Debbie Latits v. Lowell Phillip
OPINION filed to dismiss case for lack of jurisdiction, decision not for publication. Eric L. Clay and Jane Branstetter Stranch (Authoring), Circuit Judges; and Timothy S. Black, District Judge.
NOT RECOMMENDED FOR PUBLICATION
File Name: 14a0629n.06
Aug 13, 2014
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DEBBIE JEAN LATITS, as Personal Representative
of the Estate of Laszlo John Latits, Deceased,
LOWELL PHILLIPS, Police Officer for the City of
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
CLAY and STRANCH, Circuit Judges; BLACK, District Judge.*
STRANCH, Circuit Judge. Debbie Jean Latits filed suit under 42 U.S.C. § 1983
alleging that City of Ferndale Police Officer Lowell Phillips violated the Fourth Amendment
when he fatally shot her husband, Laszlo John Latits, at the conclusion of a vehicle chase. The
district court denied Officer Phillips’s motion for judgment on the pleadings on various grounds,
including qualified immunity, see Fed. R. Civ. P. 12(c), and Officer Phillips filed this
interlocutory appeal seeking reversal of the district court’s decision. We DISMISS the appeal
for lack of jurisdiction.
The parties agree we should review de novo the district court’s decision to deny the
Rule 12(c) motion for judgment on the pleadings. See Kottmyer v. Maas, 436 F.3d 684, 689 (6th
The Honorable Timothy Black, United States District Judge for the Southern District of
Ohio, sitting by designation.
Latits v. Phillips
Cir. 2006). We must accept as true the well-pleaded factual allegations of the complaint and
construe the facts in the light most favorable to the plaintiff. Reilly v. Vadlamudi, 680 F.3d 617,
622 (6th Cir. 2012). The complaint alleges the following facts.
In the early morning hours of June 24, 2010, Laszlo Latits was stopped by one or more
Ferndale police officers for a minor traffic violation. Latits did not possess a weapon. When
Officer Jaklic pointed a pistol at Latits’s head from point blank range, Latits fled in his vehicle,
but he did not drive at an excessive rate of speed. Three Ferndale police officers pursued him
even though he had committed, at most, a civil infraction or a misdemeanor in their presence.
He was not suspected of any felony offenses prior to the pursuit, and there were no felony
warrants for his arrest.
The police pursuit began in the vicinity of 8 Mile Road and Livernois and ended in the
vicinity of State Fair and Woodward in Detroit. Officer Wurm began ramming Latits’s car when
Latits turned northbound on Woodward. The chase ended when Officer Phillips rammed Latits’s
car and pushed it across three lanes of traffic and onto the corner of State Fair and Woodward.
Officer Phillips got out of his car and ran near the passenger door of Latits’s car. Latits began
backing up at low speed. Officer Phillips drew his pistol, turned, and ran after Latits’s car.
Latits did not try to hit Officer Phillips with his car; rather, he backed away in an arc that curved
away from the officer. Officer Phillips then fired seven shots, at least three of them after Latits
had already backed all the way past Officer Phillips. Three shots hit Latits—two in the chest and
one in the arm. Officer Phillips was in no danger when he shot Latits. He was not protecting
another officer or anyone else from imminent serious bodily injury at the time he used his
weapon. Latits did not present an imminent threat to the officers before or at the time he was
shot. Latits was transported to Beaumont Hospital where he was pronounced dead.
Latits v. Phillips
Whether Officer Phillips is entitled to qualified immunity on these facts turns on the
objective legal reasonableness of his discretionary conduct in light of clearly established law.
See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We ask whether he violated a constitutional
right and whether that right was clearly established at the time of the alleged conduct. Wood v.
Moss, 134 S. Ct. 2056, 2066–67 (2014). A district court’s denial of qualified immunity, to the
extent it turns on a pure issue of law, is an appealable “final decision” within the meaning of
28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Gregory v. City of
Louisville, 444 F.3d 725, 742 (6th Cir. 2006). For purposes of interlocutory appeal, however,
Officer Phillips must concede the most favorable view of the facts for the plaintiff. See Quigley
v. Thai, 707 F.3d 675, 680 (6th Cir. 2013); Estate of Carter v. City of Detroit, 408 F.3d 305,
309–10 (6th Cir. 2005).
In his briefs and oral argument, Officer Phillips steadfastly refused to concede the most
favorable view of the facts for the plaintiff.
Ignoring completely the plaintiff’s factual
allegations pled in federal court, he contends that we must apply the facts found by the Michigan
Court of Appeals at an earlier stage of this litigation when that court granted his defense of
governmental immunity to the plaintiff’s state-law claim of assault and battery. See Latits v.
Phillips, 826 N.W.2d 190 (Mich. Ct. App. 2012). He insists that the same facts compel us to
grant him qualified immunity on the Fourth Amendment claim.
Officer Phillips either misunderstands or chooses to disregard our case law. Because he
does not accept the plaintiff’s allegations for purposes of this appeal and insists on using an
entirely different version of the facts more favorable to him, we lack jurisdiction to resolve the
qualified immunity question in this interlocutory appeal. See Gregory, 444 F.3d at 743 (citing
Johnson v. Jones, 515 U.S. 304, 313 (1995)). Officer Phillips has made no effort to demonstrate
Latits v. Phillips
that, under the facts alleged by the plaintiff, he did not violate the deceased’s Fourth Amendment
rights or that he is entitled to qualified immunity due to a lack of clearly established law. See
Plumhoff v. Rickard, 134 S. Ct. 2012, 2016–17 (2014) (holding in police shooting case decided
on summary judgment that officer did not violate deceased motorist’s Fourth Amendment rights
and alternatively, was entitled to qualified immunity).
Officer Phillips also asserts that he is entitled to judgment on the pleadings under the
doctrines of collateral estoppel, the law of the case, and Rooker-Feldman. He does not point us,
however, to any published case in which we have held that we possess appellate jurisdiction to
review a district court’s rulings on these doctrines when they are raised in an interlocutory
qualified immunity appeal. Because we lack jurisdiction to decide the qualified immunity
question, we are not inclined to decide whether we have jurisdiction to consider these other
claims on interlocutory appeal.
Even if we had jurisdiction, we would nonetheless reject each claim as without merit.
Officer Phillips cannot show the existence of a prior valid and final judgment entered in state
court to warrant the application of collateral estoppel. See Pac. Employers Ins. Co. v. Sav-A-Lot
of Winchester, 291 F.3d 392, 399 (6th Cir. 2002). The law of the case doctrine does not apply
because the Michigan Court of Appeals decided a state-law issue distinct from the Fourth
Amendment issue presented to the federal courts. Cf. Westside Mothers v. Olszewski, 454 F.3d
532, 538 (6th Cir. 2006). The Rooker-Feldman doctrine is inapplicable because the plaintiff
does not complain of any injury caused to her by an adverse state court judgment; rather, her
Fourth Amendment claim targets the alleged wrongdoing of Officer Phillips. See Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
Latits v. Phillips
Finally, Latits requests an award of sanctions against the defendant. Federal Rule of
Appellate Procedure 38 provides: “If a court of appeals determines that an appeal is frivolous, it
may, after a separately filed motion or notice from the court and reasonable opportunity to
respond, award just damages and single or double costs.” In briefing and at oral argument,
defense counsel resolutely refused to follow our case law. This appeal, moreover, appears to
have been interposed for the purpose of delay. Although the appeal is frivolous and the question
of sanctions is close, we decline at this time to award Rule 38 sanctions as requested by the
For the reasons stated, we DISMISS the appeal for lack of appellate jurisdiction.
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