               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 18a0333n.06

                                       Nos. 17-3384/3475

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT                                    FILED
                                                                                  Jul 10, 2018
PATTI STEVENS-RUCKER,                       )                                DEBORAH S. HUNT, Clerk
Administrator of The Estate of Jason        )
White, Deceased,                            )
                                            )
       Plaintiff-Appellee                   )
       Cross-Appellant,                     )
                                            )       ON APPEAL FROM THE
v.                                          )       UNITED STATES DISTRICT
                                            )       COURT FOR THE SOUTHERN
CITY OF COLUMBUS, OH;                       )       DISTRICT OF OHIO
SERGEANT JOHN FRENZ, (#5141);               )
OFFICER DUSTIN MCKEE, (#2611),              )       OPINION
                                            )
       Defendants-Appellants                )
       Cross-Appellees.                     )
                                            )

            BEFORE: NORRIS, BATCHELDER, and STRANCH, Circuit Judges.

      NORRIS, J., delivered the opinion of the court in which BATCHELDER, J., joined,
and STRANCH, J., joined in part. STRANCH, J. (pp. 20–25), delivered a separate opinion
concurring in part and dissenting in part.

       ALAN E. NORRIS, Circuit Judge. In the early morning hours of November 17, 2013,

Ashley Cruz was awakened in her Hilliard, Ohio, apartment by a shirtless man wearing a

camouflage hat and jeans. It was raining, and he was soaked. He held a large kitchen knife and

was clearly confused—apparently believing that he had entered his own apartment. Within the

hour he was dead—shot several times by Columbus police officers who had converged on the

apartment complex in response to a 911 call from Ms. Cruz.

       With the benefit of hindsight, no one disputes that the events of this evening were tragic.

The man, Jason White, was a 32-year-old, decorated veteran who had served in Iraq. Although he
                                                                Stevens-Rucker v. City of Columbus
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had exhibited certain mental health issues, such as bipolar disorder, he was “deemed not to be an

imminent risk of danger to self or others” just days before his death. Nothing in the record suggests

that the officers who responded were aware of these issues.

       This appeal stems from a suit filed by Patti Stevens-Rucker, the administrator of his estate.

Her complaint alleges that the two Columbus police officers who shot Mr. White used excessive

force in doing so and were then deliberately indifferent to his serious medical needs as he lay

dying; their actions, or lack thereof, violated the Fourth and Fourteenth Amendments, respectively.

Plaintiff also contends that the City of Columbus failed adequately to train or supervise its officers

and had customs and/or policies that ratified constitutional violations. Lastly, the complaint

includes Ohio-law claims for wrongful death, assault and battery, and intentional infliction of

emotional distress.

       Defendants filed a motion for summary judgment, which the district court granted in part

and denied it in part. Stevens-Rucker v. City of Columbus, 242 F. Supp. 3d 608, 634 (S.D. Ohio

2017). This appeal followed.

                                                  I.

       In an affidavit, Ashley Cruz described the events that triggered White’s fatal encounter

with Columbus police. Around 5 a.m., she was sleeping on her living room couch when she heard

someone enter her apartment. (She had left her door unlocked so that her boyfriend could enter

when he returned.) She sat up and saw White. He “was holding a large kitchen knife in his right

hand, and he was sliding his left hand across the top of the knife’s blade.” After turning on the

light, she asked him to leave. She offered White food, water, and a coat. Rather than reply directly,

he asked her why she was in his home. She explained that she lived there. He then walked in and

out of her apartment. According to Cruz, he “looked confused, and I thought he was under the


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influence of drugs or alcohol.” Eventually, he left long enough for her to lock the door. When

White returned and began to try the handle, she called 911.

           That night Columbus police officer Don Alderman1 was alone in his patrol car when he

received a call dispatching him to Cruz’s apartment. According to his deposition testimony, he

remembered “hearing . . . that the caller called 911 and said that there was a man with a knife

banging on her door.” While driving to the scene, Alderman received an update that the man was

attempting to re-enter Cruz’s apartment, which transformed the incident into a possible burglary

and a “two-officer” run.

           When Alderman arrived at the scene, he encountered White who was not holding a weapon.

Alderman approached with his gun drawn. The two men faced each other at a distance of fifteen

to twenty yards. When asked to show his hands, White complied. He turned around when asked to

do so but dropped his hands to his sides. Alderman saw knives in his back pocket and ordered

White to put his hands back up. Instead, White simply turned around. As Alderman put it, “It’s

hard to put into words, but he’s almost looking around and not really even looking at me, but

almost just kind of looking through me it seemed. It didn’t seem like he was too concerned with

anything I was commanding him to do.”

           At this point, Alderman removed his Taser while keeping his gun trained on White. He

ordered him to the ground. When White failed to comply, Alderman deployed his Taser. At that

moment, White did not have a knife in his hands. On impact, White fell backwards to the ground.

Alderman put the Taser away and approached White. According to Alderman, “As soon as he fell

back and hit the ground, it seemed almost immediately as he hit the ground, he was popping back




1
    Officer Alderman was originally named a defendant in this action. He was later dismissed by joint stipulation.

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up.” When he got back up, White had a knife in his hand. Here is Alderman’s description of what

happened next:

       It was all kind of one fluid motion of getting up and coming forward with the blade
       pointing up and coming directly towards me. . . . [T]hat’s when I fired my shots.
In all, Alderman fired four times. None of the bullets struck White, who then ran away.

Alderman did not pursue him because he was shaken up and wanted to wait for backup.

       For his part, Sergeant John Frenz, who remains a party to this appeal, was in his office

when he heard radio traffic that Alderman had the suspect at gunpoint. He ordered a “10-3” run,

signaling that there was an officer in trouble. He then left the station and headed to the apartment

complex where he encountered responding officers Jeffrey Kracht and Dustin McKee. Frenz

directed them to set up a perimeter to apprehend White. The two officers left Frenz and fanned

out. According to his deposition testimony, Frenz observed White “at the corner, crouched down,

hiding his hands, kind of peering around the corner.” Having heard that Alderman had fired shots

at White because he had a knife, Frenz drew his weapon. He shined his flashlight in White’s

direction and identified himself. Frenz approached and ordered White to show his hands. Instead

White stood up and moved around to the south side of the building where there was a small area

partially enclosed by a fence which contained air conditioning units. There were gaps between the

fence and the apartment building at either end of the enclosure.

       White crouched inside the enclosure as Frenz approached. Once again, Frenz ordered

White to show his hands. In response, White stood up; there was a knife in his hand. The men were

about twenty feet apart although separated by the fence. Frenz knew that there were other officers

in the area and he caught a glimpse of one, who turned out to be Kracht. Seeing that Frenz had

White at gunpoint, Kracht holstered his gun and withdrew his Taser. According to Kracht’s

deposition testimony, he fired it at White, who was unaffected and instead began to move toward

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the gap in the fence that was closest to Frenz. For his part, Frenz testified that he felt that White

was coming at him. Before White was able to leave the enclosure, Frenz fired three shots. One of

them hit White in the shoulder. At the time Frenz fired, he estimates that he was six to eight feet

from White, albeit on the other side of the fence.

       Dustin McKee, the other officer who remains a party to this appeal, was about thirty yards

away when he heard Frenz shoot. He testified that he saw the blood spatter from White’s back

when he was shot. Despite being wounded, White fled with the three officers—McKee, Frenz, and

Kracht—all in pursuit. McKee left the others and looped around in another direction. He eventually

saw White emerge from a breezeway and head north. McKee followed. With the three officers in

pursuit, McKee elected to slow, crouch, and fire two shots at White. One of those shots may have

struck White who continued to flee. After turning through a breezeway, McKee encountered

White, who had stopped and was facing the officer. He still held a knife. The two were about

fifteen feet apart. Though his gun was drawn, McKee’s finger was not on the trigger.

       According to his deposition testimony, McKee felt that White was close enough to strike

at him. He aimed at White’s “center mass” and fired two shots. Before the shots, White was staring

at McKee with a blank expression. As McKee put it, “[T]hat’s the first time I’d actually made eye

contact with Mr. White . . . and there was no expression whatsoever.” White collapsed after the

shots. McKee fired two more times:

       He was laying on his left side kind of with his arm underneath, his left arm
       underneath almost in front of him, and was trying to post himself back up, meaning
       push up to get himself back off the ground.
One of the shots hit White in the chest. According to an affidavit sworn by McKee, “[t]he time

between the second and third set of shots may have been only a second or even fractions of a

second.”


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       After these shots, a number of officers converged on the scene. Officer Kracht took the

knife from White’s hand, rolled him onto his stomach, and placed handcuffs on him. Although no

officer attempted to provide emergency medical assistance, an audio recording indicates that the

rescue squad was summoned and a medical squad arrived about fifteen minutes later. Emergency

medical personnel checked White for vital signs but, finding none, pronounced him dead.

       The district court granted summary judgment on a number of claims and denied it on others.

Defendants appealed the partial denial of their motion, and plaintiff filed a cross-appeal

challenging those claims on which judgment was granted.

                                                 III.

Qualified Immunity

       We turn first to the invocation of qualified immunity by Officers Frenz and McKee. If they

are entitled to qualified immunity, then the claims of municipal liability, which hinge on a finding

that plaintiff’s decedent suffered a constitutional violation, would necessarily fall away. Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978) (noting that municipal § 1983 liability arises only

when an “action pursuant to official municipal policy of some nature caused a constitutional tort”).

As outlined earlier, the plaintiff alleges that the defendant officers violated White’s constitutional

rights in two respects: first, that they used excessive force against him in violation of the Fourth

Amendment; second, that they then were deliberately indifferent to his serious medical needs in

violation of the Fourteenth.

       Standard of Review

       We review the denial of summary judgment on the grounds of qualified immunity de novo.

Mitchell v. Schlabach, 864 F.3d 416, 420 (6th Cir. 2017). We view the facts in a light most

favorable to plaintiff and draw all favorable inferences in her favor. Id.


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       Qualified Immunity and Excessive Force

       Qualified immunity shields government officials “from liability for civil damages insofar

as their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Plaintiff

bears the burden of showing that defendants are not entitled to qualified immunity. Chappell v.

City of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009) (citing Untalan v. City of Lorain, 430 F.3d

312, 314 (6th Cir. 2005)). Qualified immunity “‘gives ample room for mistaken judgments’ by

protecting ‘all but the plainly incompetent or those who knowingly violate the law.’” Hunter v.

Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

       Excessive force claims are analyzed under an objective reasonableness standard. Graham

v. Connor, 490 U.S. 386, 397 (1989). In Graham, the Supreme Court explained that the application

of the reasonableness standard in this context “requires careful attention to the facts and

circumstances of each particular case, 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 arrest by flight.” Id. at 396 (citation omitted). In addition,

“[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. In short, “[a]n

officer’s evil intentions will not make a Fourth Amendment violation out of an objectively

reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable

use of force constitutional.” Id. at 397. “In excessive force cases, the threat factor is ‘a minimum

requirement for the use of deadly force,’ meaning deadly force ‘may be used only if the officer has

probable cause to believe that the suspect poses a threat of severe physical harm,’” Mullins v.

Cyranek, 805 F.3d 760, 766 (6th Cir. 2015) (quoting Untalan, 430 F.3d at 314). Finally, “plaintiff


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must show that the right was clearly established in a ‘particularized sense,’ such that a reasonable

officer confronted with the same situation would have known that using deadly force would violate

that right.” Chappell, 585 F.3d at 907 (quoting Brosseau v. Haugen, 543 U.S. 194, 199-200

(2004)). Consonant with that requirement, the United States Supreme Court recently reminded

lower courts “’not to define clearly established law at a high level of generality.’” Kisela v. Hughes,

138 S. Ct. 1148, 1152 (2018) (quoting City and Cnty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1776

(2015)).

       With these precepts in mind, we turn to the actions of the two officers individually.

       Officer Frenz’s Use of Force

       The district court concluded that Sergeant Frenz was entitled to qualified immunity for his

use of deadly force against White. Stevens-Rucker, 242 F. Supp. 3d at 625. We agree with the

analysis of the district court with respect to Sergeant Frenz’s use of force and summarize that

reasoning here before turning to the arguments advanced by plaintiff on appeal.

       As our case law requires, the district court addressed the three factors that Graham instructs

us to consider when determining whether the use of deadly force was reasonable: 1) severity of

the crime; 2) whether the suspect was resisting arrest or fleeing; and 3) whether the suspect posed

an immediate threat to others, including the officer involved. Graham, 490 U.S. at 396; Mullins,

805 F.3d at 765.

       With respect to the first consideration, the district court concluded that “at the time Frenz

encountered White, based on the information he had at the time, it was reasonable for Frenz to

believe that White had committed aggravated burglary under Ohio Revised Code § 2911.11(B)

and aggravated assault under Ohio Revised Code § 2901.11(A)(2), two potentially violent crimes.”

Stevens-Rucker, 242 F. Supp. 3d at 622.


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       Turning to whether White was resisting or fleeing, the court made the following

observations:

       [T]his factor weighs in favor of the use of force by Frenz. Again, Frenz was aware
       that Alderman had some sort of confrontation with White, that White then ran away
       from Alderman and into a new [next door] apartment complex, that White
       continued to refuse to follow Frenz’s commands, and that White then, at a minimum
       was attempting to flee out of the enclosure [containing the air conditioning units]
       with a knife in his hand.
Id. at 622-23.

       The final consideration—the immediacy of the danger posed by White—presents a closer

question. We quote the district court’s analysis of plaintiff’s position at some length because she

advances the same arguments to this court:

               Plaintiff repeatedly states that “a reasonable fact finder could find that Jason
       White was merely moving away from Frenz and Kracht and posed no imminent
       deadly or serious threat to anyone.” However, there is no evidence that rebuts the
       testimony of both Kracht and Frenz that White first moved in Frenz’s direction
       holding a knife, refusing orders to drop the knife and show his hands. While it is
       certainly possibly [sic] that White was merely attempting to leave the enclosure, it
       is undisputed that his first move—once confronted by Frenz and Kracht—was a
       move toward Frenz. In the Sixth Circuit, in the absence of overt statements by
       White to the officers, White’s actual motives for his movements are not relevant to
       this inquiry because they are not known to the reasonable officer at the time of the
       incident. See Murray-Ruhl, 246 F. App’x at 350 (“the subjective intent of the
       victim—unavailable to the officers who must make a split-second judgment—is
       irrelevant to the question whether his actions gave rise to a reasonable perception
       of danger.”); see also United States v. Serrata, 425 F.3d 886, 905 (10th Cir. 2005)
       (holding the victim’s “state of mind is irrelevant, as the force would have been
       excessive regardless of [the victim’s] subjective state of mind.”); Palmquist v.
       Selvik, 111 F.3d 1332, 1339 (7th Cir. 1997) (finding that “evidence outside the time
       frame of the shooting is irrelevant and prejudicial” and excluding the victim’s
       subjective intent to commit suicide by police).
                 ....
              As to immediacy, the Court agrees with Defendants that Lopez v. City of
       Cleveland is inapplicable to Frenz’s shooting. In Lopez, the Sixth Circuit analyzed
       a case where police officers approached a machete wielding suspect who was
       speaking to a family member. 625 F. App’x 742, 744 (6th Cir. 2015). The officers
       alleged that they saw the decedent make a move toward the family member with
       the machete raised over his head in a threatening manner. Id. However, there were

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       three non-officer witnesses who alleged that the decedent turned away from the
       family member, that he only raised the machete to threaten himself, that he never
       raised it at all, and/or that he did not turn in any direction. Id. The Sixth Circuit
       found that there was a question of fact whether the decedent had in fact moved
       towards the family member while holding the machete. Id. at 746. Accordingly, the
       Court decided that “[t]hose disputes go to the heart of whether it was reasonable for
       Defendant Officers to use deadly force.” Id. at 747. Notably, the Court did not
       hold that force would be unreasonable if the officers’ version of the facts was
       correct. In this case, there is no question of fact about White’s movement
       immediately before Frenz fired, meaning the Lopez decision is unhelpful in
       determining whether Frenz’s shooting was reasonable.
               Plaintiff argues Frenz was never in danger because White was not within
       striking distance at the time Frenz shot, that Frenz had cover from the fence, and
       that there were twenty to thirty officers in the area. There is nothing in the record
       which rebuts Frenz’s testimony that White was six to eight feet from Frenz when
       Frenz fired. Plaintiff does not cite to any case law which requires that a victim be
       within striking distance before an officer fires his weapon. In fact, in Chappell, the
       Sixth Circuit explicitly held that a knife wielding suspecting moving toward an
       officer with the knife, “held up while ignoring their commands to drop the knife;
       and that they believed he was trying to attack them and, at a distance of less than
       seven feet, posed an imminent threat of serious bodily harm.” Chappell, 585 F.3d
       at 910. The decedent in Chappell also had a mattress between him and the officers
       but the Sixth Circuit applied qualified immunity anyway, noting that the mattress
       would have posed “little impediment to a knife-wielding assailant.” Id. at 911. The
       Court finds that those circumstances are sufficiently similar to the case at hand to
       warrant a finding of reasonableness.
               ....
               Based on the similarities in Chappell, even if Frenz’s use of force was
       unreasonable, when the Court is in a legal gray area, “the proper course is to grant
       summary judgment to the officers, even if the court would hold the officers’
       conduct unconstitutional in hindsight.” Rudlaff v. Gillispie, 791 F.3d 638, 644 (6th
       Cir. 2015) (citing al-Kidd, 563 U.S. at 131). Accordingly, Frenz is entitled to
       qualified immunity for his use of force against White . . . .
Id. at 623-25 (footnote and citations omitted).

       In her brief to this court, the plaintiff takes issue with this reasoning. She argues that the

“severity of the crime” factor does not support an inference that Frenz knew, as the district court

stated, that White attempted to cause physical harm to Alderman by means of a deadly weapon.

On the contrary, she contends that the record only indicates that Frenz knew that White had been


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banging on Ms. Cruz’s door with a knife in hand, that Alderman fired shots at him, and that

Alderman was uninjured.

        Even if we limit Sergeant Frenz’s knowledge to those factors listed by plaintiff, the severity

of the crime is enough to justify the use of force. As the district court pointed out, Frenz had

probable cause to believe that, at the very least, White had committed aggravated burglary and was

armed with a knife while doing so.

        Much closer, of course, is the question whether Sergeant Frenz was in immediate danger

of death or bodily injury at the time that he used deadly force. We must construe facts in favor of

the non-moving party. Here, plaintiff reminds us that a fence separated White and Sergeant Frenz.

As the record below clearly established, Kracht and Frenz were at opposite ends of the enclosure.

White fled through the opening closest to Frenz. The parties dispute whether he was fleeing or

charging Frenz. What is undisputed is that, as White began to flee, he moved closer to Frenz. If,

as the district court concluded, Frenz could reasonably have believed that a knife-carrying person

was charging at him, his fear of immediate death or injury was justified. However, if, as plaintiff

urges, it should have been clear to Frenz that White was simply trying to run away, then the use of

force becomes much more problematic.

        As she did the district court, plaintiff asks us to look to Lopez, supra, rather than Chappell,

supra, in making our decision. In the latter case, the suspect was emerging from a dark, enclosed

bedroom with a knife at a distance of less than seven feet; in the former, the suspect was on the

porch with a machete and it was sufficiently disputed as to whether he posed an imminent danger

to his family. As plaintiff sees it, the latter scenario is closer to that faced by her decedent.

        We affirm based upon the reasoning of the district court. Sergeant Frenz was faced with an

individual carrying a knife coming in his direction. He knew that person had already confronted


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another officer and that shots had been fired. Given the deference that we accord the split-second

decisions which officers are sometimes called upon to make, Latits v. Phillips, 878 F.3d 541, 547

(6th Cir. 2017), the facts—even when viewed in the light most favorable to plaintiff—justify the

grant of qualified immunity.

       Officer McKee’s Use of Force

       We turn now to the firing of six shots by Officer McKee and consider whether they

constituted a constitutionally impermissible use of force that deprives him of qualified immunity.

The parties and the district court analyzed the six shots as three separate incidents of two shots

each despite Officer McKee’s testimony that only eight to ten seconds elapsed between the first

and last shot. As explained below, we view the final four shots through a different lens.

       Once again, we begin with the analysis by the district court. While we recognize that our

review is de novo, our independent assessment of the record convinces us that the district court’s

description of the events leading to Mr. White’s death is thorough and balanced. We part company

only with the conclusions to be drawn from these events.

       As recounted at the outset, the first two shots fired by McKee occurred while he, Sergeant

Frenz, and Officer Kracht were chasing White through an apartment complex after he had just run

from the air conditioning enclosure where he had been wounded by Sergeant Frenz. While all three

officers were in pursuit, McKee had taken a different route and they were not side by side. With

White about 20 to 25 feet ahead, McKee crouched and fired two shots, one of which likely struck

White in the back. The court reached the following conclusion with respect to the threat posed by

White to Officer McKee or others with respect to this shooting:

               This case comes down to whether a reasonable officer would believe—or
       that reasonable officers could differ—that White was an immediate threat to others
       in the area. The Supreme Court has cautioned that an officer’s actions may fall “in
       the ‘hazy border between excessive and acceptable force.’” Brosseau, 543 U.S. at

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        200–01 (quoting Saucier, 533 U.S. at 206). This is such a case. In Plumhoff, the
        Supreme Court found the use of force reasonable during a high speed chase where,
        “at the moment when the shots were fired, all that a reasonable police officer could
        have concluded was that [the suspect] was intent on resuming his flight and that, if
        he was allowed to do so, he would once again pose a deadly threat for others on the
        road.” Plumhoff, 134 S. Ct. at 2022. Thus, the Court finds that even though there
        were no other officers or civilians in the immediate vicinity of White, McKee’s first
        use of force was reasonable because reasonable officers could differ on whether or
        not White posed an immediate danger to those in the area. Mullins, 805 F.3d at 765.
        Further, this case falls into the sort of gray area that means it would not be “clear
        to a reasonable officer that his conduct was unlawful in the situation he confronted,”
        and thus that the right was not clearly established. Saucier, 533 U.S. at 202.
Stevens-Rucker, 242 F. Supp. 3d at 626. We adopt this reasoning and affirm the grant of qualified

immunity to Officer McKee with respect to these initial two shots.

        We now turn to the district court’s analysis of the final four shots fired by Officer McKee

after he emerged from a breezeway and was confronted by Mr. White standing in an open area. In

addressing that confrontation, the district court elected to break the four shots into two separate

volleys of two shots each. It granted qualified immunity to McKee for firing the first two of the

four shots but denied him qualified immunity for firing the final two.

        Officer McKee fired at White after the latter had stopped running. The two men were

fifteen feet apart and White now faced McKee while still grasping the knife and staring “blankly”

at him. McKee aimed at White’s “center mass” and fired. Having chosen to separate the four shots

into two distinct incidents, the district court analyzed the first of these as follows:

                The Court finds that based on the evidence and the Court’s obligation not
        to impose hindsight on split-second decisions, a reasonable officer could
        reasonably have believed that White was an immediate threat even though he was
        fifteen feet away and standing still. Although other officers were in the area, there
        is no evidence that McKee was aware where any of the other officers were located
        other than Kracht and Frenz, who he knew were behind him but at an unknown
        distance. Accordingly, their general presence in the area does not show that any
        were close enough to truly provide support should White have decided to charge
        McKee. Further, although it is now clear that McKee could have retreated because
        he was in an open space, there is no evidence that he was aware of his surroundings
        at that time. It was dark, in an apartment complex and a suspect who had two

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        previous confrontations with officers had stopped running to face him while
        holding a knife. This is an extremely close case but the Court finds that although
        McKee’s second shooting may not have ultimately been necessary, it was not an
        unreasonable use of force. McKee is entitled to qualified immunity for this round
        of shots . . . .
Stevens-Rucker, 242 F. Supp. 3d at 627-28. We agree with this reasoning to the extent that it grants

qualified immunity with respect to the first two of those final four shots, but disagree with the

district court’s view that the evidentiary record supports separating the final four shots into two

distinct incidents. The district court correctly concluded that the record indicates that the first two

shots fired by McKee were separated in time from the four subsequent shots; however, it failed to

point to any evidence that the final four shots were likewise separated by such a significant gap in

time that they must be viewed as distinct incidents requiring individualized analysis. Rather, the

uncontroverted evidence supports a conclusion that the final four shots were fired in such rapid

succession that they constituted a single event. Officer McKee testified in his deposition that only

eight to ten seconds elapsed from the time that he fired his first shot at Mr. White until he fired his

final shot. Moreover, according to his affidavit, “only a second or even fractions of a second”

separated his final two shots from his third and fourth shots. This timeline is uncontroverted by

the record and leads us to conclude that McKee’s firing of his weapon constituted two, not three,

distinct incidents: the first includes the initial two shots, the second the final four.

        With respect to the final two shots, the district court—once again focusing on the threat to

the officer or the public—reached the following conclusion:

        The Court disagrees that a reasonable officer would have felt immediately
        threatened by a knife wielding suspect on the ground ten to fifteen feet away
        suffering from at least one known gunshot. Regardless whether White was prone
        or attempting to push himself up, McKee was in an open field facing a man on the
        ground with a knife and rather than retreat to a safe position, take note of his
        surroundings, or call for backup, McKee shot White again while White was on the
        ground and fatally wounded him. Accordingly, Plaintiff has presented sufficient


                                                 - 14 -
                                                               Stevens-Rucker v. City of Columbus
                                                                               Nos. 17-3384/3475

       evidence, which if believed, could support a finding that McKee’s third set of shots
       were unreasonable.
Stevens-Rucker, 242 F. Supp. 3d at 629.

       In the view of the district court, if Officer McKee was behaving like a reasonable police

officer in the second or even fractions of a second separating his fourth shot from his final two, he

would have weighed the following: that White was suffering from a gunshot wound; the viability

of standing his ground, retreating, or calling for backup; that White was trying to push himself up;

that he and White were separated by only ten to fifteen feet; and that White had twice failed to

give himself up despite being confronted by an armed officer. The district court concluded that

McKee, acting as a reasonable police officer, would have taken all of this into account and, after

doing so, could not have reasonably believed that he was threatened by White. But the conclusion

is untenable in light of McKee’s unrebutted affidavit testimony that only a second or even less

elapsed between the third and fourth shots and the fifth and sixth shots.

       Based upon the uncontroverted evidence, what the district court characterized as separate

second and third salvos was, in our view, but a single shooting consisting of four shots fired within

a second of one another. That was not enough time for Officer McKee to stop and reassess the

threat level between the shots. He continued to use his firearm to stop what he justifiably perceived

as an immediate threat to his safety.

       For these reasons, we conclude that Officer McKee is entitled to qualified immunity in all

respects, and we therefore reverse the judgment of the district court to the extent that it conflicts

with this decision.




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                                                                 Stevens-Rucker v. City of Columbus
                                                                                 Nos. 17-3384/3475

       Qualified Immunity and Deliberate Indifference to Serious Medical Needs

       The district court denied defendants Frenz and McKee qualified immunity for plaintiff’s

claim that they violated White’s right to due process under the Fourteenth Amendment by showing

deliberate indifference to his serious medical needs.

       “Deliberate indifference requires that the defendants knew of and disregarded a substantial

risk of serious harm to [the plaintiff’s] health and safety.” Watkins v. City of Battle Creek, 273 F.3d

682, 686 (6th Cir. 2011) (citing Farmer v. Brennan, 511 U.S. 825, 835–37 (1994)). A showing of

deliberate indifference thus has objective and subjective components. Phillips v. Roane Cnty.,

534 F.3d 531, 539 (6th Cir. 2008). The objective component is that the plaintiff must “show the

existence of a ‘sufficiently serious’ medical need.” Id. (quoting Farmer, 511 U.S. at 834). The

subjective component, by contrast, “requires a plaintiff to ‘allege facts which, if true, would show

that the official being sued subjectively perceived facts from which to infer substantial risk to the

[detainee], that he did in fact draw the inference, and that he then disregarded that risk.’” Id. at 540

(quoting Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001)).

       The district court relied upon Estate of Owensby v. City of Cincinnati, 414 F.3d 596 (6th

Cir. 2005), for the proposition that the Fourteenth Amendment imposes a duty upon officers to

both summon and provide medical care. In Owensby, officers incapacitated plaintiff by first

striking him with a baton and then placing him in handcuffs. Id. at 600. After he was handcuffed,

plaintiff’s face was doused with mace at close range. Certain officers continued to strike plaintiff

before placing him in the back of a police cruiser. Six minutes passed before officers checked on

plaintiff and discovered that he was not breathing. Id. at 601. Only then did officers call the rescue

squad, which arrived four minutes later. The coroner later ruled the death a homicide resulting

from police intervention.


                                                 - 16 -
                                                                 Stevens-Rucker v. City of Columbus
                                                                                 Nos. 17-3384/3475

       Defendants rely upon their affidavits to explain why they did not render aid at the scene.

Sergeant Frenz stated, “Because I believed more thoroughly trained medics would be arriving

quickly, I did not believe it was necessary for me or any of the other CPD officers on the scene to

provide First Aid, CPR, or any type of medical attention to the suspect.” In addition, he did not

believe that his assistance would have saved White’s life. Officer McKee’s affidavit reads

essentially verbatim.

       Defendant officers point us to a recent decision of this court, Thomas v. City of Columbus,

854 F.3d 361, 367 (6th Cir. 2017), in which we observed that “an officer does not act with reckless

disregard when he immediately summons help and then focuses on his own safety.” In that case,

officers had been summoned to an ongoing burglary. One officer mistakenly shot the victim who

fled his dwelling holding the gun of his assailant. However, because the officer feared others were

armed, and the victim appeared to be dead, he did not render aid himself. We stated, “[h]e did not

violate the Constitution by failing to render aid when doing so appeared both dangerous and futile.”

Id. Our defendants read Thomas to establish that an officer need not render aid if doing so would

be futile. At the very least, they contend that the contours of that right were not clearly established

at the time of White’s death.

       As these abbreviated summaries of Owensby and Thomas make clear, they are at best

instructive with respect to the question before us. Unlike in Owensby, defendants did not ignore

the physical condition of plaintiff for critical minutes while he lay dying. Nor did they face a

danger to their own safety, as in Thomas, which prevented them from rendering immediate

assistance. Rather, the record indicates that defendants did not personally perform CPR or provide

other medical attention to White because they believed that trained medical assistance had been

summoned and that their individual intervention would not have helped.


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                                                                Stevens-Rucker v. City of Columbus
                                                                                Nos. 17-3384/3475

       Under these circumstances, do defendants’ actions (or lack thereof) represent a violation

of White’s right to due process under the Fourteenth Amendment? We conclude that they do not

and therefore reverse the district court on this claim. In reaching this conclusion, we look to cases

from the Ninth Circuit. In Maddox v. City of Los Angeles, 792 F.2d 1408, 1415 (9th Cir. 1986),

the court addressed whether a jury instruction should have stated that “the fourteenth amendment

due process clause requires officers to render CPR when a pretrial detainee in their custody is in

need of CPR.” It held that no such instruction was required: “We have found no authority

suggesting that the due process clause establishes an affirmative duty on the part of police officers

to render CPR in any and all circumstances.” Id. Rather, “[d]ue process requires that police officers

seek the necessary medical attention for a detainee when he or she has been injured . . . by either

promptly summoning the necessary medical help or by taking the injured detainee to a hospital.”

Id.; see also Tatum v. City and Cnty. of S.F., 441 F.3d 1090, 1099 (9th Cir. 2006) (holding that “a

police officer who promptly summons the necessary medical assistance has acted reasonably for

purposes of the Fourth Amendment, even if the officer did not administer CPR”) (citing Maddox).

The logic that underlies these cases makes sense: an officer is charged with providing a detainee

with prompt medical attention. However, this attention does not require the officer to intervene

personally. Imposing an absolute requirement for an officer to do so ignores the reality that such

medical emergency situations often call for quick decisions to be made under rapidly evolving

conditions. As long as the officer acts promptly in summoning aid, he or she has not deliberately

disregarded the serious medical need of the detainee even if he or she has not exhausted every

medical option. See Phillips, 534 F.3d at 540 (observing that the subjective component of a

deliberate indifference claim includes deliberate disregard for substantial risk to detainee).




                                               - 18 -
                                                              Stevens-Rucker v. City of Columbus
                                                                              Nos. 17-3384/3475

       We therefore hold that defendants Frenz and McKee are entitled to qualified immunity

with respect to plaintiff’s Fourteenth Amendment claim.

Municipal Liability for Constitutional Violations

       As mentioned earlier, local government units can be held liable for § 1983 claims only if a

constitutional violation has occurred. Monell, 436 U.S. 691. Because we hold that defendants

Frenz and McKee did not violate Mr. White’s constitutional rights, the Monell claims against the

City of Columbus also fail.

Immunity for State-Law Claims

       In their briefs to this court, the parties agree that plaintiff’s state-law claims against

defendants Frenz and McKee survive or fail based upon the resolution of the federal claims against

them. Because we have held that the individual defendants are entitled to qualified immunity with

respect to the federal claims against them, judgment in their favor with respect to the state-law

claims is also proper. As the district court also correctly held, the City of Columbus is likewise

entitled to state-law immunity. Stevens-Rucker, 242 F. Supp. 3d at 633-34 (citing Ohio Rev. Code

§ 2744).

                                               III.

       The judgment of the district court is affirmed in part and reversed in part as outlined in

this opinion. Judgment is granted in favor of defendants as to all claims.




                                              - 19 -
                                                                 Stevens-Rucker v. City of Columbus
                                                                                 Nos. 17-3384/3475

       JANE B. STRANCH, Circuit Judge, concurring and dissenting. I agree that Officer

Frenz’s use of force and Officer McKee’s first and second volleys of gunfire are entitled to

qualified immunity and therefore concur with the majority on those issues. I do not, however,

agree that the law and the facts of this case compel the result reached by the majority with respect

to Officer McKee’s third use of force and the Plaintiff’s deliberate indifference claim.

I respectfully dissent on those issues.

       The majority opinion today holds that police can shoot and kill a non-fleeing suspect who

is already gravely wounded even when there is no immediate threat to the officers or the public.

It reaches that conclusion by construing Officer McKee’s final four shots as a single and

continuous use of force rather than as the last two uses of force, as was argued by Stevens-Rucker

and necessarily conceded by the Officers. The district court also held that Officer McKee used

force in “three distinct circumstances and . . . each must be segmented and analyzed individually.”

I think this case should have been analyzed on the facts argued by the parties and found by the

district court. DiLuzio v. Vill. of Yorkville, 796 F.3d 604, 609 n.1, 611 (6th Cir. 2015) (holding

that in qualified immunity cases, we usually “defer to the district court’s factual determinations”

and “ideally . . . look no further than the district court’s opinion for the facts and inferences cited

expressly therein”).

       Like the district court and the briefing of the parties, I believe our precedent compels us to

disaggregate McKee’s three spates of gunfire. See Bouggess v. Mattingly, 482 F.3d 886, 890 (6th

Cir. 2007) (explaining that it is “crucial for the purposes of this inquiry to separate [the Officer’s]

decision-points and determine whether each of his particular decisions was reasonable”);

Dickerson v. McClellan, 101 F.3d 1151, 1161 (6th Cir. 1996) (holding that in use of force cases

we “analyze excessive force claims in segments”).


                                                - 20 -
                                                               Stevens-Rucker v. City of Columbus
                                                                               Nos. 17-3384/3475

       By lumping the second and third shootings together, the majority obscures material issues

of disputed fact. But even if we assume that it might be appropriate and plausible to accept an

interpretation of the facts that “only a second or even fractions of a second” separated the two

shootings, Officer McKee’s own testimony supports a finding that sufficient time elapsed between

the two volleys to allow him to deliberate and reassess whether force was required. Describing the

circumstances, McKee explained that White “was laying [sic] on his left side kind of with his arm

underneath, his left arm underneath almost in front of him, and was trying to post himself back up,

meaning push up to get himself back off the ground.” McKee also refers to these shots as the

second in a series of “double-taps,” not as an unpunctuated, single set of four shots. Thus, this

record reveals a quintessential dispute of material fact that renders summary judgment

inappropriate, particularly in an appeal of the denial of qualified immunity.

       But even if we undertake review and apply our precedent to the third volley of shots by

Officer McKee, we should affirm the district court’s denial of qualified immunity. First, I

acknowledge that there may be instances in which the police could lawfully use lethal force to

subdue an already wounded suspect. For example, in Boyd v. Baeppler, 215 F.3d 594, 603 (6th

Cir. 2000), we held that an officer was entitled to qualified immunity when he fired on a prone,

wounded suspect. But there, the officers’ explanation of the events was supported by eyewitness

and forensic evidence in the record, and the suspect was pointing a pistol at the officers. Id. We

made it clear, moreover, that the question of law at issue was “about the conduct of police acting

in self-defense, not about pursuit of a fleeing felon or suspect.” Id. at 602–03. We also addressed

the situational use of deadly force in Bouggess, applying an objective assessment of the danger

posed. 482 F.3d at 890. We concluded, “even when a suspect has a weapon, but the officer has

no reasonable belief that the suspect poses a danger of serious physical harm to him or others,


                                               - 21 -
                                                                 Stevens-Rucker v. City of Columbus
                                                                                 Nos. 17-3384/3475

deadly force is not justified.” Id. at 896 (collecting cases). Properly reviewing that district court’s

determinations, we denied qualified immunity.

        Also applicable here is our precedent addressing the concerning fact that in many qualified

immunity cases involving the use of deadly force, the witness most likely to contradict a defendant

officer’s story is the person killed by the officer. In such situations, we “may not simply accept

what may be a self-serving account by the police officer.” Jefferson v. Lewis, 594 F.3d 454, 462

(6th Cir. 2010) (internal quotation marks and citation omitted). Instead, we “must look at the

circumstantial evidence that, if believed, would tend to discredit the police officer’s story.” Id.

        Drawing all reasonable inferences in favor of the nonmoving party, as we must, McKee’s

testimony indicates that he had sufficient time to evaluate White’s movements, discern his intent

to get back up, and elect to fire again. Reasonably inferring that McKee possessed sufficient time

to deliberate regarding whether additional force was necessary, a jury could have concluded that,

under the circumstances, the use of such force was unreasonable. The threat posed by White is an

order of magnitude less than the threat posed in cases where a suspect has a firearm. White was

armed only with a knife, lay 15 feet from officers in an open field, and there were no civilians in

the immediate vicinity. Numerous other officers were descending on the scene to reinforce McKee

and their arrival was imminent. It is simply not a plausible argument that McKee was in immediate

danger when he delivered the fatal shots. The majority’s decision to depart from precedent and

lump the second and third shootings together therefore distorts both the governing precedent and

the factual reality.

        With respect to the Plaintiff’s deliberate indifference claim, the majority opinion relies on

the 30 year-old decision of Maddox v. City of Los Angeles, 792 F.2d 1408, 1415 (9th Cir. 1986),

for the proposition that the Due Process Clause does not establish “an affirmative duty on the part


                                                - 22 -
                                                                  Stevens-Rucker v. City of Columbus
                                                                                  Nos. 17-3384/3475

of police officers to render CPR in any and all circumstances.” That may be but subsequent

decisions clarify that when law enforcement officers fail to provide CPR not “because they were

busy with other tasks” but because they were merely waiting for more trained individuals, “a trier

of fact could conclude that, looking at the full context of the situation, officers trained to administer

CPR who nonetheless did not do so despite an obvious need demonstrated . . . deliberate

indifference.” Lemire v. California Dep’t of Corr. & Rehab., 726 F.3d 1062, 1083 (9th Cir. 2013).

In other words, even if there is not a per se duty to administer CPR, some circumstances create a

duty for first responders to render such aid. As in Lemire, the officers here neither feared for their

own safety nor were they busy with other tasks. In spite of their training as first responders, they

elected to leave White handcuffed, facedown, and dying as opposed to rendering aid. Because I

think that the Constitution requires more of officers in these circumstances, I cannot support the

majority opinion’s conclusion with respect to the Plaintiff’s deliberate indifference claim.

        This police shooting also points to a broader, troubling pattern. After serving his country

in the war in Iraq, Jason White returned to the United States as a decorated veteran suffering from

significant mental health problems. On the day the police shot him, he was suffering an acute

mental health incident. Although we lack comprehensive data, “[i]t is safe to say that a third to a

half of all use-of-force incidents involve a disabled civilian.” David M. Perry & Lawrence Carter-

Long, The Ruderman White Paper on Media Coverage of Law Enforcement Use of Force and

Disability 7 (2016). People with mental illness are 16 times more likely to be killed by police.

See Liz Szabo, People with mental illness 16 times more likely to be killed by police, USA Today

(Dec. 10, 2015, 4:05 am) https://www.usatoday.com/ story/news/2015/12/10/people-mental-

illness-16-times-more-likely-killed-police/77059710/.




                                                 - 23 -
                                                               Stevens-Rucker v. City of Columbus
                                                                               Nos. 17-3384/3475

       This is a societal problem and police are often caught in an unenviable position on the

frontlines of mental health emergencies. Our criminal justice system, moreover, serves as the de

facto treatment provider for many individuals with mental illness, and the majority of jail inmates

suffer from a mental health condition. See National Conference of State Legislatures, Mental

Health Needs in the Criminal Justice System (May 1, 2017), http://www.ncsl.org/research/civil-

and-criminal-justice/mental-health-needs-of-criminal-justice.aspx. In spite of this reality, our

police forces are often woefully ill-equipped to safely address the presenting issue or the ongoing

needs of these individuals. See Norm Ornstein & Steve Leifman, How Mental-Health Training

for Police Can Saves Lives—and Taxpayer Dollars, The Atlantic (Aug. 11, 2017),

https://www.theatlantic.com/politics/archive/2017/08/how-mental-health-training-for-police-can-

save-livesand-taxpayer-dollars/536520/.

       Our failure as a society to adequately address the treatment of mental health problems

routinely leaves these problems to be addressed through the criminal justice system. But the laws

governing crime are a poor fit for the reality of dealing with mental health issues, perhaps because

the selection of law enforcement officers and their training occupies so little common ground with

the selection and training of those who treat mental health issues. And then we add the layer of

qualified immunity that excuses “all but the plainly incompetent or those who knowingly violate

the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). This over-thickening shield does little to

force society to reconsider the propriety of leaving mental health issues in the hands of police

officers untrained to handle them. At least two members of the Supreme Court have concluded

that the recurring grant of qualified immunity in these incidents sends the wrong message to law

enforcement officers and “tells the public that palpably unreasonable conduct will go unpunished.”

Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J. dissenting). In addressing these


                                               - 24 -
                                                                Stevens-Rucker v. City of Columbus
                                                                                Nos. 17-3384/3475

events, I think we have embarked on the wrong road and the place to which it leads will prove

detrimental to law enforcement, those with mental health issues, and our society as a whole.

“Because there is nothing right or just under the law about this, I respectfully dissent.” Id.




                                               - 25 -
