               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0109n.06

                                       Case No. 16-5322

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT                               FILED
                                                                                Feb 16, 2017
                                                                            DEBORAH S. HUNT, Clerk

CAREY WOODCOCK, as Administratrix of the             )
estate of Gregory Harrison, deceased                 )
                                                     )
       Plaintiff-Appellee,                           )        ON APPEAL FROM THE
                                                     )        UNITED STATES DISTRICT
v.                                                   )        COURT FOR THE WESTERN
                                                     )        DISTRICT OF KENTUCKY
CITY OF BOWLING GREEN; DOUG                          )
HAWKINS; DONITKA KAY; KEITH CASADA,                  )
individually                                         )
                                                     )                             OPINION
       Defendants-Appellants.                        )
                                                     )
and                                                  )
                                                     )
KEVIN WILES; MELANIE WATTS,                          )
individually                                         )
                                                     )
       Defendants                                    )


BEFORE:       COLE, Chief Judge; COOK and WHITE, Circuit Judges.

       COLE, Chief Judge. On August 12, 2012, Officer Keith Casada of the Bowling Green

Police Department (“BGPD”) fatally shot Gregory Harrison.               Carey Woodcock, the

administratrix of Harrison’s estate, filed the instant complaint pursuant to 42 U.S.C. § 1983 and

various state-law grounds. The district court granted Woodcock summary judgment as to the
No. 16-5322, Woodcock v. City of Bowling Green, et al.


§ 1983 excessive force claim.      The district court also granted in part and denied in part

defendants’ motion for summary judgment.

       On appeal, defendants argue that the district court erred in denying summary judgment to

(1) Casada on the § 1983 excessive force claim and the state-law battery claim, (2) Sergeant

Donitka Kay on the § 1983 failure-to-supervise claim and § 1983 failure-to-intervene claim,

(3) Casada and Kay on the § 1983 conspiracy claim, (4) Chief Doug Hawkins and the City of

Bowling Green on the state-law vicarious-liability claim, and to (5) all defendants on the

wrongful-death claim. Woodcock moved to dismiss this appeal for lack of jurisdiction.

       For the following reasons, we reverse the district court’s denial of summary judgment on

the state-law vicarious-liability claim. We affirm as to all other claims.

                                       I. BACKGROUND

       On August 12, 2012, at approximately 1:26 AM, Harrison placed the first of two phone

calls to the BGPD. In the first call, Harrison said, “Yes, I’m on my way to the Louisville Bridge,

I wanna beat the hell out of my brother, and if they want me, kill me.” (Audio of First Call, R.

46-1, 1:25:58 AM). Casada was dispatched to locate the caller. When the police called back,

they learned from a voicemail greeting that the caller’s name was “Greg.” (Audio of Return

Call, R. 46-1, 1:31:06 AM).

       Harrison placed a second call to the BGPD at 1:37 AM. The phone call proceeded as

follows:

       [Harrison]: Uh, yes, my emergency [slurred] I’m at the T-Mart, I’m’a kill my family, I’ve
       asked for help and I’ve asked for help, [Hanes: ‘where are you?’] and they have ignored
       me. No, no, they have ignored me. You know what? You’ll have ignored me.
       [Hanes]: We sent someone to where you said you were, where are you right now?
       [Harrison]: You know what? I’m gon’ kill my brother, I don’t give a fuck, my mother-in-
       law’s had a stroke. You know what, I’m down in the parking lot with a gun, by my
No. 16-5322, Woodcock v. City of Bowling Green, et al.


       [Hanes]: What parking lot?
       [buzzing sound] [dial tone]

(Audio of Second Call, R. 48, 1:37:19 AM.) At 1:39 AM, police dispatch contacted Casada and

alerted him of Harrison’s second phone call, including Harrison’s claim to have a gun.

       Sergeant Kay spotted Harrison walking on railroad tracks at 1:47 AM. Kay stopped her

police cruiser ninety to one-hundred-and-fifty feet away from Harrison. Kay fixed her cruiser’s

spotlight on Harrison, alerted dispatch that she was “getting out with suspect on tracks,” exited

her cruiser, and then yelled at Harrison to “put your hands up” and “walk up here to me.” (Dash-

cam video, R. 58, 1:46:57 AM.) Kay continued to yell “show me your hands” and “put your

hands up” as Harrison stood motionless. (Id.)

       Officers Jordan Wilson and Casada heard Kay’s yelling, ran to her location, and stationed

themselves on the passenger side of her cruiser, so that the vehicle was between them and

Harrison. During the incident with Harrison, the police blocked off the road and surrounding

area and had trains stopped. Five BGPD officers (Kay, Casada, Wilson, Officer Ernie Steff, and

Sergeant Todd Porter) and one Western Kentucky University officer (Brian Kitchens) were at the

scene. There was approximately eighteen feet of grassy area, a curved concrete wall, and the

empty left lane of Clay Street between the railroad tracks and Casada and Kay.

       During the twelve-minute exchange, Casada and Kay continually and repeatedly yelled

for Harrison to “stop,” “stop and put your hands up,” “stop, don’t move,” “stop or I will shoot

you,” and to “sit down.” (See generally Dash-cam video, R. 58, 1:47–1:59 AM.) Harrison

ignored these commands and slowly walked along the railroad track parallel to Kay’s and

Casada’s position. Harrison occasionally stumbled and retraced his steps as he walked, had

slurred speech, looked like he had urinated on himself, and appeared intoxicated. Harrison also

repeatedly yelled “shoot me” in response to warnings the officers gave him. (Casada Use of
No. 16-5322, Woodcock v. City of Bowling Green, et al.


Force R., R. 41-1, PageID 552.)          During the confrontation, Harrison made no threats or

aggressive movements and never said that he had a gun. He had his left hand behind his back,

tucked wrist-deep into the waistband of his pants. His left hand remained tucked into his pants

for the entire incident; at no point did he move it. At approximately 1:56 AM, Harrison moved

out of the dash-cam’s view. The dash-cam still captured the audio of the events.

           At 1:57 AM, Kay stated over the police radio that “if he takes one more step this way, uh,

we’re shootin’.” (Dash-cam video, R. 58, 1:56:57 AM.) Kay and Casada were told by Sergeant

Porter to tell Harrison they were going to shoot him, and they gave the warning. (Id.)

           A minute and a half later, Kay reported over the police radio that Harrison had

apologized to his mother for “whatever it is he’s about to do.” (Dash-cam video, R. 58, 1:58:42

AM). Following this statement, Casada asked Kay to go around to the driver’s side of the cruiser

and adjust the spotlight to keep Harrison illuminated. (Casada Dep., R. 44-1, PageID 724.) At

1:59 AM, Kay said “cover me” and went to the driver’s side of the cruiser and adjusted the

spotlight. (Dash-cam video, R. 58, 1:59:05 AM.) She then returned to the passenger side of the

cruiser.

           Just before 2:00 AM, Casada shot Harrison, hitting him in the left upper abdomen.

Harrison was not facing Kay and Casada when Casada shot him but was standing at a forty-five-

degree angle from them, approximately 72 feet away. Officers converged on Harrison and called

for an ambulance. Harrison died at the hospital that morning.

           The Kentucky State Police investigated the shooting. The investigating officer, then-

Detective Laura Phillips, presented the investigation’s evidence to the Commonwealth Attorney

on August 30, 2012. The Commonwealth Attorney declined criminal prosecution.
No. 16-5322, Woodcock v. City of Bowling Green, et al.


       Woodcock filed an action in August 2013 asserting seven claims. Those claims were for:

excessive force in violation of the Fourth Amendment under 42 U.S.C. § 1983; negligence and

gross negligence under state law; vicarious liability against defendants City of Bowling Green

(“the City”), Hawkins, Wiles, and Watts for the state-law claims against defendants Kay and

Casada; common-law battery; the tort of outrage (intentional infliction of emotional distress);

wrongful death under Ky. Rev. Stat. § 411.130; and violation of the Americans with Disabilities

Act (“ADA”), 42 U.S.C. § 12131. Both parties moved for summary judgment.

       In February 2016, the district court dismissed the claims against defendants Wiles and

Watts, conspiracy claims involving anyone other than Kay and Casada, the ADA claim, and the

battery claims against anyone other than Casada.        The district court also denied qualified

immunity to Casada and Kay on the § 1983 claims and granted summary judgment to Woodcock

as to the § 1983 claim against Casada. The district court ruled that Casada was not entitled to

qualified official immunity under state law.       Finally, the district court granted summary

judgment to all defendants on the state tort claims except to Casada on the state battery claim, to

all defendants on the wrongful-death claim, and to the City of Bowling Green and Hawkins on

the vicarious-liability claim.

       Defendants filed this interlocutory appeal challenging the denial of qualified immunity

under federal law to Casada and Kay, the denial of qualified official immunity under state law to

Casada, and the grant of summary judgment to Woodcock as to the § 1983 excessive force claim.

                                         II. ANALYSIS

       A. Jurisdiction

       Woodcock argues that we lack jurisdiction over the appeal.          A denial of qualified

immunity on purely legal grounds is immediately appealable. Mitchell v. Forsyth, 472 U.S. 511,
No. 16-5322, Woodcock v. City of Bowling Green, et al.


530 (1985). But we lack jurisdiction to determine “whether or not the pretrial record sets forth a

‘genuine’ issue of fact for trial.” Kirby v. Duva, 530 F.3d 475, 480–81 (6th Cir. 2008) (quoting

Johnson v. Jones, 515 U.S. 304, 319–20 (1995)). Where the material facts are not in dispute, the

reasonableness of the use of deadly force “is a pure question of law.” Scott v. Harris, 550 U.S.

372, 381 n.8 (2007). Because the parties agree that there is no dispute of material fact as to the

excessive force claim, this appeal raises pure issues of law and we have jurisdiction over it.

       To the extent that the defendants make fact-based arguments, we are required to dismiss

them. See Johnson, 515 U.S. at 313. However, when an appeal makes both factual and purely

legal arguments, we can “ignore the defendant’s attempts to dispute the facts and nonetheless

resolve the legal issue, obviating the need to dismiss the entire appeal for lack of jurisdiction.”

Estate of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005). We therefore deny

Woodcock’s motion to dismiss the entirety of the appeal.

       B. Standard of Review

       We review a district court’s grant of summary judgment de novo. Ciminillo v. Streicher,

434 F.3d 461, 464 (6th Cir. 2006). Summary judgment is appropriate where the record shows no

genuine dispute as to any material fact and that the moving party is entitled to judgment as a

matter of law. See Fed. R. Civ. P. 56(a). Where, as with the excessive force claim, the facts are

undisputed, “[t]he question whether the uncontested facts demonstrated a constitutional violation

is a pure question of law.” Turner v. Scott, 119 F.3d 425, 428 (6th Cir. 1997). We also review

de novo a district court’s denial of qualified immunity. Pollard v. City of Columbus, Ohio, 780

F.3d 395, 402 (6th Cir. 2015).
No. 16-5322, Woodcock v. City of Bowling Green, et al.


       C. Section 1983 Claims

       1. Excessive Force

       Qualified immunity shields government officials from civil liability when their conduct

“does not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). To determine

whether an official is entitled to qualified immunity, we apply the two-prong Saucier test and

inquire (1) whether the facts, when taken in the light most favorable to the party asserting the

injury, show the officer’s conduct violated a constitutional right; and (2) whether the right

violated was clearly established such that “a reasonable official would understand that what he is

doing violates that right.” Saucier v. Katz, 533 U.S. 194, 201–02 (2001), overruled on other

grounds by Pearson, 555 U.S. at 229. Because “it is axiomatic that individuals have a clearly

established right not to be shot absent probable cause to believe that they pose a threat of serious

physical harm,” Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015) (internal quotation marks

omitted), we must determine whether Casada’s use of deadly force was unreasonable under the

Fourth Amendment.

       In prior cases, we have employed a non-exhaustive list of three factors to determine

whether an officer’s actions were reasonable: “(1) the severity of the crime at issue; (2) whether

the suspect pose[d] an immediate threat to the safety of the officers or others; and (3) whether the

suspect was actively resisting arrest or attempting to evade arrest by flight.” Sigley v. City of

Parma Heights, 437 F.3d 527, 534 (6th Cir. 2006). However, the “ultimate inquiry . . . must

always be whether the totality of the circumstances justified the use of force.” Mullins, 805 F.3d

at 760 (internal quotation marks omitted). We must judge the reasonableness of the use of force

“from the perspective of a reasonable officer on the scene and not through the lens of 20/20
No. 16-5322, Woodcock v. City of Bowling Green, et al.


hindsight.” Id. at 765. This objective reasonableness analysis “contains a built-in measure of

deference to the officer’s on-the-spot judgment about the level of force necessary in light of the

circumstances.” Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002).

       Turning to the reasonableness factors, we conclude that the severity-of-the-crime factor

weighs against Casada. Harrison was, at most, guilty of a misdemeanor at the time of the

confrontation, and, although he had voiced a threat against his brother in his calls to the police,

his brother was not at the scene and Harrison did not threaten anyone else. Indeed, Harrison

called the police himself; this was not a situation where another individual had accused Harrison

of threatening or violent behavior.

       We also conclude that Harrison did not actively resist arrest, which further weighs against

Casada. Kay testified that at no point were the police officers trying to arrest Harrison. Even

assuming that the police were trying to arrest Harrison, his conduct did not rise to the level of

active resistance. We have held that mere noncompliance is not active resistance. See Goodwin

v. City of Painesville, 781 F.3d 314, 323–24 (6th Cir. 2015) (holding that refusal to comply with

officer’s command to step outside his apartment was not active resistance); Eldridge v. City of

Warren, 533 F. App’x 529, 535 (6th Cir. 2013) (“If there is a common thread to be found in our

caselaw on this issue, it is that noncompliance alone does not indicate active resistance; there

must be something more.”).

       The crux of this appeal is whether there was probable cause to believe that Harrison

posed an imminent threat of serious physical harm to officers or others. “In excessive force

cases, the threat factor is ‘a minimum requirement for the use of deadly force,’ meaning deadly

force ‘may be used only if the officer has probable cause to believe that the suspect poses a threat

of severe physical harm.’” Mullins, 805 F.3d at 766 (quoting Untalan v. City of Lorain, 430 F.3d
No. 16-5322, Woodcock v. City of Bowling Green, et al.


312, 314 (6th Cir. 2005)) (emphasis in original). The reasonableness of the use of deadly force is

measured “based on an ‘objective assessment of the danger a suspect poses at that moment.’”

Mullins, 805 F.3d at 766 (quoting Bouggess v. Mattingly, 482 F.3d 886, 889 (6th Cir. 2007)).

       Here, based on the totality of the circumstances known to Casada at the time of the

incident, the use of deadly force was objectively unreasonable. When Casada arrived on the

scene, he knew that Harrison’s name was probably “Greg,” that he had called the police twice

that night, that he had told the police over the phone that he had a gun, and that he had threatened

to assault or kill his brother. During the twelve-minute encounter, Casada witnessed Harrison

walk slowly down the railroad tracks perpendicular to the police officers, keep his left hand

stuffed wrist-deep into the back of his pants, and ignore officers’ commands. Casada was aware

that Harrison was stumbling, had slurred speech, had possibly urinated on himself, and that there

was a “good possibility” he was intoxicated. (Casada Use of Force R., R. 44-1, PageID 704.)

Casada had also heard Harrison repeatedly yell “shoot me” in response to warnings the officers

gave him and believed Harrison was suicidal. (Casada Use of Force R., R. 41-1, PageID 552.)

Soon before the shooting, Casada heard Harrison say his “momma please forgive me” statement.

However, Casada did not shoot Harrison for nearly a minute after Harrison made this statement,

which defendants characterize as a “final declaration.” At no point during the twelve-minute

encounter did Casada see Harrison attack or threaten anyone. Casada also saw that Harrison

never moved his left hand from inside his pants. When Casada fired, Harrison was standing

approximately 72 feet away from him and was not directly facing the officers.

       The cases Casada cites in arguing that he acted reasonably are distinguishable.           In

Simmonds v. Genesee County, the suspect yelled “I have a gun” to the officers and pointed a

silver object at the officers as though it were a weapon. 682 F.3d 438, 445 (6th Cir. 2012). In
No. 16-5322, Woodcock v. City of Bowling Green, et al.


Pollard, the suspect reached down to the floor of his vehicle and then clasped his hands into a

shooting posture, pointing at the officers on the scene. 780 F.3d at 403. We said that it was

these facts that “weigh[ed] most heavily in assessing the officers’ split-second decision to shoot.”

Id. The court emphasized the “‘tense, uncertain and rapidly evolving’ nature of the altercation.”

Id. (quoting Graham, 490 U.S. 386, 397 (1989)).

       Here, the incident lacked the essential elements that permitted the use of force in

Simmonds and Pollard. Harrison displayed none of the aggression that the suspects did in

Simmonds and Pollard. Casada may have thought that Harrison had a gun, but Harrison never

gave Casada reason to think that he would use it imminently. The suspects in Simmonds and

Pollard pointed objects at the officers; Harrison never moved his left arm. Casada argues that he

faced a split-second decision, but the record shows that Casada and Kay agreed that Casada

would shoot if Harrison moved past the point illuminated by the searchlight. Casada also did not

shoot Harrison immediately after hearing his final declaration. He waited just over a minute, and

asked Kay to run around the police car to move the searchlight. Harrison’s shooting lacked the

exigency, tension, or rapid evolution present in Simmonds and Pollard. When Casada fired the

shot, he had no reason to believe that Harrison posed an imminent threat of serious harm to

anyone. Accordingly, his use of deadly force was objectively unreasonable and violated the

Fourth Amendment.

       2. Failure to Supervise Claim

       First, Kay makes factual arguments that we cannot review on interlocutory appeal.

Second, Kay argues that Casada did not violate the Constitution, and that there can thus be no

supervisory liability. Because Casada violated the Fourth Amendment, we conclude that the

district court properly denied Kay summary judgment.
No. 16-5322, Woodcock v. City of Bowling Green, et al.


       3. Failure to Intervene Claim

       Kay argues that she did not fail to intervene because there was no constitutional violation

to prevent. Because Casada violated the Fourth Amendment, we conclude that the district court

properly denied Kay summary judgment.

       4. Conspiracy Claim

       Defendants argue that the intracorporate conspiracy doctrine bars the civil conspiracy

claim. However, we have never held that the doctrine applies to claims under § 1983. See

DiLuzio v. Village of Yorkville, Ohio, 796 F.3d 604, 615–16 (6th Cir. 2015). We decline to do so

here as there is a genuine dispute of fact about whether Casada and Kay made an agreement to

injure Harrison by unlawful action. We, therefore, lack jurisdiction to consider this claim on

interlocutory appeal.

       D. State-Law Claims

       1. Qualified Official Immunity

       In Kentucky, “qualified official immunity applies to the negligent performance by a

public officer or employee of (1) discretionary acts or functions, i.e., those involving the exercise

of discretion and judgment, or personal deliberation, decision, and judgment, (2) in good faith;

and (3) within the scope of the employee’s authority.” Yanero v. Davis, 65 S.W.3d 510, 522

(Ky. 2001) (citations omitted). The Kentucky Supreme Court has held that “in the context of

qualified official immunity, ‘bad faith’ can be predicated on a violation of a constitutional,

statutory, or other clearly established right which a person in the public employee’s position

presumptively    would    have    known    was    afforded    to   a   person   in   the   plaintiff’s

position, i.e., objective unreasonableness.” Id. And courts have held that “this inquiry tracks the

inquiry for objective reasonableness and qualified immunity.” Turner v. Hill, No. 5:12-CV-
No. 16-5322, Woodcock v. City of Bowling Green, et al.


00195-TBR, 2014 WL 549462 at *9 (W.D. Ky. Feb. 11, 2014). Accordingly, we hold that

Casada is not entitled to qualified official immunity because a jury could conclude that he acted

in bad faith by violating a clearly established constitutional right.

       2. Battery

       Under Kentucky law, a defendant’s use of deadly force is privileged “when the defendant

believes that such force is necessary to protect himself against death [or] serious physical

injury.” KRS 503.050(2). This standard does not identically track the federal standard. Casada

argues on appeal that he did believe that deadly force was necessary to protect himself. This

argument is entirely factual and thus unreviewable on interlocutory appeal.

       3. Vicarious Liability

       The district court erred in not granting summary judgment to Hawkins on the vicarious-

liability claim. As the district court held in regards to another claim, Hawkins was entitled to

qualified official immunity because the manner of supervision and enforcement of a use-of-force

policy is a discretionary act or function, see Walker v. Davis, 643 F. Supp. 2d 921, 933–34 (W.D.

Ky. 2009), and Woodcock failed to show bad faith on the part of Hawkins. Woodcock v. City of

Bowling Green, et al., 165 F. Supp. 3d 563, 607–08 (W.D. Ky. 2016). This grant of qualified

official immunity precludes Hawkins from being held liable under a theory of vicarious liability.

See Rowan County v. Sloas, 201 S.W.3d 469, 476–77 (Ky. 2006) (“[T]here can be no vicarious

liability which pierces immunity, if immunity is found to be applicable.”). Hawkins is, therefore,

entitled to summary judgment on the vicarious liability claim.

       However, the district court properly denied summary judgment to the City of Bowling

Green. A city “is immune only for torts committed in the performance of legislative or judicial

or quasi-legislative or quasi-judicial functions, and can otherwise be held vicariously liable for
No. 16-5322, Woodcock v. City of Bowling Green, et al.


the torts of its employees.” Schwindel v. Meade Cty., 113 S.W.3d 159, 165 (Ky. 2003); see also

Comair, Inc. v. Lexington-Fayette Urban Cty. Airport Corp., 295 S.W.3d 91, 95 (Ky. 2009)

(“Cities . . . while enjoying some immunity for much of this state's history, are now liable for

negligent acts outside the legislative and judicial realms.”). And Kentucky courts have held that

a police officer’s duties do not fall under this exemption, making cities liable for their torts. See

Ashby v. City of Louisville, 841 S.W.2d 184, 188 (Ky. Ct. App. 1992). The City’s only other

argument on appeal is that summary judgment is warranted because Casada did not commit the

underlying tort of battery. But since we conclude that the battery claim can go forward, the

district court properly denied the City summary judgment.

       4. Wrongful Death

       Defendants’ only argument on appeal is that summary judgment is warranted because

Casada did not commit the underlying tort of battery. Because we conclude that the state battery

claim can go forward, we hold that the district court properly denied summary judgment.

                                       III. CONCLUSION

       For the foregoing reasons, we reverse the district court’s denial of defendants’ motion for

summary judgment on the state vicarious-liability claim against Hawkins.             We affirm the

remainder of the district court’s judgment.
