       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206
    ELECTRONIC CITATION: 2000 FED App. 0188P (6th Cir.)
                File Name: 00a0188p.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                                  ;
                                   
 BERTHA BOYD,
                                   
          Plaintiff-Appellee,
                                   
                                   
                                      No. 99-3234
           v.
                                   
                                    >
 MATTHEW BAEPPLER; DAVID           
                                   
       Defendants-Appellants. 
 WILSMAN,

                                   
                                  1
      Appeal from the United States District Court
     for the Northern District of Ohio at Cleveland.
  No. 98-00047—Paul R. Matia, Chief District Judge.
               Argued: February 4, 2000
            Decided and Filed: June 6, 2000
       Before: WELLFORD, BATCHELDER, and
             DAUGHTREY, Circuit Judges.
                  _________________
                       COUNSEL
ARGUED: Thomas J. Kaiser, CITY OF CLEVELAND
LAW DEPARTMENT, OFFICE OF DIRECTOR OF LAW,
Cleveland, Ohio, for Appellants. Jaye M. Schlachet,
Cleveland, Ohio, for Appellee. ON BRIEF: Jennifer Sorce,
ASSISTANT DIRECTOR OF LAW, Cleveland, Ohio, for

                            1
2      Boyd v. Baeppler, et al.                    No. 99-3234

Appellants.      Jaye M. Schlachet, Cleveland, Ohio, for
Appellee.
  WELLFORD, J., delivered the opinion of the court, in
which BATCHELDER, J., joined. DAUGHTREY, J.
(pp. 19-22), delivered a separate dissenting opinion.
                      _________________
                          OPINION
                      _________________
   HARRY W. WELLFORD, Circuit Judge. Plaintiff Bertha
Boyd, administratrix of the estate of decedent Adolph Boyd,
Jr. (“Boyd”), filed a 42 U.S.C. § 1983 action against
Cleveland police officers Matthew Baeppler and David
Wilsman, police chief Rocco Pollutro, and the City of
Cleveland, asserting constitutional claims arising out of the
shooting death of Boyd. The case was removed from state
court to the federal district court. Subsequently, defendants
moved for summary judgment, which plaintiff opposed. The
district court denied defendants’ motion for summary
judgment with respect to officers Baeppler and Wilsman and
reserved judgment as to defendants Pollutro and the City of
Cleveland, concluding that:
    Based upon the evidence presented by plaintiff, the Court
    finds that genuine issues of fact exist as to whether the
    amount of force used by the offices was justified.
      . . . A genuine issue of fact exists as to whether it was
    objectively reasonable to use deadly force where (1) a
    suspect is running away from the officers in an attempt to
    escape; (2) the officers did not witness the suspect fire
    the weapon; and (3) no verified proof exists as to
    whether the suspect committed a crime.
Defendants had moved for judgment on the accompanying
state law claims and the district court indicated that it would
not decide the state claims on their merits but would dismiss
22   Boyd v. Baeppler, et al.                   No. 99-3234      No. 99-3234                      Boyd v. Baeppler, et al.       3

this court of a panel “arrogating unto itself the role of        them without prejudice “upon the resolution of the federal
resolving on appeal the factual disputes presented by a          claims.”
qualified immunity defense in a § 1983 action.” Scott v. Clay
County, 205 F.3d 867, 881 (6th Cir. 2000) (Clay, J.,                                  I. JURISDICTION
dissenting) (citing Claybrook v. Birchwell, 199 F.3d 350, 359-
60 (6th Cir. 2000)). Because I believe that the record             Regarding this court’s jurisdiction over an interlocutory
supports the district court’s conclusion that genuine disputes   appeal from a denial of summary judgment based on qualified
remain regarding whether the defendants’ conduct was             immunity, we recently stated:
reasonable, I therefore dissent.
                                                                   A district court’s order denying summary judgment that
                                                                   is based on qualified immunity and turns on an issue of
                                                                   law is immediately appealable as a final judgment under
                                                                   the collateral order doctrine. However, as this court has
                                                                   previously explained, “[u]nder the doctrine of Johnson v.
                                                                   Jones, [515 U.S. 304 (1995),] this court cannot review on
                                                                   interlocutory appeal a district court’s determination that
                                                                   a genuine issue of fact exists for trial, but we retain
                                                                   jurisdiction over the legal question of qualified
                                                                   immunity, i.e., whether a given set of facts violates
                                                                   clearly established law.” We review de novo the district
                                                                   court’s denial of qualified immunity.
                                                                 Hoard v. Sizemore, 198 F.3d 205, 211 (6th Cir. 1999)
                                                                 (citations omitted). Plaintiff contends we lack jurisdiction,
                                                                 because the district court denied summary judgment to
                                                                 defendants on qualified immunity upon finding “that genuine
                                                                 issues of fact exist” as to the use of deadly force. Defendants
                                                                 argue, however, that the “genuine issues of fact, found by the
                                                                 district court are not genuine and material, and that this appeal
                                                                 presents purely legal questions based on essentially
                                                                 uncontroverted material facts.” Specifically, defendants
                                                                 assert that the district court:
                                                                   erroneously applied a fleeing felon analysis, and
                                                                   misidentified the governmental interest at stake in this
                                                                   self defense case. The facts cited by the District Court as
                                                                   precluding summary judgment under its erroneous
                                                                   analysis are not relevant to a self defense inquiry, where
                                                                   the government interests at stake are the lives of police
                                                                   officers. In this regard, Appellants [defendants] do not
                                                                   dispute the facts identified by the District Court as the
4      Boyd v. Baeppler, et al.                    No. 99-3234      No. 99-3234                     Boyd v. Baeppler, et al.     21

    basis for the denial of summary judgment because those          autopsy, that, even while paralyzed, Boyd was “still fully able
    facts are not material to the relevant qualified immunity       to move his upper extremities, including his head, arms, and
    issues in this case.                                            torso.” The plaintiff challenges this assertion with the expert
                                                                    testimony of Dr. Howard Tucker, whose reading of the
  We agree, and therefore, as we shall explain, we believe          autopsy report supported his conclusion that scapular muscles
that the district court’s assertion that there were genuine issue   on both sides of Boyd’s body and both Boyd’s arms were hit
of material fact does not destroy the appealability of its          by bullets, and thus “impaired from a functional standpoint.”
qualified immunity ruling under the circumstances set forth.        Tucker admittedly did not know if these wounds were caused
                                                                    by either Wilsman’s or Baeppler’s shots, but stated that even
    Denial of summary judgment often includes a                     without the wounds to Boyd’s arms and scapulae “there was
    determination that there are controverted issues of             severe impairment of ability to turn and with medical
    material fact . . . and Johnson surely does not mean that       probability Mr. Boyd could not assume a defined posture
    every such denial of summary judgment is                        which would signal his intent and capability to return fire”
    nonappealable.                                                  from his prone position.
                         * * * * * *                                   The majority dismisses Dr. Tucker’s testimony as based on
                                                                    mere probabilities, and any conclusions a jury might reach
    Johnson permits petitioner to claim on appeal that all of       from it as mere speculation. In so doing, the majority again
    the conduct which the District Court deemed sufficiently        makes a determination as to which evidence it finds most
    supported for purposes of summary judgment met the              credible, and thus again wrongfully assumes the role of
    Harlow [v. Fitzgerald, 457 U.S. 800 (1982)] standard of         factfinder. To my mind, this is a classic battle of the medical
    “objective legal reasonableness.”                               experts, the outcome of which we must leave to the jury to
                                                                    decide at trial. Doctors Challener and Tucker, working from
Turner v. Scott, 119 F.3d 425, 428 (6th Cir. 1997) (quoting         the same medical data, reach contrary results as to Adolph
Behrens v. Pelletier, 516 U.S. 299, 312, 313 (1996). We             Boyd’s ability to even appear to aim a gun at the defendants
determined in Turner that we had jurisdiction over purely           from his prone position. In this case, it should be the task of
legal questions despite a district court’s order stating that       the jury, and not this court, to weigh the testimony of the
genuine issues of material fact existed; “[i]f it were otherwise    medical experts and determine which is more credible, and
a district court could always insulate its qualified immunity       thus decide if Boyd could have presented a risk to the officers
rulings from interlocutory review by mouthing the appropriate       making each of Baeppler’s last shots, from the first to the
shibboleth.” 199 F.3d at 428. Defendants assert that                seventh, objectively reasonable. Cf. Russo v. City of
“whether Boyd had committed a crime, fired shots, or was            Cincinnati, 953 F.2d 1036, 1047 (6th Cir. 1992) (stating, in
running away are irrelevant to the reasonableness of both           context of qualified immunity defense to § 1983 failure to
Officer Wilsman’s and Office Baeppler’s reactions to the            train claim, that “we do not believe the opinions of experts are
threats with which they were faced.” Again, we agree. The           to be given no weight . . . . [r]eliance on expert testimony is
issues in this case are whether Boyd posed a threat to officers     particularly appropriate where, as here, the conclusions rest
Wilsman and Baeppler and, if so, whether their use of force         directly upon the expert’s review of materials provided by the
in response was reasonable. The district court made no              City itself”).
finding that there remained in dispute facts material to those         Today the majority holds otherwise, and its decision
issues. Nonetheless, we will review the record to decide            continues the unfortunate trend noted by other members of
20   Boyd v. Baeppler, et al.                     No. 99-3234      No. 99-3234                          Boyd v. Baeppler, et al.          5

brandish a weapon during their meeting. Were Boyd alive to         whether, as plaintiff maintains, we lack jurisdiction under the
supplement the trace evidence with his version of events, I        district court’s decision, or otherwise, as defendants assert.
imagine we would be more likely to find genuine issues of
material fact as to whether any use of deadly force by either        Witness, Steve J. Arvai, submitted an affidavit stating that
Wilsman or Baeppler was objectively reasonable.                    on April 14, 1997, around 11:10 or 11:15 p.m., he heard a
                                                                   gunshot from his home and looked out the window and saw
   Even were I to join my colleagues in assuming the truth of      a black male armed and walking west on Buckeye near East
the defendants’ version of their initial interaction with Adolph   122nd. Arvai stated that the male was about six feet tall,
Boyd, I could not join their reversal of the district court’s      wore a dark blue jacket, blue jeans and white tennis shoes and
decision as to officer Baeppler. I reach this conclusion after     appeared to be holding a dark colored automatic. Arvai added
reviewing carefully the sequence of the alleged series of          that he saw the man point the gun at three people   outside of
interactions between Boyd and the officers. According to the       Wendy’s but that he then lost sight of him.1 In any event,
defendants, as Boyd approached them officer Baeppler               Arvai promptly called the police operator and reported his
ordered him to freeze; instead of stopping, however, Boyd ran      observations. This evidence was undisputed.
across Buckeye Road and into a driveway. While Boyd ran,
he pointed his gun at Baeppler, who then fired three or four         Defendant police officers Baeppler and Wilsman submitted
rounds of ammunition at Boyd. Boyd continued running               affidavits to the effect that on the night in question, they were
away from the officers and then brought his right arm and          on duty together, Baeppler driving the police car, and that
hand across his chest and under his left armpit and pointed his    shortly after Arvai’s call, they were called to respond to a
weapon at Wilsman. Wilsman then fired one round of                 “Code One” emergency radio dispatch which indicated that
ammunition from his shotgun, which caused Boyd to fall to          there was a male with a gun in the area of East 120th and
the ground. The autopsy report on Boyd’s death stated that         Buckeye Road, who met the general description given by
one pellet from this shotgun blast lodged at Adolph Boyd’s         Arvai. Defendants proceeded to the area and Wilsman
T9 vertebrae; according to Cuyahoga County coroner Dr.             notified radio headquarters of their arrival. As they
Robert Challener, this pellet caused immedate paralysis of         approached East 119th and Buckeye, Baeppler and Wilsman
Boyd’s lower extremities.                                          “heard a broadcast from Officer Zbikowski that he had just
   The defendants then claim that, after Boyd fell with his        seen the male, that the male was armed with a gun, and that
stomach and face to the ground and while the officers              the male was running towards us.”
approached him, Boyd pulled his upper torso up from the
ground and brought his right hand, still holding the weapon,         There is no dispute but that this was the information
across his shoulders and pointed it at Officer Wilsman,            furnished these two defendant officers: a dangerous and
twisting to the left to do so. At that point, Officer Baeppler     emergency situation on Cleveland public streets at a time near
fired his weapon at Boyd seven more times until Boyd finally       midnight involving an armed man who had reportedly fired
fully collapsed.                                                   shots, potentially endangering others in the area.
   Defendant Baeppler claims that Boyd’s continued
movement while paralyzed on the ground, including the
twisting of his upper torso and continued display of his               1
firearm, made shooting Boyd seven times an objectively                  A later police check of that area’s “curb, gutter, and sidewalk for
                                                                   possible shell casing” met with negative results. A street sweeper did go
reasonable use of force in self defense. Baeppler supports this    up Buckeye Road right after this incident and may have destroyed any
assertion with Dr. Challener’s testimony, based on the             evidence that was in the street at this location.
6    Boyd v. Baeppler, et al.                   No. 99-3234      No. 99-3234                     Boyd v. Baeppler, et al.     19

  Baeppler and Wilsman testified that they then saw Boyd,                             ________________
who sufficiently met the description given them and was in
the immediate area reported, running toward them with a gun                               DISSENT
in hand. Baeppler stopped the marked police car in the                                ________________
intersection of Buckeye Road and East 119th Street, and both
exited with their weapons drawn, Wilsman with a shotgun.
Both officers testified that they ordered Boyd to stop and          MARTHA CRAIG DAUGHTREY, Circuit Judge,
identified themselves as police, although it seems clear to us   dissenting. The majority awards summary judgment to
that this should have been obvious to anyone present at the      officers Baeppler and Wilsman because it finds, as a matter of
time.                                                            law, that Adolph Boyd posed a threat to their safety that made
                                                                 the use of deadly force objectively reasonable. In so doing,
  Cleveland police officers Zbikowski and Nabowski, who          the majority discounts the plaintiff’s evidence suggesting the
also arrived on the scene pursuant to the police broadcast,      existence of genuine issues of material fact that should, under
testified that at Buckeye and East 120th Street they saw a       Johnson v. Jones, 515 U.S. 304 (1995), preclude our assertion
person matching the description given of the suspect walking     of jurisdiction here. Because I believe that our court lacks
west on Buckeye and into a parking lot and that he was armed     jurisdiction to decide this appeal, at the very least as to
with a gun. Zbikowski added that the suspect ran down            defendant Baeppler, and therefore that our decision today
Buckeye and that he reported his information on his car radio.   preempts the jury’s role in deciding the sufficiency of the
Both of these officers also drew their weapons when they         plaintiff’s evidence, see Behrens v. Pelletier, 516 U.S. 299,
observed the suspect at close range.                             313 (1996), I must respectfully dissent.
  Boyd did not stop, as ordered, nor did he drop the gun            In some sense, the majority’s analysis of the immediate
which had been observed in his hand by a disinterested           circumstances of Adolph Boyd’s death necessarily makes a
witness and by four different police officers at close range.    determination as to the credibility of Baeppler and Wilsman,
We do not deem it to be a genuine issue of disputed fact that    the only surviving eyewitnesses to the events, something the
Boyd was the suspect so observed and that he was armed. We       law of this court forbids us to do while deciding a summary
therefore do not give credence to Boyd’s counsel’s contention    judgment motion. See, e.g., Cain v. Nesbitt, 156 F.3d 669,
that since forensic testing after Boyd’s death was either        672 (6th Cir. 1998). The majority accepts the officers’
inconclusive or negative as to whether Boyd had held or fired    rendition of their interactions with Boyd as fact: that Boyd
a weapon, a genuine issue remained regarding whether Boyd        ran toward them and then away from them, that he was
had carried, pointed, or fired the gun that five persons         carrying a gun while he ran, and that he pointed the gun
testified that he held in his hand when they observed him that   towards them while running. Adolph Boyd is, of course,
                                                                 unable to contest the truth of these highlighted facts; the
                                                                 plaintiff here, Bertha Boyd, presents an alternate scenario, one
                                                                 that necessarily lacks the specificity Adolph’s testimony
                                                                 would have lent his case. The plaintiff’s counternarrative
                                                                 clearly states one fact, however: that Adolph Boyd was not
                                                                 carrying a gun. She supports this assertion with trace
                                                                 evidence collected by the Cuyahoga County Coroner’s Office
                                                                 that is inconsistent with his carrying a gun the night of
                                                                 April 14. No one other than the defendants saw Adolph
18   Boyd v. Baeppler, et al.                    No. 99-3234      No. 99-3234                           Boyd v. Baeppler, et al.           7

plaintiff’s version of events. There was no conflict of expert    fateful night.2 The district court indicated no genuine dispute
witnesses in Adams. In a comparable qualified immunity            as to whether Boyd was armed.
situation, we stated:
                                                                    The district court made the following brief factual findings
  At the summary judgment stage, whether the legal                that are pertinent at this juncture:
  violation alleged was clearly established at the time of
  the incident, as well as whether a genuine issue of               1.    There was reported to the police that an
  material fact exists as to whether the alleged violation                “African-American male had allegedly fired a
  occurred, are questions of law for the court.                           gun.”
Russo v. City of Cincinnati, 953 F.2d 1036, 1043 (6th Cir.          2.    A description of the suspect was furnished, and
1992) (citing Dominque v. Telb, 831 F.2d 673, 677 (6th Cir.               “[t]his man turned out to be decedent Adolph
1987)).                                                                   Boyd.”
   Behrens v. Pelletier, 516 U.S. 299 (1996), also cited by the     3.    “Boyd received several fatal shots that
dissent, is certainly not controlling in this case. Behrens               effectuated his death.”
stands for the proposition that defendants asserting the
defense of qualified immunity are not limited to one                4.    Officer Wilsman fired only one shot with his
interlocutory appeal. See id. We simply do not have that                  shotgun “that led to Boyd’s death.”
issue in this case. Unlike the dissent, we see no relevance to
the majority opinion in Claybrook v. Birchwell, 199 F.3d 350        5.    Officer Baeppler fired at least six additional
(6th Cir. 2000), in which the court granted summary judgment              shots, and “thirteen (13) entrance wounds were
to defendant police officers alleged to have violated the                 discovered.”
plaintiffs’ substantive due process rights, an issue clearly
distinct from the one confronting us here.                          6.    The officers “assert that Boyd possessed a
                                                                          weapon, and he aimed or pointed the weapon in
  Accordingly, we REVERSE the decision of the district                    the direction of the officers.” No officer
court and grant the qualified immunity claims of both                     witnessed “Boyd fire a weapon.”
defendants.
                                                                    7.    Baeppler and Wilsman “pursue[d] Boyd on
                                                                          foot,” after he ignored their order to stop, and
                                                                          Baeppler fired the first shorts at Boyd, but it is
                                                                          unclear whether any of those shots hit the
                                                                          target.

                                                                      2
                                                                        In plaintiff’s brief, Baeppler’s claim that he first saw Boyd with a
                                                                  black object in his hand was dismissed as “incredible.” (Pl.’s Br. at 9.)
                                                                  Counsel speculated, we believe unfairly and without justification, that the
                                                                  police manufactured the contention that Boyd was armed, because the gun
                                                                  found at the scene was not traced to Boyd, and identifiable prints were not
                                                                  produced.
8         Boyd v. Baeppler, et al.                 No. 99-3234     No. 99-3234                     Boyd v. Baeppler, et al.    17

    8.     “The shotgun blast” fired by Wilsman, who                 extremity and axillary wounds there was severe
           claimed that Boyd was pointing his weapon at              impairment of ability to turn and with medical
           him, wounded and felled Boyd.                             probability Mr. Boyd could not assume a defined posture
                                                                     which would signal his intent and capability to return fire
   The district court further conceded that “[a] fact is             at that point.
‘material’ only if its resolution will affect the outcome of the
controversy.” It is put more precisely, however, in Anderson       (Emphasis added.) In sum, Dr. Tucker made assumptions
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986):                  about the sequence of shots and the pathways of the bullets
                                                                   and concluded, not within a reasonable degree of medical
       As to materiality, the substantive law will identify        certainty, but only “with probability,” that a more likely
    which facts are material. Only disputes over facts that        scenario was that Boyd was unable to lift his torso and twist
    might affect the outcome of the suit under the governing       to threaten officer Wilsman a second time. Nowhere does Dr.
    law will properly preclude the entry of summary                Tucker point to any forensic evidence that proves what shot(s)
    judgment. Factual disputes that are irrelevant or              rendered Boyd unable to lift and twist his torso, or at what
    unnecessary will not be counted. See generally 10A C.          point during the sequence of events the critical shot(s) hit
    Wright, A. Miller, & M. Kane, Federal Practice and             Boyd.
    Procedure § 2725, pp. 93-95 (1983). This materiality
    inquiry is independent of and separate from the question          The speculation of plaintiff’s expert is not sufficient
    of the incorporation of the evidentiary standard into the      evidence to create a genuine issue of material fact. In view of
    summary judgment determination. That is, while the             the uncontroverted evidence in support of the testimony of
    materiality determination rests on the substantive law, it     both officers Baeppler and Wilsman, any jury conclusion to
    is the substantive law’s identification of which facts are     the contrary would necessarily be founded on mere
    critical and which facts are irrelevant that governs.          speculation, not on the evidence. Therefore, we REVERSE
                                                                   the denial of summary judgment for both officers Baeppler
   As we have already indicated, the issue before us in this       and Wilsman and find as fact that Boyd, as perceived by
case is not whether3 Boyd presented these officers with a          reasonable police officers in the circumstances presented here,
Tennessee v. Garner fleeing felon situation--the situation as      was armed and remained an imminent threat and a danger
to which the district court found that there remained genuine      until he finally dropped his weapon after officer Baeppler
issues of disputed fact--but rather, whether Boyd presented an     fired his last shots.
immediate threat to these officers to which they reacted with
an unreasonable degree of force. We now review what the              In assessing the weight of expert testimony, we do not
district court identified as “genuine” issues of fact to           resort to a credibility determination. Rather, we conclude that
determine whether these disputed facts are material to the         the coroner’s report is a clear medical statement not based
issues before us.                                                  upon mere probabilities. We conclude that Dr. Tucker’s
                                                                   report, which was based upon probabilities only, was
                                                                   essentially a matter of speculation. Adams v. Metiva, 31 F.3d
                                                                   375 (6th Cir. 1994), cited by the dissent, is clearly
                                                                   distinguishable from this case.           Adams involved a
                                                                   confrontation and encounter between an unarmed person and
                                                                   police with several independent eyewitnesses supporting the
     3
         471 U.S. 1 (1985).
16   Boyd v. Baeppler, et al.                    No. 99-3234      No. 99-3234                      Boyd v. Baeppler, et al.      9

officer Baeppler fired seven more rounds at Boyd until Boyd       1.   Was Boyd running away from the officers in an
dropped his weapon.                                                    attempt to escape?
   We are of the view also that the forensic evidence also           At first blush, it might appear that the district court made a
supports the police officers’ rendition of the event. The         finding that there was a genuine issue of fact as to whether
coroner specifically testified that he could conclude, “within    Boyd was fleeing the officers in an attempt to escape. In fact,
a reasonable degree of medical certainty,” that “the wounds       the district court assumed that Boyd was fleeing, and this may
Adolph Boyd sustained to his back . . . are consistent with       have been what caused it to apply the Tennessee v. Garner
Officers Baeppler’s and Wilsman’s description immediately         analysis. However, the issue that is material here is not
prior to Officer Wilsman’s discharge of the shotgun;” and that    whether Boyd was fleeing, but whether Boyd pointed his
the pellet that caused the injury to Boyd’s spinal cord “caused   weapon at the officers and thus posed an immediate threat to
immediate paralysis of the lower extremities only. He was         them. The district court did not address this issue at all.
still fully able to move his upper extremities, including his     From what has been previously stated, it is clear that when
head, arms and torso.” (Emphasis added.) Furthermore, the         first observed by the police officers, Boyd was running
state’s forensic evidence plainly indicates that neither the      toward the officers, gun in hand. Each of the four officers, in
sequence nor the exact direction of the shots could be            response to that observation, drew his or her weapon, not in
determined by an examination of Boyd’s body, and the              any attempt to pursue or chase Boyd but to confront a
coroner testified that the coroner’s office did not undertake     situation fraught with danger. An independent witness had
any type of analysis of the musculature and/or nerve damage       reported that he heard gunshots, and then saw Boyd armed
inflicted by the shots.                                           and pointing the gun at people outside a public restaurant.
                                                                  The police recognized Boyd as the suspect in the area in
   The only inconsistent “evidence” relied upon by the dissent    which4 he had been observed and in which he apparently
is found in the report of plaintiff’s expert, Dr. Tucker, who     lived. The police themselves independently confirmed that
did not examine Boyd’s body, but only reviewed the state’s        Boyd was armed but none saw or heard him fire a shot.
autopsy report. This autopsy report was the sole basis for his    Defendants ordered Boyd to stop, identifying themselves.
conclusion that Boyd might not have been able to turn and         They testified that Boyd pointed the gun at them and ignored
point his weapon after officer Wilsman’s shot landed. Dr.         their commands to stop. As he moved away, Boyd allegedly
Tucker’s opinion, however, did not definitively conclude that     continued to point the gun at the officers. At the outset, then,
it would have been impossible for Boyd to raise himself up on     Boyd was not running away from the officers. As the officers
his arms to aim his weapon again. Dr. Tucker opined,              confronted him, he ignored their orders and allegedly
“[s]ince the entire spine from the neck to coccyx works as a      continued to point his gun at them as he attempted to flee.
unit, rational movements are very limited throughout the
spine.” (Emphasis added.) Dr. Tucker further speculated:          2. Did Boyd fire the weapon?
  Thus one can postulate with medical probability that              Whether Boyd actually fired the weapon is wholly
  both arms were impaired from a functional standpoint by         immaterial here. The issue is whether or not he threatened to
  bullet wounds. . . . Admittedly we do not know if these         do so. It was reported to the officers that Boyd had probably
  upper extremity and axillary bullet wounds were suffered
  before or after the alleged turning toward police
  officer. . . . However with probability even without these           4
                                                                      Plaintiff’s brief indicates that Boyd had an apartment in the
                                                                  immediate area of Buckeye Road.
10   Boyd v. Baeppler, et al.                    No. 99-3234     No. 99-3234                      Boyd v. Baeppler, et al.      15

fired the gun and had pointed it at innocent observers at the    are overborne by objective proof that Boyd was armed, or
scene when observed. They saw Boyd with gun in hand as           reasonably perceived to be armed, by the police.
did the independent witness. No officer testified that he or
she saw Boyd fire the weapon. We deem this, however, as            For the reasons indicated, we REVERSE the decision of
something other than a genuine and material issue of fact.       the district court as to defendant Wilsman. We find him
That the defendants did not see or hear Boyd fire the weapon     entitled to summary judgment based on qualified immunity
does not affect whether the police officers, acting reasonably   with respect to his firing one shot from his shotgun at Boyd
under the circumstances known to them, acted in defense of       under the essentially uncontested material facts. We find as
their own safety and the safety of officers through the use of   fact that Boyd was armed and could be considered an
deadly force.                                                    imminent threat and a danger to a reasonable police officer
                                                                 and to his partner in Wilsman’s circumstances.
3. Did Boyd commit a crime?
                                                                              III. LIABILITY OF BAEPPLER
  Again, this is wholly immaterial to the issue of whether
Boyd presented a threat to officers Wilsman and Baeppler. If,       Much of our prior discussion applies to defendant Baeppler,
indeed, Boyd fired his gun at other people or even pointed his   particularly as to his initial shots that may or may not have
gun at them, then he may have committed a crime. No one,         struck Boyd. Certainly, these shots neither immobilized Boyd
however, much less the police, charged or claimed that Boyd      nor incapacitated him. Boyd remained on the loose,
had just committed a crime when the police confronted him.       apparently still armed, and potentially dangerous. We
The police never purported to treat him as a fleeing felon       concede that the question of qualified immunity as to
suspect. They confronted him as a dangerous armed man who        defendant Baeppler is more difficult, especially since
ignored their reasonable command to stop. That command           Baeppler fired multiple shots that contributed to bringing
obviously included the direction to stop pointing his gun at     about Boyd’s death. The question of law on this case is
them, and this, too, was ignored.                                clear—it is about the conduct of police acting in self-defense,
                                                                 not about pursuit of a fleeing felon or suspect, reasonably
  The principal issue in Tennessee v. Garner, 471 U.S. 1         thought to be armed and dangerous.
(1985), involved the use of deadly force by police in pursuit
of an unarmed minor burglar (a “non-violent suspec[t]”) was        All of the eyewitness evidence in the record is consistent
not before the court with respect to these defendants claiming   with the police officers’ recitation of the events that
qualified immunity. Garner, 471 U.S. at 10. Garner also          surrounded the shooting. Unfortunately, officers Wilsman
described the suspect victim as a “nondangerous fleeing          and Baeppler, and not Boyd, were the only ones available to
suspec[t].” Id. at 11. That was not the factual situation        testify about the shooting. Their statements taken during the
presented to the court with respect to these defendants          police investigation, their deposition testimony and their
claiming qualified immunity. The question, rather, from          affidavits all tell the same consistent story. They testified that
Garner is this:                                                  they identified themselves as police officers and ordered Boyd
                                                                 to stop; Boyd continued to flee with his weapon in hand;
  Where the officer has probable cause to believe that the       officer Baeppler fired three to four rounds at Boyd, but Boyd
  suspect poses a threat of serious physical harm, either to     responded by turning and pointing his weapon at officer
  the officer or to others, it is not constitutionally           Wilsman; officer Wilsman fired one shotgun blast and Boyd
  unreasonable to prevent escape by using deadly force.          fell face forward onto the ground; Boyd lifted his torso and
  Thus, if the suspect threatens the officer with a weapon       turned to point his weapon again at officer Wilsman; finally,
14       Boyd v. Baeppler, et al.                        No. 99-3234        No. 99-3234                     Boyd v. Baeppler, et al.    11

plaintiff, supports our view that officer Wilsman is entitled to5             or there is probable cause to believe that he has
qualified immunity for his part in the encounter in question.                 committed a crime involving the infliction or threatened
                                                                              infliction of serious physical harm, deadly force may be
   Our decision as to defendants and their qualified immunity                 used if necessary to prevent escape, and if, where
is also supported by the statement from Smith v. Freland, 954                 feasible, some warning has been given.
F.2d 343, 347 (6th Cir. 1992), that
                                                                            Id. at 11, 12.
  Thus, under Graham, we must avoid substituting our
  personal notions of proper police procedure for the                         We note also that in Garner the complaint under 42 U.S.C.
  instantaneous decision of the officer at the scene. We                    § 1983 had been dismissed against the individual police
  must never allow the theoretical, sanitized world of our                  officers actually involved in the shooting. Id. at 22. The
  imagination to replace the dangerous and complex world                    dissent in Garner made special mention of “the difficult,
  that policemen face every day. What constitutes                           split-second decisions police officers must make.” Id. at 23.
  “reasonable” action may seem quite different to someone                   The case, according to the dissent, fell within “‘the rubric of
  facing a possible assailant than to someone analyzing the                 police conduct . . . necessarily [involving] swift action
  question at leisure.                                                      predicated upon the on-the-spot observations of the officers
                                                                            on the beat.’” Id. at 26 (quoting Terry v. Ohio, 392 U.S. 1, 20
Id. (citing Graham v. Connor, 490 U.S. 386, 396-97 (1989)).                 (1968)). The main points that distinguish Garner from this
See also, in a somewhat comparable situation, Bell v. City of               case are that the suspect in Garner was (1) deemed to be
East Cleveland, No. 96-3801, 1997 WL 640116 (6th Cir. Oct.                  unarmed; (2) non-violent; (3) non-dangerous; (4) a minor;
14, 1997) (unpublished). With respect to our grants of                      and (5) the suspect did anything but confront the police.
qualified immunity, contrary to assertions of the dissent, we
do not base our opinion upon conflicting factual contentions                   The inquiry in § 1983 actions against a police officer for
or credibility determinations. The testimony of both                        unlawful or unconstitutional use of force is an objective one
defendant police officers is supported by objective and                     based upon the “information possessed” by the police officer
reasonable evidence. The eyewitness testimony of a number                   involved. Anderson v. Creighton, 483 U.S. 635, 641 (1987).
of persons and the broadcasts to the defendants support a                   It involves what a reasonable police officer would believe to
conclusion that the deceased was armed, even that he had                    be lawful based upon the information then possessed, not
probably fired his weapon. Plaintiff’s “counternarrative” in                what the officers subjectively may have believed. See id. In
her brief that Boyd was not carrying a gun, in our view, is not             the case before us here, the question is whether reasonable
based upon substantial and material evidence. See Bell, 1997                officers in the position of officers Wilsman and Baeppler
WL 640116. The various tests (fingerprint, residue, and                     would have believed that it was lawful under the
firearm trace) are inconclusive under the circumstances and                 circumstances to use the same degree of force used by those
                                                                            officers. We have already reviewed the information upon
                                                                            which the officers initially acted, some based upon the
                                                                            officers’ personal observation. We view the scene and
     5                                                                      activity from the perspective, then, of the reasonable police
      Hopkins v. Andaya, 958 F.2d 881 (9th Cir. 1992), also relied upon     officer at the scene based on reports and information received
by plaintiff, involved a police encounter with an unarmed man. We do
not deem it pertinent, nor do we consider Martin v. Heideman, 106 F.3d      and what he has observed. See Graham v. Conner, 490 U.S.
1308 (6th Cir. 1997), to be relevant to the factual circumstances of this
case.
12   Boyd v. Baeppler, et al.                   No. 99-3234      No. 99-3234                       Boyd v. Baeppler, et al.      13

386 (1989); Scott v. Clay County, ___ F.3d ___, No. 98-6157,     was “a semi-automatic.” Boyd “appeared to fit the
2000 WL 228300 (6th Cir. Mar. 1, 2000).                          description given” Wilsman for a male “supposed to be
                                                                 shooting.” Wilsman’s affidavit was consistent with his
              II. LIABILITY OF WILSMAN                           statement and response to questions, but it added that before
                                                                 he fired, he “feared for [his] own life, the life of [his] partner,
   Wilsman fired one shot from his shotgun which “propelled      and others. . . .” Plaintiff concedes in her brief that “it is
Boyd towards the ground.” No one, including plaintiff’s          unknown whether any of Baeppler’s earlier shots struck
expert, testified or contended that Wilsman’s shot was the       Boyd.” It was unknown to Wilsman, who heard shots,
deadly force that brought about Boyd’s death. The question       whether Baeppler, Boyd, or perhaps some one else had fired
in Wilsman’s case, then, is whether he used “a degree of force   these shots. Plaintiff describes Wilsman’s stated observations
that was unreasonable under the circumstances and in             of Boyd’s pointing his gun at him while running as incredible.
violation of decedent’s rights,” not whether he himself was      (Pl.’s Br. at 12.) Most of the plaintiff’s brief, however, is
guilty of administering deadly force, and whether he acted in    directed at officer Baeppler and his actions.
concert with Baeppler in administering deadly force.
                                                                   We do make all reasonable and justifiable inferences in
   In our view, from the perspective of Wilsman, based upon      favor of plaintiff, the non-movant. Anderson v. Liberty
the information available to him and the circumstances from      Lobby, 477 U.S. 242, 255 (1986). This is not, however,
his viewpoint at the time he fired the single shot, we believe   insofar as officer Wilsman is concerned, a case as to whether
that he was entitled to qualified immunity, and we therefore     he used deadly force or excessive force to capture a fleeing
REVERSE the denial of summary judgment in this regard.           felon, or a suspect attempting to escape. As to Wilsman, it is
His contemporaneous report indicated an emergency call to        a case of whether he acted reasonably in response to a
the scene at about 11:30 p.m. “for a male with a gun,            dangerous, split-second encounter late at night with an armed
shooting.” Other police reported seeing the suspect “running     man reported to have been shooting the gun he had in hand
. . . with a gun in his hand,” and Wilsman then saw Boyd         pointed at the officer.
“running towards me . . . with a gun in his right hand.”
Wilsman, in uniform, yelled “stop, police,” and Boyd                Plaintiff relies upon Russo v. City of Cincinnati, 953 F.2d
disregarded the warning, proceeding “diagonally across           1036 (6th Cir. 1992), but that case held that in the § 1983
Buckeye.” Wilsman “turned to run around the squad car to         claim, qualified immunity context, “plaintiff must present
cut him off.” While running on this mission, Wilsman “heard      ‘evidence sufficient to create a genuine issue as to whether the
a couple of shots.” He then saw Boyd “still running . . .        defendant in fact’” violated “clearly established law” in taking
looked back at us . . . pointed his gun . . . back at us.” As    the action he did. “Whether a genuine issue of material fact
Wilsman saw it, Boyd “pointed the gun at me . . . right at my    exists” is a question of law. Id. at 1043. In Russo, we
head, I could see down the barrel, and I thought I was a         emphasized that we must “look to the ‘facts and
goner.” Wilsman then fired the shotgun at Boyd, and Boyd         circumstances of each particular case . . . whether the suspect
went down, gun still in hand. Wilsman approached Boyd            pose[d] an immediate threat to the safety of the officers or
telling him to drop the gun. Again, Boyd ignored that            others, and whether he [was] . . . attempting to evade arrest by
command. Wilsman did not fire again, but his partner,            flight.’” Id. at 1044. We believe Ford v. Childers, 855 F.2d
Baeppler–threatened–fired additional shots at closer range.      1271, 1275-76 (7th Cir. 1988) (en banc), also cited by
   Wilsman did not know when he fired at Boyd, whether the
latter had fired his own pistol at them which Wilsman thought
