               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0586n.06

                                       Case No. 14-3009
                                                                                      FILED
                                                                                 Aug 01, 2014
                          UNITED STATES COURT OF APPEALS
                                                                             DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


JACOB E. RAGSDALE,                                 )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE NORTHERN DISTRICT OF
JOSEPH SIDOTI,                                     )       OHIO
                                                   )
       Defendant-Appellant,                        )
                                                   )
CITY OF AKRON, OHIO, et al.,                       )
                                                   )
       Defendants.                                 )

       BEFORE: GIBBONS, SUTTON and WHITE, Circuit Judges.

       SUTTON, Circuit Judge. After a violent argument with his brother, Jacob Ragsdale was

shot by an Akron police officer. The question is how this happened. Ragsdale’s account

suggests the police used constitutionally excessive force. The officer’s account tells a different

story. In view of the dueling testimony and in view of the reality that Ragsdale gets the benefit

of all reasonable factual inferences at this stage of the case, the district court rejected the

officer’s motion for qualified immunity. We affirm.

        Jacob Ragsdale and his brother Lloyd Provitt got into a spat over a three-dollar debt.

What seemed like a trivial dispute soon escalated. Ragsdale retreated into his girlfriend’s house,

but Provitt kicked in the back door. Ragsdale ran upstairs to grab a gun he kept for protection,
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after which he fired a warning shot from the top of the staircase into the wall below. Back

outside, Provitt called the police. Akron Police Officers Joseph Sidoti and Christopher Seiler

soon arrived. Armed with his AR-15 assault rifle, Officer Sidoti approached the house from the

backyard.

        The parties dispute what happened next. According to Ragsdale, he took one step out of

the side door while holding his gun and was immediately shot in the elbow by Officer Sidoti.

Sidoti, Ragsdale says, gave no commands prior to firing. After being hit, Ragsdale dropped the

gun and bolted up his neighbor’s driveway, dodging a barrage of bullets.

        Officer Sidoti tells a different story. After Ragsdale exited the house, Sidoti says he

overheard Officer Seiler’s command to Ragsdale to drop his weapon. Next thing Sidoti knew,

Ragsdale was running toward him in the dark, holding what seemed to be a gun. Sidoti quickly

turned on the light mounted on his rifle, at which point he saw a gun’s wooden stock rising up to

Ragsdale’s shoulder area. Believing Ragsdale was preparing to fire, Sidoti shot first to defend

himself, fourteen rounds in all. Officer Seiler found Ragsdale sitting against Boring’s garage,

wounded, and Sidoti radioed for an ambulance. Ragsdale’s rifle was nearby, leaning against the

neighboring dog kennel.

        Ragsdale sued Officer Sidoti, alleging that the officer used constitutionally excessive

force in violation of the Fourth (and Fourteenth) Amendment. See 42 U.S.C. § 1983. Officer

Sidoti moved for summary judgment, asserting qualified immunity as a defense. The district

court denied the motion.     Judge David Dowd identified several lingering material facts,

including: (1) whether Ragsdale was threatening Officer Sidoti with his gun; (2) where Ragsdale

was standing when he was shot; (3) whether the officers gave any verbal commands before the

shooting; (4) where Officer Sidoti was located when he fired; (5) how Ragsdale was holding his



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weapon when confronted; and (6) whether the officer used his flashlight before firing. Officer

Sidoti appealed.

        Two sets of principles guide the resolution of this case. The first concerns the standard

for granting qualified immunity to a police officer in the face of a § 1983 action. The standard

requires us to consider two questions: Did the officer violate the claimant’s constitutional rights,

and if so were those rights “clearly established” at the time of the incident? Saucier v. Katz, 533

U.S. 194, 201–02 (2001). Only if the claimant can satisfactorily answer both inquiries may he

obtain relief. The second set of principles concerns the standard for granting summary judgment.

Summary judgment is proper only if “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Unless no reasonable

jury could find in Ragsdale’s favor, we must reject the officer’s motion for summary judgment.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). We give fresh

review to the district court’s application of these principles. T.S. v. Doe, 742 F.3d 632, 635 (6th

Cir. 2014).

        Consistent with the district court’s decision, a reasonable jury could find that Officer

Sidoti violated Ragsdale’s Fourth Amendment right to be free from an unreasonable seizure

involving potentially lethal force. See Tennessee v. Garner, 471 U.S. 1, 11–12 (1985). Ragsdale

testified that, without warning, he was immediately shot as he exited his girlfriend’s house, and

that he was not holding his gun as he fled from Sidoti’s gunfire because he had dropped the

weapon right after being hit.       Nor is the forensic evidence in favor of the officer so

overwhelming that no reasonable jury could believe Ragsdale’s account.            Ballistics expert

Richard Ernest, it is true, concluded that empty cartridges, bullet holes and shrapnel suggest that

Ragsdale was not where he says he was when Officer Sidoti fired and suggest that Ragsdale did



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not drop his gun.      But as Ernest acknowledged, his reconstruction of the shooting is one

reasonable approximation of what happened; it is not the only reasonable approximation of what

happened. Assuming as we must on summary judgment that Ragsdale is telling the truth, we

must conclude that Ragsdale has created a material issue of fact about whether Officer Sidoti’s

actions amounted to objectively unreasonable force. See id.

        Ragsdale also satisfies step two of the qualified immunity inquiry.         Garner clearly

establishes that a police officer may not use deadly force on an unarmed, nonthreatening suspect,

which is precisely what Ragsdale claims he was. Id.

        That would be the end of this appeal but for one additional wrinkle. Ragsdale claims that

we should dismiss this interlocutory appeal for want of jurisdiction rather than affirm the district

court’s decision. See Johnson v. Jones, 515 U.S. 304 (1995). He is correct that, generally

speaking, we lack jurisdiction to hear immediate appeals from the denial of qualified immunity

that solely contest the other side’s account of the facts. Id. at 319–20; Plumhoff v. Rickard,

134 S.Ct. 2012, 2019 (2014). But two realities give us jurisdiction here. One is our line of

precedents giving us jurisdiction over these kinds of appeals if the officer claims that the

claimant and district court rely on an account of the incident that is “blatantly” contradicted by

the record. Moldowan v. City of Warren, 578 F.3d 351, 370 (6th Cir. 2009). That is precisely

what Officer Sidoti is arguing—wrong though he ultimately may be about the merits at this stage

of the case. The other is that Officer Sidoti separately makes legal arguments in his brief—that

mistakes of fact and law are still entitled to qualified immunity, see, e.g., Appellant’s Br. at 35,

wrong again though he may ultimately be about the merits at this stage of the case. We thus

have jurisdiction over the appeal. See Chambers v. Ohio Dep’t of Human Servs., 145 F.3d 793,

797 (6th Cir. 1998).



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        For these reasons, we affirm.




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