                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0327n.06
                             Filed: May 12, 2009

                                           No. 08-5884

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

DAVID DENNING, deceased, by next friend   )
JOE DENNING, on behalf of OLIVIA DENNING, )
                                          )
        Plaintiffs-Appellants,            )
                                          )
JEANETTE WEBB, mother and guardian of     )
the minor plaintiff, Olivia Denning,      )
                                          )
        Plaintiff,                        )                  ON APPEAL FROM THE UNITED
                                          )                  STATES DISTRICT COURT FOR
                v.                        )                  THE MIDDLE DISTRICT OF
                                          )                  TENNESSEE
METROPOLITAN GOVERNMENT OF                )
NASHVILLE AND DAVIDSON COUNTY;            )                         OPINION
DON DAVIDSON, individually and in his     )
official capacity,                        )
                                          )
        Defendants-Appellees.             )
__________________________________________)

Before: MERRITT, COOK, and WHITE, Circuit Judges.

       WHITE, Circuit Judge. On the night of January 27, 2006, Officer Don Davidson

(Davidson) fired one gunshot through a windowpane in the closed door of the home of David

Denning (Denning) after Denning approached the door while carrying a handgun and did not respond

to Davidson’s commands to drop the weapon. Denning sustained a single gunshot wound to the

chest and died that night.

       Plaintiffs filed suit pursuant to 42 U.S.C. § 1983 against defendants, Davidson (individually

and in his official capacity) and the Metropolitan Government of Nashville and Davidson County
(collectively, defendants),1 alleging deprivations of Denning’s rights under the Second, Fourth, Fifth,

and Fourteenth Amendments. After the district court dismissed certain claims, defendants filed a

motion for summary judgment on the remaining ones, which the court granted. Certain plaintiffs

appealed.2 On appeal, they expressly do not contest the district court’s conclusion that Officer

Davidson did not use excessive force and was thus entitled to qualified immunity, but instead dispute

other aspects of the district court’s ruling.

        Though the facts of this case strike us as tragic and disturbing, we disagree with appellants’

arguments on appeal and must AFFIRM.

                                                    I

        The district court ably recounted the facts:

               On the evening of January 27, 2006, 15 calls were placed in the course of an
        hour and a half from a cellular telephone belonging to David Denning to a local Papa
        John’s Pizza store. The man who called each time was belligerent, cursing at the
        employees who answered his calls. After a number of such calls, the pizza store
        manager informed the caller that the store would not do business with him that
        evening, and then called the police non-emergency number to lodge a formal
        complaint of harassment.

                However, a food order from one of the placed calls was accidentally
        processed, and a pizza order for “David” was scheduled to be delivered at the upstairs
        entrance of Denning’s address that evening. When the delivery woman (“Ms. Scott”)
        arrived at the back of Denning’s residence, she noticed a black dog barking outside.
        Out of concern that the dog might bite her, she called the telephone number on the
        order ticket and asked the man to come outside to get the pizza. Ms. Scott then heard
        things banging around indoors “like he lost his balance or something” and saw a man
        come from the second floor apartment onto the landing area of the stairs, weaving
        back and forth. Upon the man’s assurance that the dog would not bite, Ms. Scott
        climbed the stairs leading up to Denning’s second floor apartment. She could smell


        1
        Plaintiffs also filed suit against Chief of Police Ronal W. Serpas, but subsequently agreed
to dismiss their claims against him.
        2
            Plaintiff Jeanette Webb, mother and guardian of minor Olivia Denning, is not an appellant.

                                                    2
alcohol on his breath. Ms. Scott asked the man if he had a pen to sign the credit card
slip, but he said “no,” took the pizza out of her hands and thanked her. She reiterated
that he needed to sign the credit card slip, but the man said, “have a good night,”
went back into the apartment with the food, and closed the door.

         Ms. Scott retrieved an ink pen from her car and ascended the stairs a second
time. As she approached Denning’s back door and knocked, she saw the man sitting
on the couch eating pizza. Ms. Scott watched the man get up, walk to a counter area,
unzip a black bag, pull a gun out from the bag, and walk towards her with the gun
pointed in her direction. Immediately, Ms. Scott turned around and fled down the
stairs, hearing the back door open behind her as she descended. She hid briefly,
looking back towards the stairs to see if the man was close behind her. Seeing no one
she ran to her car and called 911. Ms. Scott informed the 911 operator that the man
pulled a gun on her when she returned with a pen for him to sign a credit card receipt.
She provided the operator a physical description of the man, and said that he was “so
intoxicated he’s falling all over his apartment.” Ms. Scott was told to standby and
she agreed to wait for the police at a nearby intersection.

        Metropolitan Nashville Police Officer Davidson responded to the dispatcher’s
call and arrived at the scene some minutes later. He spoke with Ms. Scott who
repeated the details of the incident to him. Officer Greg Lyons (“Officer Lyons”)
arrived at the scene shortly thereafter, and Officer Davidson informed Officer Lyons
of Ms. Scott’s encounter. Together the two officers approached the back of the
building, which was dark and had no outdoor lighting, with flashlights on and
weapons drawn. After searching around the outdoor area to be sure the man was not
hiding, the officers ascended the stairs to the second floor apartment. Officer
Davidson turned off his flashlight and positioned his gun in the “low-ready” position
– pointing at the ground. He approached the landing at the top of the stairs while
Officer Lyons remained on a landing halfway up the stairs. From the window on the
top part of the apartment door, Officer Davidson saw Denning sitting at a desk about
20 feet away. A bottle of liquor was on the desk. Officer Davidson tapped on the
door a few times with his flashlight, but did not identify himself as a police officer.
According to Officer Davidson’s testimony, Denning turned around, looked at the
door, and walked towards the door. As Denning passed a kitchen counter about eight
(8) or nine (9) feet away from Office Davidson, Denning reached into a black bag
resting on the counter and withdrew a handgun.

        The parties disagree as to Denning’s actions after he reached for his gun.
Defendants, relying on an interview given by Officer Davidson the night of the
incident and Officer Davidson’s deposition testimony in this case, maintain that after
Denning pulled the handgun from the bag, he pointed the gun in an “elbow over
holster” position such that the gun was pointed straight out at the door and at Officer
Davidson. Plaintiffs argue that the evidence supports a different version of


                                          3
       Denning’s actions, one in which Denning held a gun, but did not point it at Officer
       Davidson. In support of th[at] assertion, Plaintiffs point to another account of the
       evening’s incident prepared by Officer Davidson. In his one-page “Use of Force
       Report,” Officer Davidson wrote, “He walked toward me. He stopped and pulled a
       handgun out of a black bag and continued to walk toward me. I yelled at him to drop
       the gun but he continued to walk toward me.” Based on this statement, Plaintiffs
       argue that [] Denning’s gun was not pointed at Officer Davidson.

                Thereafter, the material facts surrounding the remainder of that night’s events
       are again uncontested. Officer Davidson shouted to Officer Lyons—whose view of
       the apartment door was obstructed from his position on the lower landing—that the
       man had a gun. Officer Davidson then turned away from the door to retreat down the
       stairs, but could not see the stairs while his eyes adjusted from the well-lit apartment
       to the dark outdoors. The landing on which Officer Davidson stood was only as wide
       as the doorway, giving Officer Davidson no room to step out of Denning’s direct
       path. As Denning continued to walk towards the door with the gun, Officer
       Davidson shouted twice at him to drop his gun. Denning did not drop his gun and
       continued walking towards the door. When Denning was about three (3) or four (4)
       feet from the door, Officer Davidson fired a single shot through the window of the
       door, striking Denning in the chest.

               After he ascertained that Denning was on the floor and not moving, Officer
       Davidson kicked the door open and kicked the weapon away from Denning. Officer
       Davidson ordered Denning to get his hands out so that they were visible, but Denning
       replied that he could not get his breath. Officer Davidson reached down and pulled
       Denning’s hands out from under him. Officer Lyons advised the dispatcher that
       Denning had been shot and called for an ambulance. Denning was transported by
       ambulance to Vanderbilt University Medical Center where he died from the gunshot
       wound. Samples taken during an autopsy later revealed that Denning’s blood alcohol
       level was in the range of .12% to .13%.

Denning v. Metro. Gov’t of Nashville, 564 F. Supp. 2d 805, 808-11 (M.D. Tenn. 2008) (footnotes

and citations omitted).3


       3
         For the sake of completeness, a few points deserve elaboration. First, Officer Davidson
acknowledged repeatedly at his deposition that at no point did he ever identify himself as a police
officer to Denning. Second, his initial failure to identify himself as a police officer when he knocked
on the door was a deliberate decision based on tactical considerations. Third, at no point did
Davidson hear Denning say anything—Denning did not make any verbal threats, nor did he ask who
was at the door. Finally, when asked if he had any indication about what Denning could see at any
point—including who was at the door—Davidson testified, “I don’t know what he could see.” He
testified that he was wearing his badge—“shiny stuff”—but does not know whether Denning could

                                                  4
       Plaintiffs filed their complaint on September 22, 2006. Count I alleged that the shooting

violated Denning’s constitutional rights under the Second, Fourth, Fifth, and Fourteenth

Amendments—that the shooting was an excessive use of force and Officer Davidson’s conduct

constituted an unreasonable search and seizure, a violation of Denning’s right not to be deprived of

his life, liberty or property without due process of law, and a violation of Denning’s right to bear

arms. Count II alleged that the Metropolitan Government of Nashville and Davidson County

(Metropolitan Government) “authorized, permitted, and tolerated the custom and practice of the

unconstitutional and excessive use of force” by Officer Davidson by failing to adequately train,

supervise, and discipline him and by “permitting the policy and custom of using unreasonable force

to exist and continue, when [it] was on notice that such unreasonable force was being used prior to

the wrongful shooting and killing of David Denning.” Count III contained an allegation against

Chief of Police Serpas—a count which was later dismissed without prejudice. Count IV alleged that

defendants’ “failures as stated represented conscious or reckless disregard of defendants[’] acts or

omissions and deliberate indifference to the rights of others and especially David Denning.”

       Defendants subsequently filed a motion to dismiss certain claims. The district court granted

the motion in part and denied it in part, such that the remaining claims were Count I’s Second,

Fourth, and Fourteenth Amendment claims against Davidson individually and Count II’s claim

against the Metropolitan Government.

       On October 1, 2007, defendants filed a motion for summary judgment, contending that

plaintiffs had no valid Second Amendment claim; that plaintiffs did not show a custom, practice, or

policy that caused Denning’s death; and that Officer Davidson was entitled to qualified immunity


see his badge that night. There was no light on the porch where Davidson was standing.

                                                 5
on the Fourth Amendment claim because Davidson did not violate a constitutional right. Plaintiffs,

opposing the motion, contended that whether Denning could discern who knocked at his door and

whether Denning pointed his gun at Davidson were both in dispute. Plaintiffs further argued that

Denning had a valid Second Amendment claim. Plaintiffs maintained that the Metropolitan

Government’s policy regarding the use of deadly force caused Denning’s death. Finally, plaintiffs

claimed that Officer Davidson was not entitled to qualified immunity because he used force that was

excessive under objective standards of reasonableness.

           The district court granted defendants’ motion for summary judgment and dismissed all of

plaintiffs’ claims. Denning, 564 F. Supp. 2d 805.4 In addressing whether Officer Davidson was

entitled to qualified immunity on plaintiffs’ excessive force claim, the court determined that

Davidson’s use of deadly force was “objectively reasonable” in light of Denning’s picking up his

gun, pointing it in Davidson’s direction, and continuing to walk towards the door while ignoring

commands to drop his weapon, and that Davidson “was forced to make a split-second decision that

he was not safe and that retreat was not feasible.” Id. at 814. Thus, the court concluded that as a

matter of law Davidson “did not use excessive force in violation of Denning’s Fourth Amendment

rights.” Id. at 815. The court found that plaintiffs had not presented a material question of fact

regarding whether the gun was pointed at Davidson, as the evidence of record was not contradictory.

See id.5


           4
        Plaintiffs do not appeal the district court’s granting of summary judgment to defendants on
the Second Amendment claim.
           5
         The court also observed that “the position of the gun in the suspect’s hand is not dispositive
in determining whether the use of force was excessive.” Denning, 564 F. Supp. 2d at 815 (citing
Bell v. City of E. Cleveland, No. 96-3801, 1997 WL 640116, at *4 (6th Cir. Oct.14, 1997) (per
curiam), and stating that Bell “cit[ed] with approval appellate decisions finding reasonable use of

                                                  6
       In dismissing plaintiffs’ municipal liability claims, the court noted that there could be no such

liability because plaintiffs had not established that Denning was deprived of a constitutional right.

Id. at 816-17. The court further stated that even assuming plaintiffs established a constitutional

violation had occurred, plaintiffs did not establish facts to support their claim that the Metropolitan

Government was responsible for that violation: the police department policy at issue was not an

illegal policy because it tracks the language on the use of deadly force in Tennessee v. Garner, 471

U.S. 1, 11 (1985); plaintiffs did not present other evidence establishing an illegal custom, practice,

or policy, nor did they show that any official was aware of illegal conduct or was deliberately

indifferent; and plaintiffs did not introduce evidence showing a failure to supervise or train.

Denning, 564 F. Supp. 2d at 817.

                                                  II

       We review de novo a district court’s grant of summary judgment. Int’l Union v. Cummins,

Inc., 434 F.3d 478, 483 (6th Cir. 2006). Summary judgment is appropriate “if the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as

to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). Factual evidence is to be viewed in the light most favorable to the non-moving party and all

reasonable inferences must be construed in that party’s favor. See Henderson v. Walled Lake

Consol. Sch., 469 F.3d 479, 487 (6th Cir. 2006).

       Appellants confirmed at oral argument that, consistent with their brief, they are not appealing

the district court’s decision to grant summary judgment to defendants on plaintiffs’ claim that Officer

Davidson used excessive force. Rather, appellants maintain that although the district court addressed


force where the weapon was not pointed directly at the officer”).

                                                  7
their excessive-force claim, it did not address their “illegal search and seizure” claim. Appellants’

Br. 8; see also id. at 17 (“Plaintiffs contend that there was an unconstitutional, forcible, physical

entry of the decedent’s home by virtue of the act of defendant’s firing into the home without

identifying himself. The District Court’s Order addresses the excessive force facet of Plaintiff’s

case, but fails to deal with the illegal search facet.” (emphasis in the original)).

        It is unclear to what extent appellants argue that the district court did not address their claim

that there had been an unconstitutional “seizure,” as opposed to an illegal “search.” It is settled law

that “there can be no question that apprehension by the use of deadly force is a seizure subject to the

reasonableness requirement of the Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1, 7 (1985).

The district court considered the reasonableness of this seizure when it determined that Officer

Davidson’s use of deadly force was objectively reasonable, as “Denning posed a serious threat to

Officer [Davidson]’s safety such that Officer [Davidson]’s use of deadly force was permissible.”

Denning, 564 F. Supp. 2d. at 814. Plaintiffs have not explained how Davidson’s use of deadly force

can be deemed unreasonable under the Fourth Amendment where plaintiffs do not challenge the

district court’s conclusion that the use of deadly force was not excessive under the circumstances.

        To the extent appellants maintain that the bullet piercing Denning’s door and entering his

house as a result of Davidson’s firing of his gun was an unconstitutional “search” notwithstanding

the district court’s conclusion (which they do not appeal) that the use of force was objectively

reasonable in light of the threat posed to Davidson, appellants offer no authority for the proposition

that in this situation the officer’s firing a bullet into the dwelling constituted an unlawful “search”

under the Fourth Amendment.          The Supreme Court has observed that “[w]hen the Fourth

Amendment was adopted, as now, to ‘search’ meant ‘[t]o look over or through for the purpose of


                                                   8
finding something; to explore; to examine by inspection; as, to search the house for a book; to search

the wood for a thief.’” Kyllo v. United States, 533 U.S. 27, 32 n.1 (2001) (citing N. Webster, An

American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989)). The bullet that

entered Denning’s home obviously could not “look,” “explore,” or “examine,” nor did its entry

facilitate such conduct.6 Appellants’ argument that Davidson’s firing a bullet into Denning’s home

constituted an unconstitutional “search” is unavailing.

       Finally, appellants contend that the district court erred when it dismissed their claim against

the Metropolitan Government because the court employed the test for governmental liability for a

“custom” and not for a “policy.”7 It appears to us that the district court considered both policy and

custom. In any event, because appellants have not established that there was an unconstitutional

deprivation of Denning’s constitutional rights, their claim of municipal liability necessarily fails.

See Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001) (“If no constitutional violation

by the individual defendants is established, the municipal defendants cannot be held liable under §

1983.” (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986))).




       6
        Officer Davidson’s subsequent entry into the home after noticing Denning on the floor and
not moving was objectively reasonable given that “[o]ne exigency obviating the requirement of a
warrant is the need to assist persons who are seriously injured or threatened with such injury.”
Brigham City v. Stuart, 547 U.S. 398, 403 (2006).
       7
         We recently pointed out that municipal-liability cases make such a distinction. See Ford v.
County of Grand Traverse, 535 F.3d 483, 496 (6th Cir. 2008) (comparing Miller v. Calhoun County,
408 F.3d 802, 813 (6th Cir. 2006) (“Municipal liability may attach for policies promulgated by the
official vested with final policymaking authority for the municipality.”) with Memphis, Tenn. Area
Local, Am. Postal Workers Union v. City of Memphis, 361 F.3d 898, 902 (6th Cir. 2004) (“A
municipal ‘custom’ may be established by proof of the knowledge of policymaking officials and their
acquiescence in the established practice.”)).

                                                  9
                                     III

For the reasons stated above, we AFFIRM.




                                     10
