                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0625n.06

                                         No. 14-4277
                                                                                     FILED
                                                                                Sep 04, 2015
                                                                            DEBORAH S. HUNT, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

ONOFRE LOPEZ,                                          )
                                                       )
       Plaintiff-Appellant,                            )
                                                       )
                                                              ON APPEAL FROM THE
v.                                                     )
                                                              UNITED STATES DISTRICT
                                                       )
                                                              COURT FOR THE
CITY OF CLEVELAND, et al.,                             )
                                                              NORTHERN DISTRICT OF
                                                       )
                                                              OHIO
       Defendants-Appellees.                           )
                                                       )
                                                       )


                                          OPINION

BEFORE:       BOGGS and DONALD, Circuit Judges; and QUIST, District Judge.*

              QUIST, District Judge.

       Cleveland police officers shot and killed Illuminado Lopez during a confrontation in

which Lopez refused to drop a machete. Lopez’s brother, acting as the Administrator of Lopez’s

estate, sued the City of Cleveland and the five officers who shot at Lopez,1 asserting

constitutional claims under 42 U.S.C. § 1983 and supplemental claims under Ohio law. After the

parties conducted discovery, the district court entered summary judgment in favor of Defendants,

concluding that Defendant Officers acted reasonably in using deadly force because Lopez


*
The Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.
1
 The named officers are David Schramm, Amy Milner, Amy Carraway, Donato Daugenti, and
Michael Tankersley.
No. 14-4277
Lopez v. City of Cleveland, et al.


presented an imminent threat of serious harm to someone. Because we hold that there are

disputed issues of material fact regarding whether Lopez posed a significant threat to others, we

reverse the judgment of the district court.

                                                I.

       During the evening of July 29, 2011, Lopez was visiting his friend, Maria Cruz, at her

home. Lopez’s sisters, Melba Cartagena (Melba) and Adelaida Pla, lived in the two houses on

either side of the building where Cruz lived. At some point, Lopez got into an argument with

Melba’s son, Samuel Cartagena (Samuel), and used a baseball bat to break the windows in

Samuel’s car. Melba called the police in response to Lopez’s actions.

       Schramm and Milner heard a radio dispatch that an individual was threatening a family

member and had a bat, and these officers were the first to arrive on the scene. The officers found

Lopez sitting in the middle of the street with a beer bottle. At some point shortly thereafter, the

officers noticed that Lopez was holding a machete, and they ordered him to drop it. When Lopez

refused to comply, Milner shot Lopez with a taser. The taser did not affect Lopez, however, who

removed the taser probes from his body. The officers then drew their firearms and radioed for

backup.

       Shortly thereafter, Carraway, Daugenti, and Tankersley arrived on the scene.            The

officers tased Lopez two more times, but the tasers had no effect, and Lopez cut the taser wires

with his machete. At some point, Lopez moved from the street to the sidewalk in front of Cruz’s

house. The officers continued to shout at Lopez to drop the machete.

       From this point on, the facts are in dispute. Pla testified that when Lopez reached the

sidewalk, she approached him and asked him to drop the machete. During that time, she yelled

to the officers that she was Lopez’s sister, that he was sick, and that she could calm him down

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No. 14-4277
Lopez v. City of Cleveland, et al.


and get the machete from him. At some point, however, she grew tired of shouting and walked

toward her house. Lopez then shouted at Pla to take the machete from him, and she walked

toward him, again shouting that she would get the machete. Pla testified that when she reached a

point about seven feet from Lopez, he turned to his right, in her direction, with the machete at his

side. At that point, the officers began to fire.

        Melba and her son, Noel Cartagena (Noel), both described the moments preceding the

shooting differently than Pla. Melba testified that Lopez brought the machete over his head as if

he were about to harm himself, and then turned to his left, in the direction of Melba, and asked

Melba if that was the way she wanted him to die. Defendant Officers then began shooting.

Similarly, Noel testified that Lopez said he was going to stab himself if the officers did not shoot

him, and then he brought the machete above his head, toward himself. Noel stated that Lopez

was facing the officers, however, and did not turn toward either the right or left.

        Defendant Officers all testified that they did not know who Pla was at the time of the

shooting. They also testified that Lopez raised the machete above his head and turned toward

Pla immediately before shooting, although their exact descriptions of these final moments varied

slightly. Schramm testified that Lopez brought the machete over his head and turned the upper

part of his body toward Pla. Similarly, Daugenti testified that Lopez raised the machete over his

head while facing forward and then turned toward Pla, who was running toward Lopez. Milner

testified that Pla got within five feet of Lopez, and that Lopez turned toward Pla and raised the

machete over his head. Tankersley testified that Lopez turned toward Pla with the machete held

over his head and made a gesture like he was swinging it at her. Finally, Carraway testified that

Pla ran toward Lopez, and that Lopez raised the machete above his head in a threatening manner

and turned toward her.

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No. 14-4277
Lopez v. City of Cleveland, et al.


       Officers on the scene fired at Lopez, and three bullets struck him. Plaintiff’s forensic

pathologist, Werner Spitz, M.D., testified that the wounds indicated that Lopez was shot from the

front and did not support a conclusion that Lopez had his arms stretched above his head or that

he was turned toward the right.

       Plaintiff filed this action alleging that Defendants violated Lopez’s Fourth Amendment

right to be free from excessive force, as well as various Ohio laws. After the district court

dismissed some of Plaintiff’s state-law claims against Defendant City of Cleveland, the parties

proceeded to discovery. Following discovery, the district court granted Defendants’ motion for

summary judgment on the remaining claims, holding that Defendant Officers did not violate

Lopez’s Fourth Amendment rights. On that basis, the district court concluded that Defendant

Officers were entitled to qualified immunity and immunity under Ohio law and dismissed the

claims against Defendant City of Cleveland.

                                               II.

       We review a district court’s grant of summary judgment de novo. Sigley v. City of Parma

Heights, 437 F.3d 527, 532 (6th Cir. 2006). Summary judgment is appropriate only if “the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In making that determination, a court

must view the evidence ‘in the light most favorable to the opposing party.’” Tolan v. Cotton,

134 S. Ct. 1861, 1866 (2014) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).

However, “[o]nly disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).



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No. 14-4277
Lopez v. City of Cleveland, et al.


       “In resolving questions of qualified immunity at summary judgment, courts engage in a

two-pronged inquiry.” Tolan, 134 S. Ct. at 1865. Under the first prong, a court must determine

whether “the facts, ‘[t]aken in the light most favorable to the party asserting the injury, . . . show

the officer’s conduct violated a [federal] right [.]’” Id. (quoting Saucier v. Katz, 533 U.S. 194,

201 (2001)). Under the second prong, a court must determine whether the right was “clearly

established” at the time of the alleged violation. Id. at 1866. “[U]nder either prong, courts may

not resolve genuine disputes of fact in favor of the party seeking summary judgment.” Id. This

is “an application of the more general rule that a ‘judge’s function’ at summary judgment is not

‘to weigh the evidence and determine the truth of the matter but to determine whether there is a

genuine issue for trial.’” Id. (quoting Anderson, 477 U.S. at 249).

                                                 III.

       On appeal, Plaintiff argues that the district court improperly granted summary judgment

because there are genuine disputes of material fact regarding whether Defendant Officers used

excessive force in shooting Lopez and whether they were entitled to immunity under Ohio law.

A.     Fourth Amendment Excessive Force

       “[A]ll claims that law enforcement 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).      The Supreme Court has explained that the use of deadly force is

reasonable only if “the officer has probable cause to believe that the suspect poses a threat of

serious physical harm, either to the officer or to others . . . .” Tennessee v. Garner, 471 U.S. 1,

11 (1985). In evaluating an excessive force claim, “[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

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Lopez v. City of Cleveland, et al.


the 20/20 vision of hindsight.”      Graham, 490 U.S. at 396.       Moreover, “[t]he 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 396-37. As such, the

reasonableness standard “contains a built-in measure of deference to the officer’s on-the-spot

judgment about the level of force necessary in light of the circumstances of the particular case.”

Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002).

       The Court has identified three non-exhaustive factors for lower courts to consider in

determining the reasonableness of a police officer’s use of force: (1) the severity of the crime at

issue; (2) whether the suspect posed an immediate threat to the safety of the officer or others; and

(3) whether the suspect actively resisted arrest or attempted to evade arrest by flight. Graham,

490 U.S. at 396. Nonetheless, the ultimate inquiry is “whether the totality of the circumstances”

justified the use of force. Livermore v. Lubelan, 476 F.3d 397, 404 (6th Cir. 2007) (internal

quotation marks omitted).

       The central issue in this appeal is whether, viewing the evidence in the light most

favorable to Lopez, Defendant Officers had probable cause to believe that Lopez posed a serious

risk of harm to the officers or others. Defendant Officers testified uniformly that they believed

that Pla was in imminent danger at the time they fired at Lopez. It is impossible to determine

whether this belief was reasonable, however, without resolving factual disputes in the record.

       These factual disputes are material because they concern the nature of any movement that

Lopez may have made just before the shooting. While Defendant Officers testified that Lopez

raised the machete and turned toward Pla, other witnesses described the events differently. Pla

stated that Lopez turned toward her with the machete held at his side, while Melba recalled that

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No. 14-4277
Lopez v. City of Cleveland, et al.


Lopez raised the machete and turned away from Pla (and toward Melba). Noel stated that Lopez

never turned in either direction, but remained facing the officers. Moreover, Melba and Noel

each testified that Lopez made statements indicating an intent to commit suicide and raised the

machete as though intending to harm himself.

       Defendants suggest that the force used was not excessive based on Chappell v. City of

Cleveland, 585 F.3d 901 (6th Cir. 2009). However, the circumstances of Lopez’s shooting,

when viewed in the light most favorable to Plaintiff, are materially different than those presented

in Chappell.    Although both cases involved a suspect who refused to drop a knife, the

circumstances in Chappell presented a far more immediate threat of danger. In that case, there

was undisputed evidence that the suspect was moving quickly toward officers with a knife held

high, and “had closed to within five to seven feet in a dark, cluttered, enclosed space.” Id. at

911. Moreover, the officers “were backed up against a wall in the small bedroom and there was

no ready means of retreat or escape.” Id. Thus, the court found that if the officers had hesitated

even a second, they would have been within arm’s reach of the suspect and vulnerable to serious

injury. Id.

       In this case, by contrast, the parties dispute whether Lopez made any movement at all

toward Pla. Viewing the facts in the light most favorable to Plaintiff, Lopez turned his body

away from Pla as she was moving toward him. Moreover, there is evidence that he did not raise

the machete at all, or raised it in a way that indicated only that he intended to harm himself. In

other words, there is a dispute of fact as to whether Lopez made any movement in those final

moments that could reasonably be interpreted as threatening Pla.

       “This Court has established that summary judgment is inappropriate where there are

contentious factual disputes over the reasonableness of the use of deadly force.” Sova v. City of

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No. 14-4277
Lopez v. City of Cleveland, et al.


Mt. Pleasant, 142 F.3d 898, 903 (6th Cir. 1998). Thus, where the reasonableness of the officers’

use of force depends on which version of the facts one accepts, “the jury, not the judge, must

determine liability.” Id. In this case, there are contentious factual disputes about the nature of

Lopez’s movements just before the shooting. Those disputes go to the heart of whether it was

reasonable for Defendant Officers to use deadly force. Because the reasonableness of their

actions depends on which version of the facts one accepts, the question must go to the jury.

Accordingly, we reverse the district court’s grant of summary judgment to Defendant Officers on

Plaintiff’s Fourth Amendment claim.2

B.     Municipal Liability

       A plaintiff seeking to hold a municipality liable for its officers’ conduct must

demonstrate “(1) that a constitutional violation occurred; and (2) that the [municipality] is

responsible for that violation.” Graham v. Cnty. of Washtenaw, 358 F.3d 377, 382 (6th Cir.

2004) (internal quotation marks omitted). The district court dismissed Plaintiff’s § 1983 claim

against Defendant City of Cleveland based on its conclusion that no constitutional violation

occurred. Given our holding as to that issue, we also reverse the district court’s holding on

municipal liability and remand for further consideration in light of these proceedings.



2
  In light of its holding that there was no constitutional violation, the district court did not
analyze the “clearly established” prong of the qualified-immunity analysis, and Defendants have
made no argument regarding that prong on appeal. Nonetheless, we note that the law was clearly
established that officers could not use deadly force unless they had probable cause to believe that
an individual posed a serious risk of harm to officers or others. See Ciminillo v. Streicher,
434 F.3d 461, 468 (6th Cir. 2006). Because there are disputes of fact that go directly to that
issue, Defendant Officers could not establish that they were entitled to qualified immunity based
on the “clearly established” prong. See Tolan, 134 S. Ct. at 1865-66 (explaining that a court may
not resolve disputes of fact under either prong of the qualified immunity analysis).


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Lopez v. City of Cleveland, et al.


C.     State Law Claims

       The district court held that because Defendant Officers did not use excessive force, they

were entitled to immunity under state law. In light of our holding regarding the use of excessive

force, we reverse the district court’s holding on this issue and remand for the district court to

determine the issue of immunity under state law.

                                     IV. CONCLUSION

       For the foregoing reasons, we REVERSE the judgment of the district court and

REMAND for proceedings consistent with this opinion.




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