                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                            File Name: 14a0257p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


 WILLIAM O. CASS, Administrator of the Estate of ┐
 Derrick J. Jordan,                               │
                             Plaintiff-Appellant, │
                                                  │                        No. 13-4409
                                                  │
        v.                                        >
                                                  │
                                                  │
 CITY OF DAYTON; DAYTON POLICE DEPARTMENT; │
 DAVID HOUSE; JOHN DOE,                           │
                          Defendants-Appellees. │
                                                  ┘
                             Appeal from the United States District Court
                             for the Southern District of Ohio at Dayton.
                        No. 3:12-cv-00248—Timothy S. Black, District Judge.
                                          Argued: August 8, 2014
                                  Decided and Filed: October 16, 2014

         Before: GIBBONS and McKEAGUE, Circuit Judges; LAWSON, District Judge.*

                                            _________________

                                                 COUNSEL

ARGUED: Matthew C. Schultz, BRANNON & ASSOCIATES, Dayton, Ohio, for Appellant.
Kelly M. Schroeder, FREUND, FREEZE & ARNOLD, Dayton, Ohio, for Appellees. ON
BRIEF: Matthew C. Schultz, Dwight D. Brannon, BRANNON & ASSOCIATES, Dayton,
Ohio, for Appellant. Kelly M. Schroeder, Neil F. Freund, FREUND, FREEZE & ARNOLD,
Dayton, Ohio, for Appellees.




        *
         The Honorable David M. Lawson, United States District Judge for the Eastern District of Michigan, sitting
by designation.




                                                        1
No. 13-4409                   Cass v. City of Dayton, et al.                             Page 2

                                       _________________

                                            OPINION
                                       _________________

       JULIA SMITH GIBBONS, Circuit Judge.               After a “buy-bust” operation took an
unexpected turn, Detective David House of the Dayton City Police Department shot and killed
Derrick Jordan. Jordan, not the intended target of the bullet, sat in the front passenger seat of a
vehicle that, moments before the shot was fired, had been driven into two officers in an attempt
to escape. Jordan’s estate brought suit under 42 U.S.C. § 1983, alleging that House used
excessive force in violation of the Fourth Amendment and that the City failed to train and
supervise its employees adequately. Jordan’s estate also asserted claims under Ohio law. The
district court awarded summary judgment to the defendants on all claims and Jordan’s estate
appeals. For the following reasons, we affirm.

                                                 I.

       This case arises out of a May 16, 2008, “buy-bust” operation orchestrated by Detective
James Mullins of the Dayton Police Department Special Investigations Division Drug Unit. The
operation was based on information received from a confidential informant, who was to purchase
an ounce of crack cocaine from Robert Moore.

       That evening, Mullins briefed the following team members on the operation: Sergeant
Mark Spiers, Sergeant Brian Johns, Detective David House, Detective Keith Coberly, Detective
Dennis Murphy, Detective Doug Hall, Detective Joe St. Clair, Detective Tommy Harshman,
Officer Mark Ponichtera, Officer Ron Velez, and Officer Tom Oney. Mullins advised the team
that the informant had ordered an ounce of crack cocaine, that Moore was a known drug dealer,
and that Moore was known to be armed with a gun. Mullins explained that it was to be a two-
part operation. The first part called for officers to arrest Moore following a traffic stop. If that
was unsuccessful, Mullins would take the informant to the Econo Lodge on Edwin C. Moses
Blvd. where the officers would arrest Moore after he sold the crack cocaine to the informant.
Mullins advised that the team was to move in and “take down” Moore once the informant gave a
No. 13-4409                   Cass v. City of Dayton, et al.                            Page 3

visual signal to confirm that Moore was actually there to make the deal. The first part of the plan
was unsuccessful so the officers turned to the second.

       The Dayton Econo Lodge is a U-shaped building with an overhang that juts out along the
east side. It faces Edwin C. Moses, and an access road runs between that street and the hotel.
The road provides access to a McDonald’s (to the west of the Econo Lodge), a Wendy’s (to the
east of the Econo Lodge), and a BP gas station (further to the east of the Econo Lodge).
Detective House arrived in the vicinity of the motel at approximately 7:15 pm in an unmarked
City of Dayton vehicle. After twice moving his car, House parked near the McDonald’s drive-
through to the west of the Econo Lodge with a view of the informant.

       Not long after House parked, Detective Knight came on the radio and informed the team
that Moore was arriving in a blue Ford Taurus and that there were three or four occupants in the
vehicle. Shortly thereafter, the Taurus stopped under the overhang and made contact with the
informant. Satisfied that Moore was there to complete the deal, the informant made the signal
and then turned to walk toward the hotel. Mullins instructed the team to “move in.” The plan
was to surround the Taurus while Moore was still in front of the Econo Lodge waiting for the
informant to return.

       It was at this point that the plan went awry and the situation began to escalate. Instead of
waiting for the informant, the Taurus drove through the Econo Lodge parking lot at “normal
speed,” westbound, in the direction of House and the McDonald’s.             Believing that if he
continued with the original plan the vehicle would simply drive around him, House positioned
his car in the exit that led from the Econo Lodge parking lot onto Edwin C. Moses. After
partially blocking the exit, House got out of his vehicle and walked toward the Taurus as it came
to a stop in front of him. At about the same time, Detective St. Clair, with Sergeant Johns,
parked alongside his car, leaving about one car’s length between the two. Because the signal had
been given, House believed that the other detectives would converge on the Taurus.

       The Taurus came to a stop approximately 30 feet from House’s vehicle, giving House a
clear view of the driver and passenger and the driver a clear view of him. House, wearing his
badge and his Dayton Police utility vest with “Police” written in reflective lettering, approached
the Taurus from the front with his gun drawn, yelling “Dayton Police. Stop the car.” St. Clair
No. 13-4409                         Cass v. City of Dayton, et al.                                       Page 4

did the same. When House was approximately ten feet from the stopped Taurus, the driver of
the car, later identified as Charles Stargell, “punched the gas” and accelerated.1 House ran to the
left. Realizing he could not avoid being hit, House put his hands on the hood of the Taurus and
jumped in the air to ensure that the car would not drive over his body. The Taurus struck House
in the right leg as he rolled across the hood to the passenger side of the vehicle. The impact
carried House in the direction from which he came, and he landed facing the same direction as
the Taurus, which continued to accelerate.

         Almost immediately after the car struck House, it struck St. Clair in the hand, prompting
him to discharge his weapon. At that point, House did not know where St. Clair was or even that
St. Clair had been the one to fire the shot. Nevertheless, based on the fact that House had last
seen St. Clair behind him, House believed that St. Clair had fired the shot and had done so in
self-defense. In fact, St. Clair was on the opposite side of the vehicle near the rear driver’s-side
door and testified that he discharged his weapon accidentally.

         Within a matter of seconds after being hit, House turned to the left, in close proximity to
the passenger-side front window, looked through the sight on his gun at the driver of the Taurus,
and fired a single shot. House testified that the only person he could see through the sight was
the driver, Stargell; he did not see the person in the front passenger seat. He testified that he took
the shot in the belief that he was protecting St. Clair, Johns, Detective Murphy, and Officer
Ponichtera, as well as officers and civilians who might have been seriously injured had the car
continued on. The bullet struck and killed Derrick Jordan, the front-seat passenger. The Taurus
continued between House’s and St. Clair’s cars, through the McDonald’s parking lot, eventually
crashing into a tree.

         The City of Dayton Police Department charged House and St. Clair with two violations
of the City’s firearms policy. General Order 3.03-5, Use of Firearms, provides that “An officer
will not discharge firearms from or at a moving vehicle unless they reasonably believe that such
an action is in defense of human life.” Subsection (a) provides that “Officers must use tactical
positioning of their vehicles and tactical vehicle approaches in order to minimize the danger

         1
          There is a dispute as to whether the vehicle accelerated directly at House, or whether the driver turned the
wheel left and accelerated at St. Clair. Regardless, the vehicle hit both officers.
No. 13-4409                   Cass v. City of Dayton, et al.                           Page 5

presented by occupied vehicles.” Subsection (b) provides that “Officers must not deliberately
place themselves in the path of a moving vehicle. An officer will attempt to move from the path
of the motor vehicle and/or seek cover when possible.” The two officers were found not guilty
of violating subsection (a) and guilty of violating subsection (b), presumably for approaching the
Taurus from the front. House was given a 24-hour suspension.

       William Cass, Jr., as administrator of Jordan’s estate, brought suit against the City of
Dayton, the Dayton Police Department, Detective House, and a John Doe defendant in the
Montgomery County, Ohio, court of common pleas. Cass asserted claims under 42 U.S.C.
§ 1983, alleging that House violated Jordan’s Fourth Amendment rights and that the City could
be held liable under Monell v. Department of Social Services of the City of New York, 436 U.S.
658 (1978). Cass also asserted claims under Ohio law. The defendants removed the suit to the
United States District Court for the Southern District of Ohio, and the district court awarded
summary judgment to the defendants on all of Cass’s claims. The district court held that House
did not violate Jordan’s Fourth Amendment rights because House’s use of force was not
objectively unreasonable under the circumstances. In the alternative, the district court held that
House was entitled to qualified immunity because Jordan’s constitutional rights were not clearly
established. On the Monell claim, the district court rejected Cass’s contention that the police
department’s after-the-fact failure to discipline House adequately (in the plaintiff’s eyes)
established a causal nexus between the alleged constitutional violation and the City’s actions.
The court also granted House statutory immunity on the state-law claims. Cass timely appealed.

                                               II.

       We review a district court’s grant of summary judgment de novo. See Dixon v. Univ. of
Toledo, 702 F.3d 269, 273 (6th Cir. 2012). Summary judgment is proper where no genuine issue
of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c). In considering a motion for summary judgment, we construe all reasonable
inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).

       Cass asserts that summary judgment was improper under Tolan v. Cotton, which held that
where material facts are disputed—when, for example, there is contradictory testimony
No. 13-4409                          Cass v. City of Dayton, et al.                                       Page 6

concerning a fact—a court must resolve that dispute in favor of the nonmoving party at the
summary judgment stage. 134 S. Ct. 1861, 1866–68 (2014). Unlike in Tolan, the material facts
in this case are not disputed; this dispute centers on whether those facts, when viewed in Cass’s
favor, amount to a violation of Jordan’s clearly established constitutional rights. This type of
dispute is apt for disposition at summary judgment because the only question is whether the
defendants were entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Plumhoff
v. Rickard, 134 S. Ct. 2012, 2020–24 (2014).

                                                          A.

         We begin with the § 1983 claims against House in his personal capacity2 to which House
asserted a qualified immunity defense.                “‘[G]overnment officials performing discretionary
functions generally are shielded 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.’” Binay v. Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010) (alteration in original)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The purpose of such immunity is to
protect officials from “undue interference with their duties and from potentially disabling threats
of liability.” Harlow, 457 U.S. at 806. To ensure robust protection, qualified immunity protects
“all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,
475 U.S. 335, 341 (1986).

         There are two general steps to the qualified immunity analysis. The court must determine
whether “the facts alleged show the officer’s conduct violated a constitutional right” and whether
that right was “clearly established.” Saucier v. Katz, 553 U.S. 194, 201–02 (2001).3 Cass asserts
that the district court erred at both steps of the qualified immunity analysis—that the district
court erred in concluding that Jordan’s rights were not violated and that House did not violate

         2
          Cass did not specify whether the claim was brought against House in his individual or official capacity.
House did not object on that basis and there is no question that House had “sufficient notice” that he was being sued
in his individual capacity, Moore v. City of Harriman, 272 F.3d 769, 773 (6th Cir. 2001) (en banc), particularly
since he asserted a qualified immunity defense, Shepherd v. Wellman, 313 F.3d 963, 968 (6th Cir. 2002).
         3
         This court has at times applied a third step in its qualified immunity analysis. A court must determine
“whether the plaintiff has offered sufficient evidence ‘to indicate that what the official allegedly did was objectively
unreasonable in light of the clearly established constitutional rights.’” Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.
2003) (quoting Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999)). In the instant case, this objective
reasonableness test collapses into the Fourth Amendment inquiry.
No. 13-4409                   Cass v. City of Dayton, et al.                             Page 7

clearly established law.    We reach only Cass’s first argument.       See Pearson v. Callahan,
555 U.S. 223, 236 (2009).

       Although Jordan was not the intended target of House’s bullet, Cass’s claim on his behalf
is properly assessed under the Fourth Amendment. See Fisher v. City of Memphis, 234 F.3d 312,
318–19 (6th Cir. 2000). The Fourth Amendment’s prohibition against unreasonable seizures
prohibits the use of excessive force against free citizens. Id. (citing Graham v. Connor, 490 U.S.
386, 395 (1989)). The test is one of objective reasonableness: “[T]he question is whether the
officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397. We
assess “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. (citing Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)), among other case-
specific factors. See Ciminillo v. Streicher, 434 F.3d 466, 467 (6th Cir. 2006). In short, we ask
whether the officer’s use of force was objectively reasonable in light of the totality of the
circumstances as they would have appeared to a “reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.

       Tennessee v. Garner provides the starting point for assessing the use of deadly force
against fleeing felony suspects. There, the Supreme Court held that the Fourth Amendment does
not permit a police officer to “seize an unarmed, nondangerous suspect by shooting him dead.”
471 U.S. at 11. At the same time, “[w]here the officer has probable cause to believe that the
suspect poses a threat of serious physical harm, either to the officer or to others, it is not
constitutionally unreasonable to prevent escape by using deadly force.” Id.

       Since Garner, we have applied a consistent framework in assessing deadly-force claims
involving vehicular flight. Although each case is tethered to its specific factual context, the
critical question is typically whether the officer has “reason to believe that the [fleeing] car
presents an imminent danger” to “officers and members of the public in the area.” Smith v.
Cupp, 430 F. 3d 766, 775 (6th Cir. 2005). An officer is justified in using deadly force against “a
driver who objectively appears ready to drive into an officer or bystander with his car.” Hermiz
v. City of Southfield, 484 F. App’x 13, 16 (6th Cir. 2012) (citing Brosseau v. Haugen, 543 U.S.
No. 13-4409                   Cass v. City of Dayton, et al.                             Page 8

194, 197–200 (2004)). But, as a general matter, an officer may not use deadly force “once the
car moves away, leaving the officer and bystanders in a position of safety.” Id.; see also, e.g.,
Murray-Ruhl v. Passinault, 246 F. App’x 338, 344–46 (6th Cir. 2011); Estate of Kirby v. Duva,
530 F. 3d 475, 482–83 (6th Cir. 2008); Sigley v. City of Parma Heights, 437 F.3d 527, 535–36
(6th Cir. 2006); Cupp, 430 F.3d at 774–75. An officer may, however, continue to fire at a
fleeing vehicle even when no one is in the vehicle’s direct path when “the officer’s prior
interactions with the driver suggest that the driver will continue to endanger others with his car.”
Hermiz, 484 F. App’x at 16; see, e.g., Scott v. Clay Cnty., 205 F. 3d 867, 877 (6th Cir. 2000);
Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992). In Cupp, we explained:

       In [Scott and Freland], there was no question that the lives of the officers, or the
       lives of both the officers and members of the public in the area, were endangered
       by the fleeing suspects. Each suspect demonstrated multiple times that he either
       was willing to injure an officer that got in the way of escape or was willing to
       persist in extremely reckless behavior that threatened the lives of all those around.
       The officers reacted with deadly force only after an extended interaction between
       police and the suspect proved that the suspect was likely to continue to threaten
       the lives of those around him in his attempt to escape.

430 F.3d at 775.

       Finally, because the “calculus of reasonableness” allows for the fact that police officers
must often “make split-second judgments—in circumstances that are tense, uncertain, and
rapidly evolving,” Graham, 397 U.S. at 397—an officer does not violate the Fourth Amendment
where, although ultimately wrong in his or her assessment of the circumstances, “a dangerous
situation evolved quickly to a safe one before the police officer had a chance to realize the
change.” See Cupp, 430 F.3d at 774–75.

       Applying this framework, and cognizant that the ultimate question is one of objective
reasonableness, we find that House did not use excessive force. As House approached the
stopped Taurus, clearly signaling his status as a City police officer, Stargell accelerated. Despite
House’s evasive maneuver, House was struck in the leg as he rolled across the hood of the
Taurus. Almost immediately after being hit, House heard St. Clair fire his weapon. Based on his
assessment of the scene, he believed that St. Clair had fired in self-defense and that Johns and
Murphy were also at risk of being struck by the vehicle. It was only at this point—after he
No. 13-4409                    Cass v. City of Dayton, et al.                           Page 9

himself had been hit by the Taurus and had heard St. Clair discharge his weapon in what House
believed was self-defense—that he attempted to stop the Taurus by shooting at the driver. These
facts are not contested in the record. Based on the fact that Stargell had demonstrated that “he
either was willing to injure an officer that got in the way of escape or was willing to persist in
extremely reckless behavior that threatened the lives of all those around,” Smith, 430 F.3d at 775,
and based on House’s professional assessment of what can only be described as a “tense,
uncertain, and rapidly evolving” situation, Graham, 397 U.S. at 397, House’s use of deadly force
was objectively reasonable.

       Cass disagrees. He asserts that because House landed facing in the same direction as the
Taurus, he should have known that St. Clair was not in immediate danger. But “[i]t is not that
easy, particularly in the context of the lightning-quick evolution of this encounter.” Hocker v.
Pikeville City Police Dep’t, 738 F.3d 150, 155 (6th Cir. 2013). House needed to make a split-
second judgment, which he did based on his understanding of the scene and his professional
training. Cass would have the court substitute its judgment for House’s, but the reasonableness
inquiry accounts for the fact that officers on the scene must act quickly based on their
professional judgment and the facts and circumstances as they then appear. Graham, 490 U.S. at
396.

       Quite apart from the fact that House reasonably believed St. Clair to be in the direct path
of the Taurus, Cass’s argument lacks merit. His argument hinges on the proposition that St.
Clair in particular and none of the other officers more generally were in the Taurus’s direct path
when House used deadly force. But the inquiry is not nearly so narrow. The question is whether
House reasonably believed that the lives and safety of both officers and members of the public
“in the area” were in imminent danger. Cupp, 430 F.3d at 775. Indeed, this court and the
Supreme Court have looked beyond the immediate scene where the driver, like Stargell, “had
proven he would do almost anything to avoid capture.” Freland, 954 F.2d at 347 (noting that,
based on suspect’s prior interactions with officers, fleeing suspect could have entered
neighboring house hoping to take hostages); Plumhoff, 134 S. Ct. at 2021 (noting that, based on
suspect’s prior interactions with officers, it was reasonable to believe that the suspect would
resume his flight and pose a deadly threat to others on the road).
No. 13-4409                   Cass v. City of Dayton, et al.                          Page 10

       In this case, we look no further than the immediate vicinity. Although the Taurus had
struck two officers, Cass suggests that the coast was clear for the car to proceed unmolested
despite the presence of other officers to effect the arrest. This, of course, was not how the
situation appeared in real time. Informed by his knowledge of the circumstances and of police
tactics, House reasonably understood that Stargell, in his quest to escape, posed a continuing risk
to the other officers present in the immediate vicinity, including Johns and Murphy. Moreover,
those officers were not required to step aside and let the Taurus escape, particularly after it had
struck two of their fellow officers. See id. at 2021–22; Cupp, 430 F.3d at 774. In short, “[w]hile
it may be easy for [Cass] to say that each officer was safe once the officer was no longer in the
direct path of [the Taurus], no reasonable officer would say that the night’s peril had ended at
that point.” Hocker, 738 F.3d at 155. Stargell remained behind the wheel, other officers were on
the scene, and Stargell had demonstrated a willingness to injure officers trying to prevent him
from fleeing.

       Cass also makes much of the fact that House violated Dayton Police Department policy
by placing himself in the Taurus’s path. But “[t]he Supreme Court has been cautious to draw a
distinction between behavior that violates a statutory or constitutional right and behavior that
violates an administrative procedure of the agency for which the officials work.” Cooper v.
Cnty. of Washtenaw, 222 F. App’x 459, 468 (6th Cir. 2007). House’s alleged violations of City
policy do not change our conclusion that he did not act objectively unreasonably under the
circumstances. See Freland, 954 F.2d at 347–48.

       Finally, Cass asserts that the district court erred in rejecting his contention that House
fired the shot out of revenge. In a Fourth Amendment excessive force case, however, the
officer’s “underlying intent or motivation” is immaterial—the only question is “whether the
officer’s actions were ‘objectively reasonable’ in light of the facts and circumstances” then
prevailing. Graham, 490 U.S. at 397.

                                                B.

       Because Jordan was not deprived of a constitutional right, Cass cannot prevail on a claim
against the municipality predicated on the same alleged constitutional injury. Scott, 205 F. 3d at
879.
No. 13-4409                  Cass v. City of Dayton, et al.                         Page 11

                                               C.

       Cass’s state-law claims against House are foreclosed by the fact that House did not act
unreasonably. See Burdine v. Sandusky Cnty., 524 F. App’x 164, 171 (6th Cir. 2013). Section
2744.03 of the Ohio Revised Code immunizes employees of a political subdivision from civil
liability for injuries allegedly caused by conduct undertaken in connection with governmental
functions unless the “employee’s acts or omissions were manifestly outside the scope of the
employee’s employment or official responsibilities” or the “employee’s acts or omissions were
with malicious purpose, in bad faith, or in a wanton or reckless manner.” Ohio Rev. Code
§ 2744.03(A)(6). Cass does not assert that House acted outside the scope of his employment
and, having failed to demonstrate that House’s conduct was objectively unreasonable, he cannot
demonstrate that House acted with malicious purpose, in bad faith, or in a wanton or reckless
manner. See Chappell v. City of Cleveland, 585 F.3d 901, 916 n.3 (6th Cir. 2009).

                                               III.

       For the foregoing reasons, we affirm.
