               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0079n.06

                                      Case No. 15-2456

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                FILED
                                                                           Jan 27, 2017
STEVEN EDWIN WOODWARD,                             )                   DEBORAH S. HUNT, Clerk
                                                   )
       Plaintiff-Appellee,                         )
                                                   )     ON APPEAL FROM THE UNITED
v.                                                 )     STATES DISTRICT COURT FOR
                                                   )     THE EASTERN DISTRICT OF
RAYMOND D’ONOFRIO, Officer,                        )     MICHIGAN
                                                   )
       Defendant-Appellant.                        )




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

       COOK, Circuit Judge. A brief chase between a police officer in a car and a cyclist ended

in a collision just inside a parking lot. The cyclist sued under 42 U.S.C. § 1983, claiming the

police officer intentionally rammed the vehicle into him. After the district court denied the

officer’s motion for summary judgment raising qualified immunity, the officer filed this

interlocutory appeal. Because we lack jurisdiction, we DISMISS the appeal.

                                              I.

       Before the chase began, Steven Woodward saw his uncle dial 911 to report him for

wielding a baseball bat during their fight. Scrambling to avoid the police, Woodward exited

through the backdoor. Within minutes, Officer Michael Kasdorf of the Hazel Park Police

Department arrived and, upon spotting Woodward fleeing on a bike, ordered him to stop.
Case No. 15-2456, Woodward v. D’Onofrio


Woodward instead pedaled away as Kasdorf chased him on foot. Kasdorf could not keep up, but

he spotted Officer Raymond D’Onofrio in a black Dodge Charger at the next intersection.

Kasdorf radioed D’Onofrio, warning him that Woodward, likely with a bat still in hand, was

riding south and passing through the crosswalk in front of him.

        D’Onofrio testified that he yelled for Woodward to stop, but Woodward continued riding.

D’Onofrio turned into the curb lane of South Chrysler and drew his car parallel to Woodward,

who was to the right of D’Onofrio’s cruiser. As they both passed a Mobil gas station, D’Onofrio

demanded twice more that Woodward halt, but to no avail.

        At this point, Woodward and D’Onofrio’s stories diverge.         D’Onofrio claims that

Woodward pedaled faster and began veering to the right, toward an alleyway between the Mobil

gas station and an auto-parts-store parking lot. Intending to follow Woodward, D’Onofrio also

turned right, accelerating “to get up the curb” and enter the lot.      D’Onofrio lost sight of

Woodward temporarily because he was scanning ahead for other people or vehicles. As a result,

D’Onofrio did not see the accident, but felt Woodward hit the “front passenger side” of his

cruiser. Stressing that he did not intend to overtake the bicycle or otherwise make contact,

D’Onofrio surmised that Woodward “lost control of [the] bike . . . or was trying to cut” in front

of the car.

        Not so under Woodward’s account. He testified that the road noise and his preoccupation

with the fight from earlier in the evening distracted him from noticing D’Onofrio’s police car or

hearing his commands. Woodward insists that he neither sped up nor turned, but continued

straight down the sidewalk. Just before he reached the entrance of the parking lot, he felt the

front passenger-side bumper of the cruiser hit his bike. He lost consciousness momentarily after

impact, but when he came to, he found himself and his bike pinned beneath D’Onofrio’s car.


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Case No. 15-2456, Woodward v. D’Onofrio


       D’Onofrio acknowledges that he may have pulled the vehicle forward so Woodward

could crawl out from underneath. Woodward suffered multiple fractures to his ankles, road rash

along his inner left knee, and facial cuts that required stitches.

       Woodward sued under 42 U.S.C. § 1983, alleging that D’Onofrio intentionally rammed

the vehicle into his bike in order to stop him, thereby violating his Fourth Amendment right to be

free from excessive force.       D’Onofrio moved for summary judgment based on qualified

immunity. The district court denied summary judgment because D’Onofrio’s qualified immunity

turned on a genuine dispute of material fact over whether he intended to hit Woodward.

D’Onofrio filed a notice for interlocutory appeal, and Woodward moved to dismiss the appeal

for lack of jurisdiction. We ordered the parties to complete briefing and submit video evidence

obtained from two police dashboard cameras so we could properly evaluate jurisdiction, and the

parties have complied.

                                                  II.

       We may exercise interlocutory jurisdiction over an appeal from the denial of summary

judgment based on qualified immunity only to the extent the appeal turns on purely “abstract

issues of law.” Johnson v. Jones, 515 U.S. 304, 317 (1995) (quoting 15A Charles A. Wright

& Arthur R. Miller et al., Federal Practice & Procedure § 3914.10 (2d ed. 1992)). Accordingly,

where the district court bases the denial of qualified immunity on a genuine dispute of material

fact, we must dismiss challenges to that decision. Id. at 319–20; Romo v. Largen, 723 F.3d 670,

674 (6th Cir. 2013). The defendant can avoid the jurisdictional bar, however, by “conced[ing] an

interpretation of the facts in the light most favorable to the plaintiff’s case[,]” thereby leaving

only legal issues for our review. Berryman v. Rieger, 150 F.3d 561, 562 (6th Cir. 1998).




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Case No. 15-2456, Woodward v. D’Onofrio


       Because Woodward’s § 1983 claim alleges that D’Onofrio violated his Fourth

Amendment right to be free from unreasonable seizure, Woodward must show “a governmental

termination of his freedom of movement through means intentionally applied.” Brower v.

County of Inyo, 489 U.S. 593, 597 (1989).        The district court denied D’Onofrio qualified

immunity because it found a genuine factual dispute over whether D’Onofrio intended to strike

Woodward with his police cruiser. We therefore lack jurisdiction unless D’Onofrio defers to

Woodward’s recounting of the facts. See Berryman, 150 F.3d at 562; see also Kirby v. Duva,

530 F.3d 475, 481 (6th Cir. 2008).

       Although he purports to accept Woodward’s facts, D’Onofrio makes no effort to do so.

See Thompson v. Grida, 656 F.3d 365, 368 (6th Cir. 2011) (“Mere conclusory statements that the

officers construe the facts in the light most favorable to the plaintiff cannot confer jurisdiction

upon this Court.”). Instead, he advances his version of the disputed event, draws inferences in

his favor, cites case law that assumes an accidental rather than intentional crash, and attempts to

undermine the credibility and sufficiency of Woodward’s evidence. As a result, we are without

jurisdiction over his appeal. See Johnson, 515 U.S. at 313, 319–20.

       Attempting to revive his challenge, D’Onofrio cites Scott v. Harris, 550 U.S. 372 (2007),

for the proposition that an appellate court may exercise jurisdiction over an interlocutory appeal

if the plaintiff’s story “is blatantly contradicted by the record, so that no reasonable jury could

believe it.” Id. at 380. He argues that “direct” photographic and video evidence controvert

Woodward’s narrative, requiring us to accept his factual recitation.

       D’Onofrio’s evidence fails to support his argument because, unlike Scott, where dash

cams filmed an entire chase and crash from start to finish, see id. at 378–81, the videos and

photographs here capture only the collision’s aftermath. Moreover, the images of the aftermath


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Case No. 15-2456, Woodward v. D’Onofrio


do not “blatantly contradict” Woodward’s story, let alone establish D’Onofrio’s intent at the time

of impact. As such, D’Onofrio cannot sidestep our conclusion that we lack jurisdiction to hear

his appeal.

                                               III.

       For the reasons above, we DISMISS D’Onofrio’s appeal.




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