked.”

England remained handcuffed throughout the remainder of the encounter.

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No. 22-3055, England v. City of Columbus, et al.

At some point, both of England’s dogs, at least one of which was a pit bull, came through

a dog door onto the patio. The officers asked England to control the dogs; he tried to do so but

only one dog heeded his commands.

With England and at least one of his barking dogs on the other side of a bolted patio door,

the officers decided to secure England by pulling him through the small window opening at the

top of the patio door. Abel, who is 5'6" tall, pulled himself “onto the boarded patio door to try and

control [] England,” who weighed 180 pounds and was 5'9". Fulwider said Abel was standing on

a bucket to gain an “improved position.” By this point, Abel had fumbled and dropped his TASER

and drawn his service weapon. With his firearm in his right hand, Abel attempted to lift England

from the patio with his left arm. Fulwider “grabbed hold of [Abel’s] gun belt to try to stabilize

him as [] he went to pull [England] up.” Abel felt his “weight going over the patio door and onto

th[e] patio.” He attributed this to England lunging forward, but he admitted that he did not see

what England was doing when he felt his body weight shift. Conversely, England testified that he

was “pushed forward.”

The rest of the incident is undisputed. Abel fired two shots at England, striking him in the

torso. England then dove through the dog door on the back door and into the house. Fulwider

entered, found England on the ground handcuffed and bleeding, and dragged him out of the house

by his legs. The officers took England into custody and transported him to the hospital.

In the aftermath of the incident, there was disagreement within the Columbus Division of

Police (CDP) as to whether Abel’s use of deadly force was in violation of police policy. The

Critical Incident Response Team and Sergeant Griffis, Abel’s supervisor, found that the shooting

was not in violation of policy. But the Firearms/Police-Involved Death Review Board, Lieutenant

David Knight, Commander Mark Gardner, and Deputy Chief Ken Kuebler found that it was not

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No. 22-3055, England v. City of Columbus, et al.

objectively reasonable for Abel to use deadly force. Ultimately, the Chief of Police, Kim Jacobs,

made a final determination that Abel did not violate policy.

In addition to the felonious assault charge that had formed the basis of the warrant, the

officers charged England with resisting arrest, and he pled guilty. The sworn complaint charging

England with resisting arrest stated: “[England] would not comply with officers[’] orders. He

tensed up and struggled with officers as they attempted to handcuff him. He then lunged forward

dragging an officer over a walled partition.” In 2019, England moved to withdraw his plea, but

there is no record of England’s initial plea hearing in 2015. England testified that he had never

seen or reviewed the complaint and that the facts in the complaint differed from his version of

events on February 6, 2015.

B. Procedural History

England sued Abel for excessive force and the City of Columbus under Monell v.

Department of Social Services of the City of New York, 436 U.S. 658 (1978), pursuant to 42 U.S.C.

§ 1983. The Defendants moved for summary judgment, arguing that Abel was entitled to qualified

immunity and that the City was not liable under any Monell theory and for lack of an underlying

constitutional violation by Abel. In his reply brief, Abel argued for the first time that Heck v.

Humphrey, 512 U.S. 477 (1994), barred England’s excessive force claim because it would

undermine the validity of his conviction for resisting arrest. England moved to strike this

argument, requesting in the alternative to file a sur-reply, which was attached to the motion.

The district court denied summary judgment in full. Regarding Abel’s entitlement to

qualified immunity, the court held that genuine disputes of fact precluded a finding that there was

no constitutional violation. Specifically, the court reasoned that:

When the dust settled, critical questions were left unanswered. First, what caused
Officer Abel to tip forward? Did his weight shift because Mr. England lunged in a

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No. 22-3055, England v. City of Columbus, et al.

late-stage attempt to overtake Officer Abel—or merely because gravity affected his
perch atop the plywood? Second, did Officer Abel know, or should he have known,
that Mr. England was handcuffed? Did Officer Abel himself fasten the second cuff
on Mr. England’s wrist—or did he reasonably believe that Mr. England’s hands
were unrestrained? Whether Officer Abel had probable cause to believe that Mr.
England posed an imminent threat of serious physical harm, and the use of deadly
force was therefore justified under the circumstances, turns on these questions of
fact. Accordingly, summary judgment is not appropriate.

England v. City of Columbus, No. 2:19-cv-1049, 2021 WL 5998530, at *7 (S.D. Ohio Dec. 20,

2021). Additionally, the court held that England’s right to be free of excessive force was clearly

established:

Construing the facts in the light most favorable to Mr. England, this case presents
a circumstance in which a suspect was handcuffed on a partially-enclosed patio
with two aggressive dogs, but was complying with officer commands, was not
physically resisting the officers’ grasp, made no verbal threats to the officers, and
was not armed. The arresting officer, who had drawn his service weapon, lost his
balance and feared falling into the enclosure with the suspect and the dogs. Though
a precarious scenario, the suspect was not the source of any threat. The suspect in
this case was subdued and nondangerous—and had a constitutional right not to be shot.

Id. at *8 (citing Brown v. Battle Creek Police Dep’t, 844 F.3d 556, 567-68 (6th Cir. 2016)).

The district court considered England’s sur-reply and addressed Abel’s untimely

arguments regarding Heck’s applicability on the merits. It held that England’s excessive force

claim was not barred by Heck because “the factual basis of Mr. England’s guilty plea is unclear at

best, and because [his] pre-handcuffing conduct could form the sole basis of that plea, Mr.

England’s excessive force claim does not necessarily imply the invalidity of the [resisting arrest]

conviction.” Id. at *10.

Finally, as to the City’s municipal liability, the district court held that there were genuine

disputes of fact whether Chief Jacobs’s approval of Abel’s use of deadly force “constitute[d] or

confirm[ed] the existence of a City policy that deadly force may be used on a suspect when a CDP

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No. 22-3055, England v. City of Columbus, et al.

officer subjectively—but unreasonably—fears for his life,” and if any ratification was a moving

force behind England’s injury. Id. at *12.

The Defendants timely filed this interlocutory appeal, arguing that the district court erred

in (1) denying Abel qualified immunity; (2) holding that England’s excessive force claim was not

barred by Heck; and (3) denying the City summary judgment for lack of an underlying

constitutional violation by Abel. England moved to dismiss for lack of jurisdiction, arguing that

the appeal is based on factual disputes, and he also moved for sanctions for filing a frivolous

appeal.

II. ANALYSIS

On appeal, Defendants contend that the district court erred in denying Abel qualified

immunity and raise two other issues—whether Heck bars England’s excessive force claim and

whether the City is liable under Monell. We review the district court’s order de novo. Jones v.

City of Elyria, 947 F.3d 905, 913 (6th Cir. 2020). At summary judgment, a government official is

entitled to qualified immunity unless, viewing the record evidence in the light most favorable to

the plaintiff, a reasonable jury could find that (1) the defendant violated a constitutional right and

(2) that right was clearly established. Quigley v. Tuong Vinh Thai, 707 F.3d 675, 680 (6th Cir.

2013). We begin with our jurisdiction.

The courts of appeals have jurisdiction to review “final decisions” from the district courts,

28 U.S.C. § 1291, but final decisions are not necessarily “the last order possible to be made in a

case.” Mitchell v. Forsyth, 472 U.S. 511, 524 (1985) (quoting Gillespie v. United States Steel

Corp., 379 U.S. 148, 152 (1964)). Typically, the denial of summary judgment is not immediately

reviewable, but a district court’s denial of qualified immunity—“to the extent that it turns on an

issue of law”—is a final decision suitable for review. Id. at 530. We do not, however, have

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jurisdiction to review appeals that seek to challenge a district court’s “determination that the

summary judgment record . . . raised a genuine issue of fact.” Johnson v. Jones, 515 U.S. 304,

313 (1995). A defendant must generally “concede the most favorable view of the facts to the

plaintiff” to invoke this court’s jurisdiction. Adams v. Blount County, 946 F.3d 940, 948 (6th Cir.

2020). Where independent appellate jurisdiction lies, we may also exercise pendent jurisdiction

over issues that are “inextricably intertwined” with a claim of qualified immunity. Meals v. City

of Memphis, 493 F.3d 720, 727 (6th Cir. 2007).

England argues we lack jurisdiction because this appeal is an impermissible fact-based

challenge to the district court’s determination that genuine disputes of material fact exist regarding

Abel’s entitlement to qualified immunity. Defendants contend that they raise only the legal issues

of whether Abel’s use of deadly force was objectively unreasonable, and, even if it was, whether

any violation was clearly established.

A. England’s Excessive Force Claim

1. Constitutional Violation

England may show that Abel violated his constitutional right to be free from excessive

force by demonstrating that the force used was objectively unreasonable. See Graham v. Connor,

490 U.S. 386, 393-95 (1989). The use of deadly force is objectively unreasonable “unless an

officer has probable cause to believe a suspect poses an immediate threat of serious physical harm

to the officer or others.” Lee v. Russ, 33 F.4th 860, 863 (6th Cir. 2022) (citing Tennessee v. Garner,

471 U.S. 1, 11 (1985)).

The district court held that genuine disputes of material fact existed as to whether the

deadly force Abel used against England—shooting him twice in the torso—was objectively

unreasonable. See England, 2021 WL 5998530, at *7. The district court found two critical factual

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No. 22-3055, England v. City of Columbus, et al.

disputes. The first is whether England was handcuffed; in the light most favorable to England, the

record showed that the officers succeeded in handcuffing him—with Abel fastening the second

handcuff himself. Id. The second dispute regards the cause of Abel moving forward over the patio

door just before shooting England. Id. In the light most favorable to England, Abel fell forward

because of gravity, not because England lunged forward. Id. The district court reasoned that

whether Abel used excessive force, i.e., whether the use of force was objectively unreasonable,

“turns on these questions of fact.” Id.

Defendants argue that there is no dispute that Abel’s use of force was reasonable, wholly

failing to concede the facts in England’s favor. See Adams, 946 F.3d at 948. For example,

Defendants argue that “it was reasonable to believe that England posed an immediate threat to

[Abel’s] safety” because “England had lunged forward, dragging [him] over a walled partition”

and “was resisting arrest and attempting to evade arrest when he was shot.” The district court

correctly credited England’s version of the facts and drew inferences in his favor in denying

qualified immunity. Defendants fail to explain why, given the district court’s factual

determinations and inferences, Abel prevails on his claim of qualified immunity as a matter of

law. See Johnson, 515 U.S. at 313. Indeed, Defendants admit elsewhere that “England’s suggested

fact-pattern would very likely defeat summary judgment.” The district court did not err in

determining that disputes of material fact exist on this record.

Defendants next invoke Heck, a decision that bars a plaintiff’s § 1983 claim “if success on

that claim ‘would necessarily imply the invalidity’ of an underlying state criminal conviction.”

Hayward v. Cleveland Clinic Found., 759 F.3d 601, 608 (6th Cir. 2014) (quoting Heck, 512 U.S.

at 487). If Heck applies, a plaintiff “has no cause of action under § 1983 unless and until the

conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of

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habeas corpus.” Heck, 512 U.S. at 489. We have applied Heck to bar § 1983 excessive force

claims in two circumstances: (1) when the crime of conviction included the lack of excessive force

as an element and (2) when the plaintiff could have raised excessive force as an affirmative defense

to the crime. Hayward, 759 F.3d at 608.

Defendants’ arguments here conflate Heck with the separate doctrine of issue preclusion.

Below, Abel argued that Heck barred England’s “new allegations” that he was not resisting arrest

and his “new” factual claim that he did not lunge forward because England had pled guilty to a

resisting-arrest complaint that asserted he “struggled with officers” and “lunged forward dragging

an officer over a walled partition.” Abel framed his analysis through a traditional Heck lens,

arguing that, in Ohio, a conviction for resisting arrest requires a lawful arrest—one without

excessive force. The district court therefore undertook a Heck analysis, ultimately holding that

England’s claim would not necessarily undermine his resisting arrest conviction. But the former

idea—that Heck bars England from asserting and relying on certain facts to support his claim—is

different, more akin to issue preclusion. Heck, as we know it, bars claims, and Defendants did not

expressly argue that Heck’s underlying logic should be extended to bar fact issues as well. Nor

did they expressly raise or develop an issue-preclusion defense before the district court or this

court.1 The issue is not before this court.

In sum, we agree with England that the issues Defendants raise regarding the first prong of

qualified immunity are fact-based challenges that we do not have jurisdiction to review.

1
Two days before argument, Defendants filed a letter pursuant to Federal Rule of Appellate Procedure 28(j) providing
supplemental existing authority to support an argument raised for the first time—issue preclusion. This late-breaking
letter does not preserve the issue-preclusion argument for our review when Defendants failed to develop it at the
district court or in their appellate briefing. United States v. Maliszewski, 161 F.3d 992, 1015 (6th Cir. 1998).

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2. Clearly Established Law

Defendants also argue that the district court erred in holding that England’s right to be free

from excessive force was clearly established. The district court held that England met his burden

on this second prong of the qualified immunity analysis because it was clearly established at the

time Abel shot England that using deadly force on a suspect that was “subdued and nondangerous”

and “not the source of any threat” violated the Constitution. England, 2021 WL 5998530, at *8.

The district court’s holding was predicated on its finding the facts detailed above. See id.

Like their argument concerning the first prong of qualified immunity, Defendants’

argument regarding prong two improperly “rest[s] . . . on their own version of the disputed facts

and the inferences they would draw from them.” DiLuzio v. Village of Yorkville, 796 F.3d 604,

611 (6th Cir. 2015). The Defendants argue that “there is no legal authority that a police officer

may not use deadly force to stop himself from getting dragged over a walled partition . . . while

attempting to arrest a violent and resisting felon.” This formulation of Abel’s conduct completely

disregards the district court’s findings of fact. Accordingly, we also lack jurisdiction to review

Defendants’ argument regarding the second prong of qualified immunity.

In sum, Defendants’ arguments regarding Abel’s entitlement to qualified immunity are

contingent on resolving, in Defendant’s favor, factual disputes identified by the district court. This

court is not vested with jurisdiction to do so; accordingly, we grant England’s motion to dismiss

the appeal for lack of jurisdiction. See Gillispie v. Miami Township, 18 F.4th 909, 917-18 (6th

Cir. 2021).

B. England’s Motion for Sanctions

England moves for sanctions, arguing that Defendants’ fact-based appeal is frivolous. “If

a court of appeals determines that an appeal is frivolous, it may . . . award just damages and single

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or double costs to the appellee.” Fed. R. App. P. 38. Appeals “obviously without merit and []

prosecuted for delay, harassment, or other improper purposes” are frivolous. McDonald v. Flake,

814 F.3d 804, 816 (6th Cir. 2016) (quoting Bridgeport v. Music, Inc. v. Smith, 714 F.3d 932, 944

(6th Cir. 2013)). Interlocutory appeals of denials of qualified immunity “can be employed for the

sole purpose of delaying trial,” Yates v. City of Cleveland, 941 F.2d 444, 448 (6th Cir. 1991), and

“litigants have been on notice for more than two decades that fact-intensive claims of entitlement

to qualified immunity ‘can consume inordinate amounts of appellate time,’” Gillispie, 18 F.4th at

919 (quoting Johnson, 515 U.S. at 316). While “it is important to protect public officials from

frivolous claims and burdens of trials, it is also important to curtail the outlay and delay of

litigation, so that victims of official misconduct may receive the vindication that is their due.”

Yates, 941 F.2d at 449 (quoting Abel v. Miller, 904 F.2d 394, 396 (7th Cir. 1990)).

Undoubtedly, Defendants’ interlocutory appeal and refusal to accept the factual disputes

found by the district court have caused delay. Based on the entire record, however, we conclude

that this appeal does not rise to the level of sanctionable conduct.

III. CONCLUSION

For the foregoing reasons, we DISMISS Defendants’ appeal for lack of jurisdiction, and

we DENY England’s motion for sanctions.

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