                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 06a0056p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                     X
                                Plaintiff-Appellant, -
 PEGGY SIGLEY,
                                                      -
                                                      -
                                                      -
                                                          No. 05-3055
           v.
                                                      ,
                                                       >
 CITY OF PARMA HEIGHTS, et al.,                       -
                            Defendants-Appellees. -
                                                     N
                      Appeal from the United States District Court
                     for the Northern District of Ohio at Cleveland.
                   No. 03-00595—Donald C. Nugent, District Judge.
                                         Argued: October 25, 2005
                                 Decided and Filed: February 10, 2006
     Before: KEITH and BATCHELDER, Circuit Judges; OBERDORFER, District Judge.*
                                            _________________
                                                 COUNSEL
ARGUED: Nicholas A. DiCello, SPANGENBERG, SHIBLEY & LIBER, Cleveland, Ohio, for
Appellant. John T. McLandrich, MAZANEC, RASKIN & RYDER, Cleveland, Ohio, for Appellee.
ON BRIEF: Nicholas A. DiCello, Dennis R. Lansdowne, Peter J. Brodhead, SPANGENBERG,
SHIBLEY & LIBER, Cleveland, Ohio, for Appellant. John T. McLandrich, James A. Climer, Frank
H. Scialdone, MAZANEC, RASKIN & RYDER, Cleveland, Ohio, for Appellee.
    KEITH, J., delivered the opinion of the court, in which OBERDORFER, D. J., joined.
BATCHELDER, J. (pp. 11-12), delivered a separate dissenting opinion.
                                            _________________
                                                OPINION
                                            _________________
        DAMON J. KEITH, Circuit Judge. This is a 42 U.S.C. § 1983 action for the use of deadly
force arising out of Detective Wayne Mockler’s (“Mockler”) fatal shooting of Daniel P. Davis, dec’d
(“Davis”) in the back, as he was attempting to flee an undercover drug bust. Plaintiff-Appellant
Peggy Sigley (“Sigley” or “Plaintiff”), Davis’ mother and the administratix of Davis’ Estate, sued
the City of Parma Heights and Mockler asserting constitutional claims under 42 U.S.C. § 1983 and
supplemental claims under the Ohio constitution and Ohio tort law. After discovery, the district

        *
          The Honorable Louis F. Oberdorfer, United States District Judge for the District of Columbia, sitting by
designation.


                                                        1
No. 05-3055           Sigley v. City of Parma Heights, et al.                                 Page 2


court entered summary judgment in favor of the Defendants holding that Mockler acted reasonably,
as a matter of law. Sigley appealed. The central issue on appeal is whether the district court erred
when it granted Defendants’ motion for summary judgment holding that there were no genuine
issues of material fact and that the Defendants were entitled to a judgment as a matter of law on
Plaintiff’s Fourth Amendment excessive force claim. We find there are genuine issues of material
fact regarding whether Davis posed a significant threat of death or serious injury to Mockler or
others. For the foregoing reasons, we REVERSE the district court’s granting of summary judgment
and REMAND for trial on Sigley’s federal constitutional claims.
I.     BACKGROUND
        In 2001, the Parma Heights Police Department (“Parma Heights” or “police department”)
began investigating Davis, who was thought to be a high-level ecstasy dealer in Parma Heights. The
investigation began when the police found Matthew Benedict (“Benedict”) in possession of ecstasy,
which he obtained from Davis. The police asked Benedict to become a confidential informant and
cooperate in a controlled buy-bust operation to arrest Davis.
        In February 2002, Davis contacted Benedict to tell him that he had ecstasy for sale. At the
urging of the police, Benedict arranged a controlled purchase of five hundred dollars worth of
ecstasy pills from Davis. Benedict agreed to meet Davis on March 9, 2002, in the parking lot behind
Topps Bar and Grill in Parma Heights.
        On March 9, 2002, Mockler assembled a team of six Parma Heights police officers to assist
in the undercover operation. The plan was to position Benedict’s vehicle in the parking lot behind
Topps Bar and Grill and wait for Davis to arrive. Before the controlled bust, Davis called Benedict
and expressed concerns over meeting in Parma Heights. Following some negotiations regarding
where the meeting should take place, Davis finally agreed to meet Benedict in the parking lot behind
Topps Bar and Grill.
        Benedict arrived on the scene at approximately seven o’clock p.m. When Benedict arrived,
Davis was already parked in the lot, preventing the police from selecting the precise location for
the transaction. Patrolman Jackson, an undercover officer, was riding in the Jeep with Benedict.
Patrolman Jackson was wearing a concealed recording device.
        When Benedict parked, his vehicle and Davis’ vehicle were facing in opposite directions and
positioned so that their drivers’ side windows were side-by-side and about three feet apart. Benedict
and Davis exchanged five hundred dollars in cash, and a black film cannister containing twenty-five
ecstasy pills. When the transaction was complete, Patrolman Jackson signaled the other officers to
arrest Davis.
        Two unmarked police cars pulled up to block Davis’ vehicle. One car was driven by
Detective Scharschmidt and Patrolman Mehlman (“Mehlman”) was a passenger. They pulled their
car behind Davis’ vehicle. Mehlman told Scharschmidt to stop the vehicle short of blocking Davis’
vehicle because Benedict’s headlights were blinding him. Mockler drove the other car, which
blocked Davis. In short, Detectives Scharschmidt and Mockler attempted to box in Davis to prevent
him from escaping from the parking lot. Officers Walls and Kravanis were driving marked police
cruisers that blocked the ingress and egress to the parking lot.
        When the police cars came to a stop, Patrolman Mehlman exited his car and approached the
passenger side of Davis’ vehicle. Mockler exited his vehicle with his weapon drawn. He positioned
himself in front of Davis’ car, between his vehicle and Davis’ vehicle. Mockler and Mehlman, both,
dressed in plain clothes, identified themselves. Mehlman yelled “Parma Heights police,” “stop
police,” and “you’re under arrest.” Davis began to yell “it’s a bust” and attempted to flee the scene.
(J.A. at 130, 135).
No. 05-3055           Sigley v. City of Parma Heights, et al.                                 Page 3


       Davis backed his car up enough to pull out of his current position and free himself from the
block created by Mockler and Scharschmidt’s vehicles. While backing up, Davis’ car made contact
with Mehlman’s hand. Mehlman stated that he sustained a bruise for which he was given an ice
pack. (J.A. at 213).
       The remaining facts in this case are highly disputed.
       A.      Mockler’s Version of the Facts
        Mockler claims that he was standing directly in front of Davis’ car, with his gun drawn,
before Davis started to reverse and accelerate. (J.A. at 136-37). As the car began to reverse, Officer
Mockler allegedly stepped east to realign himself with the vehicle and position himself to fire upon
the vehicle if it continued to back up and pose a serious risk to the officers behind Davis’ vehicle.
(J.A. at 136).
       Davis, however, stopped his backward movement and accelerated quickly forward. In his
deposition, Mockler later testified that he began running east, with his back to Davis’ car, to a
nearby fence at the edge of the parking lot to avoid Davis’ vehicle. (J.A. at 137, 140). He alleges
that when he began running, he was in front of Davis’ vehicle. His focus was on getting to safety
and avoiding the danger of Davis’ vehicle. He claims he wanted to get to the fence to avoid Davis
and put the action in front of him.
        Mockler realized he could not make it to the edge of the lot quickly enough to avoid the
vehicle. Davis’ vehicle was on top of him and turning into his path. Mockler claims that this put
him in danger of being hooked by the vehicle. (J.A. at 141). Mockler estimates that Davis’ vehicle
was traveling at approximately 30 to 40 m.p.h.. (J.A. at 142). Mockler fired one shot, as the car was
swerving into him. At the time the shot was fired, Davis was leaning into the steering wheel toward
the passenger’s side, away from Mockler. (J.A. at 143).
         Mockler indicated that as he fired, he “jumped out of the way, pulled one round, just jumped
out of the way and twisted.” (J.A. at 144). He claimed that he was jumping back and twisting in
the air at the same time. He stated that he fired through Davis’ open driver’s side window and did
not have time to aim. Mockler believed that if he had not fired, he would have been run over,
sucked under the car and killed, and alleges that he fired in self-defense. (J.A. at 121, 133).
        Mockler also alleges that Officer Kravanis, who was approaching the scene to effectuate the
arrest, was in danger of being rammed by Davis’ speeding vehicle in his effort to escape. (J.A. at
241).
       B.      Sigley’s Version of the Facts
        In the Plaintiff’s version of the facts, she contends that Mockler chased after her son as he
drove away from the scene, pointed his gun down into Davis’ open driver’s side window, and shot
him in the back. (J.A. at 326) (Plaintiff’s Br. at 4).
        Specifically, Plaintiff alleges that Mockler sprang from his vehicle with his weapon drawn
and moved to the area near his unmarked vehicle’s front right headlight. (J.A. at 135, 136). Davis
backed up and repositioned his vehicle so that he could travel forward (East/Northeast) and drive
around Mockler and his vehicle. As Davis’ car passed him, Mockler shot Davis in the back though
his open driver’s side window. (J.A. at 145). In his deposition, Mockler recounted that “And the
car’s [sic] going past me, and I’m just coming up and fired.” (J.A. at 144). Mockler was less than
two and one half feet from the car. (J.A. at 82).
No. 05-3055           Sigley v. City of Parma Heights, et al.                                   Page 4


        Immediately after the shooting, the police took a statement from Benedict. In his deposition
explaining his statement, Benedict stated “whoever it was . . . who pointed a weapon down and into
the window and when you heard a pop was running alongside of the Davis vehicle.” (J.A. at 330-
331). Benedict testified that the only thing he was unsure of was which officer was alongside Davis’
car. (J.A. at 91). He stated that prior to the officer firing that it “appeared that he was off towards
his driver’s side, maybe a little bit behind.” (J.A. at 95). Benedict further stated that “[Davis]
paused for about a second and then stepped on the pedal and swerved off to the right and tried to get
around a couple of officers.” (J.A. at 89).
        The autopsy revealed that Davis was shot in his mid-back, just left of the midline. (J.A. at
396). Upon being shot, Davis immediately lost control of his car and crashed into several parked
cars located just several feet away. Davis died of exsanguination as a result of the gunshot wound.
II.    PROCEDURAL HISTORY
        On March 5, 2003, Plaintiff Sigley filed her complaint against the City of Parma Heights,
Police Chief Michael Mlecik, Detective Wayne Mockler, and Detective Steve Scharschmidt in Ohio
state court. Later all defendants were dismissed except for the City and Mockler. Sigley brought
a 42 U.S.C. § 1983 claim alleging Fourth Amendment violations, and other state law claims,
including negligent and intentional shooting, assault and battery, failure to train under the Fourth
Amendment, and wrongful death. Plaintiff alleged that the Defendants, acting under the color of
state law, violated Davis’ Fourth Amendment right to be free from excessive and deadly force.
         On April 2, 2003, the case was removed to federal court. After discovery closed, on
August 9, 2004, Defendants filed a motion for summary judgment. On December 17, 2004, the
district court granted Defendants’ motion for summary judgment. The district court determined that
the main issue was whether the police officers’ actions were reasonable. The court acknowledged
that “[i]t has taken days upon days to attempt to re-create some overall picture of the events as they
happened that night. Witnesses, experts, and attorneys have all attempted to isolate literally
hundreds of distinct factors, actions, thoughts, and assumptions that occurred during the relevant
four and a half seconds.” The court further found that “there was no evidence to contradict
Detective Mockler’s testimony that he believed he was in imminent danger of death at the time he
fired his gun, or that the car was veering toward him when he decided to shoot.” The court reasoned
that “we do know that Mr. Davis’ actions were reckless and dangerous and that he had every
opportunity to submit to the police and avoid his own death.” The court concluded that “no jury
could find that Detective Mockler’s fear of being hit and his consequential use of force were
unreasonable.” (J.A. at 835).
       On December 23, 2004, Plaintiff filed a timely notice of appeal with this Court.
III.   ANALYSIS
        On appeal, Plaintiff argues that the district court improperly granted summary judgment and
that there are genuine issues of material fact regarding her (1) Fourth Amendment excessive force
claim; (2) qualified immunity claim; (3) failure to train claim; and (4) state law claims. In this case,
there are several factual disputes critical to determining liability, which preclude Defendants’ motion
for summary judgment. Specifically, there are material factual disputes regarding: whether Mockler
was chasing after Davis’ car or the car was turning into him when he fired and whether Mockler had
probable cause to believe that Davis posed a significant threat of death or serious physical injury to
others.
       This Court reviews the district court’s granting of summary judgment de novo. This Court
reviews the question of whether officers violated an arrestee’s Fourth Amendment right to be free
from excessive force de novo, applying the same summary judgment standard as the district court.
No. 05-3055           Sigley v. City of Parma Heights, et al.                                  Page 5


Dunigan v. Noble, 390 F.3d 486, 491 (6th Cir. 2004). This Court views the evidence in a light most
favorable to the plaintiff. Under this standard, the mere existence of some factual dispute will not
frustrate an otherwise proper summary judgment. Id. at 491-492 (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986)). The Court must “not determine whether there is literally no
evidence, but whether there is any fact upon which a jury could properly proceed to find a verdict
for the party producing it upon whom the onus of proof is imposed.” Id. (emphasis added).
       The summary judgment order of the district court should be affirmed if “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavit, if any,
show that there is no genuine issue as to any material fact and the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). Celotex Corp. v. Catrett, 477 U.S. 317 (1986),
Johnson v. Karnes, 398 F.3d 969, 873 (6th Cir. 2005); see also Sova v. City of Mount Pleasant, 142
F.3d 898, 902 (6th Cir. 1998) (stating that summary judgment is inappropriate where there are
contentious factual disputes over the reasonableness of the use of deadly force).
        In Anderson, the Supreme Court stated that “[a]s to materiality, the substantive law will
identify which facts are material. Only disputes over fact that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment. Factual disputes
that are irrelevant or unnecessary will not be counted.” 477 U.S. at 248. The disputed evidence
must be such that a reasonable jury could return a verdict for the nonmoving party. Id.
       A.      Fourth Amendment Excessive Force
        The Plaintiff alleges that the Defendants, acting under the color of state law, violated Davis’
Fourth Amendment right to be free from an unreasonable seizure when they shot Davis in the back
resulting in his death. In granting summary judgment for Mockler, the district court stated as a fact
that “[Davis] turned the car into Detective Mocker’s [sic] path either knowingly or recklessly.”
Dist. Ct. Op. at 15. On appeal, the Plaintiff contends that the district court misapplied the standard
for summary judgment by accepting the Defendants’ version of events over the Plaintiff’s allegation
that Davis was simply trying to escape and that Detective Mockler was chasing after him when he
shot him in the back through the open driver’s side window. The Defendants recognize that the
district court’s decision to grant summary judgment rested on its decision to accept as true
Mockler’s testimony that Davis’ car was turning into him when he fired. However, they contend
that summary judgment was nonetheless appropriate because the Plaintiff failed to produce any
evidence to support its theory that Mockler was chasing after Davis when he fired. We disagree.
        To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when construed
favorably, establish (1) the deprivation of a right secured by the Constitution or laws of the United
States (2) caused by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48
(1988); Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994). The second prong is satisfied.
Accordingly, we must determine whether there is a factual dispute regarding whether there Davis
was deprived of his Fourth Amendment right to be free from deadly excessive force.
         The Supreme Court has stated that “all claims that law enforcement officers have used
excessive force –deadly or not– in the course of an arrest, investigatory stop, or other ‘seizure’ of
a free citizen, should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”
Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis in original). Under this standard, the use
of deadly force is only constitutionally reasonable if “the officer has probable cause to believe that
the suspect poses a threat of serious physical harm, either to the officer or others.” Tennessee v.
Garner, 471 U.S. 1, 11 (1985).
       The Supreme Court has stated that:
No. 05-3055            Sigley v. City of Parma Heights, et al.                                     Page 6


        The use of deadly force to prevent the escape of all felony suspects, whatever the
        circumstances, is constitutionally unreasonable. It is not better that all felony
        suspects die than that they escape. Where the suspect poses no immediate threat to
        the officer and no threat to others, the harm resulting from failure to apprehend him
        does not justify the use of deadly force to do so . . . . A police officer may not seize
        an unarmed, non-dangerous suspect by shooting him dead. . . .
Garner, 471 U.S. at 11-12; see also Sample v. Bailey, 409 F.3d 689, 697 (6th Cir. 2005) (stating that
“only in rare instances may an officer seize a suspect by use of deadly force.”) (citation omitted).
        This Court has used the following factors to evaluate whether an officer’s actions are
reasonable: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat
to the safety of the officers or others; and (3) whether the suspect is actively resisting arrest or
attempting to evade arrest by flight. Dunigan, 390 F.3d at 492 (quoting Graham, 490 U.S. at 396).
        “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a
reasonable officer of the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S.
at 396. Further, “the calculus of reasonableness must embody allowance for the fact that police
officers are often forced to make split –second judgments– in circumstances that are tense, uncertain,
and rapidly evolving – about the amount of force that is necessary in a particular situation.” Id. at
396-97. “[T]he test of reasonableness under the Fourth Amendment is not capable of precise
definition or mechanical application, however, its proper application requires careful attention to
the facts and circumstances of each particular case.” Graham, 490 U.S. at 396 (citing Garner, 471
U.S. at 8-9 (stating that the question is whether the totality of the circumstances justifies a particular
sort of seizure)).
        The main issue is whether Davis posed an immediate threat to Mockler and the safety of
others on the night of the shooting. It is clear from the record and the parties’ briefs that each side
has assigned different degrees of significance to various factors and has come to different
conclusions as to what are reasonable inferences arising from the facts.
         Plaintiff asserts that Mockler was chasing behind Davis’ car and was in no immediate danger
to himself or others. Plaintiff repeatedly asserts that the shooting of her son in the back creates a
genuine issue of material fact regarding whether Mockler was in any immediate danger. In support
of her argument, Plaintiff cites to Benedict’s written and oral statements right after the shooting.
After the shooting, Benedict admitted that he “saw Detective Mockler run at the driver’s window
and point his pistol down in the window and . . . heard a gunshot.” (J.A. at 82). Benedict also
testified that Davis drove in a manner to avoid officers on the scene. (J.A. at 98). He specifically
stated that Davis “paused for about a second and then swerved off to the right and tried to get around
a couple of the officers.” (J.A. at 89).
        Further, the Plaintiff alleges that Defendant Mockler was in a position of relative safety
before he allegedly ran for the “safe harbor” of a chain link fence bordering the east side of the
parking lot. The Plaintiff relies on Estate of Starks v. Enyart, 5 F.3d 230 (7th Cir. 1993) to support
this argument. In Enyart, the Seventh Circuit held that the use of deadly force is constitutionally
impermissible where the officer in question unreasonably creates the encounter that ostensibly
permits its use. Id. In Enyart, the officer stepped in front of the car leaving the decedent no time
to brake. The court stated that determining whether the officer placed himself in danger is a factual
inquiry that should be resolved by the factfinder. The court found that “the threat of danger must
be willful in order to warrant deadly force in response. . . . The police are not justified in using
deadly force to stop involuntary action.” Id. at 235. In this case, Benedict admitted in his written
statement that he did not state that Davis was trying to run over Mockler at the time he fired his gun.
(J.A. at 88). He specifically stated that “whoever it was . . . who pointed a weapon down and into
No. 05-3055               Sigley v. City of Parma Heights, et al.                                              Page 7


the window and when your heard a pop was running along the side of the Davis vehicle.” In
addition, he told the person taking his statement that on more than one occasion Davis attempted to
swerve or dodge around the officers. (J.A. at 82).
        Further, Mockler’s post-incident police report describing his actions during the key time,
differs from his subsequent deposition testimony. Specifically, Mockler’s post-incident statement
did not even mention that he ran to the fence at the edge of the parking lot for safety after Davis
started to drive away. (J.A. at 356-357). This reason was only articulated at his deposition.
        The Plaintiff also argues that the temporal sequence of events belies any significant threat
of death or serious physical harm to Mockler. The whole event only lasted approximately 4.5
seconds. During this time, Mockler stated that first he ran back to his police car, and second he
began to run toward the fence at the edge of the lot, until Davis turned his car toward him forcing
him to jump and spin out of the way while simultaneously firing his gun at Davis. (J.A. at 137, 139,
144). The expert witness opinion found this    inconsistent with the undisputed fact that only 4.5
seconds elapsed between those two events.1 (J.A. at 810-812).
        The Defendants refute the Plaintiff’s factual assertions and argue that Mockler felt that Davis
posed a threat to himself, other officers, and the public. In support of this position, Defendants
attempt to contradict Benedict’s written statement with his deposition testimony. In Benedict’s
deposition, he stated that while Davis was backing up, the police officers had to move or they would
have been run over. (J.A. at 82). In addition, the Defendants assert that Davis placed the lives of
the officers in the marked police cars in danger. Officers Walls and Kravanis were assigned to seal
off the exits. After the incident, Mockler stated that he shot Davis because he was afraid that he
would injure Walls and Kravanis.
         In support of their argument, Defendants cite Smith v. Freland, 954 F.2d 343 (6th Cir. 1992).
In Smith, police officers shot and killed the suspect as he was trying to avoid arrest after a long car
chase. The Court found that because the decedent freed himself from road blocks during the chase
that it was reasonable to assume that he would escape again. The Court stated that the decedent
posed a deadly threat to the officer manning the roadblock as a car could be a deadly weapon. Id.
at 347 (citing United States v. Sanchez, 914 F.3d 1355 (9th Cir. 1990)). The Defendants assert that
this case is directly on point and justifies affirming the dismissal of the case.
        Although the facts of Freland may be somewhat analogous to the instant case, this Court,
does not give significant weight to Freland in evaluating the specific facts of this case. First,
Freland is distinguishable in that the suspect ran a stop sign, exceeded speeds of 90 m.p.h. on public
roadways, attempted to ram a police cruiser on two separate occasions, was chased more than two
and one half miles, turned his car around on a residential lawn, and intentionally crashed into the
front end of a police cruiser. Id. at 349. Here, it is not clear whether Davis accelerated to 30- 40
m.p.h. before or after he was shot and whether he intended to injure Mockler or others on the scene.
       The Supreme Court has stated that “because the test of reasonableness under the Fourth
Amendment is not capable of precise definition or mechanical application, however, its proper
application requires careful attention to the facts and circumstances of each particular case. . . .”
Graham, 490 U.S. at 396 (citing Garner, 471 U.S. at 8-9); see also Brosseau v. Haugen, 125 S. Ct.
596, 600 (2004) (stating that analyzing fleeing vehicle cases is an area in which the result depends


         1
           The Defendants argue that the expert evidence should be ignored because it was filed after the district court
orally told the parties (an act not reflected in the record) that it intended to grant summary judgment for Defendants.
However, the material was filed and it has not been stricken from the record, so it is properly considered on appeal.
Although it would admittedly make this a closer case, we would reach the same conclusion even absent the expert
evidence.
No. 05-3055            Sigley v. City of Parma Heights, et al.                                    Page 8


very much on the facts of the case). Accordingly, this Court must evaluate the specific facts of this
case and make a determination whether Mockler’s actions were reasonable.
        The conflicting views of the facts demonstrate that there are unresolved factual issues
regarding whether Mockler was chasing after Davis’ car or the car was turning into him when he
fired. Additionally, it is not clear whether Mockler had probable cause to believe that Davis posed
a significant threat of death or serious physical injury to others. Viewing the evidence in a light
most favorable to the Plaintiff, these are disputed factual issues that preclude the granting of
summary judgment. See Sova, 142 F.3d at 903 (holding that where there are contentious factual
disputes relating to the reasonableness of an officer’s use of deadly force, the court is precluded from
granting summary judgment for officers who shot Plaintiff’s son).
         Given the numerous factual disputes the district court improperly found that there was no
evidence to contradict Detective Mockler’s testimony that he believed he was in imminent danger
of death at the time he fired his gun, or that the car was veering toward him when he decided to
shoot. The district court could only come to its conclusion by resolving all of the factual issues
against the Plaintiff. Thus, this type of determination should be reserved for the jury, not the district
court. Since the record may support Plaintiff’s version of the facts, we remand this case to the
district court for trial of Plaintiff’s Fourth Amendment excessive force claim.
        B.      Qualified Immunity
        On appeal, Defendants argue, and the dissent asserts, that even if a constitutional violation
occurred, Officer Mockler is entitled to qualified immunity. We disagree. Although, the district
court did not address this issue because qualified immunity presents a purely legal issue we will
discuss this issue. Viewing the facts in a light most favorable to the plaintiff, Mockler should not
be granted qualified immunity.
         Qualified immunity protects government officials who perform discretionary functions from
civil liability “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, 817-
18 (1982). In determining whether qualified immunity is warranted, we employ a two-part test.
“The first inquiry must be whether a constitutional right would have been violated on the facts
alleged; second assuming the violation is established, the question whether the right was clearly
established must be considered. . . .” Smith v. Cupp, 430 F.3d 766, 773 (6th Cir. 2005) (citing
Saucier v. Katz, 533 U.S. 194, 200 (2001)). The Plaintiff is obligated to present facts which, if true,
would constitute a violation of clearly established law. Dominque v. Telb, 831 F.2d 673, 677 (6th
Cir. 1987).
        The primary issue is whether the constitutional right allegedly violated was defined at the
appropriate level of specificity to be clearly established. This is a legal issue. The contours of the
right must be clear enough to put an officer on notice that the actions he is taking are unlawful. At
the time of the shooting, “[u]se of deadly force to prevent the escape of all felony suspects, whatever
the circumstances, is constitutionally unreasonable.” Id. at 776. “Where the suspect poses no
immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend
his [sic] does not justify the use of deadly force to do so.” Id. Viewing the facts in a light most
favorable to the plaintiff, the situation confronting Mockler was whether to shoot Davis, who did
not intentionally create any harm to anyone on the scene, while attempting to flee.
        The dissent relies on Brosseau to support the granting of summary judgment based on
qualified immunity. In Brosseau, the Court stated that the material facts taken in a light most
favorable to the plaintiff showed that the shooting officer believed the suspect had a gun and was
fearful for officers in the immediate area. 543 U.S. 194 (2004). The Court held that when the
No. 05-3055           Sigley v. City of Parma Heights, et al.                                    Page 9


material facts identify official conduct within the “hazy border” between excessive and acceptable
force, the qualified immunity privilege applies. Id.
         The dissent frames the clearly established law by resolving all of the disputed facts against
the Plaintiffs. Dissent Op. at 3. There is, however, evidence in the record which establishes that:
(1) Benedict told another officer that Davis was trying to move or swerve around to dodge officers
(J.A. at 89); (2) Benedict admitted that he never told any of the officers that Davis was trying to run
any of them over (J.A. at 89); (3) at one point Mockler admitted that the physical danger or threat
was to him and him alone (J.A. at 132); and (4) Officer Mehlman was not sure of Mockler firing the
shot prevented him from being injured (J.A. at 228). In framing the clearly established right, this
evidence must be used in a fashion most favorable to the Plaintiff.
        Accordingly, viewing the facts in a light most favorable to the Plaintiff, Mockler was running
behind Davis’ car, out of danger, and Davis drove in a manner to avoid others on the scene in an
attempt to flee. Accepting these facts as true, Mockler would have fair notice that shooting Davis
in the back when he did not pose an immediate threat to other officers was unlawful. See Tennessee
v. Garner, 471 U.S. 1, 11 (1985) (clearly establishing that where the suspect poses no immediate
threat to the officer and no threat to others the harm resulting from failing to apprehend his does
justify the use of deadly force to do so”); Sample v. Bailey, 409 F.3d 689, 697 (6th Cir. 2005)
(stating that “only in rare instances may an officer seize a suspect by use of deadly force.”).
Accordingly, based upon the facts taken in a light most favorable to the Plaintiff, Mockler is not
entitled to qualified immunity as a matter of law.
        C.      Municipal Liability
        The district court also dismissed Plaintiff’s failure to train claims under § 1983. This Court
has held that a plaintiff asserting a § 1983 claim on the basis of municipal custom or policy must
identify the policy, connect the policy to the municipality itself, and show that the particular injury
was incurred because of the execution of that policy. Graham v. County of Washtenaw, 358 F.3d
377 (6th Cir. 2004); see also Monell v. New York City Dep’t. of Social Servs., 436 U.S. 658 (1978)
(stating that there must be a direct causal link between a county policy and the alleged constitutional
violation such that the county’s deliberate conduct can be deemed the moving force behind the
violation).
        The district court held that “[i]n the absence of a constitutional violation, there is no
municipal liability under 42 U.S.C. § 1983. As Detective Mockler did not violate Mr. Davis’
constitutional rights, the city cannot be vicariously liable for any such violation.” (J.A. at 835)
(citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). Given our holding as to the
constitutional issue in this case, we must reverse the district court, however, on this issue and
remand for the court to determine whether there is a causal link between the City of Parma Heights
actions and the alleged constitutional violation.
        D.      State Law Claims
         The district court summarily dismissed Plaintiff’s state law claims. Plaintiff did not appeal
the dismissal of these claims. On appeal, in her initial brief she mentions in a footnote that the
district court only addressed her state law claims. Further, in her reply brief, she states that she does
not abandon her state law claims. Plaintiff’s state law claims are not properly before this Court, thus
we affirm the district court’s dismissal of Plaintiff’s state law claims.
No. 05-3055          Sigley v. City of Parma Heights, et al.                            Page 10


IV.    CONCLUSION
      For the foregoing reasons, we REVERSE the district court’s grant of summary judgment
and REMAND this case to the district court for further proceedings consistent with this opinion.
No. 05-3055           Sigley v. City of Parma Heights, et al.                                 Page 11


                                        _________________
                                            DISSENT
                                        _________________
     ALICE M. BATCHELDER, Circuit Judge, dissenting. I respectfully dissent. I would affirm
summary judgment in favor of Officer Mockler because he was entitled to qualified immunity.
        Qualified immunity protects an officer from suit when the officer “makes a decision that,
even if constitutionally deficient, misapprehends the circumstances she confronted.” Brosseau v.
Haugen, 125 S. Ct. 596, 599 (2004). In Saucier v. Katz, the Supreme Court held that a lower court
faced with a qualified immunity defense must first determine whether the plaintiff has asserted the
violation of a constitutional right. 533 U.S. 194, 202 (2001). Sigley clearly has done so. “[T]he
next, sequential step is to ask whether the right was clearly established.” Id. A right is clearly
established when the “contours” of the right are “sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Id. at 202. “If the law did not put the officer
on notice that his conduct would be clearly unlawful, summary judgment based on qualified
immunity is appropriate.” Id. “The concern of the immunity inquiry is to acknowledge that
reasonable mistakes can be made as to the legal constraints on particular police conduct.” Id. at 205.
This is because “[i]t is sometimes difficult for an officer to determine how the relevant legal
doctrine, here excessive force, will apply to the factual situation the officer confronts.” Id. at 205.
         Officer Mockler could not have known that his conduct was unlawful. Under Tennessee v.
Garner, the use of deadly force is reasonable when an “officer has probable cause to believe that the
suspect poses a significant threat of death or serious physical injury to the officer or others.” 471
U.S. 1, 3 (1985). The Supreme Court has addressed the question of when a suspect escaping in a
vehicle poses such a threat. In Brosseau v. Haugen, the court held that an officer who fatally shot
a suspect fleeing in a Jeep was entitled to qualified immunity. 125 S. Ct. at 600. The incident
occurred after a foot chase. Id. at 598. Although the suspect had not yet driven forward, the officer
fired one shot through the rear window on the driver’s side and hit the suspect in the back. Id. The
officer testified that she was concerned about the safety of others in the area. Id. When determining
whether the officer had violated a clearly established Fourth Amendment right, the Court considered
three circuit cases, two of which– Estate of Starks and Smith v. Freland– are cited by the majority
in this case. Id. at 600. The court concluded that, based on those cases, the officer’s conduct “fell
in the ‘hazy border between excessive and acceptable force.’” Id. (quoting Saucier, 533 U.S. at
206). Because the law did not clearly establish a Fourth Amendment right in favor of a “disturbed
felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at
risk from that flight,” the officer was entitled to qualified immunity. Id.
       This case is analogous to Brosseau. The defendants in this case have produced
uncontroverted evidence that Davis posed a significant threat to the officers on the scene. During
his deposition, Matthew Benedict testified that at the time Mockler shot Davis, “police were in
danger.” J.A. 82. Benedict also testified that if officers had not jumped out of the way of Davis’
speeding vehicle, “they would have been run over.” J.A. 82. In fact, Davis actually struck Officer
Mehlman with his vehicle as Mehlman, with weapon drawn, warned Davis that he was under arrest.
J.A. 216. Finally, Officer Mockler testified that had he not fired, he would have been killed. J.A.
133. Although the majority makes much of the statement given to police by Benedict immediately
following the shooting, nothing in that statement contradicts Benedict’s later testimony that Davis’
reckless driving posed a significant threat of physical harm to the officers who were trying to
apprehend him.
        The majority notes that disputed facts preclude summary judgment if those facts could affect
the outcome of the case. In the present matter, the outcome of the case centers on whether Officer
No. 05-3055           Sigley v. City of Parma Heights, et al.                               Page 12


Mockler should reasonably have known that his conduct was unlawful. See Saucier, 533 U.S. at
202. Officer Mockler’s conduct would have been unlawful if Davis had not posed “a significant
threat of death or serious physical injury to the officer or others.” Tennessee v. Garner, 471 U.S.
at 3. Only in that instance should we overturn the district court’s grant of summary judgment. The
statements cited by the majority– that Benedict told officers that Davis was not trying to hit them,
that Officer Mockler felt that only he was in danger and that Officer Mehlman was not convinced
of the necessity of stopping Davis – are not dispositive. The excessive force inquiry, which dictates
whether Officer Mockler violated a clearly established constitutional right, is one of objective
reasonableness. Graham v. Conner, 490 U.S. 386, 397 (1989). Even if Davis intended to harm no
one, and even if Officer Mockler shot Davis for the wrong reason, Mockler is nonetheless entitled
to immunity if he and his fellow officers were in danger. Benedict’s uncontroverted statement
indicates that they were. Accordingly, I would AFFIRM the district court’s grant of summary
judgment in favor of Officer Mockler.
