                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0537n.06

                                          No. 15-1601

                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                         Sep 16, 2016
                              FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk

MARY STAMM, Personal Representative of the              )
Estate of Carl A. Stamm, IV,                            )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )
v.                                                      )
                                                        )        ON APPEAL FROM THE
FREDERICK MILLER,                                       )        UNITED STATES DISTRICT
                                                        )        COURT FOR THE EASTERN
       Defendant-Appellant,                             )        DISTRICT OF MICHIGAN
                                                        )
and                                                     )
                                                        )
VILLAGE OF FOWLERVILLE,                                 )
                                                        )
       Defendant.                                       )


BEFORE:       SILER, GIBBONS, and COOK, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge.                  Frederick Miller, an officer with the

Fowlerville Police Department, challenges the district court’s denial of his motion for summary

judgment on the ground of qualified immunity. Mary Stamm brought this 28 U.S.C. § 1983

action on behalf of the estate of her son, Carl Stamm, who died after his motorcycle crashed into

Miller’s vehicle during a high-speed chase with police. The district court’s decision to deny

Miller qualified immunity relied on material disputed facts with respect to (1) whether Miller

intended to block Stamm’s motorcycle with his car when their vehicles collided or was

attempting to get out of Stamm’s way, and (2) whether Stamm posed an immediate threat to

others. Because Miller’s actions, viewed in the light most favorable to Mrs. Stamm, indicate a
No. 15-1601, Stamm v. Miller et al.


violation of Stamm’s clearly established Fourth Amendment rights, and material facts are in

dispute, we affirm the district court’s denial of summary judgment.

                                                I.

       We adopt the district court’s view of the facts in the light most favorable to Mrs. Stamm,

Walker v. Davis, 649 F.3d 502, 503 (6th Cir. 2011), and the district court described the events in

question as follows:

               On May 16, 2011, after spending an evening with his grandparents, Carl
       Stamm went to his friend Erik King’s house in Brighton, Michigan. While at this
       house, Stamm was served alcohol and became intoxicated[, with his blood alcohol
       level after the accident determined to be .10]. He left King’s house at around four
       in the morning on his motorcycle heading to his home in East Lansing. (Dkt. 16-
       2.) These facts are not in dispute.
               At about 4:20 a.m., on Interstate 96, near the Mason Road overpass in
       Livingston County, [Michigan] Livingston County Sheriff’s Deputy Ray Marino
       recorded Stamm riding his motorcycle at 104 miles per hour. The speed limit
       along that stretch of road, which is a three-lane highway, is 70 miles per hour.
       Deputy Marino activated his overhead lights, but instead of slowing down, Stamm
       increased his speed. Deputy Marino notified his central dispatch that he was in
       pursuit of a vehicle that was not stopping. Central dispatch informed Ingham
       County law enforcement of the chase because the county line was just a few miles
       ahead of where Deputy Marino was on the highway.
               The parties provided a video of the subsequent pursuit[, and the times used
       below reflect the times as they appear in Deputy Marino’s video]. Video taken
       from Deputy Marino’s vehicle shows Stamm maneuvering around several cars
       and trucks on the highway. About ten seconds into the chase, the highway
       changes from a six-lane to a four-lane highway. (Dkt. 16-5 at 14:18:37.) At one
       point during the chase, Deputy Marino was travelling 124 miles per hour, but
       Stamm was still able to accelerate away from the patrol car. (See id.)
               After central dispatch contacted Ingham County, audio records reveal that
       Officer Miller, of the Fowlerville Police Department [], responded that he was
       traveling down a ramp to the highway ahead of the pursuit. (Dkt. 16-8.) Deputy
       Marino testified that because Stamm was only being pursued for speeding, once
       he reached the Ingham County line, he would have terminated the pursuit. (Dkt.
       18-10 at 14.) On the audio recording, Deputy Marino instructed Officer Miller to
       “jump on now, get in the right lane, and turn on your overheads.” Officer Miller
       responded that he was “going to try and stay in front of him.” (Dkt. 16-8 at
       00:30-00:44).
               Officer Miller’s in-car camera switches on at approximately 4:20:14 a.m.
       Officer Miller turned his sirens and emergency lights on and travelled on the
       highway in the right lane at about 36 miles per hour. By 4:20:20, his vehicle



                                              -2-
No. 15-1601, Stamm v. Miller et al.


        reached a peak speed of 43 miles per hour and then began to slow down. At this
        point, video from Deputy Marino’s car confirms that Stamm’s motorcycle was
        also in the right lane and remained there for the next several seconds. At 4:20:24,
        Officer Miller’s car began to move into the left lane just as Stamm began to
        occupy the left lane. For about the next five seconds, Officer Miller’s vehicle
        straddled the line dividing the two lanes. About half way over into the left lane, at
        4:20:30, Officer Miller pressed the brakes, and his vehicle shifted back to the
        right, at which point Stamm’s motorcycle crashed into the back left side of the
        car. The video from Officer Miller’s vehicle shows that he applied his brakes
        several times in the sixteen seconds he was involved in this incident. (Dkt. 16-6).
                The moment of impact cannot be seen from Deputy Marino’s video. At
        approximately 4:20:23, Officer Miller’s vehicle’s lights appeared ahead. As
        Deputy Marino approached, he slowed down rapidly, coming to a stop behind
        skid marks and Stamm’s motorcycle on the side of the road.
                Upon impact, Stamm was thrown from his motorcycle. His head struck
        the [metal portion of the patrol car between the rear windshield and the back-seat
        window] and he fell to the pavement eventually sliding on to the median on the
        left side of the highway. At the scene of the accident, Stamm appeared to be
        unconscious and barely breathing. He was declared dead shortly thereafter.

Stamm v. Miller, No. 5:14-cv-11951-JEL-MJH, at *2–*6 (E.D. Mich. Apr. 27, 2015).

        Considering the parties’ cross-motions for summary judgment, the district court denied

Mrs. Stamm’s motion and denied in part and granted in part the defendants’ motion. The district

court found an issue of material fact as to whether there was a constitutional violation because

“[a] reasonable juror could conclude that Officer Miller . . . intended to stop plaintiff by use of

physical force intentionally causing the collision” and that this use of “deadly force was not

necessary under the circumstances.” Id. at 18–19, 24. Regarding whether Miller’s conduct

violated a clearly established right of Stamm’s, the court concluded that “[i]t has been clearly

established that the use of deadly force in a high speed pursuit is unconstitutional where failing

to use such force poses little threat to the safety of others.” Id. at 27.

                                                   II.

        We review a district court’s denial of a motion for summary judgment on qualified

immunity grounds de novo. Stoudemire v. Mich. Dep’t. of Corr., 705 F.3d 560, 565 (6th Cir.




                                                  -3-
No. 15-1601, Stamm v. Miller et al.


2013). A court properly grants summary judgment when “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.” Fed. R. Civ. P. 56(a).

                                                III.

       Qualified immunity protects government officials from standing trial for civil liability in

their performance of discretionary functions unless their actions violate clearly established rights.

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether an officer is entitled to

qualified immunity, we apply a two-prong test, asking (1) whether the facts, as alleged by the

plaintiff, “make out a violation of a constitutional right,” and (2) whether “the right at issue was

clearly established at the time of the defendant’s alleged misconduct.” Pearson v. Callahan,

555 U.S. 223, 232 (2009) (internal quotation marks and citation omitted). If a district court

determines that the plaintiff’s evidence would reasonably support a jury’s finding that the

defendant violated a clearly established right, it must deny summary judgment. DiLuzio v. Vill.

of Yorkville, 796 F.3d 604, 609 (6th Cir. 2015). Here, considering the facts in the light most

favorable to Mrs. Stamm, the district court correctly denied Miller summary judgment.

                                                 A.

       “The Fourth Amendment’s prohibition against unreasonable seizures protects citizens

from excessive use of force by law enforcement officers.” Godawa v. Byrd, 798 F.3d 457, 463

(6th Cir. 2015).    Claims alleging excessive force are subject to the Fourth Amendment’s

“objective reasonableness” standard. Id. at 464 (quoting Graham v. Connor, 490 U.S. 386, 388

(1989)). This standard requires a court to balance three factors: “[1] the severity of the crime at

issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others,

and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.




                                                -4-
No. 15-1601, Stamm v. Miller et al.


(quoting Martin v. City of Broadview Heights, 712 F.3d 951, 958 (6th Cir. 2013)). For a seizure

under the Fourth Amendment to occur at all, an officer must intend to stop someone. See Cty. of

Sacramento v. Lewis, 523 U.S. 833, 844 (1998).

       The district court correctly determined that there were disputes of material fact regarding

whether Miller intended to block Stamm and whether Stamm’s conduct posed an immediate

threat to others. These disputes concern the reasonableness of Miller’s conduct, making them

material, and because the evidence is such that a jury could return a verdict in Mrs. Stamm’s

favor, this material dispute is genuine. See Stoudemire, 705 F.3d at 565.

       Regarding his intent to block Stamm, Miller argues that he attempted to move out of

Stamm’s way before the collision. As the district court found, however, the video reasonably

supports Mrs. Stamm’s version of the facts. The video shows that Miller’s police vehicle was

traveling, at most, 43 miles per hour on a highway with a 70-mile-per-hour speed limit, when

Miller knew Stamm’s motorcycle was traveling at a speed of more than 100 miles per hour. The

video also demonstrates that Miller’s vehicle straddled the dividing line between the two lanes

for about five seconds. Finally, the video shows that Miller got in front of Stamm while Stamm

was changing lanes and braked several times while in front of Stamm. The recording of the

radio communication between Miller and Marino, the deputy who originally responded, also

indicates that Miller’s plan was to stay in front of Stamm.

       In terms of Stamm’s potential danger to others, Miller argues that Stamm’s high rate of

speed and reckless driving threatened officers and other motorists.         The record, however,

supports Mrs. Stamm’s version of the facts regarding the threat Stamm posed when his

motorcycle and Miller’s police vehicle collided. As the district court reasoned, “Stamm was

being pursued at 4:20 a.m. along a highway six and then four lanes wide, with a large median




                                               -5-
No. 15-1601, Stamm v. Miller et al.


dividing him from oncoming traffic and no pedestrians or businesses in sight.” Stamm, No. 5:14-

cv-11951-JEL-MJH, at *22. The district court further observed that “while the motorcycle

passed other vehicles while Deputy Marino was pursuing him, at the time and place of the

collision with Officer Miller, there are no vehicles to be seen in the immediate vicinity.” Id. at

*23–*24.

       The district court correctly found that the record raised genuine issues of material fact as

to whether Miller intended to block Stamm and whether Stamm was a threat to others at the time

of the collision, inquiries which help determine whether Miller’s conduct was reasonable under

the Fourth Amendment. A reasonable juror could conclude that Miller deliberately used deadly

force against Stamm when he posed no immediate threat to others, and summary judgment to

Miller was therefore inappropriate.

                                                B.

       In evaluating whether a constitutional right was clearly established, “[t]he key

determination is whether a defendant moving for summary judgment on qualified immunity

grounds was on notice that his alleged actions were unconstitutional.” Grawey v. Drury, 567

F.3d 302, 313 (6th Cir. 2009). The Supreme Court has emphasized that the “contours of the

right must be sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). This does not mean that

“an official action is protected by qualified immunity unless the very action in question has

previously been held unlawful.” Id. (citing Mitchell v. Forsyth, 472 U.S. 511, 535 n.12 (1985)).

Rather, it means that “in the light of pre-existing law the unlawfulness must be apparent.” Id. at

640 (collecting cases); see also Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (“We do not

require a case directly on point, but existing precedent must have placed the statutory or




                                               -6-
No. 15-1601, Stamm v. Miller et al.


constitutional question beyond debate.”). The “clearly established” prong must be applied “in

light of the specific context of the case, not as a broad general proposition.” Saucier v. Katz,

533 U.S. 194, 201 (2001), overruled on other grounds by Pearson, 555 U.S. at 236.

        We have held that “[i]t has been settled law for a generation that, under the Fourth

Amendment, ‘[w]here a suspect poses no immediate threat to the officer and no threat to others,

the harm resulting from failing to apprehend him does not justify the use of deadly force to do

so.’” Walker, 649 F.3d at 503 (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)). Though

Walker was decided after the events giving rise to this case, its principle was not new, as we

explicitly noted. In that case, which involved a collision similar to the one here, we noted that

“[i]t is only common sense—and obviously so—that intentionally ramming a motorcycle with a

police cruiser involves the application of potentially deadly force.” Id. at 503–04. Thus, it is

clearly established law that an officer may not use his police vehicle to intentionally hit a

motorcycle unless the suspect on the motorcycle poses a threat to the officer or others.

        The evidence, construed in the light most favorable to Mrs. Stamm, indicates a violation

of a clearly established constitutional right. Under Mrs. Stamm’s version of the facts, Miller

intended to block Stamm’s passage with his police cruiser, causing the deadly collision. As the

district court observed, the risk to others at the time of Miller’s use of force was minimal, as

there were no other vehicles in sight, and Stamm’s motorcycle posed little threat to Miller, who

was inside a much-larger vehicle.

        Because the facts as interpreted in the light most favorable to Mrs. Stamm indicate a

violation of a clearly established constitutional right, and material facts are in dispute, the district

court properly denied summary judgment to Miller.




                                                 -7-
No. 15-1601, Stamm v. Miller et al.


                                                IV.

       Although Miller’s appeal fails, we decline to impose sanctions because the appeal was

not entirely frivolous. See Fed. R. App. P. 38. Miller’s appeal does not concede Mrs. Stamm’s

version of the facts with regard to Miller’s intent or the threat Stamm posed to others when he

struck Miller’s car.     Nonetheless, Miller did raise, albeit inartfully, a non-frivolous issue:

whether, considering the facts in the light most favorable to Mrs. Stamm, Miller’s conduct

“violate[d] clearly established . . . rights of which a reasonable person would have known.”

Barker v. Goodrich, 649 F.3d 428, 433 (2011) (quoting Harlow, 457 U.S. at 818).

                                                V.

       We affirm the district court’s denial of qualified immunity and deny Mrs. Stamm’s

request for sanctions.




                                               -8-
