                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 05a0819n.06
                                Filed: October 6, 2005

                                           No. 04-4143

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


NICHOLAS SARGENT, individually and as                  )
administrator for the estate of DONALD J.              )
SARGENT,                                               )
                                                       )
       Plaintiff-Appellant,                            )   ON APPEAL FROM THE UNITED
                                                       )   STATES DISTRICT COURT FOR
v.                                                     )   THE NORTHERN DISTRICT OF
                                                       )   OHIO
                                                       )
CITY OF TOLEDO POLICE DEPARTMENT,                      )
                                                       )
and                                                    )
                                                       )
JOSEPH TAYLOR, City of Toledo Police                   )
Department,

       Defendants-Appellees.


Before: SILER and DAUGHTREY, Circuit Judges; MARBLEY, District Judge.*

       SILER, Circuit Judge. Plaintiff Nicholas Sargent, individually and as administrator of the

estate of Donald J. Sargent, instituted proceedings pursuant to 42 U.S.C. § 1983 against defendants

for alleged violations of decedent’s Fourth Amendment rights. The district court granted summary

judgment in favor of all defendants, finding that no Fourth Amendment violation occurred, that

Toledo Police Officer Joseph Taylor was protected by qualified immunity, and that the plaintiff did




       *
        The Honorable Algenon L. Marbley, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 04-4143

not properly plead a § 1983 claim against the Toledo Police Department. For the following reasons,

we AFFIRM.

                                                I.

       In 2002, Toledo, Ohio police officers Taylor and Douglas Whatmore responded to a 911 call

made by a neighbor of Donald J. Sargent that complained of a loud party and noise disturbance at

Sargent’s home. When Taylor and Whatmore arrived at the residence, they knocked on the front

door at least twice, attempting to locate the owner. From their position, they could see juveniles

sitting on the front porch and a young person “passed out” in the rear seat of a car parked in the

driveway; they could hear a loud commotion and voices shouting inside the house. Whatmore

proceeded to the back of the house, where he saw a number of juveniles running from the residence.

He approached the back door, which was open, and peeked his head into the house, where he

encountered Sargent alone in the kitchen. Whatmore asked Sargent what was going on and stepped

inside. At that time, Taylor finished investigating the noises in the front of the house and walked

to the rear of the residence to locate Whatmore. Finding Whatmore inside talking to Sargent, Taylor

also entered the home.

       Taylor asked Sargent for his identification. Sargent became irate. He informed the officers

that he would go upstairs and locate his identification; Taylor told him not to leave to procure the

identification. Sargent ignored Taylor’s instruction and bolted out of the kitchen. Taylor and

Whatmore immediately gave chase.

       During the pursuit, Taylor commanded Sargent to stop. Sargent did not stop but continued

running through the living room, up a flight of stairs, and down a hallway into a bedroom. He



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slammed the bedroom door shut behind him. Taylor approached the bedroom door and kicked the

center panel into the room.

         After Taylor kicked the door, he observed Sargent getting up from a crouched position near

the bed, as if he had been looking for something between the mattress and the box spring. Sargent

then turned to Taylor, holding a gun in one hand. In response, Taylor shot once at Sargent, killing

him.

         Sargent’s estate instituted proceedings under 42 U.S.C. § 1983 against the City of Toledo

Police Department and Taylor for violations of decedent Sargent’s Fourth Amendment rights. The

district court granted summary judgment in favor of all defendants on grounds that no Fourth

Amendment violation occurred, Officer Taylor was protected by qualified immunity, and Sargent

failed to properly plead a § 1983 action against the Police Department.

                                                 II.

         We review a grant of summary judgment de novo. Farhat v. Jopke, 370 F.3d 580, 587 (6th

Cir. 2004). Summary judgment is appropriate when the evidence presents no genuine issue of

material fact and the non-moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c).

         We address Sargent’s claims first with respect to Taylor, and second with respect to the City

of Toledo Police Department. Sargent argues that Taylor violated Sargent’s Fourth Amendment

rights and therefore cannot claim the protection of immunity. Because the question of whether

Taylor may claim qualified immunity necessarily turns on whether Taylor committed a

constitutional violation, we analyze the two claims together. This court has recently approved the



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No. 04-4143

following two-step inquiry to determine if qualified immunity is available: (1) whether the facts,

taken in the light most favorable to the plaintiff, sufficiently establish a violation of a constitutional

right; and (2) if the facts do suggest a violation, whether the right at issue was clearly established.

Greene v. Barber, 310 F.3d 889, 893 (6th Cir. 2002) (citing Saucier v. Katz, 533 U.S. 194, 201-02

(2001)).

                                                  A.

        The Fourth Amendment, applicable to the states through the Fourteenth Amendment,

guarantees that the “right of the people to be secure in their persons, [and] houses . . . , against

unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon

probable cause.” U.S. CONST. amend. IV. The “basic purpose of this Amendment . . . is to

safeguard the privacy and security of individuals against arbitrary invasions by government

officials.” Camara v. Mun. Ct. of San Francisco, 387 U.S. 523, 528 (1967).

        Three distinct events occurred that could give rise to a Fourth Amendment violation: (1) the

officers’ entry into Sargent’s home; (2) the officers’ conversation with Sargent in his kitchen and

the subsequent pursuit; and (3) the use of deadly force to apprehend Sargent. Because different

alleged violations of the Fourth Amendment are governed by different analytical frameworks, we

analyze each claim individually.                   1.

        Except in limited circumstances, “a search of private property without proper consent is

‘unreasonable’ unless it has been authorized by a valid search warrant.” Camara, 387 U.S. at 528-

29. Furthermore, “searches and seizures inside a home without a warrant are presumptively

unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980). Thus, if officers enter a home



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No. 04-4143

without either a warrant or consent, the government “must overcome the presumption that this entry

was unreasonable.” United States v. Rohrig, 98 F.3d 1506, 1515 (6th Cir. 1996).

       Warrantless intrusions into the home, however, are justified in instances of “exigent

circumstances.” Id. Exigent circumstances arise when police are in hot pursuit of a fleeing felon,

when the potential destruction of evidence is imminent, when necessary to prevent a suspect’s

escape, and when a risk of danger is posed to the police or others in the community. Id. at 1519.

Yet the constitutional benchmark for Fourth Amendment searches and seizures is “reasonableness.”

Thus this court has extended the exigent circumstances exception, where reasonable, to allow police

officers to enter a residence without a warrant in order to locate and abate an ongoing community

nuisance. Id. at 1521. In Rohrig, we recognized that “the governmental interest in immediately

abating an ongoing nuisance by quelling loud and disruptive noise in a residential neighborhood is

sufficiently compelling to justify warrantless intrusions under some circumstances.” Id. at 1522

(emphasis added). Discerning whether and when such circumstances exist involves balancing the

claimant’s reasonable expectation of privacy at the time of the intrusion with the governmental

interest being served by the officers’ entry. See Katz v. United States, 389 U.S. 347, 351 (1967)

(delineating the bounds of one’s reasonable expectation of privacy). Undertaking such an

examination is unnecessary here, however, because we need not rest our conclusion that Taylor did

not commit a Fourth Amendment violation on the exigent circumstances exception, finding as we

do that no Fourth Amendment violation occurs when an officer follows a partner inside after the

partner has already entered the home.       Under those circumstances, the officer’s entry is

“reasonable.”



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No. 04-4143

       We disagree with Sargent’s argument that Taylor is vicariously liable for all of Whatmore’s

allegedly illegal actions. Certainly, supervisory officers who order a subordinate officer to violate

a person’s constitutional rights and non-supervisory officers present during a violation of person’s

civil rights who fail to stop the violation can be liable under § 1983. Smith v. Heath, 691 F.2d 220,

224-25 (6th Cir. 1982). Additionally, the supervising officer can neither encourage the specific act

of misconduct nor otherwise directly participate in it. Poe v. Haydon, 853 F.2d 418, 429 (6th Cir.

1988). Whether Whatmore committed a Fourth Amendment violation when he entered Sargent’s

home, Taylor is not vicariously liable for any alleged violation because there is no indication either

that Taylor ordered Whatmore to enter the house illegally or that Taylor knew that Whatmore

entered the home without consent. Thus, Taylor never ordered nor participated in a violation of

Sargent’s rights.

                                                  2.

       In order to establish a valid Fourth Amendment claim against Taylor for engaging Sargent

in conversation and for ordering him not to leave the room, Sargent must first show a seizure.

California v. Hodari D., 499 U.S. 621, 626 (1991). Hodari D. requires that police either physically

touched Sargent to restrain him or otherwise engaged in a show of authority that “in some way

restrained [Sargent’s] liberty,” and that Sargent submitted to such show of authority. Id. at 625-26

(quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968)). The Supreme Court has rejected the possibility

that a seizure occurs when an officer commands a fleeing suspect to stop. Id. at 626. The facts here

fail to establish that Sargent was seized. The fact that Sargent fled is proof that he never submitted




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No. 04-4143

to the show of authority. Id. at 628. Thus, Sargent was not seized and suffered no Fourth

Amendment injury when pursued.1

                                                 3.

      There is no question that Sargent was seized when Taylor shot him in the bedroom. See

Tennessee v. Garner, 471 U.S. 1, 7 (1985). However, Taylor can be liable under § 1983 only if his

seizure of Sargent was objectively unreasonable for employing excessive force. Ingram v. City of

Columbus, 185 F.3d 579, 596 (6th Cir. 1985). To determine whether excessive force was used, this

court must perform a “careful balancing act of the ‘nature and intrusion on the individual’s Fourth

Amendment interests’ against the countervailing governmental interests at stake.” Graham v.

Connor, 490 U.S. 386, 394 (1989) (quoting Garner, 471 U.S. at 8).

       In this case, the nature of the intrusion was severe. Sargent’s “ fundamental interest in his

own life need not be elaborated upon.” Garner, 471 U.S. at 9. This intrusion must be weighed

against the state’s interest. For this balancing, this court should consider “the severity of the crime

at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and

whether he is actively resisting arrest or attempting to evade arrest by flight.” Ingram, 185 F.3d at

596 (internal citations omitted). Even viewing all facts in the light most favorable to Sargent, Taylor

did not act unreasonably when he used deadly force against Sargent. Sargent was “attempting to

evade” Officer Taylor’s legitimate demands for identification by flight. He also appeared to be “an



       1
         Additionally, there was no seizure when Officer Taylor drew his weapon and kicked in the
closed door to the bedroom in which Sargent was hiding. At the time he kicked in the door, Taylor
was in hot pursuit of a fleeing suspect, and exigent circumstances warranted his actions. See United
States v. Morgan, 743 F.2d 1158, 1162 (6th Cir. 1984).

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No. 04-4143

immediate threat to the safety of the officers or others.” At the moment Taylor kicked in the door

to Sargent’s bedroom, he observed Sargent quickly turn toward him, gun in hand. Taylor stated that

he fired at Sargent because he immediately feared for his own safety. Further, there is no evidence

suggesting that Taylor shot Sargent for reasons other than self-defense. See Garner, 471 U.S. at 11

(sanctioning the use of deadly force where the officer has probable cause to believe that the suspect

poses a threat of serious physical harm). Therefore, Taylor’s action - motivated by the instinct to

preserve his own life - sufficiently balances against the admittedly severe intrusion in this case to

warrant a finding of reasonableness.

       For the reasons given above, none of Taylor’s actions constituted Fourth Amendment

violations against Sargent. Because Taylor did not violate Sargent’s Fourth Amendment rights, it

is unnecessary to consider whether he violated any established law. Accordingly, he is afforded

qualified immunity and the decision of the district court is affirmed.2

                                                 B.

       The claims against the City of Toledo Police Department fail for a number of reasons. First,

police departments are “merely sub-units of the municipalities they serve” and therefore are not


       2
         Petitioner also asserts a claim against Taylor under Ohio law for wrongful death. Taylor
is presumptively entitled to immunity, unless his actions were committed “with malicious purpose,
in bad faith, or in a wanton or reckless manner.” Ohio Rev. Code § 2744.03(A)(6)(b); see also
Fabrey v. McDonald Village Police Dep’t, 639 N. E. 2d 31, 35 (Ohio 1994) (summary judgment
appropriate where conduct that was “arguably negligent” does not rise to the level of wanton
misconduct). An officer’s conduct is wanton if he failed to “exercise any care whatsoever,” Fabrey,
639 N. E. 2d at 35, and the record is void of any evidence that suggests Taylor failed to “exercise
any care whatsoever.” Because the only evidence suggesting that Taylor acted in a reckless manner
was a proposed expert report from a police officer containing conclusory allegations of
recklessness, no genuine issue of material fact surrounds the state law claim and summary judgment
on the issue is affirmed.

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No. 04-4143

proper § 1983 defendants. Jones v. Marcum, 197 F. Supp. 2d 991, 997 (S.D. Ohio 2002). Second,

a municipality can be liable under § 1983 only if the municipality itself caused the constitutional

deprivation, Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978); it cannot be held liable on

the basis of respondeat superior. Id. The claim against the police department, resting solely on the

doctrine of respondeat superior, thus fails as a matter of law. Finally, no cognizable Monell claim

was pled in the complaint, a failure to train claim was pled improperly later in the proceedings . See

Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 306-07 (6th Cir. 2000) (determining that

plaintiff could not raise a § 1983 claim when only a Bivens action was alleged in the amended

complaint).

        Even if this court agreed to entertain the failure to train argument, it necessarily would fail

on the merits. A municipality can be liable for its failure to train police officers if the municipality

had a “deliberate indifference of the rights of its inhabitants” and such failure constituted the

“moving force behind the constitutional violation.” Sova v. City of Mt. Pleasant, 142 F. 3d 898, 904

(6th Cir. 1998) (citing City of Canton v. Harris, 489 U.S. 378, 379 (1989), and Monell, 436 U.S. at

694) (internal quotation marks omitted). Moreover, allegations that “a particular officer was

improperly trained are insufficient to prove liability, as are claims that a particular injury could have

been avoided with better training.” Id. (citing City of Canton, 489 U.S. at 390-91).

        AFFIRMED.




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