William Thomas v. City of Columbus, Ohio, et al

Filing

OPINION and JUDGMENT filed : AFFIRMED. Decision for publication. David W. McKeague (AUTHORING), Richard Allen Griffin, and Raymond M. Kethledge, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0086p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

WILLIAM THOMAS,
Plaintiff-Appellant,

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v.
CITY OF COLUMBUS, OHIO; KIMBERLEY JACOBS;
WILLIAM T. KAUFMAN,
Defendants-Appellees.

No. 16-3375

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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:14-cv-00906—Gregory L. Frost, District Judge.
Argued: December 9, 2016
Decided and Filed: April 19, 2017
Before: McKEAGUE, GRIFFIN, and KETHLEDGE, Circuit Judges.
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COUNSEL
ARGUED: Nicholas A. DiCello, SPANGENBERG, SHIBLEY & LIBER, LLP, Cleveland,
Ohio, for Appellant. Timothy J. Mangan, CITY ATTORNEY’S OFFICE, Columbus, Ohio, for
Appellees. ON BRIEF: Nicholas A. DiCello, Jeremy A. Tor, SPANGENBERG, SHIBLEY
& LIBER, LLP, Cleveland, Ohio, for Appellant. Timothy J. Mangan, Janet R. Hill Arbogast,
CITY ATTORNEY’S OFFICE, Columbus, Ohio, for Appellees.
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OPINION
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McKEAGUE, Circuit Judge. This case primarily concerns an officer’s decision to fire
his weapon. Specifically, whether that decision was reasonable when an apparent suspect exited

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an ongoing burglary 40 feet away from the officer and then ran towards the officer with a gun.
For the following reasons, we hold that it was and that the district court properly granted
summary judgment to the defendants on the remaining claims. Thus, we affirm.
I
In 2012, Destin Thomas lived in an apartment complex near Columbus, Ohio. His front
door opened to a breezeway. On one end, the breezeway led to a parking lot that Destin’s
building shared with the others in the complex. On the other end, it led to a grassy area that
separated Destin’s building from other developments and a nearby road.
At around 8:45 a.m. on a July morning, two men broke through Destin’s front door.
Destin called 911 from inside his bedroom and spoke quietly to avoid drawing the burglars’
attention. After a few minutes, however, the men tried to force their way into Destin’s room.
A struggle ensued.
As Destin confronted the intruders, the 911 dispatcher sent out a burglary alert. The
Columbus Police Department considers a burglary in progress a “priority one” call—a
designation reserved for “ongoing life-threatening crimes, and situations likely to result in
serious physical harm to any person.” R. 32-1, Kaufman Aff. Ex. A-3, PID 133. Normally, the
Department requires that two officers respond to these calls. “However, if the circumstances
indicate a present or an imminent threat to a citizen’s safety,” the Department’s procedures state
that “the first available sworn personnel shall respond directly and immediately to the scene.”
Id. at Ex. A-4, PID 135
Five officers in the area responded to the alert. Officer William Kaufman was the first to
arrive on the scene. On his way to the apartment complex, Officer Kaufman received updates
from the dispatcher that let him know that the caller was inside a bedroom, that multiple suspects
were in the apartment, and that the dispatcher heard yelling and crashing noises in the
background.
When Officer Kaufman pulled into the complex’s parking lot, he stopped his cruiser a
few spaces down from the breezeway’s entrance. He ran from his car toward the breezeway,

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approaching it from between a parked car and truck. Officer Kaufman says that as he ran, he
could hear a commotion coming from the breezeway. The complex was in a high-crime area and
Officer Kaufman says that he expected a gun might be involved. Officer Kaufman had his
weapon unholstered.
When Officer Kaufman approached the breezeway’s entrance, two men exited Destin’s
apartment and ran toward him. The first had a gun in his hand. Officer Kaufman stopped at the
parking lot’s edge, about 40 feet from Destin’s front door. He shouted and then fired two shots
at the person with the gun, who had closed the distance to what Officer Kaufman later estimated
to be ten feet.
The second suspect fled. Officer Kaufman chased him for a few steps before stopping.
He then radioed out “shots fired” and requested an ambulance.

Officer Kaufman never

administered aid to the suspect that he shot, later saying that he considered it unsafe to do so with
an active crime scene. He also says that the suspect appeared to be dead.
The person that Officer Kaufman shot was not a burglar. Rather, it was Destin, who had
managed to disarm a burglar before fleeing his apartment. Unbeknownst to Officer Kaufman,
and perhaps Destin, the gun that Destin had wrestled away was unloaded. Tragically, Destin
died from the two gunshot wounds.
When the next officer arrived on the scene a few minutes later, he entered the breezeway
from behind the building. He found Officer Kaufman facing toward Destin’s apartment door
with his gun drawn. Between the officers lay Destin’s body, clothed only in the gym shorts that
he had slept in. The officer asked Officer Kaufman if he was okay. Officer Kaufman responded,
“I think this was the homeowner.”
After more officers arrived and secured the scene, a sergeant transported Officer
Kaufman to a nearby police station. There, he met with his union-retained attorney. Officer
Kaufman then returned to the scene for initial questioning but declined to comment.
Nine days later, he submitted a statement through his attorney claiming that Destin had
pointed the gun at him. Destin’s father, William Thomas, finds this implausible because Destin

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had called the police. Further, Mr. Thomas notes that Destin’s bedroom faced the parking lot,
meaning that he might have left his room specifically to run to Officer Kaufman. Officer
Kaufman stuck by his story during his deposition, even agreeing when the opposing lawyer
suggested that the only thing that would make his firing a weapon reasonable would be Destin
lifting the gun towards him.
Besides Officer Kaufman, only one other living person witnessed the shooting—the
burglar that followed Destin out of the apartment. Police captured him, but he refuses to testify.
Currently, he is pursuing relief for his felony murder conviction based on Destin’s death.
II
In 2014, William Thomas sued Officer Kaufman, the City of Columbus, and the City’s
Police Chief, Kimberly Jacobs.

He brought two claims against Officer Kaufman under

42 U.S.C. § 1983. The first alleged that Officer Kaufman used excessive force in violation of
Destin’s right to be free from unreasonable seizures—a Fourth Amendment right applied against
the states by the Fourteenth Amendment. The second asserted that Officer Kaufman violated
Destin’s Fourteenth Amendment due process rights by showing deliberate indifference to his
serious medical needs after the shooting. Mr. Thomas also brought state tort claims against
Officer Kaufman based on the shooting. Finally, Mr. Thomas asserted that the City and Chief
Jacobs failed to properly train Officer Kaufman, thus making them liable for the shooting under
42 U.S.C. § 1983. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
The defendants moved for summary judgment, with Officer Kaufman asserting qualified
immunity as a defense. The district court granted the motion on the federal claims and dismissed
the state claims without prejudice. As to the excessive-force claim, the court concluded that no
genuine dispute existed over Officer Kaufman’s testimony that Destin pointed a gun at him, and
thus it found no Fourth Amendment violation. See R. 44, Opinion and Order, PID 1311.
The court then found for Officer Kaufman on the deliberate indifference claim, holding that he
did not disregard the risk to Destin but acted practically under uncertain circumstances. Id. at
22–23, PID 1325–26. Lastly, the district court dismissed the failure-to-train claim because it
found no constitutional violation. Id.

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III
Mr. Thomas appeals summary judgment on each claim. We review the district court’s
decision de novo. Getz v. Swoap, 833 F.3d 646, 652 (6th Cir. 2016). A court properly grants
summary judgment when no genuine issue of material fact exists and the moving party is entitled
to judgment as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). We “may affirm a decision of the district court for any reason supported by the
record, including on grounds different from those on which the district court relied.” Stein v.
Regions Morgan Keegan Select High Income Fund, Inc., 821 F.3d 780, 786 (6th Cir. 2016).
IV
A
The parties initially briefed this case by focusing on the same issue that the district court
honed in on: whether a genuine dispute existed that Destin pointed the gun at Officer Kaufman.
The district court held that no dispute existed because Mr. Thomas lacked sufficient evidence to
undermine Officer Kaufman’s sworn testimony. On appeal, Mr. Thomas mostly attacked the
errors he perceived in that holding. We ordered supplemental briefing on the question of
whether Officer Kaufman would be entitled to qualified immunity even if a jury could disbelieve
Officer Kaufman and find that Destin never aimed the gun at him. We now hold that Officer
Kaufman was entitled to immunity regardless of whether Destin raised the gun.
The Fourth Amendment guarantees the right to be free from unreasonable seizures.
This includes the right to be free from excessive force. Graham v. O’Connor, 490 U.S. 386, 388
(1989). The Fourth Amendment’s “objective reasonableness” standard governs whether an
officer’s force was excessive. See id. Deadly force is objectively reasonable when an officer
“has probable cause to believe that the suspect poses a significant threat of death or serious
physical injury to the officer or others.” Tennessee v. Garner, 471 U.S. 1, 3 (1985).
We analyze an officer’s decision to use force “from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.
We do so mindful that police officers face “tense, uncertain, and rapidly evolving” situations that

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require “split-second judgments.” Id. at 397. The Fourth Amendment only requires officers to
act reasonably on the information they have; it does not require them to perceive a situation
accurately. Cf. id. at 396 (“The Fourth Amendment is not violated by an arrest based on
probable cause, even though the wrong person is arrested[.]”) (citation omitted).
In this circuit, we consider the officer’s reasonableness under the circumstances he faced
at the time he decided to use force. See Livermore v. Lubelan, 476 F.3d 397, 406 (6th Cir. 2007)
(describing the so-called “segmented analysis” this circuit uses to analyze use-of-force claims).
We do not scrutinize whether it was reasonable for the officer “to create the circumstances.” Id.
(quotation marks and citations omitted). Even if an officer approaches a scene recklessly, this
will not necessarily render a later decision to protect himself unreasonable. See Chappell v. City
of Cleveland, 585 F.3d 901, 915–16 (6th Cir. 2009).
Thus, we cannot, as Mr. Thomas urges, find a constitutional violation based on how
Officer Kaufman approached the crime scene. Arguably, Officer Kaufman’s decisions to rush
toward the apartment without backup violated Columbus Police Department procedures.
Arguably, his violations increased the likelihood that Officer Kaufman might have to use force.
But those decisions were not seizures. Their reasonableness is not at issue.
Instead, we must consider the circumstances that Officer Kaufman faced in the moment
he decided to use force. Officer Kaufman had responded to a dangerous call in a high-crime
area. He was alone. He ran towards the breezeway between two vehicles and then stopped at the
parking lot’s edge. Meanwhile, two people exited an apartment and then ran towards him, the
first with a gun. About 40 feet initially separated Officer Kaufman from that person, and the
distance only shrank as the person closed in on him. At this range, a suspect could raise and fire
a gun with little or no time for an officer to react. Given these facts, a reasonable officer would
perceive a significant threat to his life in that moment. Thus, Officer Kaufman’s decision to fire
his gun—even if Destin never raised his—was objectively reasonable.
Mr. Thomas’s arguments to the contrary underplay the danger that Officer Kaufman
faced. And they rely on the hindsight bias that we guard against. Consider three propositions
that Mr. Thomas advances. First, that Officer Kaufman should have warned Destin and then

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waited to see if he complied. Second, that Officer Kaufman should have reflected on the
situation and then pieced together that Destin was the victim because he was shirtless.
Third, that Officer Kaufman should have waited to see if the person running towards him with a
gun would point it at him. If Officer Kaufman had followed Mr. Thomas’s advice, tragedy may
have been avoided here. But if Destin had been an actual criminal with a loaded gun, an officer
who followed this advice could well be dead.
That Mr. Thomas’s attorney elicited a different legal conclusion from Officer Kaufman
does not change this analysis. The Fourth Amendment inquiry here relies on an objective
reasonableness standard—not on an officer’s opinion. Cf. Graham, 490 U.S. at 397 (“[T]he
‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether
the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.”). And objective
reasonableness is a legal conclusion reserved for this court. Chappell, 585 F.3d at 909 (“[O]nce
the relevant set of facts is determined and all reasonable inferences are drawn in favor of the
plaintiff, to the extent supported by the record, the question whether the detectives’ actions were
objectively unreasonable is a pure question of law.”) (citations and quotation marks omitted).
Similarly, Mr. Thomas cannot avoid summary judgment by citing his use-of-force
expert’s legal conclusions. See DeMerrell v. City of Cheboygan, 206 F. App’x 418, 426 (6th Cir.
2006) (holding that the district court did not err in ignoring expert’s legal conclusions on
objective reasonableness). Mostly, that expert worked from the same faulty legal premise as
Mr. Thomas—he focused on Officer Kaufman’s reasonableness in approaching the scene.
When pressed about whether an officer has probable cause to believe someone running at him
with a gun poses a significant risk of death, the expert adopted Mr. Thomas’s categorical rule
that force can only be reasonable if a suspect raises his gun. That conclusion, however, is ours to
make.

And we reiterate that the circumstances here would give an officer reason to fear

someone running towards him with a gun and leave him with little to no time to react if the
suspect raised it.
To be clear, we do not hold that an officer may shoot a suspect merely because he has a
gun in his hand. Whether a suspect has a weapon constitutes just one consideration in assessing

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the totality of the circumstances. See Perez v. Suszczynski, 809 F.3d 1213, 1220 (11th Cir. 2016)
(“Where the weapon was, what type of weapon it was, and what was happening with the weapon
are all inquiries crucial to the reasonableness determination.”). Sometimes, the time or space
available to an officer may mean that the reasonable thing to do is to monitor the suspect, issue a
warning, or take cover. See, e.g., Dickerson v. McClellan, 101 F.3d 1151, 1163 (6th Cir. 1996);
Brandenburg v. Cureton, 882 F.2d 211, 213 (6th Cir. 1989).

But Officer Kaufman acted

objectively reasonably when he used deadly force here—even if facts beyond his knowledge
meant that he actually faced no threat.
B
As to Mr. Thomas’s Fourteenth Amendment claim for deliberate indifference to serious
medical needs, we adopt the district court’s reasoning. The Fourteenth Amendment prohibits
police officers from acting with reckless disregard to those they injure. See, e.g., Scozzari
v. Miedzianowski, 454 F. App’x 455, 466 (6th Cir. 2012); Estate of Owensby v. City
of Cincinnati, 414 F.3d 596, 604 (6th Cir. 2005). They cannot unreasonably delay medical
treatment. Scozzari, 454 F. App’x at 464. They also cannot prioritize activities “unrelated to
securing the scene” or “unnecessary to their duties” over trying to save the suspect’s life. Id. at
465–66.
As the district court recognized, however, an officer does not act with reckless disregard
when he immediately summons help and then focuses on his own safety. Here, Officer Kaufman
was alone at a crime scene where multiple suspects exited a burglary—including one with a gun.
He called for a medic and then took cover and waited for backup to arrive. He did not violate the
Constitution by failing to render aid when doing so appeared both dangerous and futile.
C
Because no constitutional violations occurred, the district court properly granted
summary judgment on Mr. Thomas’s failure-to-train claim against the city and Chief Jacobs.
For a municipality to be liable under 42 U.S.C. § 1983, a plaintiff must show harm “caused by a
constitutional violation.” Lee v. Metro. Gov’t of Nashville & Davidson Cnty., 432 F. App’x 435,
449 (6th Cir. 2011). No constitutional violation means no municipal liability. See id.

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V
Officer Kaufman faced a tense, uncertain situation. Someone ran towards him with a gun
after exiting a burglary about 40 feet away. Officer Kaufman fired when the person with the gun
closed the distance to around 10 feet. A reasonable officer would find a significant threat to his
safety under these circumstances. Under the Fourth Amendment’s objective reasonableness
standard, he could respond with deadly force. Thus, we affirm.