Stewart, et al v. City of Memphis, et al
Filing
189
ORDER denying 152 Motion for Summary Judgment; granting 153 Motion; granting 155 Motion for Summary Judgment. Signed by Judge Samuel H. Mays, Jr. on 1/25/2019.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
)
MARY STEWART, as next of kin
)
and Administrator Ad Litem of
)
DARRIUS STEWART, Deceased, and )
HENRY WILLIAMS as next of kin
)
and Father of DARRIUS STEWART, )
)
Plaintiffs,
)
)
v.
)
)
CITY OF MEMPHIS, and OFFICER
)
CONNOR SCHILLING, individually, )
)
Defendants.
)
)
No. 2:16-cv-02574-SHM
ORDER
Former Memphis police officer Connor Schilling fatally shot
Darrius Stewart (“Stewart”) during an arrest.
Mary
Stewart
and
Henry
Williams
bring
Stewart’s parents
this
action
against
Defendants Schilling and the City of Memphis (the “City”) under
42 U.S.C. § 1983.
They allege that Schilling used excessive
force 1 in violation of Stewart’s Fourth Amendment rights and that
the City’s policies and customs caused that violation. 2
1
Plaintiffs also make passing reference to Schilling’s “unlawful seizure” of
Stewart. (ECF No. 166-17 at 2407.) Plaintiffs do not treat that “seizure”
as a separate constitutional violation. They argue only excessive force.
There is no dispute that Schilling had probable cause to arrest Stewart. The
Court will address only the issue of excessive force.
2
The Court has dismissed Plaintiffs’ official capacity claims against
Schilling and former Memphis Police Department Director Toney Armstrong.
(ECF No. 37 at 297-98.) The Court has also dismissed Plaintiffs’ state law
Before
the
Court
are
three
motions.
The
first
is
Schilling’s Motion for Summary Judgment, filed on May 30, 2018.
(ECF No. 152.)
165.)
Plaintiffs responded on June 27, 2018.
Schilling replied on July 11, 2018.
(ECF No.
(ECF No. 172.)
The second is the City’s Motion for Summary Judgment, filed
on May 30, 2018.
27, 2018.
(ECF No. 155.)
(ECF No. 166.)
Plaintiffs responded on June
The City replied on July 11, 2018.
(ECF No. 173.)
The third is Schilling’s Motion to Exclude Testimony of
Jeffrey
J.
Plaintiffs
Noble,
filed
responded
on
on
May
June
30,
19,
Schilling replied on July 2, 2018.
2018.
2018.
(ECF
(ECF
No.
153.)
No.
162.)
(ECF No. 169.)
For the following reasons, Schilling’s Motion for Summary
Judgment is DENIED, the City’s Motion for Summary Judgment is
GRANTED, and Schilling’s Motion to Exclude Testimony of Jeffrey
J. Noble is GRANTED.
I.
Background
Around 11:00 p.m. on July 17, 2015, Schilling pulled a car
over because it had a broken headlight.
2165.) 3
(ECF No. 165-1 at
Stewart, one of three occupants, was in the backseat.
(Id. at 2166; ECF No. 149 at 851-52.)
Schilling approached the
claims and their claim under 42 U.S.C. § 1983 for violation of Stewart’s
Fourteenth Amendment rights. (Id. at 298-307.)
3 Unless
otherwise noted, all pin cites for record citations are to the
“PageID” page number.
2
car and asked the occupants for identification.
at
2165.)
After
getting
their
(ECF No. 165-1
identification,
Schilling
returned to his patrol car and ran the identification through
the National Crime Information Center System.
2292.)
(ECF No. 166-1 at
The system showed that Stewart had out-of-state arrest
warrants.
(Id.)
Schilling approached the car again and asked Stewart to
step outside.
2293.)
and
(Id. at 2292-93.)
Stewart complied.
Schilling patted Stewart down for weapons, found none,
placed
Stewart
handcuffing him.
in
the
back
of
the
patrol
(Id.; ECF No. 149 at 865.)
car
at
dispatch
2293.)
to
Schilling
verify
then
Stewart’s
contacted
warrants.
without
Schilling gave the
driver of the car a ticket and allowed him to leave.
166-1
(Id. at
(ECF. No.
Memphis
(Id.)
police
Dispatch
confirmed the warrants, informed Schilling that Stewart would be
extradited,
(Id.)
and
directed
Schilling
to
take
Stewart
to
jail.
Schilling, intending to handcuff Stewart, opened the rear
patrol car door on the side where Stewart sat.
(Id.)
The parties agree on some aspects of what happened next.
They agree that there was a physical struggle that lasted for a
few
minutes.
(ECF
No.
165-1
at
2169.)
They
agree
that
Schilling shot Stewart twice and that Schilling and Stewart were
never more than two feet apart when Schilling fired.
3
(ECF No.
165-1 at 2172; 166-1 at 2296.)
They agree that one bullet
struck Stewart in his upper right chest.
2172.)
They
agree
that
the
other
(ECF No. 165-1 at
bullet
traveled
through
Stewart’s left arm and struck him in the left side of his torso.
(Id.)
They agree that, after he was shot, Stewart ran for
several yards, collapsed, and later died of his injuries.
No. 166-1 at 2297.)
(ECF
The parties disagree on three principal
points: (1) whether Stewart was violent and aggressive during
the struggle; (2) the timing and order of Schilling’s two shots;
and (3) Stewart’s body position when Schilling shot him.
Defendants
contend
that
Stewart
wrestled with him on the ground.
charged
(ECF No. 149 at 877.)
bit Schilling and twisted his genitals.
Stewart
eventually
Stewart
punched
got
on
top
Schilling.
Schilling
of
(Id.
Stewart
(Id. at 885, 949.)
Schilling.
at
and
882.)
(Id.
at
Stewart
949.)
got
Schilling’s handcuffs and used them to strike Schilling on the
top of his head and across his nose.
tried
to
gain
control
of
(Id. at 883-84.)
Schilling’s
gun.
(Id.
Stewart
at
892.)
Schilling attempted to call for backup but received no response
because his radio had been knocked to an unmonitored frequency.
(Id. at 915.)
Exhausted, afraid he might lose consciousness
from blows to the head, and in fear for his life, Schilling shot
Stewart twice.
(Id. at 894.)
The first shot hit Stewart’s left
4
arm and travelled into the left side of his torso.
(ECF No.
151-3 at 1164.)
The second hit Stewart in the upper right
chest.
(Id.)
Stewart
Schilling
fired
the
first
was
moving
shot
and
toward
Stewart
Schilling
was
toward Schilling when Schilling fired the second.
3
at
1025-26.)
seconds apart.
Schilling
fired
the
shots
still
when
coming
(ECF No. 149-
approximately
two
(Id. at 1025.)
Plaintiffs contend that Stewart was nonviolently trying to
escape.
(ECF No. 165-19 at 2265.)
Stewart did not punch or
bite Schilling, strike Schilling with his handcuffs, or grab
Schilling’s genitals.
(ECF No. 165-1 at 2169-70.)
not try to gain control of Schilling’s gun.
Because
Schilling
was
larger
and
stronger
Stewart did
(Id. at 2171.)
than
Stewart
and,
unlike Stewart, trained in hand-to-hand combat, Schilling could
not have reasonably feared for his life during the struggle.
(ECF No. 165-19 at 2265; ECF No. 166-17 at 2409.)
Schilling
shot Stewart first in the upper right chest while Stewart was on
the ground.
(ECF No. 165-19 at 2265.)
As Stewart stood up and
began turning away to flee, Schilling shot Stewart through his
left arm and into the left side of his torso, “technically in
his back.”
(Id. at 2266, 2272.)
Plaintiffs filed their Amended Complaint on July 13, 2016.
(ECF
No.
4.)
Defendants
filed
5
their
motions
for
summary
judgment on May 30, 2018.
Defendants
contend
that
(ECF No. 152; ECF No. 155.)
Schilling
Fourth Amendment rights.
at
1674.)
Schilling
did
not
violate
Stewart’s
(ECF No. 152-2 at 1303; ECF No. 155-1
also
contends
that
he
is
entitled
summary judgment on the ground of qualified immunity.
152-2 at 1300-01).
Both
to
(ECF No.
The City contends that, even if Schilling
violated Stewart’s Fourth Amendment rights, no City policy or
custom caused that violation.
II.
(ECF No. 155-1 at 1679).
Jurisdiction
The
Court
has
federal-question
jurisdiction.
Under
28
U.S.C. § 1331, district courts have original jurisdiction “of
all
civil
actions
arising
under
treaties of the United States.”
assert
§ 1983.
a
right
to
relief
against
(ECF No. 4 at 32.)
the
Constitution,
laws,
or
Plaintiffs’ remaining claims
Defendants
under
42
U.S.C.
Those claims arise under the laws
of the United States.
III. Motions for Summary Judgment
A.
Under
Standard of Review
Federal
Rule
of
Civil
Procedure
56,
a
court
must
grant a party’s motion for summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
Fed. R.
The moving party must show that the nonmoving
6
party, having had sufficient opportunity for discovery, lacks
evidence to support an essential element of its case.
See Fed.
R. Civ. P. 56(c)(1); Peeples v. City of Detroit, 891 F.3d 622,
630 (6th Cir. 2018).
When
confronted
with
a
properly-supported
motion
for
summary judgment, the nonmoving party must set forth specific
facts showing that there is a genuine dispute for trial.
Fed. R. Civ. P. 56(c).
See
“A ‘genuine’ dispute exists when the
plaintiff presents ‘significant probative evidence’ ‘on which a
reasonable jury could return a verdict for her.’”
EEOC v. Ford
Motor Co., 782 F.3d 753, 760 (6th Cir. 2015) (en banc) (quoting
Chappell
2009)).
there
v.
City
of
Cleveland,
585
F.3d
901,
913
(6th
Cir.
The nonmoving party must do more than simply “show that
is
some
metaphysical
doubt
as
to
the
material
facts.”
Lossia v. Flagstar Bancorp, Inc., 895 F.3d 423, 428 (6th Cir.
2018)
(quoting
Matsushita
Elec.
Indus.
Co.
v. Zenith
Radio
Corp., 475 U.S. 574, 586 (1986)).
Although summary judgment must be used carefully, it “is an
integral
part
designed
to
determination
of
the
secure
of
every
procedural shortcut.”
Federal
the
Rules
just,
action[,]
as
a
speedy,
rather
whole,
and
than
which
are
inexpensive
a
disfavored
FDIC v. Jeff Miller Stables, 573 F.3d
7
289,
294
(6th
Cir.
2009)
(quotation
marks
and
citations
omitted).
B.
Plaintiffs’ Claim Against Schilling
Under
damages
42
if
U.S.C.
they
deprive
statutory rights.
(6th
Cir.
§ 1983,
state
anyone
of
his
are
liable
for
constitutional
or
See Kaminski v. Coulter, 865 F.3d 339, 345
2017).
State
officials
qualified
immunity.
That
liability
unless
statutory
clearly
officials
the
established
can
doctrine
when
or
the
assert
protects
a
them
constitutional
violation
defense
from
civil
rights
occurred.
of
were
See
Messerschmidt v. Millender, 565 U.S. 535, 546 (2012).
Schilling
immunity.
Schilling
asserts
that
he
is
entitled
to
qualified
Plaintiffs argue that the doctrine does not protect
because
he
violated
Stewart’s
clearly
established
Fourth Amendment right to be free from excessive force.
Excessive
force
claims
are
Amendment’s reasonableness standard.
U.S. 386, 395 (1989).
particular
seizure
is
analyzed
under
the
Fourth
See Graham v. Connor, 490
“[W]hether the force used to effect a
reasonable . . .
requires
a
careful
balancing of the nature and quality of the intrusion on the
individual's
Fourth
Amendment
interests
countervailing governmental interests at stake.”
against
the
Id. at 396
(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)) (internal
8
quotation marks omitted).
Although reasonableness is ultimately
based on the totality of the circumstances, three factors guide
the
analysis:
(1)
the
severity
of
the
crime
at
issue;
(2)
whether the suspect poses an immediate threat to the safety of
the officer or others; and (3) whether the suspect is actively
resisting arrest or attempting to evade arrest by flight.
Id.
Whether an officer is entitled to qualified immunity is a
question of law.
See Dickerson v. McClellan, 101 F.3d 1151,
1157 (6th Cir. 1996).
When “the legal question of qualified
immunity turns upon which version of the facts one accepts, the
jury, not the judge, must determine liability.”
Mt. Pleasant, 142 F.3d 898, 903 (6th Cir. 1998).
is
to
determine
the
extent
to
plaintiff’s version of events.
which
the
Sova v. City of
The first task
record
supports
Chappell, 585 F.3d at 909.
a
If
plaintiff offers evidence sufficient to create a genuine dispute
of material fact, the Court must decide whether, viewing those
disputed facts in the light most favorable to plaintiff, the
officer is nevertheless entitled to qualified immunity.
907
(noting
“viewing
the
that
qualified
evidence
in
immunity
the
is
light
Id. at
not
appropriate
if
most
favorable
to
[plaintiff], a constitutional right was violated and that . . .
right was clearly established at the time of the violation”).
9
1.
There
Genuine Disputes of Material Fact
are
important
differences
between
Schilling’s
and
Plaintiffs’ accounts of what happened on the night of July 17,
2015.
The
parties
disagree
about:
(1)
whether
Stewart
was
violent and aggressive; (2) the timing and order of the shots;
and
(3)
Stewart’s
Schilling
argues
body
that
position
Plaintiffs
when
have
Schilling
not
evidence to dispute his version of events.
shot
offered
him.
sufficient
Plaintiffs disagree.
Where the person shot dead is unable to testify, the Court
“may not simply accept what may be a self-serving account of the
police officer.”
Jefferson v. Lewis, 594 F.3d 454, 462 (6th
Cir. 2010) (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.
1994)).
It must “look at the circumstantial evidence that, if
believed, would tend to discredit the police officer’s story.”
Id.
The first question here is whether the Court can consider
two witness statements on which Plaintiffs rely.
a.
Consideration of Danyale Franklin’s Statements
Plaintiffs rely in part on two witness statements made by
Danyale
Franklin
material fact.
to
demonstrate
that
there
are
of
Franklin gave her first statement to the Memphis
Police Department on the night of the shooting.
at 2212.)
disputes
(ECF No. 165-7
She gave her second statement to the Tennessee Bureau
10
of Investigation about a week later.
argues
that
the
Court
(ECF No. 172 at 2454.)
should
not
(Id. at 2220.)
consider
those
Schilling
statements.
He asserts that Plaintiffs’ reliance on
them violates Federal Rule of Civil Procedure 56(c) because they
are
“not
in
the
record
before
the
Court,
Plaintiffs
have
provided no sworn testimony to authenticate or identify [the]
statement[s], and the statement[s] [are] not [] exhibit[s] to
any of the depositions.”
Id.
Schilling’s argument is not well-
taken.
First, the statements are in the record.
That Plaintiffs
did not include them as deposition exhibits is not material.
Plaintiffs attached them as exhibits to their responsive brief.
See (ECF No. 165-7.)
There is no requirement that materials
relied on at summary judgment predate a party’s motion.
Fed.
R.
Civ.
P.
56(c)
advisory
committee’s
note
to
See
2010
amendment (stating that materials not already in the record may
be
referenced
if
they
are
“placed
in
the
record”);
Swank
v. Hale, No. 2:12-cv-1031, 2016 WL 1156517, at *3 (S.D. Ohio
Mar. 24, 2016) (“[A party] may place such materials into the
record by attaching them to the summary judgment motion.”).
Second, materials used at summary judgment to demonstrate a
genuine dispute of material fact need not be authenticated.
2010 amendments to Rule 56 removed that requirement.
11
The
A party
may “object that the material cited to support or dispute a fact
cannot
be
presented
evidence.”
in
a
form
that
would
be
admissible
in
Fed. R. Civ. P. 56(c)(2); see also Magnum v. Repp,
674 F. App’x 531, 536-37 (6th Cir. 2017); Mauer v. Indep. Town,
870 F.3d 380, 384 (5th Cir. 2017) (“At the summary judgment
stage, evidence need not be authenticated or otherwise presented
in an admissible form. . . . [M]aterials cited to support or
dispute a fact need only be capable of being presented in a form
that would be admissible in evidence.”) (citations and internal
quotation marks omitted).
Schilling does not argue that Franklin’s statements cannot
be presented in an admissible form.
He represents that he has
been unable to locate Franklin for a deposition.
at
2454.)
That
representation
eventual admissibility.
is
not
an
(ECF No. 172
argument
against
Because Schilling has not objected to
admissibility, the Court will consider the statements.
b.
Disputes of Material Fact
i.
Whether Stewart Was Violent and Aggressive
Schilling offers evidence that Stewart, after running out
of the patrol car, bit Schilling, twisted his genitals, got on
top of him, punched him, struck him with his own handcuffs, and
tried to grab his gun.
Schilling argues that Plaintiffs have
12
not cited sufficient evidence to dispute these facts.
(ECF No.
172 at 2448.) 4
First, Schilling testified that, while he was on top of
Stewart, Stewart bit him on his right bicep and twisted his
genitals.
(ECF No. 149 at 885, 949.)
A photograph taken the
night of the shooting shows what appears to be a bite mark on
Schilling’s arm.
(ECF No. 152-19 at 1565.)
that
not
Stewart
did
bite
Schilling
Plaintiffs cite nothing else.
point
during
the
struggle,
or
No witness says
twist
his
genitals.
It is undisputed that, at some
while
Schilling
was
on
top
of
Stewart, Stewart bit Schilling on his right bicep and twisted
his genitals.
Second, Schilling testified that Stewart got on top of him.
(ECF No. 149 at 893.)
Ernestine Parrot testified that she saw
the struggle and that Stewart was never on top of Schilling.
(ECF No. 165-10 at 2239.)
entire
struggle,
she
did
Although Parrot did not see the
see
the
relevant
portion:
the
few
minutes leading up to the first shot. (Id. at 2230, 2235, 2239.)
Schilling testified that Stewart was on top of him towards the
end of the fight, just before Schilling shot Stewart.
149 at 893.)
(ECF No.
Because Parrot testified that Stewart was not on
4
Both parties reference a video that they argue supports their version of
events. The Court has reviewed the video and finds it largely unhelpful. It
shows about twenty seconds of Schilling and Stewart struggling physically.
At no point does Stewart appear to be on top of Schilling.
The video is
short and of low quality. It does not resolve any factual dispute.
13
top of Schilling then, whether Stewart was on top of Schilling
is sufficiently disputed.
Third, Schilling testified that Stewart punched him.
No. 149-882.)
Two witnesses dispute that.
(ECF
Parrot testified
that she “didn’t see Stewart, you know, fighting [Schilling] or
hitting him or nothing like that.”
(ECF No. 165-10 at 2238.)
William Rogers testified that he “didn’t see any punches” from
Stewart.
(ECF No. 165-12 at 2245.)
Although neither saw the
entire struggle, (ECF No. 165-10 at 2235; ECF No. 165-12 at
2243), both saw the few minutes leading up to the first gunshot,
(ECF
No.
165-10
at
2230,
2239;
ECF
No.
165-12
at
2244).
Schilling testified that Stewart was striking him towards the
end of the fight, just before he shot Stewart.
893.)
Whether
Stewart
punched
Schilling
(ECF No. 149 at
is
sufficiently
disputed.
Fourth, Schilling testified that Stewart hit Schilling on
top of his head and across his nose with his handcuffs.
No. 149 at 882-84.)
Parrot and Rogers testified that they never
saw Stewart strike Schilling.
165-12 at 2245.)
with
handcuffs
Schilling
conflict
shot
with
(ECF
(ECF No. 165-10 at 2238; ECF No.
Schilling testified that Stewart struck him
towards
Stewart,
Parrot’s
the
end
which
and
of
puts
Rogers’.
14
the
fight,
Schilling’s
(ECF
No.
just
before
testimony
149
at
in
893.)
Parrot also testified that she did not see anything in Stewart’s
hands.
(ECF No. 165-10 at 2239.)
Schilling’s argument that,
based on photographic evidence, it is indisputable that Stewart
hit him with handcuffs is not persuasive.
Photographs taken the
night of the shooting show little or no damage to Schilling’s
head
and
face.
(ECF
No.
152-19
at
1557-63.)
They
do
“blatantly contradict[]” Parrot’s and Rogers’ testimony.
not
Scott
v. Harris, 550 U.S. 372, 380 (2007); accord Bazan ex rel. Bazan
v. Hidalgo Cty., 246 F.3d 481, 493 (5th Cir. 2001) (noting that
the lack of head wounds and blood on a flashlight contradicted
officer’s testimony that suspect hit officer on the head with
his flashlight).
The presence of Stewart’s DNA on Schilling’s
handcuffs is not dispositive.
(ECF No. 152-23 at 1638.)
A
reasonable jury could conclude that the DNA was the incidental
result of their minutes-long physical struggle.
incontrovertible
proof
that
weapons to attack Schilling.
Stewart
used
There is no
the
handcuffs
as
Whether Stewart struck Schilling
with his handcuffs is sufficiently disputed.
Fifth,
Schilling
testified
control of Schilling’s gun.
testimony was specific.
that
Stewart
tried
(ECF No. 149 at 893.)
to
gain
Schilling’s
When asked exactly how and when Stewart
went for Schilling’s gun, Schilling testified that it happened
at the end of the fight, just before the first shot. (Id. at
15
892-93.)
Stewart was on top of Schilling, using Stewart’s right
hand to strike with the handcuffs while using his left hand to
reach for the gun.
(Id.)
Parrot testified that Stewart was not
on top of Schilling during the minutes leading up to the first
shot.
(ECF No. 165-10 at 2239.)
Parrot and Rogers testified
that Stewart was not striking Schilling during that time.
at 2238; ECF No. 165-12 at 2245.)
(Id.
Because Schilling’s claim
that Stewart reached for Schilling’s gun is directly connected
to
two
disputed
“circumstantial
facts,
evidence
Parrot’s
that,
and
if
discredit” Schilling’s account.
Their
testimony
is
sufficient
Rogers’s
believed,
testimony
is
would tend
to
Jefferson, 594 F.3d at 462.
to
support
an
inference
that
Stewart did not reach for Schilling’s gun.
ii.
The
shots.
The Timing and Order of the Shots
parties
disagree
about
the
timing
and
order
of
the
Schilling testified that he fired the shots no more than
two seconds apart.
(ECF No. 149-3 at 1017.)
suggests it was longer than that.
Witness testimony
Rogers testified that the
shots were fired between fifteen and twenty seconds apart.
No. 165-12 at 2246.)
(ECF
Parrot, who says she was standing near
Stewart and Schilling as they struggled, testified that, after
the first gunshot, she “ran to [her] car, jumped in [her] car,
took off down the street and made a right turn . . . and [then]
16
heard another shot.”
longer
than
two
(ECF No. 165-10 at 2239.)
seconds.
The
timing
That would take
of
the
shots
is
sufficiently disputed.
Schilling provides some evidence that the first shot was
the one that entered Stewart’s left arm and the side of his
torso, and that the second shot was the one that struck Stewart
in his upper right chest.
Inspectional
Services
Schilling told the Memphis Police
Bureau
that
he
aimed
towards the “left side of [Stewart’s] chest.”
1017.)
Jonathyn
explanation
for
Priest’s
shot
order
report
given
first
shot
(ECF No. 149-3 at
states
the
the
that
available
“the
best
evidence
and
information in the provided materials is consistent with Officer
Schilling’s
statement
of
the
left
occurring
right chest . . . occurring second.”
Plaintiffs
argue
that
this
issue
first . . .
and
(ECF No. 151-5 at 1256.)
is
disputed
because
their
expert Roger Mitchell testified that “the second gunshot wound
is on the back side of the left arm.”
Their argument is not well-taken.
(ECF No. 165-18 at 2261.)
A questioning attorney, not
Mitchell, used the term “second gunshot.”
(Id.)
The record
shows that Mitchell was not opining on the shot order.
He
referred to gunshot wound number two from the medical examiner’s
report.
(ECF No. 165-18 at 2259-60.)
The examiner labeled the
gunshot into the left arm as gunshot number two, but stated that
17
the numbering was “not intended to indicate the order in which
[the wounds] may have been sustained.”
(ECF No. 132-1 at 610.)
Other evidence disputes Schilling’s account.
The parties
agree that Stewart and Schilling were farther apart when Stewart
was shot in the left arm than when he was shot in the upper
right chest.
(ECF 165-1 at 2174.)
Danyale Franklin and William
Rogers stated that Stewart was farther away from Schilling at
the time of the second shot than he was at the first.
165-7 at 2214; ECF No. 165-12 at 2246.)
(ECF No.
A jury could reasonably
infer that the first shot was the one that struck Stewart in his
chest and the second shot was the one that went through his left
arm and into his torso.
The order of shots is sufficiently
disputed.
iii. Stewart’s Body Position When Schilling Shot Him
The parties offer conflicting accounts of Stewart’s body
position when Schilling shot him.
Memphis
Police
Inspectional
In an interview with the
Services
Bureau,
Schilling
said
Stewart was coming towards him when Schilling fired both shots.
(ECF No. 149-3 at 1025-26.)
Parrot testified that Stewart was
on the ground when Schilling first shot him.
2230.)
(ECF No. 165-10 at
Franklin said she heard the first shot and then “saw
[Schilling] begin to stand up and [Stewart] struggl[e] to get
up.”
(ECF No. 165-7 at 2213.)
Franklin and Rogers said that,
18
after the first shot, Stewart stood up, turned to flee, took at
least a step, and was shot again.
1 at 2424.)
(Id. at 2213-14; ECF No. 167-
Stewart’s body position at the time of the shots is
disputed.
c.
Facts for Qualified Immunity Analysis
Taking the facts in the light most favorable to Plaintiffs,
the
following
is
what
happened
after
Stewart
fled
from
Schilling’s patrol car: Schilling took hold of Stewart and held
him
down.
The
two
of
them
wrestled
for
several
minutes.
Stewart tried to get away and Schilling tried to subdue him.
While under Schilling, Stewart bit Schilling on his right bicep
and twisted his genitals.
They separated.
Then, at very close
range, Schilling shot Stewart in the upper right chest while
Stewart lay on the ground.
Stewart stood up, turned to flee,
and moved no more than two feet before Schilling shot him again,
roughly twenty seconds after the first shot.
Given
this
set
of
facts,
the
Court
must
Schilling is entitled to qualified immunity.
decide
whether
For the following
reasons, he is not.
2.
Qualified Immunity
Qualified
liability
immunity
unless:
constitutional
(1)
rights;
will
shield
he
and
violated
(2)
19
that
Schilling
one
right
from
of
was
civil
Stewart’s
clearly
established at
the time. 5
Plaintiffs contend
that Schilling
violated Stewart’s clearly established Fourth Amendment right to
be free from excessive force.
a.
Constitutional Right
Police officers have the right to use some degree of force
when carrying out an arrest.
See Graham, 490 U.S. at 396.
much force is too much depends on the circumstances.
of
force
violates
the
Fourth
Amendment’s
Id.
guarantee
How
A use
against
unreasonable seizures if it was not “objectively reasonable” in
light of the events confronting the officer.
Id.
at 397.
Whether force was objectively reasonable depends on all of the
facts.
Three are afforded particular weight: (1) the severity
of the crime; (2) whether the suspect was actively resisting
arrest or attempting to evade arrest by flight; and (3) whether
the
suspect
posed
officer or others.
an
immediate
threat
to
the
safety
of
Id. at 396 (the “Graham factors”).
the
The
reasonableness of the force must be judged from the perspective
5
The Sixth Circuit has at times applied a third step to the qualified
immunity analysis: “whether the plaintiff has offered sufficient evidence to
indicate that what the official did was objectively unreasonable in light of
the clearly established constitutional rights.”
See Sample v. Bailey, 409
F.3d 689, 696 (6th Cir. 2005) (quoting Feathers v. Aey, 319 F.3d 843, 848
(6th Cir. 2003)). Recent precedent makes clear that “the test for qualified
immunity has only two prongs.” Brown v. Lewis, 779 F.3d 401, 417 (6th Cir.
2015).
In Fourth Amendment cases like this one, reasonableness does factor
into the first step of the qualified immunity inquiry. Id. “But there is no
additional, separate hurdle of reasonableness for [Plaintiffs] to overcome.”
Id.
20
of a reasonable officer on the scene, not “with the 20/20 vision
of hindsight.”
Id.
Two uses of force are at issue in this case: the first and
second gunshots.
When an officer uses force multiple times, the
Sixth Circuit has found it appropriate to divide the incident
into segments and to analyze each use of force on its own terms.
See Harris v. City of Circleville, 583 F.3d 356, 365 (6th Cir.
2009).
The officer’s decisions leading up to the use of force
are not material.
See Livermore ex rel. Rohm v. Lubelan, 476
F.3d 397, 406 (6th Cir. 2007).
Schilling’s failure to handcuff
Stewart or call for backup has no bearing on whether his use of
force
was
judgments’
reasonable.
made
immediately
excessive force.”
1162).
The
focus
before
is
on
the
[Schilling]
“‘split-second
used
allegedly
Id. at 407 (quoting Dickerson, 101 F.3d at
Because the only difference between the two gunshots is
Stewart’s body position when Schilling shot him, much of the
analysis overlaps.
i.
The First Gunshot
Analyzing the first shot, the first Graham factor favors
Plaintiffs.
arrest
a
appropriate
When an officer uses force during an attempt to
suspect
to
because
consider
of
both
outstanding
the
severity
warrants,
of
the
it
is
crimes
underlying the warrants and the severity of any crimes committed
21
during the attempted arrest.
See Coitrone v. Murray, No. 1-13-
CV-00132, 2015 WL 2384298, at *4 (E.D. Ky. May 19, 2015).
The
parties have not specified the crimes for which Stewart’s arrest
warrants
issued. 6
were
Schilling
testified
that
he
“didn’t
really take [the warrants] too serious” because his patrol car’s
computer system “told [him] a juvenile delinquency warrant or
something like that.”
(ECF No. 149 at 865-66.)
What matters
under the first Graham factor is how the crimes underlying the
warrants would have informed an “objective assessment of the
danger a suspect poses at that moment.”
482 F.3d 886, 889 (6th Cir. 2007).
Bouggess v. Mattingly,
An ambiguous description of
juvenile delinquency would not suggest to a reasonable officer
that Stewart posed an immediate threat of serious harm.
same
tried
is
to
true
of
the
subdue
crime
him:
Stewart
resisting
committed
arrest.
after
The
Schilling
Although
Jackson
v. Wilkins described resisting arrest as a “serious crime”, the
officers in that case used non-deadly force.
316
(6th
Cir.
2013).
Stewart’s
6
517 F. App’x 311,
resistance
may
have
been
Plaintiffs describe the crimes as felonies and “juvenile delinquency
misdemeanors.” (ECF No. 166-7 at 2404, 2409.) The City represents that it
is undisputed that Stewart was “set to be extradited on an out-of-state
felony warrant.”
(ECF No. 173 at 2513.)
Neither memorandum of undisputed
facts states that the warrants were for felonies.
Neither memorandum
represents what the crimes were.
A Memphis Police Inspectional Services
Bureau report states that, “[t]he crimes in this investigation are two counts
of Sexual Abuse, 2nd Degree (Iowa) and Juvenile Absconding while on Probation
(Illinois).”
(ECF No. 166-8 at 2348.)
Because Schilling does not contend
that these crimes are undisputed facts, the Court will not treat them as
undisputed.
22
sufficiently serious to warrant non-deadly force, but it would
not have supported an “objective assessment” that deadly force
was justified.
Bouggess, 482 F.3d at 889.
The second Graham factor has a mixed effect.
resisting
greater
force.
arrest
weight,
and
trying
however,
to
when
escape.
an
This
officer
Stewart was
factor
employs
carries
non-deadly
When a suspect resists arrest and tries to flee, certain
uses of force are reasonable that would not be if the suspect
were compliant.
See, e.g., Rudlaff v. Gillispie, 791 F.3d 638,
642 (6th Cir. 2015) (taser); Landis v. Baker, 297 F. App’x 453,
461
(6th
Nashville,
spray).
Cir.
Inc.,
2008)
380
(baton
F.3d
strikes);
893,
901
(6th
Cir.
v. Outlook
2004)
(pepper
Resisting arrest and trying to escape, without more, do
not make deadly force reasonable.
(“A
Champion
police
officer
may
not
See Garner, 471 U.S. at 11
seize
an
unarmed,
nondangerous
suspect by shooting him dead.”).
The third Graham factor favors Plaintiffs.
Viewing the
facts in the light most favorable to them, Stewart physically
struggled with Schilling but did not use a weapon; there was a
brief lapse in the grappling; Stewart and Schilling separated;
and
Schilling
shot
Stewart was unarmed.
Stewart
while
Stewart
lay
on
the
ground.
He never reached for Schilling’s gun.
On
these facts, Stewart did not pose an immediate threat of serious
23
harm
to
Schilling.
“It
cannot
reasonably
be
contended
that
physically resisting arrest, without evidence of the employment
or
drawing
of
a
deadly
weapon,
and
without
evidence
of
any
intention on the suspect’s part to seriously harm the officer,
could
constitute
probable
cause
that
the
suspect
poses
an
imminent danger of serious physical harm to the officer or to
others.”
Bouggess, 482 F.3d at 890 (emphasis in original).
Bouggess’s admonition is equally applicable here, although
there is a nonmaterial distinction.
Stewart and Schilling were
very close to each other when Schilling fired.
In Bouggess, the
suspect, after physically struggling with the officer, had run
ten feet before he was shot in the back.
of
a
potential
attack
at
close
range
Id. at 889.
is
not
The fear
enough.
The
relevant question is whether Stewart posed a serious threat of
harm to Schilling.
threat
had
Stewart
–-
he
been
unarmed
Although Stewart would have posed a lesser
ten
and
justified deadly force.
150
F.
App’x
533,
feet
away
recumbent
when
--
Schilling
was
not
a
shot
him,
threat
that
See id. at 891-92; Howser v. Anderson,
538
(6th
Cir.
2005)
(“[I]f
Defendant
intentionally shot a struggling suspect whose hands were visible
throughout the relevant portions of the struggle and who was
only attempting to get up or turn over, such a use of deadly
24
force would be excessive and would violate the decedent's Fourth
Amendment rights.”).
The struggle preceding the first shot, including the bite
and genital twisting, does not compel a different conclusion.
This
was
not
dissipated.
a
situation
where
a
grave
danger
quickly
See Untalan v. City of Lorain, 430 F.3d 312, 315
(6th Cir. 2005) (“Within a few seconds of reasonably perceiving
a sufficient danger, officers may use deadly force even if in
hindsight
facts
show
that
the
persons
threatened
could
have
escaped unharmed.”).
Schilling was not in serious danger in the
first
bite
place.
The
and
genital
twisting
did
not
put
Schilling’s life in peril or place him at risk of great bodily
injury.
at
They were not a “serious” danger.
892.
Shooting
reasonable.
Stewart
in
response
Bouggess, 482 F.3d
to
them
was
not
See id. at 891-92; Kirby v. Duva, 530 F.3d 475,
481-82 (6th Cir. 2008) (denying qualified immunity to officer
where, under plaintiff’s facts, “no one was ever in danger”).
Two cases the City cites to support the reasonableness of
Schilling’s conduct are inapposite.
In both the court held that
the officers’ use of deadly force was reasonable.
facts
in
the
light
distinguishable.
most
favorable
to
Viewing the
Plaintiffs,
both
are
In Pollard v. City of Columbus, officers shot
a suspect, believed to be armed, who led them on a high-speed
25
chase, crashed, reached out the window, clasped his hands as if
to shoot, and pointed towards them.
Cir. 2015).
780 F.3d 395, 400, 403 (6th
A reasonable officer could believe that the Pollard
suspect was about to kill them or their fellow officers.
No
reasonable officer could believe the same about Stewart.
In
Mendez
v. Poitevent,
an
officer,
after
physically
struggling
with a suspect, shot the suspect immediately after having been
concussed by a strike to the temple.
Cir.
2016).
officer]
--
partial
loss
“In
that
moment,
concussed,
of
823 F.3d 326, 332 (5th
it
was
disoriented,
vision,
and
fearing
reasonable
weakened,
that
for
[the
suffering
he
might
a
lose
consciousness in the presence of a violent suspected felon -- to
believe that [the suspect] might . . . seriously injure or kill
him.”
Id.
The same might be true for Schilling under his
version of events.
light
most
It is not true under the facts taken in the
favorable
to
Plaintiffs.
Under
those
facts,
Schilling was never in a comparably precarious position: Stewart
never
concussed
debilitating
way.
Schilling
Neither
or
injured
of
the
him
cited
in
cases
a
similarly
supports
the
argument that Schilling acted reasonably when he shot Stewart.
The ultimate issue in deadly force cases is “whether [the
officer] had an objectively reasonable belief that [the suspect]
posed an imminent threat of serious physical harm to him or
26
others.”
Bouggess, 482 F.3d at 890.
Viewing the facts in the
light most favorable to Plaintiffs, an officer in Schilling’s
position would not have had a reasonable belief that Stewart
posed such a threat.
Schilling’s first shot violated Stewart’s
Fourth Amendment right to be free from excessive force.
ii.
The Second Gunshot
The second gunshot –- fired, as the Court must assume, when
Stewart
was
two
unreasonable
factors
feet
than
apply
Plaintiffs.
as
the
away
and
first.
they
did
turning
The
to
flee
first
and
The
third
before.
--
was
more
second
Graham
again
favors
Taking the facts in the light most favorable to
them, about
twenty
second shots.
had
passed
between
the
first
and
Unarmed and turning to flee, Stewart was not a
danger
to
anyone.
attack
is
not
Schilling’s
seconds
The
enough.
second
shot
prospect
Stewart
violated
that
had
Stewart
shown
Stewart’s
right to be free from excessive force.
no
might
turn
to
such
tendency.
Fourth
Amendment
See Garner, 471 U.S. at
11; Bouggess, 482 F.3d at 890-91; Carden v. City of Knoxville,
699 F. App’x 495, 498-99 (6th Cir. 2017).
b.
Clearly Established
Both shots violated Stewart’s Fourth Amendment right to be
free from excessive force.
The second issue is whether that
right was clearly established on July 17, 2015.
27
The Court must
first address a preliminary issue: the burden a plaintiff must
meet
to
show
that
a
constitutional
right
was
clearly
established.
i.
Schilling
Plaintiffs’ Burden
cites
Sixth
Circuit
precedent
that,
once
qualified immunity has been raised as a defense, Plaintiffs have
the burden of showing that Schilling is not entitled to it.
(ECF No. 152-2 at 1300 (quoting Armstrong v. City of Melvindale,
432 F.3d 695, 699 (6th Cir. 2006)).)
Plaintiffs
have
not
met
their
Plaintiffs
have
not
cited
any
Schilling argues that
burden.
case
that
He
contends
shows
that
Stewart’s
constitutional right was clearly established. 7
The Court has a duty to conduct its own review of relevant
precedent to determine whether an asserted right was clearly
established.
See Elder v. Holloway, 510 U.S. 510, 516 (1994);
DiLuzio v. Village of Yorkville, 796 F.3d 604, 608 (6th Cir.
2015).
Arrington-Bey v. City of Bedford Heights is not to the
contrary.
858 F.3d 988, 993 (6th Cir. 2017).
7
Plaintiff in
Plaintiffs argue that: “Supreme Court and Sixth Circuit precedent clearly
establish that the Fourth Amendment is violated unless the ‘governmental
interests’ in effectuating a particular kind of seizure (deadly force in this
case) outweigh the ‘nature and quality of the intrusion on the individual’s
Fourth Amendment interests.’”
(ECF No. 165-19 at 2268 (quoting Scott
v. Harris, 550 U.S. 372, 383 (2007).) The right asserted is too general to
satisfy the clearly established requirement.
See Gavitt v. Born, 835 F.3d
623, 641 (6th Cir. 2016) (“To satisfy this requirement, the right allegedly
violated must have been clearly established in a ‘particularized’ sense, such
that a reasonable official confronted with the same situation would have
known that his actions would be in violation of that right.”) (quoting
Brosseau v. Haugen, 543 U.S. 194, 200 (2004)).
28
Arrington-Bey sued officers who had arrested her mentally ill
son for taking him to jail instead of a hospital.
92.
The
court
found
that,
under
the
facts
Id. at 991-
confronting
the
officers, there was no clearly established right for someone
like plaintiff’s son to be taken to a hospital.
The
court
solely
noted
because
that
she
it
had
could
failed
established the asserted right.
end
with,
the
reality
have
that
to
ruled
cite
Id.
a
Id. at 993.
against
case
plaintiff
that
clearly
(“We begin with, and could
[plaintiff]
points
to
no
Supreme
Court or Sixth Circuit case that requires the officers to take a
delusional arrestee like [her son] to a hospital rather than a
jail.”)
(emphasis
added).
However,
the
court
came
to
its
decision only after conducting an independent review of the law.
Id. (“Arrington-Bey has not pointed to, and we have not found,
any case like this one . . . .”) (emphasis added).
Any language
suggesting that a court can rely only on the cases a plaintiff
cites would be dicta.
To the extent Schilling argues for a broader application of
Arrington-Bey, an application that would require Plaintiffs to
cite a specific case under all circumstances, his argument is
inconsistent with Elder v. Holloway.
rejected
the
principle
that
a
court
There, the Supreme Court
must
decide
whether
a
constitutional right was clearly established by relying solely
29
on cases plaintiffs cite.
the
court
qualified
reviewed
immunity
a
rule
cases:
510 U.S. 510, 516 (1994).
the
the
Ninth
Circuit
appellate
In Elder,
had
court
adopted
must
in
disregard
relevant legal authority not presented to, or considered by, the
district court.
Id. at 512.
Rejecting that rule, the Elder
Court held that, “review of qualified immunity dispositions is
to be conducted in light of all relevant precedents, not simply
those cited to, or discovered by, the district court.”
Elder
instructs
a
circuit
court
deciding
Id.
whether
a
constitutional right was clearly established to “use its ‘full
knowledge of its own [and other relevant] precedents.’”
Id. at
516 (quoting Davis v. Scherer, 468 U.S. 183, 192 n.9 (1984))
(brackets
in
original).
Elder
rejected
the
notion
that
a
circuit court can rest solely on cases plaintiffs cite to it or
cases cited to or considered by the district court.
That rule
applies in the first instance in the district court.
Whether a
right was clearly established is a question of law.
Id.
Like
all questions of law, a district court’s analysis is not limited
to
the
precise
contours
of
a
plaintiff’s
legal
argument.
District courts, like circuit courts, have a duty to undertake
their own review of “all relevant precedents.”
Id. at 512.
Plaintiffs do indeed have the burden of establishing that
Schilling is not entitled to qualified immunity.
30
Meeting that
burden
does
showing
not
that
require
Plaintiffs
Stewart’s
to
cite
constitutional
a
specific
right
was
case
clearly
established.
ii.
For
precedent
a
Analysis
constitutional
at
the
time
of
right
the
to
be
alleged
clearly
misconduct
established,
“must
placed the . . . constitutional question beyond debate.”
have
Kielsa
v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (quoting
White v. Pauly, 137 S. Ct. 548, 551 (2017)).
That precedent
must be a case of “controlling authority or a robust consensus
of cases of persuasive authority.”
Plumhoff v. Rickard, 134 S.
Ct. 2012, 2023 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S.
731, 741-42 (2011)).
There need not be a case “directly on
point,” Kielsa, 138 S. Ct. at 1152, but the contours of the
violated right “must [have been] sufficiently definite that any
reasonable
officer
in
the
defendant’s
shoes
would
have
understood that he was violating it,” Plumhoff, 134 S. Ct. at
2023.
“[I]f officers of reasonable competence could disagree on
[the]
issue,”
the
law
was
not
clearly
established.
Malley
v. Briggs, 475 U.S. 335, 341 (1986).
Clearly established law may not be defined at a high level
of generality.
See Kielsa, 138 S. Ct. at 1152.
Garner and
Graham, which set forth general rules about when deadly force is
31
excessive, “do not by themselves create clearly established law
outside an obvious case.”
Ct.
at
552)
(internal
Id. at 1153 (quoting White, 137 S.
quotation
marks
omitted).
Precedent
showing that the law was clearly established must be factually
specific.
See
id.
at
1152.
That
is
especially
true
in
excessive force cases, where “the result depends very much on
the facts of each case . . . .”
Id. at 1153 (quoting Mullenix
v. Luna, 136 S. Ct. 305, 309 (2015) (per curiam).
officers
are
entitled
to
qualified
immunity
“[P]olice
unless
existing
precedent squarely governs the specific facts at issue.”
Id.
(internal quotation marks omitted).
Bouggess is factually similar to this case, although the
facts
are
not
identical.
In
Bouggess,
a
suspect
physically
struggled with an officer, broke free, ran about ten feet, and
was shot three times in the back.
482 F.3d at 888, 890.
The
suspect did not bite the officer, twist his genitals, or do
anything similarly combative.
Id.
In Carden, 699 F. App’x at 498, a unanimous panel held that
Bouggess
clearly
established
that
a
constitutional
violation
occurred under facts substantially identical to, and in a number
of ways more serious than, the facts in this case.
An officer
volunteered to assist a man stopped on the side of the road
tending to a flat tire.
Id. at 496.
32
The man declined.
Id.
The officer ran the license plate and saw that it did not match
the
vehicle
registration.
Id.
When
the
officer
approached
again, the man punched twice at the officer and ran.
officer tackled the man and a struggle ensued.
struggle,
the
two
exchanged
punches
grabbed for the officer’s gun.
Id.
but it did not subdue the man.
and
Id.
the
Id.
During the
man
repeatedly
The officer used his taser,
Id.
The officer eventually
became entangled in the taser wires and suffered shocks.
497.
The
The man then got on top of the officer.
Id.
Id. at
The man did
not reach for the officer’s gun from that position.
Id.
The
man
from
the
let
go
of
the
officer,
stood
officer, and started to flee.
Id.
up,
turned
away
The man “made it about one
step” before the officer shot him in the back.
died of his wounds.
Id.
Id.
The man
The court held that the officer’s
actions violated the man’s clearly established Fourth Amendment
right to be free from excessive force because “the law at the
time
of
the
encounter
clearly
established
that
deadly
force
would be excessive if used against an unarmed, fleeing felon who
the officer lacked probable cause to believe posed a threat of
serious physical harm.”
Id. at 498-99 (citing Bouggess, 482
F.3d at 892).
The
court
in
Carden
held
that
the
man
did
not
pose
a
serious threat of harm to the officer when the officer shot him.
33
A fortiori, Stewart did not pose a serious threat of harm to
Schilling
when
Schilling
shot
him.
The
man
in
Carden
was
significantly more violent than the Court must assume Stewart
was.
The difference of shot location –- back versus front and
side –- is not material.
Physical distance is the more relevant
factor in determining whether someone is a greater or lesser
threat.
The physical distances in this case and Carden were
virtually
the
application
same.
of
Carden’s
Bouggess
to
the
reading
Carden
of
facts
Bouggess
and
establish
that
Stewart’s constitutional right to be free of excessive force was
clearly established.
Viewing
Plaintiffs,
the
facts
Schilling
in
the
violated
light
Stewart’s
most
favorable
clearly
established
Fourth Amendment right to be free from excessive force.
not
entitled
to
qualified
immunity.
Schilling’s
to
He is
Motion
for
Summary Judgment is DENIED.
C.
Plaintiffs’ Claim Against the City
Local governments can be sued under § 1983 for “their own
illegal acts.”
Cir.
2014)
(2011)).
conduct.
D’Ambrosio v. Marino, 747 F.3d 378, 386 (6th
(quoting
Connick
v. Thompson,
563
U.S.
51,
60
They are not vicariously liable for their employees’
Id.
They
are
liable
only
for
official
municipal
policy that causes the deprivation of a federal right.
34
Id.
“Official
municipal
policy
includes
the
decisions
of
a
government's lawmakers, the acts of its policymaking officials,
and practices so persistent and widespread as to practically
have the force of law.”
Connick, 563 U.S. at 61.
Plaintiffs
must prove one of the following: (1) the existence of an illegal
policy
or
decision
legislative
making
enactment;
authority
(2)
ratified
that
an
illegal
official
actions;
final
(3)
the
existence of a policy of inadequate training or supervision; or
(4) the existence of a custom of tolerance or acquiescence in
federal rights violations.
See Burgess v. Fischer, 735 F.3d
462, 478 (6th Cir. 2013).
policy
was
violation.
592,
607
the
Plaintiffs then must show that the
“moving
force”
behind
the
federal
rights
Powers v. Hamilton Cty. Pub. Def. Comm’n, 501 F.3d
(6th
Cir.
2007)
(quoting
Monell
v. Dep’t
of
Soc.
Servs., 436 U.S. 658, 694 (1978)).
Viewing the disputes of material fact in the light most
favorable
to
Plaintiffs,
Schilling
violated
Stewart’s
Amendment right to be free from excessive force.
rely
on
the
last
three
theories
of
municipal
establish that the City caused the violation. 8
Fourth
Plaintiffs
liability
to
The City argues
that Plaintiffs have not offered evidence sufficient to support
8
Plaintiffs have disclaimed the first theory of municipal liability.
See
(ECF No. 166-17 at 2410) (“Plaintiffs do not take a position on (1) the
existence of an illegal official policy or legislative enactment.”).
35
their claims and that the City is entitled to judgment as a
matter of law.
1.
Ratification
Plaintiffs base their ratification argument on the City’s
alleged
failure
to
investigate
Stewart’s
shooting
adequately.
(ECF No. 166-17 at 2410-11.)
The Sixth Circuit has recognized
municipal
1983
liability
meaningfully
conduct.
(6th
under
investigate
§
for
allegations
a
city’s
of
failure
to
unconstitutional
See Leach v. Shelby Cty. Sheriff, 891 F.2d 1241, 1248
Cir.
1989).
One
inadequate
investigation
is
not
sufficient.
To establish liability, a plaintiff must show “a
pattern
inadequate
of
investigation
of
similar
claims.”
Burgess, 735 F.3d at 478.
Plaintiffs rely on two pieces of evidence to show a failure
to investigate adequately: (1) Jeffrey J. Noble’s testimony that
“there were no attempts by the City to resolve inconsistencies
in
the
shooting”;
Rallings’
testimony
and
(2)
that
Memphis
the
City
Police
never
administrative hearing to address the shooting.
at 2411.)
part
of
Director
Michael
held
planned
a
(ECF No. 166-17
To demonstrate that this inadequate investigation was
a
pattern,
Plaintiffs
cite
Noble’s
testimony
that,
although he could not “recall the details” and was “not even
positive”, he believed there was a case before July 17, 2015, in
36
which “a woman alleged that her [Memphis] police officer husband
had shot . . . a gun off in her home . . . [a]nd there was no
investigation
at
all.”
(ECF
No.
166-5
at
2324-25.)
That
evidence is not sufficient to support Plaintiffs’ failure-toinvestigate theory.
Even if Noble’s and Rallings’ testimony were sufficient to
show
that
the
investigation
of
Stewart’s
shooting
was
inadequate, the inadequate investigation would not give rise to
municipal
liability.
The
Fourth Amendment violation.
investigation
occurred
after
the
Something that occurred after a
constitutional violation cannot have been its “moving force.”
See Swann v. City of Columbus, No. 2:04-cv-578, 2007 WL 1831131,
at *3 (S.D. Ohio June 25, 2007) (“[S]ubsequent ratification of
past wrongdoing cannot logically be the moving force behind the
[wrongdoing].”)
Noble’s testimony is also insufficient to show a pattern of
failing
to
investigate
unarmed
suspects.
instances
Assuming
the
of
excessive
vaguely
force
remembered
against
domestic
incident described by Noble happened and was not investigated,
it is not a claim similar to the one at issue in this case: an
officer shooting a fleeing, non-dangerous suspect.
F.3d at 478.
Burgess, 735
Plaintiffs cite no other evidence on which a
37
reasonable jury could rely to rule in Plaintiffs’ favor.
Their
ratification claim fails.
2.
Policy of Inadequate Training
Inadequate
training
can
serve
as
the
basis
for
§
1983
municipal liability where it “amounts to deliberate indifference
to
the
rights
contact.”
of
persons
with
whom
the
police
come
into
City of Canton v. Harris, 489 U.S. 378, 388 (1989).
To succeed on this claim, Plaintiffs must show: “(1) that a
training program is inadequate to the tasks that the officers
must
perform;
(2)
that
the
inadequacy
is
the
result
of
the
[City's] deliberate indifference; and (3) that the inadequacy is
closely
related
to
or
actually
caused
[Stewart’s]
injury.”
Brown v. Chapman, 814 F.3d 447, 463 (6th Cir. 2016) (quoting
Plinton v. Cty. of Summit, 540 F.3d 459, 464 (6th Cir. 2008)).
Plaintiffs
argue
that
the
City
inadequately
trained
Schilling in two ways: (1) the City trained him to check all
individuals
for
warrants
during
a
traffic
stop;
and
(2)
Schilling was not trained to call for backup before arresting
uncuffed suspects seated in the back of patrol cars.
(ECF No.
166-17 at 2412.)
The
first
argument
fails
on
the
first
prong.
Training
officers to request all passenger information and checking for
warrants is not inadequate to the tasks officers must perform.
38
It
is
a
custom
Plaintiffs
to
ensure
claim,
v. Alexander,
467
officer
safety.
unconstitutional.
F.
App’x
355,
362
It
See
(6th
is
not,
United
Cir.
as
States
2012)
(“[A]n
officer does not violate the Fourth Amendment during a traffic
stop by asking for passenger identification, even where there
was no reasonable suspicion of any wrongdoing.”)
The
second
Plaintiffs
being
argument
present
trained
to
also
evidence
call
fails
that
for
backup
on
Schilling
before
the
did
prong.
not
remember
arresting
uncuffed
suspects seated in the back of patrol cars.
871-72.)
first
(ECF No. 149 at
Plaintiffs argue that, “[i]f [Schilling] would have
known the policy at the time . . . he would have called backup.”
(ECF No. 166-17 at 2412.)
Even if Schilling’s failure to recall
supported an inference that the City improperly trained him,
“[t]hat
a
particular
officer
may
be
unsatisfactorily
trained
will not alone suffice to fasten liability on the city . . . .”
City of Canton, 489 U.S. at 390; see also Winkler v. Madison
Cty., 893 F.3d 877, 904 (6th Cir. 2018); Carey v. Helton, 70 F.
App’x
291,
294
(6th
Cir.
2003).
Evidence
that
the
City
inadequately trained Schilling, without more, is not enough to
prove that the City had an inadequate training program.
39
Id.
Plaintiffs cite no other relevant evidence. 9
Their failure-to-
train claim fails.
3.
Custom of Tolerance or Acquiescence
To prove a custom of tolerance or acquiescence, Plaintiffs
must show: “(1) the existence of a clear and persistent pattern
of [illegal activity]; (2) notice or constructive notice on the
part of the [defendant]; (3) the [defendant’s] tacit approval of
the unconstitutional conduct, such that deliberate indifference
in [its] failure to act can be said to amount to an official
policy of inaction; and (4) that the [defendant’s] custom was
the moving force or direct causal link in the constitutional
deprivation.”
Stanfield v. City of Lima, 727 F. App’x 841, 851
(6th Cir. 2018) (quoting Thomas v. City of Chattanooga, 398 F.3d
426, 429 (6th Cir. 2005) (internal quotation marks omitted).
Plaintiffs cite two pieces of evidence to show that the
City had a custom of tolerating excessive force by its officers.
The
first
is
the
City’s
administrative
investigation,
which
determined that Schilling’s use of force against Stewart was
justified.
(ECF No. 166-17 at 2413.)
The second is testimony
by Noble that, when taken together, this case and a prior case
in which the City allegedly failed to investigate a claim that
9
Plaintiffs cite one piece of evidence that does not support their argument.
Ken Katsaris testified that the City’s backup calling policy is “inconsistent
with officer safety and survival.”
(ECF No. 166-7 at 2331-32.)
That does
not support Plaintiffs’ principal point: following the policy would have
prevented Stewart’s death.
40
one of its officer fired his gun during a domestic dispute,
“send
a
message
to
[Memphis
police]
officers
that
they
engage in constitutional violations with impunity . . . .”
can
(ECF
No. 166-5 at 2326.)
That evidence is not sufficient to satisfy the first prong.
It does not show a clear and persistent pattern of excessive
force during arrests.
First, one administrative determination
on one officer-involved shooting does not show that officers
regularly use excessive force.
incident.
A pattern requires more than one
Second, an officer firing his gun during a domestic
dispute differs materially from the constitutional violation at
issue in this case -- excessive force during an arrest.
The
domestic violence incident does not support a pattern of Memphis
police
officers
shooting
unarmed,
non-dangerous
suspects.
Plaintiffs cite no other evidence on which a reasonable jury
could
rely
to
acquiescence.
4.
determine
there
was
a
custom
of
tolerance
or
Plaintiffs’ claim fails.
Plaintiffs’ Fourteenth Amendment Claim
Plaintiffs argue that “[t]he City failed to protect Stewart
from violence after Stewart was taken into custody.”
166-17 at 2413.)
(ECF No.
Plaintiffs rely on DeShaney v. Winnebago Cty.
Dep’t of Soc. Servs., 489 U.S. 189 (1989), and its progeny.
DeShaney acknowledged that, “when the State takes a person into
41
custody and holds him there against his will,” the Fourteenth
Amendment’s Due Process Clause “imposes upon it a corresponding
duty to assume some responsibility for his safety and general
well-being.”
previously
Id.
at
dismissed
199-200.
Plaintiffs’
The
Court,
Fourteenth
however,
Amendment
has
claim.
(ECF No. 37 at 299 (“[T]he Court finds that Plaintiffs have
failed to plead a § 1983 claim for the violation of Stewart’s
Fourteenth Amendment rights.”).)
Even absent that dismissal, Plaintiffs’ argument would not
succeed.
It
relies
on
created danger doctrine.
an
offshoot
of
DeShaney:
the
state-
(ECF No. 166-17 at 2415 (“Applying the
state-created-danger theory to the facts of this case . . . .).)
To establish liability under that doctrine, a plaintiff must
show “affirmative acts by the state that ‘create or increase the
risk
that
an
individual
violence . . . .’”
435,
443
(6th
Cir.
will
be
exposed
to
private
acts
of
Estate of Barnwell v. Grigsby, 681 F. App’x
2017)
(quoting
Peete
v. Metro.
Gov’t
of
Nashville and Davidson Cty., 486 F.3d 217, 223 (6th Cir. 2007))
(emphasis
in
original).
Plaintiffs
claim
that
Stewart
was
harmed by a state actor, Schilling, not by a private actor.
Plaintiffs’ state-created danger argument must therefore fail.
See id.; Epperson v. City of Humboldt, 140 F. Supp. 3d 676, 689
(W.D.
Tenn.
2015)
(finding
doctrine
42
inapplicable
where
the
decedent “was detained, arrested and physically injured by the
Defendant officers”, but plaintiffs “made no allegation that the
officers placed him at risk of a violent act by a third party”).
5.
Conclusion
Plaintiffs have not cited evidence sufficient to permit a
reasonable jury to find that the City’s policies and customs
caused Stewart’s constitutional injury.
The City’s Motion for
Summary Judgment is GRANTED.
IV.
Schilling’s Motion to Exclude Testimony of Jeffrey J. Noble
A.
Standard of Review
Federal Rule of Evidence 702 allows expert testimony where
the witness is shown to be “qualified as an expert by knowledge,
skill, experience, training, or education.”
Fed. R. Evid. 702.
The trial judge serves as “gatekeeper” to determine whether a
proposed expert's testimony “both rests on a reliable foundation
and is relevant to the task at hand.”
Pharms., Inc., 509 U.S. 579, 597 (1993).
Daubert v. Merrell Dow
Even if the witness is
qualified, the subject matter of his testimony must match his
qualifications.
Coal Res., Inc. v. Gulf & W. Indus., Inc., 954
F.2d 1263, 1268 (6th Cir. 1992).
B.
Motion to Exclude
Schilling moves to exclude three aspects of expert Jeffrey
J. Noble’s testimony: (1) his opinion that Schilling’s use of
43
deadly force was unreasonable and excessive; (2) his opinion
that Schilling created the danger that led to the shooting; and
(3) his opinion that Stewart did not strike Schilling because,
had Stewart done so, Schilling’s injuries would have been more
severe. (ECF No. 153-1 at 1657.)
For the following reasons,
Schilling’s Motion is GRANTED.
1.
Opinion
that
Schilling’s
Unreasonable and Excessive
Schilling
argues
that
the
Use
conclusion
of
in
Force
Noble’s
Was
expert
report that “the use of deadly force by Officer Schilling was
objectively
unreasonable”
legal conclusion.
and
“excessive”
is
an
inappropriate
Experts may testify in excessive force cases
“so long as [they] refrain[] from expressing legal conclusions.”
King
v.
Taylor,
944
(citations omitted).
of
deadly
force
conclusion.
418,
426
F.
Supp.
2d
548,
555
(E.D.
Ky.
2013)
An expert’s opinion that an officer’s use
was
unreasonable
is
an
inadmissible
legal
See DeMerrell v. City of Cheboygan, 206 F. App’x
(6th
Cir.
2006);
Norman
v.
City
of
Lorain,
No.
1:04CV913, 2006 WL 5249725, at *3 (N.D. Ohio Nov. 27, 2006)
(holding
procedures
that
to
expert
be
“may
followed
testify
in
the
concerning
situation
the
faced
proper
by
[the
officer], but he may not testify that the force used by [the
officer] was ‘unreasonable’ or ‘unnecessary’”).
The same is
true of an expert’s opinion that an officer’s use of force was
44
“excessive.”
See Thompson v. City of Chicago, 472 F.3d 444, 458
(7th Cir. 2006); United States v. Eberle, Cr. No. 08-20139, 2008
WL 4858438, at *2 (E.D. Mich. Nov. 10, 2008).
Noble’s opinion
that Schilling’s use of force was “objectively unreasonable” and
“excessive” is inadmissible.
Schilling’s motion on this issue
is GRANTED.
2.
Opinion that Schilling
Led to the Shooting
Schilling
segmenting
argues
rule,
that,
the
in
following
light
Created
of
opinion
the
the
Danger
Sixth
from
that
Circuit’s
Noble’s
expert
report is irrelevant and would confuse the jury: “Had Officer
Schilling
followed
his
department
policies,
adhered
to
his
training and followed generally accepted police practices, it is
likely that any use of force would not have been necessary and
that Mr. Stewart would not have been killed.”
The
Sixth
Circuit
has
held
should be examined in segments.
Lubelan, 476 F.3d at 406-07.
seizure
at
issue
in
the
that
excessive
force
claims
See Chappell, 585 F.3d at 914;
The court must first identify the
particular
case
and
then
examine
“‘whether the force used to effect that seizure was reasonable
in
the
totality
reasonable
for
of
the
the
circumstances,
police
to
create
not
whether
it
was
the
circumstances.’”
Lubelan, 476 F.3d at 406 (quoting Dickerson, 101 F.3d at 1161).
The court must not consider decisions made by officers preceding
45
the
seizure,
but
instead
must
“focus
on
the
‘split-second
judgments’ made immediately before the officer used allegedly
excessive force.”
Id. at 407.
Noble may not rely on events
that occurred before Schilling’s use of force when expressing
opinions at trial. 10
1105
(6th
Cir.
See Claybrook v. Birchwell, 274 F.3d 1098,
2001)
(“Although
the
officers'
decision
to
approach Claybrook in the manner that they did was in clear
contravention
of
Metro
Nashville
Police
Department
policy
regarding procedures for undercover officers, under Dickerson,
any
unreasonableness
weigh
in
of
consideration
their
of
actions
the
use
at
of
that
point
excessive
may
not
force.”).
Schilling’s motion on this issue is GRANTED.
3.
Schilling
Opinion that Stewart Did Not Strike Schilling
argues
that
Noble’s
opinion
that
“Schilling’s
injuries were not severe enough to support his account of the
altercation with Mr. Stewart” should not be permitted at trial.
(ECF No. 153-1 at 1662.)
Noble bases his opinion on the lack of
10
Plaintiffs cite Bletz v. Gribble, 641 F.3d 743 (6th Cir. 2011), for the
proposition that Noble should be allowed to consider the events leading up to
the shooting when expressing his opinions at trial. Their reliance is
misplaced. By way of dicta, the Sixth Circuit said in Bletz that, “[w]here
the events preceding the shooting occurred in close temporal proximity to the
shooting, those events have been considered in analyzing whether excessive
force was used.” Id. at 752. The court went on to say that, “[i]n the case
before us, we need not decide precisely which preceding events (i.e., the
breadth of the excessive-force segment) should properly be considered in
analyzing the reasonableness of Gribble's use of deadly force.” Id.
The
Sixth Circuit has held that the “segmented approach applies even to
encounters lasting very short periods of time.” Greathouse v. Couch, 433 F.
App’x 370, 372 (6th Cir. 2011) (citing Claybrook v. Birchwell, 274 F.3d 1098,
1105 (6th Cir. 2001) (segmenting a 1-2 minute encounter to analyze an
excessive force claim)).
46
discernible
shortly
damage
after
to
the
Schilling’s
shooting.
face
Noble
in
photographs
describes
the
taken
officer’s
injuries as “nothing more than some redness in his face and a
slight abrasion over his nose.”
(Id. at 1663.)
that
struck
Schilling
“[o]ne
would
was
not
expect
in
much
fact
more
as
serious
he
Noble opines
claims
injuries
if
one
struck repeatedly in the face with a pair of handcuffs.”
Noble’s
testimony
would
not
assist
the
because
jury.
were
(Id.)
If
an
expert’s testimony addresses matters within the average juror’s
common knowledge, it is unnecessary because it “will not assist
the trier of fact to understand the evidence or determine a fact
in issue.”
Berry v. City of Detroit, 25 F.3d 1342, 1350 (6th
Cir. 1994); see also Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir.
1993)
(“Testimony
from
an
expert
is
presumed
to
be
helpful
unless it concerns matters within the everyday knowledge and
experience
of
a
lay
juror.”).
Whether
photographs
support
Schilling’s claim that he was struck in the face with handcuffs
is within a juror’s common knowledge.
particular
struck
by
methodology
handcuffs
to
would
determine
show.
He
Noble did not use any
how
much
compared
damage
someone
photographs
to
testimony, and concluded, based on his lay knowledge, that the
photographs told a different story.
The jury could do the same.
Schilling’s motion on this issue is GRANTED.
47
V.
Conclusion
For the foregoing reasons, Schilling’s Motion for Summary
Judgment is DENIED, the City’s Motion for Summary Judgment is
GRANTED, and Schilling’s Motion to Exclude Testimony of Jeffrey
J. Noble is GRANTED.
So ordered this 25th day of January, 2019.
/s/Samuel H. Mays, Jr._____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
48
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