              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 07a0195n.06
                          Filed: March 13, 2007

                                         No. 05-6556

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT


BOUNTYNER ONTHA and NALY
ONTHA, Individually and on Behalf of
PHOUTTHASEN TOMMY ONTHA,

               Plaintiffs/Appellees,                       ON APPEAL FROM THE
                                                           UNITED STATES DISTRICT
v.                                                         COURT FOR THE MIDDLE
                                                           DISTRICT OF TENNESSEE
RUTHERFORD COUNTY, TENNESSEE
and RICHARD M. EMSLIE,

               Defendants,

and

SHERIFF TRUMAN L. JONES, JR. and
RANDY D. MORROW,

          Defendants/Appellants.
__________________________________/

Before: BOGGS, Chief Judge; COLE, Circuit Judge; and ROSEN, District Judge.*

         ROSEN, District Judge.

                                   I. INTRODUCTION

         Plaintiffs/Appellees Bountyner Ontha and Naly Ontha brought this suit in March


     *
    The Honorable Gerald E. Rosen, United States District Judge for the Eastern District of
Michigan, sitting by designation.
of 2004 in the United States District Court for the Middle District of Tennessee, asserting

federal claims under 42 U.S.C. § 1983 and state-law claims arising out of the death of

their son, Phoutthasen Tommy Ontha (“Tommy Ontha”), after he was struck by a police

car. The two officers in the patrol car at the time, Defendant Rutherford County Sheriff’s

Deputy Richard M. Emslie and Defendant/Appellant Sheriff’s Deputy Randy D.

Morrow, were pursuing Tommy Ontha in the mistaken belief that he was the individual

named in several outstanding felony warrants. Apart from these two sheriff’s deputies,

Plaintiffs have named as defendants Rutherford County, Tennessee and the Rutherford

County Sheriff, Defendant/Appellant Truman L. Jones, Jr., who is sued in both his

individual and official capacities.

       In the present appeal, Sheriff Jones and Deputy Sheriff Morrow challenge the

district court’s determination that they are not entitled to qualified immunity. Sheriff

Jones contends that he had no personal involvement in the incident that resulted in

Tommy Ontha’s death, and that the stringent standard for the imposition of supervisory

liability has not been met here. Deputy Morrow, for his part, cites the undisputed fact

that he was only a passenger, and not the driver, of the patrol car that struck Tommy

Ontha, and he argues that he lacked sufficient means or opportunity to prevent this harm.

We agree — and, indeed, Plaintiffs/Appellees seemingly concede — that the § 1983

claims against Sheriff Jones in his individual capacity cannot go forward. We further

conclude that Deputy Morrow is entitled to qualified immunity as to one, but not both, of


                                             2
the two excessive force claims asserted against him. Accordingly, we affirm in part,

reverse in part, and remand for further proceedings.

               II. FACTUAL AND PROCEDURAL BACKGROUND

A.     The Incidents Leading up to the Death of Tommy Ontha

       On March 18, 2003, Defendant Rutherford County Sheriff’s Deputy Richard M.

Emslie was informed by his supervisor, Sergeant Judy Greene, about four outstanding

felony warrants for an Asian male named Tony Kanjanabout. Deputy Emslie was further

advised that Kanjanabout was known to travel in a white compact car, that he was

believed to be employed at O’Charley’s Restaurant in Murfreesboro, Tennessee, and that

he sometimes stayed in one of the units at the Greenland Drive Apartments in

Murfreesboro. Deputy Emslie also was provided with a photograph and physical

description of Kanjanabout.

       After confirming with the restaurant manager that Kanjanabout worked at

O’Charley’s, Deputy Emslie and his partner, Defendant/Appellant Sheriff’s Deputy

Randy D. Morrow, drove to the parking lot of the Greenland Drive Apartments in an

unmarked patrol car and set up surveillance in an attempt to locate Kanjanabout. Deputy

Emslie drove the patrol car, with Deputy Morrow in the front passenger seat. After about

twenty or thirty minutes, the deputies observed a white compact car pull into the parking

lot and an Asian male — later determined to be Tommy Ontha — emerge from this

vehicle.


                                            3
       Upon determining that this person appeared to match the description and

photograph of Tony Kanjanabout, Deputy Emslie decided to drive his patrol car closer to

the white vehicle in an effort to confirm that this individual was, in fact, Kanjanabout.

As he did so, Tommy Ontha got back into the white car and began to drive out of the

parking lot. According to Deputy Emslie, he activated the patrol car’s lights and gave a

short burst of its siren to get the attention of the white vehicle’s driver, but Tommy Ontha

accelerated his car and turned onto Greenland Drive. In response, Deputy Emslie

activated the police car’s siren and pursued Ontha’s vehicle, traveling about a mile

before Ontha drove his car back into the parking lot of the Greenland Drive Apartments.

       The events, and their sequence, following Ontha’s return to the parking lot remain

in dispute. According to Deputy Emslie, he stopped the patrol car about two car lengths

behind Ontha’s vehicle, and Deputy Morrow then exited the police car and began giving

verbal commands to Ontha. Deputy Emslie further asserts that Ontha briefly emerged

from his car, but then quickly got back into the vehicle, closed the door, and accelerated

his car in reverse, forcing Deputy Morrow to jump back inside the patrol car to avoid

being hit by Ontha’s oncoming vehicle. In contrast, a resident of the Greenland Drive

Apartments, Bobbie Ann Harris, testified that she did not observe either Ontha or the

deputies exit their vehicles at any time during this incident.

       While still driving in reverse, Ontha pulled out of the parking lot and turned left

into the eastbound lane of Greenland Drive, as though he intended to travel down the


                                              4
road in reverse in a westerly direction. In pursuit of Ontha’s vehicle, Deputy Emslie also

drove his patrol car out onto Greenland Drive. According to Deputy Emslie, he did so by

traveling in reverse out of the parking lot and making a right turn in reverse, so that his

patrol car was facing the front of Ontha’s vehicle. Two eyewitnesses, Ms. Harris and

Gerald McElroy, have testified differently, however, stating that the patrol car was

traveling forward, and not in reverse, as it emerged from the parking lot.

       In Deputy Emslie’s account of what transpired next, he anticipated that Tommy

Ontha would continue to drive his car in reverse down Greenland Drive, so he put the

patrol car in “Drive” and began accelerating in the direction of Ontha’s vehicle. As the

patrol car picked up speed, however, Ontha suddenly stopped his car, and Deputy Emslie

reacted by turning his steering wheel to the right and applying his brakes in an effort to

avoid hitting Ontha’s vehicle. Upon narrowly avoiding an impact with Ontha’s car,

Deputy Emslie caught a brief glimpse of Ontha outside his vehicle as the patrol car

skidded into a telephone pole. It was only after hitting the telephone pole that Deputy

Emslie became aware that Tommy Ontha had been struck by the patrol car.

       Again, the testimony of eyewitness Gerald McElroy differs markedly from Deputy

Emslie’s recollection of this incident. According to McElroy, shortly after Ontha backed

his car onto Greenland Drive, and while the patrol car still remained in the parking lot,

Ontha emerged from his vehicle and began traveling on foot. McElroy testified that the

patrol car — moving forward and not in reverse — pulled out of the parking lot,


                                              5
maneuvered slowly around Ontha’s vehicle, and then began to accelerate. As the police

car reached a speed of perhaps five to fifteen miles per hour, it caught up to and struck

Ontha as he was running away. In McElroy’s view, it appeared that the patrol car was

“chasing” Ontha, seemingly making no effort to brake or steer away before striking him.

(McElroy Dep. at 47, 108-10, J.A. at 363, 369-71.) As the police car made contact with

Ontha, McElroy heard the vehicle’s brakes and saw it slide into a telephone pole, with

Ontha pinned between the hood of the car and the pole. In all, McElroy estimated that

about six or seven seconds passed between the time that the patrol car left the parking lot

and the time that it struck Ontha. (Id. at 40-41, J.A. at 356-57.)

       Deputy Emslie was injured in the collision with the telephone pole and remained

in the patrol car. Deputy Morrow, however, exited the car and approached Ontha,

discovering that he was still alive and conscious, but that he was moaning and evidently

in considerable pain. According to eyewitness Bobbie Ann Harris, the deputy who

emerged from the patrol car took Ontha by the collar and pulled him onto to the grass by

the side of the road, with Ontha moaning in pain and the deputy reportedly saying, “Boy,

can’t you speak English?” (Harris Dep. at 17-19, J.A. at 291-93.) After receiving

emergency medical treatment at the scene, Ontha was taken by ambulance to the

Vanderbilt University Medical Center, where he died about three hours later.

B.     Procedural Background

       Plaintiffs/Appellees Bountyner and Naly Ontha, the parents of Tommy Ontha,


                                             6
commenced this action on March 17, 2004 in the United States District Court for the

Middle District of Tennessee, asserting federal claims under 42 U.S.C. § 1983 against

Rutherford County, Sheriff Truman L. Jones, Jr., and Sheriff’s Deputies Emslie and

Morrow, as well as state-law claims against Deputies Emslie and Morrow. Following a

period of discovery, Defendants moved for summary judgment in their favor, based in

part upon their contention that the individual defendants were shielded from liability

under § 1983 by the doctrine of qualified immunity.

       The district court denied Defendants’ motion in an order dated August 23, 2005.

(See District Court 8/23/2005 Order, J.A. at 396-99.) As to the individual Defendants’

appeal to qualified immunity, the court found that issues of material fact precluded an

award of summary judgment on this ground. (See id. at 2-3, J.A. at 397-98.) The court

further concluded that the evidence was sufficient to sustain a § 1983 claim against

Rutherford County, and that, in light of the County’s continued presence as a party, any §

1983 claims against the remaining Defendants in their official capacities should be

dismissed. (See id. at 3, J.A. at 398.)1 Defendants Jones and Morrow now appeal,

asserting that the district court erred in denying their claim of qualified immunity.




       1
         In response to Defendants’ subsequent motion for reconsideration, the district court
largely adhered to this ruling, but agreed that no punitive damages could be recovered from the
County.

                                                7
                                      III. ANALYSIS

A.     The Court Has Jurisdiction over This Appeal.

       Before turning to the merits, we first must satisfy ourselves of our power to

consider the issues raised by Sheriff Jones and Deputy Sheriff Morrow in this

interlocutory appeal. See Crockett v. Cumberland College, 316 F.3d 571, 577 (6th Cir.

2003). Although interlocutory appeals “are the exception, not the rule,” Johnson v.

Jones, 515 U.S. 304, 309, 115 S. Ct. 2151, 2154 (1995), we have recognized that “a

denial of summary judgment based on a legal determination that qualified immunity is

inappropriate is immediately appealable as a collateral order.” Crockett, 316 F.3d at 578.

In this case, then, we have jurisdiction to the extent that the district court’s denial of

qualified immunity “turns on an issue of law,” but not “insofar as [the district court’s]

order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for

trial.” Sheets v. Mullins, 287 F.3d 581, 585 (6th Cir. 2002) (internal quotation marks and

citations omitted).

       Ordinarily, we expect a defendant to expedite our jurisdictional inquiry by

“conced[ing] to the facts as alleged by the plaintiff and discuss[ing] only the legal issues

raised by the case.” Sheets, 287 F.3d at 585. Here, unfortunately, the recitation of facts

in Defendants’ initial brief on appeal cites exclusively to Defendants’ own affidavits,

without even acknowledging the existence of eyewitness testimony that contradicts

Defendants’ account in certain respects. Since the district court cited this eyewitness


                                               8
testimony in determining that issues of fact precluded an award of qualified immunity, it

would appear that our jurisdiction over this appeal is open to serious question.

       Upon careful review of the parties’ briefs and the record, however, we conclude

that Defendants have identified issues of law that are suitable for resolution on

interlocutory appeal. Initially, we note that we are not bound by the district court’s

characterization of its ruling as resting upon the existence of issues of fact. See Estate of

Carter v. City of Detroit, 408 F.3d 305, 309 (6th Cir. 2005); Dickerson v. McClellan, 101

F.3d 1151, 1156-57 (6th Cir. 1996). Rather, we may still reach and decide “purely legal

question[s]” bearing upon Defendants’ entitlement to qualified immunity, so long as the

factual disputes noted by the district court are “immaterial” to this determination.

Dickerson, 101 F.3d at 1157; see also Estate of Carter, 408 F.3d at 310 (explaining that

we may disregard a defendant’s “impermissible arguments regarding disputes of fact” so

long as the defendant also raises questions of law). To be sure, Defendants’ initial brief

on appeal is not as helpful as it could have been in explaining why the issues of fact

identified by the district court are not material to the questions of law they seek to present

for our consideration. Defendants have ameliorated this concern in their reply brief,

however, supplying an overdue concession that there are disputed facts in the record but

arguing that these disputes are immaterial to their entitlement to qualified immunity.

Under these circumstances, we are satisfied that we may inquire whether, viewing the

record in a light most favorable to Plaintiffs, the district court properly denied summary


                                              9
judgment to Defendants on grounds of qualified immunity.

B.     The Standards Governing Our Qualified Immunity Inquiry

       Under familiar principles, government officials such as the Defendants/Appellants

here, Sheriff Jones and Deputy Sheriff Morrow, are shielded from liability for damages

under 42 U.S.C. § 1983 “insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). This qualified

immunity inquiry entails two steps. As a “threshold question,” we must ask whether the

facts, viewed in a light most favorable to the plaintiff, “show the officer’s conduct

violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151,

2156 (2001); see also Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). If so, “the

next, sequential step is to ask whether the right was clearly established” — that is, “[t]he

contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Saucier, 533 U.S. at 201-02, 121 S.

Ct. at 2156 (internal quotation marks and citation omitted); see also Burchett, 310 F.3d at

942. We review de novo the district court’s denial of Defendants’ motion for summary

judgment on the ground of qualified immunity. Dickerson, 101 F.3d at 1157.

C.     Sheriff Jones Is Entitled to Qualified Immunity as to the Claims Asserted
       Against Him in His Individual Capacity.

       Turning first to Plaintiffs’ § 1983 claims against Sheriff Jones in his individual

capacity, all are agreed that Sheriff Jones had no direct personal involvement in the

                                             10
events surrounding the death of Tommy Ontha on March 18, 2003. Rather, Plaintiffs’

claims against the sheriff may go forward, if at all, only under a theory of supervisory

liability. In his present appeal, Sheriff Jones argues that Plaintiffs have failed to muster

sufficient evidence to meet this stringent standard of liability. We agree.

       We have explained that “§ 1983 liability must be based on more than respondeat

superior, or the right to control employees.” Shehee v. Luttrell, 199 F.3d 295, 300 (6th

Cir. 1999), cert. denied, 530 U.S. 1264 (2000). “Thus, a supervisory official’s failure to

supervise, control or train the offending individual is not actionable unless the supervisor

either encouraged the specific incident of misconduct or in some other way directly

participated in it.” Shehee, 199 F.3d at 300 (internal quotation marks and citation

omitted). “At a minimum a plaintiff must show that the official at least implicitly

authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the

offending officers.” 199 F.3d at 300 (internal quotation marks and citation omitted).

       To the extent that Plaintiffs even assert that this standard of supervisory liability

can be met here,2 they evidently contend that Sheriff Jones implicitly authorized the

alleged misconduct of Deputies Emslie and Morrow by failing to properly train these

deputies regarding the appropriate use of force and, more particularly, the

inappropriateness of using a patrol car to strike or seize an individual. As Plaintiffs point


       2
         Notably, after citing the correct standards for the imposition of supervisory liability,
Plaintiffs then assert in their brief on appeal that “Sheriff Jones should remain as a Defendant in
his official capacity.” (Plaintiffs/Appellees’ Br. at 33 (emphasis added).)

                                                11
out, Sheriff Jones acknowledged in his affidavit that the Rutherford County Sheriff’s

Office “does not have a written policy specifically prohibiting” the use of a patrol car to

strike a person who is fleeing on foot. (Jones Aff. at ¶ 6, J.A. at 121.) Plaintiffs posit

that this lack of training served as implicit authorization of or knowing acquiescence in

Deputy Emslie’s allegedly inappropriate use of his patrol car to chase and strike Tommy

Ontha as he attempted to flee.

       Yet, to establish supervisory liability, it is not enough to point after the fact to a

particular sort of training which, if provided, might have prevented the harm suffered in a

given case. Rather, such liability attaches only if a constitutional violation is “part of a

pattern” of misconduct, or “where there is essentially a complete failure to train the

police force, or training that is so reckless or grossly negligent that future police

misconduct is almost inevitable or would properly be characterized as substantially

certain to occur.” Hays v. Jefferson County, 668 F.2d 869, 874 (6th Cir.) (citations

omitted), cert. denied, 459 U.S. 833 (1982). Only in such circumstances can it be said

that a supervisor’s liability rests upon “active unconstitutional behavior,” as opposed to

“a mere failure to act.” Shehee, 199 F.3d at 300 (internal quotation marks and citation

omitted).

       In this case, Plaintiffs do not contend that Deputy Emslie’s purported misuse of

his patrol car was part of a pattern of comparable violations, as opposed to an isolated

occurrence. Neither have Plaintiffs suggested any basis for us to conclude that the tragic


                                              12
events of this case were an “almost inevitable” or “substantially certain” byproduct of a

lack of training as to the proper operation of a patrol car when pursuing an individual

traveling on foot. Rather, Sheriff Jones states without contradiction that “we have never

had an instance where a Rutherford County Sheriff’s deputy intentionally struck a person

with his or her patrol car,” and that he is “not aware of a problem or trend in the law

enforcement community regarding law enforcement officers using their vehicles to

intentionally strike fleeing suspects or other persons on foot.” (Jones Aff. at ¶ 6, J.A. at

121.) Under this record, we find as a matter of law that Plaintiffs cannot sustain their §

1983 claims against Sheriff Jones in his individual capacity.3

D.     Deputy Morrow Is Entitled to Qualified Immunity as to One, But Not Both,
       of the § 1983 Claims Asserted Against Him.

       Turning next to Plaintiffs’ § 1983 claims against Deputy Sheriff Morrow, there is,

once again, no dispute that Deputy Morrow was not driving the patrol car that struck

Tommy Ontha, but was merely a passenger in this vehicle. Deputy Morrow further

states, without contradiction, that he and Deputy Emslie did not discuss or debate any



       3
         As noted earlier, Plaintiffs argue that Sheriff Jones “should remain as a Defendant in his
official capacity,” (Plaintiffs/Appellees’ Br. at 33), and they cite the district court as having so
ruled. Yet, the district court held precisely the opposite in its August 23, 2005 order, stating that
“with the County as a Defendant, the individual Defendants should remain in this action only in
their individual capacities.” (8/23/2005 Order at 3, J.A. at 398.) Just as we cannot consider on
interlocutory appeal whether the district court properly allowed Plaintiffs’ § 1983 claims against
Rutherford County to go forward, see Crockett, supra, 316 F.3d at 578-79, we also lack
jurisdiction to consider whether the district court properly dismissed the § 1983 claims against
Sheriff Jones in his official capacity. Accordingly, we must decline Plaintiffs’ invitation to
weigh in on this issue.

                                                 13
possible courses of action as Deputy Emslie drove the patrol car out of the Greenland

Drive Apartments parking lot and began to pursue Ontha. Under these circumstances,

Deputy Morrow argues that he cannot be held liable for any excessive force that Deputy

Emslie might have inflicted through his operation of the patrol car. We agree, but find

that Deputy Morrow remains subject to liability for the excessive force he allegedly

employed as Ontha lay on the ground after being struck by the patrol car.

        As Defendants acknowledge, and as the district court recognized, a patrol car can

be an instrument of force through which an individual is “seized” within the meaning of

the Fourth Amendment. See, e.g., Brower v. County of Inyo, 489 U.S. 593, 597, 109 S.

Ct. 1378, 1381 (1989); Galas v. McKee, 801 F.2d 200, 203 (6th Cir. 1986); Harris v.

Coweta County, 433 F.3d 807, 812-13 (11th Cir. 2005), cert. granted, 127 S. Ct. 468

(2006). Accordingly, the degree of force used to effect such a seizure must be

reasonable. See Graham v. Connor, 490 U.S. 386, 395-96, 109 S. Ct. 1865, 1871

(1989); Burchett, 310 F.3d at 944. This is precisely the theory of liability Plaintiffs have

advanced against Deputy Emslie in this case — namely, that he deliberately and

unreasonably used a police car to pursue and strike Tommy Ontha as he was fleeing on

foot.

        Plaintiffs’ theory of liability as to Deputy Morrow necessarily rests upon a

different legal footing. In order to hold Deputy Morrow liable for the excessive force

allegedly inflicted upon Tommy Ontha by the patrol car, Plaintiffs “must prove that he


                                             14
(1) actively participated in the use of excessive force, (2) supervised the officer who used

excessive force, or (3) owed the victim a duty of protection against the use of excessive

force.” Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997). As a passenger in the patrol

car, Deputy Morrow did not actively participate in the alleged use of the vehicle as an

instrument of excessive force, and Plaintiffs do not contend otherwise. Neither is there

any evidence that Deputy Morrow exercised any supervisory authority over Deputy

Emslie; to the contrary, it appears that Deputy Emslie possessed a degree of authority

over Deputy Morrow.

       Accordingly, Deputy Morrow can be held liable for the force inflicted by the

patrol car only if he owed Tommy Ontha a duty of protection against the use of such

force. “Generally speaking, a police officer who fails to act to prevent the use of

excessive force may be held liable when (1) the officer observed or had reason to know

that excessive force would be or was being used, and (2) the officer had both the

opportunity and the means to prevent the harm from occurring.” Turner, 119 F.3d at

429. Citing the account of eyewitness Gerald McElroy, Plaintiffs argue that this standard

is satisfied here, where Deputy Morrow purportedly had a six- or seven-second window

of opportunity to perceive that Deputy Emslie was aiming and accelerating the patrol car

at Tommy Ontha and to take action to thwart this allegedly unlawful pursuit.

       We cannot agree. To be sure, from the eyewitness testimony that Deputy Emslie

slowly maneuvered the patrol car around Ontha’s vehicle and then accelerated toward


                                            15
Ontha as he fled on foot, one could reasonably conclude that Deputy Emslie’s actions

were deliberate rather than accidental. But further inferences are required to charge

Deputy Morrow with liability for this sequence of events. In particular, there must be a

basis for concluding (i) that Deputy Morrow perceived that Deputy Emslie had embarked

on an effort to inflict force upon Ontha with the patrol car, and (ii) that he had the means

and opportunity to thwart this effort. Moreover, in order to avert the harm to Ontha,

Deputy Morrow would have had to both glean the nature of Deputy Emslie’s actions and

decide upon and implement preventative measures within a short time span of six to

seven seconds.

       We are unaware of any case law, nor have Plaintiffs cited any, that has recognized

a duty of protection under such circumstances. To the contrary, the courts have been

unwilling to impose a duty to intervene where, as here, an entire incident unfolds “in a

matter of seconds.” Gaudreault v. Municipality of Salem, 923 F.2d 203, 207 n.3 (1st Cir.

1990), cert. denied, 500 U.S. 956 (1991); see also O’Neill v. Krzeminski, 839 F.2d 9, 11-

12 (2d Cir. 1988) (finding that the three blows suffered by the plaintiff “were struck in

such rapid succession that [a nearby police officer] had no realistic opportunity to

attempt to prevent them,” and that “[t]his was not an episode of sufficient duration to

support a conclusion that an officer who stood by without trying to assist the victim

became a tacit collaborator”); Fultz v. Whittaker, 261 F. Supp.2d 767, 780 (W.D. Ky.

2003) (declining to hold an officer liable for a failure to intervene where “[e]veryone


                                             16
agrees that the events happened in a matter of seconds”); Todhunter v. Swan, No. 05-

74934, 2006 WL 3454796, at *7 (E.D. Mich. Nov. 29, 2006) (finding that a “rapid

sequence” of events “afforded [the defendant sheriff’s deputy] no opportunity to

intervene”). Where we have recognized such a duty, in contrast, the underlying episode

of excessive force has spanned a sufficient period of time for a nearby defendant to both

perceive what was happening and intercede to stop it. See, e.g., Durham v. Nu’Man, 97

F.3d 862, 868 (6th Cir. 1996) (reversing an award of summary judgment in a case where

a beating “lasted approximately ten minutes” and the defendant nurse “watched the

beating unfold on her monitor from the nurse’s station, and then from the doorway of . . .

the room where the beating took place”), cert. denied, 520 U.S. 1157 (1997).

       Under this case law, even if Deputy Emslie had announced his allegedly

malevolent intentions as he began to accelerate the patrol car, it is doubtful that Deputy

Morrow could be found to have had a realistic opportunity to intervene and prevent harm

from befalling Tommy Ontha. Within a span of a few short seconds, Deputy Morrow

would have had to identify and employ some reasonable (and safe) means of dissuading

or otherwise preventing Deputy Emslie from steering the patrol car toward a fleeing

suspect. Given the inherent dangers of interfering with the driver of a moving vehicle,

this alone would have been a daunting task. Yet, because Deputy Emslie did not

announce his intentions, Deputy Morrow also would have been required, in this same

short time span, to ascertain that his fellow deputy was not merely pursuing a fleeing


                                            17
suspect in a reasonable and appropriate fashion, but instead was intentionally or

recklessly pursuing a course of action that was likely to inflict harm upon Tommy Ontha

unless he interceded. We are unwilling, under these circumstances, to impose upon

Deputy Morrow the duty to intervene and protect Tommy Ontha from the excessive force

that Deputy Emslie allegedly inflicted with the patrol car.

       Moreover, given the absence of any case law that has imposed a duty of protection

under even roughly analogous circumstances, we readily conclude that Deputy Morrow’s

failure to intervene did not violate clearly established law. As explained, the pertinent

decisions make it clear that a police officer cannot stand idly by if he observes the use of

excessive force and has the means and opportunity to prevent it. See Turner, 119 F.3d at

425; Durham, 97 F.3d at 868. Yet, none of these rulings can be read as requiring that a

police officer, in a matter of seconds, both determine that a fellow officer is about to use

excessive force and identify a means to prevent it. Accordingly, at the time of the

incident at issue here, it would not have been evident to a reasonable officer in

Defendant Morrow’s position that he was obligated to taken action to prevent Deputy

Emslie from allegedly using the patrol car to inflict excessive force upon Tommy Ontha.

It follows that Defendant Morrow is entitled to qualified immunity as to Plaintiffs’ claim

that he breached a duty of protection.

       Nonetheless, Plaintiffs have identified a second possible basis for charging

Deputy Morrow with liability under § 1983. In particular, they cite the testimony of


                                             18
eyewitness Bobbie Ann Harris that, after Tommy Ontha had been struck by the police

car, a sheriff’s deputy emerged from the car, took Ontha by the collar, and pulled him

onto to the grass by the side of the road, with Ontha moaning in pain and the deputy

reportedly saying, “Boy, can’t you speak English?” (Harris Dep. at 17-19, J.A. at 291-

93.) Because Ontha had been thoroughly neutralized by the impact of the patrol car, and

presumably did not pose any threat to the deputies or anyone else on the scene, Plaintiffs

contend that any use of force by Deputy Morrow to drag him to the curb was excessive

under the circumstances. See Phelps v. Coy, 286 F.3d 295, 301-02 (6th Cir. 2002), cert.

denied, 537 U.S. 1104 (2003).

       Beyond denying that this incident occurred, Deputy Morrow argues that the “only

reasonable inference” from the eyewitness’s testimony is that he “was pulling [Ontha]

out of the roadway for [his own] safety.” (Defendants/Appellants’ Reply Br. at 15.) Yet,

this is hardly the only reasonable inference that could be drawn from this evidence,

particularly where there is no indication that Ontha faced any danger if he had been left

at the side of the road until emergency medical personnel arrived at the scene. Moreover,

while Defendants claim that Plaintiffs have failed to produce the requisite evidence of

physical injury resulting from Deputy Morrow’s actions, see Lyons v. City of Xenia, 417

F.3d 565, 575-76 (6th Cir. 2005), the eyewitness who recounted this incident testified

that Tommy Ontha “holler[ed]” and “moan[ed]” in pain as the sheriff’s deputy pulled

him onto the grass. (Harris Dep. at 18, J.A. at 292.) These outstanding issues of material


                                            19
fact preclude us from reviewing this aspect of the district court’s denial of qualified

immunity to Deputy Morrow.4

                                     IV. CONCLUSION

       For the reasons set forth above, we reverse the district court’s denial of qualified

immunity to Defendant/Appellant Jones, affirm in part and reverse in part the district

court’s denial of qualified immunity to Defendant/Appellant Morrow, and remand for

further proceedings in accordance with this opinion.




       4
          In addition to challenging the district court’s denial of qualified immunity, Defendants
Jones and Morrow also contend that the state-law claims asserted against them are subject to
dismissal under the Tennessee Governmental Tort Liability Act (“TGTLA”). In Defendants’
view, a provision of the TGTLA, Tenn. Code Ann. § 29-20-307, mandates that the Tennessee
circuit courts have exclusive jurisdiction over these claims, such that a federal district court
should — and perhaps even must — decline to exercise supplemental jurisdiction over such
claims. See Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000) (finding that, through
this provision, “the Tennessee legislature expressed a clear preference that TGTLA claims be
handled by its own state courts”). But cf. Brown v. City of Memphis, 440 F. Supp.2d 868, 876-78
(W.D. Tenn. 2006) (opining that this provision merely factors into, but does not control, a federal
district court’s discretionary decision whether to exercise supplemental jurisdiction over such
claims).

        We decline to reach this issue in this interlocutory appeal. Initially, we note the absence
of any indication in Plaintiffs’ complaint that they have asserted any state-law claims against
Sheriff Jones. As to the question whether the district court should exercise supplemental
jurisdiction over the state-law claims asserted against Deputy Morrow, we do not view this issue
as sufficiently related to or inextricably intertwined with the issue over which we unquestionably
have jurisdiction — namely, the availability of qualified immunity — to warrant the exercise of
pendent appellate jurisdiction. See Summers v. Leis, 368 F.3d 881, 889-90 (6th Cir. 2004).

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