                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 13a0349p.06

                UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                   X
                             Plaintiff-Appellant, -
 CHARLES RUSSELL HOCKER,
                                                    -
                                                    -
                                                    -
                                                       No. 13-5341
             v.
                                                    ,
                                                     >
                                                    -
                                                    -
 PIKEVILLE CITY POLICE DEPARTMENT;
                                                    -
 ADDISON BAISDEN and CHADWICK
                                                    -
 BRANHAM, in their individual and official
                                                    -
                          Defendants-Appellees. N
 capacities,

                     Appeal from the United States District Court
                   for the Eastern District of Kentucky at Pikeville.
              No. 7:11-cv-00122—Edward B. Atkins, Magistrate Judge.
                                 Argued: October 10, 2013
                         Decided and Filed: December 17, 2013
     Before: BOGGS and SUTTON, Circuit Judges; CLELAND, District Judge.*

                                    _________________

                                         COUNSEL
ARGUED: Katherine L. MacPherson, Grand Rapids, Michigan, for Appellant. Russell
H. Davis, Jr., BAIRD AND BAIRD, Pikeville, Kentucky, for Appellees. ON BRIEF:
Katherine L. MacPherson, Grand Rapids, Michigan, for Appellant. Russell H. Davis,
Jr., BAIRD AND BAIRD, Pikeville, Kentucky, for Appellees.




        *
        The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.


                                               1
No. 13-5341        Hocker v. Pikeville City Police Dep’t                           Page 2


                                 _________________

                                       OPINION
                                 _________________

       SUTTON, Circuit Judge. A heavily intoxicated, possibly suicidal Charles
Hocker led two Pikeville police cruisers on a nighttime, lights-off, high-speed chase for
seven miles before pulling onto a darkened gravel road. A lot happened in the next few
seconds. Officers Addison Baisden and Chadwick Branham exited their cruisers with
guns drawn and ordered Hocker to show his hands and turn off his car. Maybe Hocker
heard the commands; maybe he didn’t. But no matter what Hocker heard, what he did
next is beyond dispute: He put his vehicle in reverse—accelerating quickly enough to
spin his tires—and rammed one of the two cruisers, moving it thirty feet. Baisden and
Branham opened fire on Hocker’s vehicle. Once the shooting ended, they forcibly
removed a severely wounded Hocker from his car. After pleading guilty to two counts
of wanton endangerment in the first degree, one count of fleeing or evading police in the
first degree, and one count of driving under the influence, Hocker sued the officers under
42 U.S.C. § 1983, claiming excessive force. The district court granted qualified
immunity to the officers and rejected the claims against the other defendants in the case:
the City of Pikeville and its police department. We affirm.

                                            I.

       After getting off work on August 13, 2010, Hocker drank a six-pack of
Budweiser “Tall Boy” beers, and at approximately 10:30 pm he drove to the home of his
on-again, off-again girlfriend Jessica Batten. A protective order, however, directed
Hocker not to go to Batten’s house. Batten called 911, reporting that Hocker was
“highly intoxicated” and “suicidal” and that he had just left her home in a red Honda.

       Officers Baisden and Branham saw a red Honda Prelude with its headlights off
speed past their two police cruisers. Hocker admits that the lights of his Prelude were
off, that he was traveling between 70 and 80 miles per hour, and that he passed at least
one civilian vehicle on the winding, narrow Hurricane Road. The officers gave chase.
No. 13-5341         Hocker v. Pikeville City Police Dep’t                             Page 3


Hocker denies seeing or hearing the officers—neither the headlights nor the red-and-blue
flashing lights nor the sirens of the two police cars directly behind him—during the
seven-mile pursuit. After driving this way for six minutes or so, Hocker admits that he
pulled off the main road into a gravel driveway and stopped.

        Hocker’s version of the next 25 seconds goes like this. He thought he was alone
on the gravel road, and he claims to have grabbed a CD from his backseat, put it in, and
turned the volume up before attempting to back out of the driveway. The engine on his
Prelude allegedly has a throttle defect that causes it to accelerate to 4,000 RPMs on its
own, so the car shot backwards when he put it in reverse, possibly spinning gravel and
most definitely running into Baisden’s cruiser. Hocker thought he had hit a telephone
pole, not a police cruiser, and the last thing he remembers is hearing shots (and possibly
feeling one round hit his left side) before blacking out.

        Officers Baisden and Branham add a few undisputed facts and another
perspective on these 25 seconds. After the three vehicles stopped on the gravel road,
Baisden and Branham turned off their sirens and exited their cruisers. Baisden “post[ed]
up” next to his cruiser, positioning himself between the cruiser’s body and his open
driver’s side door, and he ordered Hocker to show his hands and step out of his vehicle.
R. 33 at 8. Branham’s cruiser was parked somewhere to Baisden’s right, but Branham
moved on foot to his left to join Baisden. The collision between the Prelude and
Baisden’s cruiser caused Baisden’s open door to swing closed, temporarily trapping his
arm. Baisden was forced to backpedal as Hocker’s Prelude pushed the cruiser some
thirty feet toward a ditch. Seeing that Baisden was trapped and backpedaling—and
backpedaling himself to avoid “the vehicle coming back on [him]”—Branham decided
he “had to do something.” R. 36 at 10–11. He moved further to his left to avoid
Baisden’s vehicle, and, once he had an angle on Hocker’s car, Branham opened fire.
Baisden soon freed himself from the door and fired shots at the Prelude as well. Where
exactly Baisden and Branham stood when they fired their weapons is not clear, but based
on the location of the spent shell casings recovered at the scene, it seems that the officers
fired from positions to the left of Baisden’s cruiser and Hocker’s Prelude.
No. 13-5341         Hocker v. Pikeville City Police Dep’t                            Page 4


        In all, the officers fired twenty shots at Hocker’s vehicle, hitting Hocker nine
times. Hocker blacked out shortly after the shooting started and vaguely remembers
“somebody grabbing [him].” R. 35 at 34. When the shooting stopped, the officers
opened Hocker’s door and ordered him out of the vehicle. When Hocker did not
comply, the officers reached into the vehicle and pulled him out, Branham grabbing
Hocker’s left arm, and Baisden grabbing Hocker’s right, “which was still grasping the
steering wheel.” R. 33 at 40. After the officers removed Hocker from the car, they
handcuffed him and waited for additional police officers and medical personnel to arrive.
Hocker was stabilized at a Pikeville medical center and transported to a West Virginia
hospital for additional treatment, where he woke up with “bruises all over [his] neck.”
R. 35 at 35.

        A Pike County grand jury indicted Hocker for two counts of attempted murder,
one count of fleeing or evading police in the first degree, one count of operating a motor
vehicle while intoxicated, and one count of being a persistent felony offender in the first
degree. Before trial, Hocker pleaded guilty to two counts of wanton endangerment in
the first degree, one count of fleeing or evading police in the first degree, and one count
of driving under the influence. The court sentenced Hocker to ten years in prison.

        In August 2011, Hocker filed a lawsuit against Baisden, Branham, the City of
Pikeville and its police department under § 1983, alleging violations of the Fourth (and
Fourteenth) Amendment as well as several state laws. The district court granted
summary judgment for the defendants on all the federal claims and dismissed the state-
law claims without prejudice.

                                            II.

        The facts of this chase, seizure and use of force provide a partial explanation for
the district court’s decision to reject Hocker’s excessive-force claims against the officers
under the Fourth Amendment. The legal test for piercing the qualified immunity of
officers protecting the public safety provides a complete one. Unless the officers’
conduct violated Hocker’s constitutional rights, and unless Supreme Court or Sixth
No. 13-5341         Hocker v. Pikeville City Police Dep’t                             Page 5


Circuit case law clearly established those constitutional rights at the time of the incident,
the court must grant immunity to the officers. Hocker fails the first prong because he
cannot show a constitutional violation.

        No doubt the use of deadly force by police officers is a serious matter and ought
to be avoided—but not at all costs and not in all situations. The question is why and to
what end the police deployed the force. Two cases capture the point, one finding a
Fourth Amendment violation, one not. Tennessee v. Garner, 471 U.S. 1 (1985),
considered whether an officer could prevent an unarmed felon’s escape by shooting him.
In holding that he could not, the Court applied the Fourth Amendment reasonableness
test to find that deadly “force may not be used unless it is necessary to prevent the
escape [of an apparently unarmed suspected felon] and the officer has probable cause to
believe that the suspect poses a significant threat of death or serious physical injury to
the officer or others.” Id. at 3. Scott v. Harris, 550 U.S. 372, 383–86 (2007), followed
this path. It applied the same Fourth Amendment reasonableness standard to grant relief
to a police officer who had ended a high-speed chase by running the suspect’s vehicle
off the road.

        Gauged by this reasonableness standard, the officers did not use excessive force.
Heavily intoxicated and possibly suicidal, Hocker led Baisden and Branham on a high-
speed (70 to 80 miles per hour), nighttime chase (without his headlights on) down a
winding back road, imperiling the safety of anyone driving in Hocker’s vicinity.
Hocker’s guilty plea confirms as much. He pleaded guilty to two counts of wanton
endangerment in the first degree, meaning that he “engage[d] in conduct which creates
a substantial danger of death or serious physical injury to another person.” Ky. Rev.
Stat. § 508.060(1). What happened next—after Hocker mercifully stopped—confirmed
the reasonableness of the officers’ use of their weapons. Hocker rammed Baisden’s
cruiser while Baisden was standing behind the cruiser’s open door, pushing the car thirty
feet. The collision temporarily trapped Baisden’s arm between the door and the body
of the cruiser. Branham was forced to backpedal to avoid Baisden’s sliding cruiser, at
one point using his left arm to keep the cruiser away from him. Only after these direct
No. 13-5341         Hocker v. Pikeville City Police Dep’t                            Page 6


risks to their own safety did both officers fire at Hocker’s vehicle. The officers’
responses to the escalating risks created by Hocker’s actions are precisely the kinds of
“split-second judgments—in circumstances that are tense, uncertain, and rapidly
evolving”—that they may, sometimes must, take in the line of duty. Graham v. Connor,
490 U.S. 386, 397; see Garner, 471 U.S. at 20.

        In addition to Garner and Scott, Sixth Circuit case law supports this use of force.
Consider Smith v. Freland, 954 F.2d 343 (6th Cir. 1992). An officer chased a suspect
at high speed, eventually cornering the suspect’s vehicle on a lawn on a residential street.
Attempting to remove the suspect from his car, the officer left his cruiser and moved
around the cruiser’s rear. As he did so, the suspect sped forward and smashed into the
cruiser. When the suspect tried to maneuver past the damaged cruiser and escape, the
officer shot and killed the suspect. Id. at 344. We held that the officer’s use of deadly
force was reasonable, even though the officer himself was never in immediate danger
and even though the use of force arguably violated police policy. See id. at 347–48.
Consider, too, Williams v. City of Grosse Pointe Park, 496 F.3d 482 (6th Cir. 2007).
Two police cruisers boxed in a fleeing vehicle. The plaintiff put his vehicle in reverse,
colliding with the cruiser to his rear. One officer on foot approached the driver’s side
window of the plaintiff’s vehicle and was knocked down when the vehicle accelerated
away. The second officer fired several shots at the escaping vehicle, striking the plaintiff
in the neck and paralyzing him. Id. at 484. The officer’s use of deadly force, we held,
was objectively reasonable. Id. at 486.

        Hocker argues that this approach fails to look at the facts in the most favorable
light to him. Yet it makes no difference that Hocker may not have intended to hurt the
officers, that he may not have known the officers were trailing him, and that he may not
have heard the officers insist he exit the car. The question is not Hocker’s state of mind.
It is whether a reasonable officer could perceive Hocker’s actions as so dangerous as to
warrant the force used. Hocker’s un-communicated intent in driving the way he did in
short has nothing to do with it.
No. 13-5341          Hocker v. Pikeville City Police Dep’t                              Page 7


        Hocker adds that, by the time Baisden and Branham fired at his vehicle, neither
one of them was in harm’s way, eliminating any need to use lethal force against him.
It is not that easy, particularly in the context of the lightning-quick evolution of this
encounter. It is undisputed that neither officer knew where the other one was when they
began firing. That one officer was safe does not mean the other one was. This reality
by itself justified the officers’ conduct. While it may be easy for Hocker to say that each
officer was safe once the officer was no longer in the direct path of Hocker’s vehicle, no
reasonable officer would say that the night’s peril had ended at that point. Hocker
remained in the car, and for the prior ten minutes or so—from the officers’ reasonable
perspective—had put others, including most recently the officers, in harm’s way with
his car. What in that short time span would leave anyone with the impression that
Hocker no longer presented a threat to their safety? He remained in the car, and the car
engine remained on. Only Hocker’s self-restraint stood in the way of further threats to
their safety. From the officers’ reasonable perspective, the peril remained.

        Hocker maintains that, whenever an officer fires at the driver’s side of a moving
(and potentially departing) vehicle, he acts unreasonably. But this is an invention. No
case adopts such a per se rule. If there is a per se rule in this area, it is that the “totality
of the circumstances” governs every case. Garner, 471 U.S. at 8–9. Hocker’s three
case citations say nothing to the contrary. One case never reached the reasonableness
question. See Sigley v. City of Parma Heights, 437 F.3d 527, 536 (6th Cir. 2006). In the
other two cases, the court acknowledged that there are many factors at play when
deciding the reasonableness of an officer’s use of deadly force, including not just
“whether the suspect poses an immediate threat to the safety of the officers or others,”
but also “the severity of the crime at issue,” “whether [the suspect] is actively resisting
arrest or attempting to evade arrest by flight,” Smith v. Cupp, 430 F.3d 766, 774 (6th
Cir. 2005), and whether the officers “had sufficient time . . . to assess the situation
before” using deadly force, Estate of Kirby v. Duva, 530 F.3d 475, 482 (6th Cir. 2008).
Just so here. For the reasons just given, the officers acted reasonably as a matter of law
based on these considerations.
No. 13-5341         Hocker v. Pikeville City Police Dep’t                             Page 8


        The evidence supplied by Hocker’s proposed expert witness—a three-page
affidavit to the effect that deadly force was unnecessary—does not alter this conclusion.
There is some dispute as an initial matter whether this testimony made it into the record.
Defendants filed a motion to exclude this testimony, arguing that it did not meet several
district-court requirements (the testimony did not indicate the expert’s qualifications, and
the expert’s name was not disclosed by the court-ordered deadline), but the court issued
its opinion before ruling on the motion. Because the district court discussed the expert
report, we see no harm in doing the same.

        Hocker’s expert concludes that the officers’ use of force was “premature and
. . . not justifiable” because Hocker had not committed anything more than a class A
misdemeanor and because typical police training would counsel against the use of such
force. R. 42-14 at 3. The expert’s first premise is wrong. Hocker pled guilty to wanton
endangerment in the first degree and fleeing or evading in the first degree, class D
felonies all. See Ky. Rev. Stat. §§ 508.060(2), 520.095(2). Having witnessed Hocker’s
class D felonies during the chase and having been subjected to Hocker’s endangerment
to them during the ramming incident, the officers surely did not act prematurely in
bringing the encounter to a halt. The expert’s second premise is also wrong. That
deadly force from time to time violates standard police training does not by itself answer
the liability question. In a § 1983 case, “the issue is whether [the officers] violated the
Constitution, not whether [they] should be disciplined by the local police force.” Smith,
954 F.3d at 347. The key assumption of the expert is that the officers were safe once
they moved out from behind his car. But that assumes Hocker was finished using his
Honda Prelude as a weapon. The officers had a reasonable basis for assuming he was
not.

        Nor did the officers use excessive force when they removed Hocker from the
vehicle. As with the lethal-force inquiry, we look at the objective reasonableness of the
officer’s conduct in light of the facts and circumstances at the scene, including “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
No. 13-5341         Hocker v. Pikeville City Police Dep’t                            Page 9


arrest by flight.” Graham, 490 U.S. at 396. And as with the lethal-force analysis,
Hocker comes up short—for many of the same reasons.

        After drawing all reasonable inferences in Hocker’s favor, the undisputed facts
show that Baisden and Branham acted reasonably in removing Hocker from the car.
When the officers approached Hocker’s vehicle, they opened the door and found a
wounded man screaming profanities and grasping the steering wheel. Hocker did not
comply with the officers’ commands to exit the vehicle, and as a result they forcibly
removed him from the car.

        Hocker’s contrary arguments are unconvincing. He relies on Martin v. City of
Broadview Heights, 712 F.3d 951 (6th Cir. 2013), but it offers him no aid. Four police
officers tackled, punched, choked, kneeled on and handcuffed a naked individual who
had entered (and left) an apartment, who was “speaking quickly and nonsensically,” and
who bit one of the responding officers on the knuckle. Id. at 954–55, 958. The young
man died after the confrontation. Id. at 955. The use of lethal force in response to the
one (biting an officer’s knuckle) offers no meaningful parallel to the other (ramming an
officer’s cruiser with a vehicle after a high-speed chase). A more useful parallel is
provided by Blosser v. Gilbert, 422 F. App’x 453 (6th Cir. 2011), which found it
objectively reasonable for two police officers—who had followed the plaintiff in a high-
speed chase—to forcibly pull the plaintiff from his vehicle, “slam[]” him onto his back
on the hood of a police car, and secure him by executing several arm-twisting
maneuvers. Id. at 455, 458. The “dangerousness” of the plaintiff’s driving and his
“disregard for safety and willingness to use his vehicle as a weapon” justified the
officers’ belief that the plaintiff posed a continuing, immediate threat to their safety and
the safety of others. Id. at 458; see also Dunn v. Matatall, 549 F.3d 348, 353–55 (6th
Cir. 2008) (forcibly removing a suspect from his vehicle following a high-speed chase
does not violate the Fourth Amendment).

        Nor does Diane Meade’s testimony require a different outcome. If one reviewed
only Hocker’s opening brief, one might wonder if Baisden and Branham crossed the
excessive-force line when removing Hocker from his vehicle. It says that Hocker was
No. 13-5341          Hocker v. Pikeville City Police Dep’t                             Page 10


“dragged . . . out of the car . . . punch[ed] and kick[ed] . . . while he continued to bleed
profusely from his gunshot wounds.” App. Br. at 16. But this is not a fair reading of
Meade’s testimony. Far from “dragg[ing]” Hocker out of the vehicle, Meade testifies
that she never saw Hocker outside the car. See R. 38 at 40. And Meade expressly
disavows seeing anybody kick Hocker. Instead, Meade’s testimony says only that she
saw two officers standing on either side of Hocker’s open driver’s side door “pulling,”
see, e.g., id. at 43, “grabbing,” see, e.g., id. at 42, 43, and “hitting,” see, e.g., id. at 44,
Hocker. Other uncontroverted testimony puts these actions in context. Baisden states
that Hocker was “still grasping the steering wheel,” despite being ordered to exit the
vehicle, R. 33 at 40; Branham states that Hocker was screaming profanities at the
officers; both officers say that they had to use some force to remove Hocker from his
vehicle; and Hocker says that he might “vaguely remember somebody grabbing” him,
but he isn’t sure, R. 35 at 34–35. These descriptions do not suffice to establish a
cognizable claim of excessive force, much less a clearly established one.

        Hocker claims that two pictures show he obtained bruises on his neck from the
encounter. While Hocker doesn’t remember anything that happened after the shooting,
he speculates that the bruises came from being “grabbed . . . out of the car by [his] neck”
or “choke[d] . . . on the ground.” Id. at 35. But his supposition of how he obtained the
bruises does not create a genuine dispute of material fact that supports his claim. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The pictures show only faint
bruises obtained at some point during the encounter—not why or how they occurred.
No jury could reasonably find a Fourth Amendment violation based on this self-serving
interpretation of the evidence by someone who did not remember what had happened.

        Hocker adds that video clips recorded by an onlooker in the incident’s aftermath
might have shown “the beating.” App. Br. at 28. But the only evidence in the record
belies this claim. According to the testimony of Detective Jason Merlo, the Kentucky
State Police officer who investigated the incident, a local man approached the crime
scene at some point after the incident with a cell phone or video recording device in
hand. The man took videos of the crime scene, but Merlo gave the man a choice: either
No. 13-5341         Hocker v. Pikeville City Police Dep’t                           Page 11


consent to the deletion of the videos, or the recorder could be taken into evidence. The
man allowed the videos to be deleted. Hocker claims that the district court should have
issued a spoliation instruction in any future trial as a result. But such instructions are
only appropriate where “the destroyed evidence [is] relevant to the party’s claim or
defense.” Jennings v. Bradley, 419 F. App’x 594, 599 (6th Cir. 2011). And we fail to
see how video recordings of the post-chase, post-collision, post-shooting, post-
apprehension, post-everything crime scene bear on Hocker’s Fourth Amendment claims.
They do not suffice to take the case to a jury.

                                            III.

        Hocker filed direct and indirect claims against Pikeville and its police
department: direct, because several counts in Hocker’s complaint allege government
liability for the actions of its police officers; and indirect, because Hocker brought claims
against Baisden and Branham in their official capacities, which is just “another way of
pleading an action against [the] entity of which [the] officer is an agent.” Kentucky v.
Graham, 473 U.S. 159, 165–66 (1985). The district court properly rejected these claims
as a matter of law for one basic reason: No constitutional violation occurred. See City
of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam).

                                            IV.

        For these reasons, we affirm.
