                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit Rule 206
                              File Name: 09a0382p.06

             UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT
                             _________________


                                                   X
                                                    -
 DOROTHY CHAPPELL, Administratrix of the

                             Plaintiff-Appellee, --
 Estate of Deceased Brandon McCloud,

                                                    -
                                                         No. 08-4456

                                                    ,
                                                     >
                                                    -
            v.

                                                    -
                                     Defendant, -
 CITY OF CLEVELAND,
                                                    -
                                                    -
                                                    -
                                                    -
 PHILLIP HABEEB, Badge No. 381, Cleveland
                                                    -
 Police Department; JOHN KRAYNIK, Badge
                                                    -
 No. 1517, Cleveland Police Department,
                        Defendants-Appellants. -
                                                   N
                     Appeal from the United States District Court
                    for the Northern District of Ohio at Cleveland.
            No. 06-02135—Kathleen McDonald O’Malley, District Judge.
                             Argued: October 6, 2009
                      Decided and Filed: November 4, 2009
        Before: DAUGHTREY, SUTTON, and McKEAGUE, Circuit Judges.

                               _________________

                                   COUNSEL
ARGUED: Stephen W. Funk, ROETZEL & ANDRESS, Akron, Ohio, for Appellants.
Terry H. Gilbert, FRIEDMAN & GILBERT, Cleveland, Ohio, for Appellee. ON BRIEF:
Stephen W. Funk, Aretta Bernard, ROETZEL & ANDRESS, Akron, Ohio, W. Craig
Bashein, BASHEIN & BASHEIN CO., Cleveland, Ohio, for Appellants. Terry H. Gilbert,
Gordon S. Friedman, FRIEDMAN & GILBERT, Cleveland, Ohio, for Appellee.




                                        1
No. 08-4456          Chappell v. City of Cleveland, et al.                              Page 2


                                    _________________

                                          OPINION
                                    _________________

        McKEAGUE, Circuit Judge. This action arises from the tragic shooting by police
officers of a fifteen-year old boy, Brandon McCloud, in his own bedroom. While conducting
a protective sweep of a home in the early-morning darkness prior to executing a search
warrant, the officers encountered a male suspect hiding in a bedroom closet. When they
ordered him to come out and show his hands, the suspect came toward the officers with a
knife upheld. When he ignored their commands to drop the knife and continued to move
toward the officers in close quarters, they opened fire, killing him instantly.

        The administratrix of McCloud’s estate brought action against the officers under
federal and state law, alleging the use of deadly force was excessive as the officers were not
under imminent threat of serious bodily harm. The district court denied the officers’ motion
for summary judgment, holding that they are not entitled to qualified immunity because there
are genuine issues of material fact that preclude ruling, as a matter of law, that the officers’
conduct was objectively reasonable. Specifically, the court determined there is a factual
dispute about the nature of the threat posed by McCloud, rendering it impossible to rule
whether the officers’ reaction was objectively reasonable.

        We find the district court’s reasoning, albeit thorough and well-articulated, to be
erroneous in its ultimate conclusion. Our review of the record convinces us that the material
facts are not genuinely disputed. Based on the record evidence, we conclude as a matter of
law that the officers’ conduct is not shown to have been objectively unreasonable. For the
reasons that follow, the denial of qualified immunity is reversed.

                 I. FACTUAL AND PROCEDURAL BACKGROUND

        On August 31, 2005, City of Cleveland Police Detectives Philip Habeeb and John
Kraynik were investigating an armed robbery of a pizza-delivery person that had occurred
that evening. Upon learning about the circumstances of the robbery, the detectives
immediately suspected Brandon McCloud, who lived in the vicinity of the robbery and had
admitted committing 10-12 similar armed robberies in an interview with them some three
No. 08-4456         Chappell v. City of Cleveland, et al.                             Page 3


months earlier. Once he had used a handgun, but in all other cases, he had used knives. In
fact, McCloud had been formally adjudicated a delinquent in connection with one of the
robberies and had been sentenced to a short period of home detention, followed by
probation.

        After discovering physical evidence near the scene of the robbery suggestive of the
same modus operandi McCloud had admitted using in the earlier robberies, the detectives
obtained a warrant at about 3:00 a.m. on September 1, 2005, to search the home where
McCloud lived with his grandmother, Dorothy Chappell, and uncle, Melvin Chappell. The
warrant authorized a search of the premises for evidence of the armed robbery, such as stolen
property, weapons, and articles of disguise. At about 5:00 a.m., after observing activity in
the Chappell house, the detectives knocked on the front door, advised Melvin Chappell that
they had a search warrant, and proceeded to conduct a protective sweep of the residence.
Chappell told the detectives that his mother was in the house getting ready for work, but he
did not mention nephew Brandon McCloud.

        The house was still dark; the detectives proceeded from one room to another with
flashlights, firearms drawn. While the detectives say they announced themselves several
times as “Cleveland Police,” others present at the house did not recall hearing this. As the
detectives approached what turned out to be McCloud’s bedroom on the second floor, they
found the door closed. They barged into the small bedroom, each taking a position inside
the room on either side of the “fatal funnel” formed by the opening into the room. Across
the dark room, they spotted McCloud hiding in the closet. Their flashlights and firearms
trained on him, they ordered him to come out of the closet and show his hands. After first
hesitating, McCloud turned and came out of the closet, holding a knife in his right hand with
the blade pointing upward. Ignoring their commands to drop the knife, McCloud continued
to move quickly toward the detectives. Believing they were threatened with imminent
serious bodily harm, both detectives simultaneously opened fire, each striking McCloud with
several shots, killing him instantly. The entire encounter transpired in a matter of seconds.

        Eight days later, during the Cleveland Police Department’s investigation of the
deadly force incident, both Detective Habeeb and Detective Kraynik stated that McCloud
moved quickly or “lunged” toward them. They both thought McCloud was attempting to
No. 08-4456          Chappell v. City of Cleveland, et al.                                 Page 4


attack them and that they were in imminent peril of death or serious injury. Both believed
McCloud would have stabbed one or both of them if they had not defended themselves.
Twenty months later both detectives gave deposition testimony substantially consistent with
their earlier statements.

        This action was commenced in the Cuyahoga County Court of Common Pleas and
removed to the District Court for the Northern District of Ohio on September 5, 2006.
Dorothy Chappell, McCloud’s grandmother and administratrix of his estate, asserted claims
against the City of Cleveland and both detectives under 42 U.S.C. § 1983 for violation of
McCloud’s Fourth Amendment rights (unreasonable seizure), and under state law for
wrongful death, assault and battery, and willful, wanton and reckless conduct resulting in
death. After completion of discovery, defendants moved for summary judgment. All claims
against the City of Cleveland were voluntarily dismissed with prejudice. Subsequently, the
district court issued a 54-page opinion denying Habeeb’s and Kraynik’s motion for summary
judgment, concluding they are not entitled to qualified immunity on either the federal or state
law claims because there are outstanding questions of fact. This appeal timely followed.

                                     II. JURISDICTION

        A threshold question we must answer is whether the court has jurisdiction to hear
this appeal. Ordinarily, the denial of a motion for summary judgment is an interlocutory
ruling, not a “final order,” and is not subject to immediate appeal. 28 U.S.C. § 1291;
Harrison v. Ash, 539 F.3d 510, 521 (6th Cir. 2008). Yet, it is well-established that an order
denying qualified immunity to a public official is immediately appealable pursuant to the
“collateral order” doctrine. Harrison, 539 F.3d at 521; Leary v. Livingston County, 528 F.3d
438, 447 (6th Cir. 2008). This exception is narrow, however. Appellate jurisdiction exists
“only to the extent that a summary judgment order denies qualified immunity based on a
pure issue of law.” Leary, 528 F.3d 447-48 (quoting Gregory v. City of Louisville, 444 F.3d
725, 742 (6th Cir. 2006)).

        Plaintiff Chappell correctly points out that the district court’s denial of qualified
immunity is not based on a pure question of law, but on two clearly identified factual issues.
Yet, the district court’s characterization of the basis for its ruling does not necessarily dictate
the availability of appellate review. Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 402-
No. 08-4456          Chappell v. City of Cleveland, et al.                               Page 5


03 (6th Cir. 2007); Estate of Carter v. City of Detroit, 408 F.3d 305, 309 (6th Cir. 2005).
If, apart from impermissible arguments regarding disputes of fact, defendants raise purely
legal issues bearing on their entitlement to qualified immunity, then there are issues properly
subject to appellate review. Livermore, 476 F.3d at 403; Estate of Carter, 408 F.3d at 310.
Hence, the district court’s determination that there is a factual dispute does not necessarily
preclude appellate review where, as defendants here contend, the ruling also hinges on legal
errors as to whether the factual disputes (a) are genuine and (b) concern material facts. See
Scott v. Harris, 550 U.S. 372, 378-80 (2007) (reversing denial of qualified immunity where
lower court erred in finding genuine issue of material fact).

        In Scott, the Eleventh Circuit was held to have erred by accepting the plaintiff’s
version of the facts as true even though that version was so conclusively contradicted by the
record that no reasonable jury could believe it. Id. at 380-81. In other words, the court is
not obliged to, and indeed should not, rely on the nonmovant’s version where it is “so utterly
discredited by the record” as to be rendered a “visible fiction.” Id. The court’s duty to view
the facts in the light most favorable to the nonmovant does not require or permit the court
to accept mere allegations that are not supported by factual evidence. Leary, 528 F.3d at
443-44. This is so because the nonmovant, in response to a properly made and supported
motion for summary judgment, cannot rely merely on allegations but must set out specific
facts showing a genuine issue for trial. Id. at 444.

        Defendants Habeeb and Kraynik contend that the district court committed legal error
not unlike the error committed by the Eleventh Circuit in Scott. Specifically, they argue the
district court erred as a matter of law (a) by treating the objective reasonableness of their use
of force as a question of fact instead of a question of law; (b) by treating unsupported
speculation that McCloud did not pose an imminent threat of serious harm as creating a
“genuine” dispute; and (c) by treating evidence that the detectives did not announce
themselves as “Cleveland Police” as going to a “material” fact issue even though it was
not—per the “segmented analysis” that must be applied—part of the circumstances
immediately preceding the use of deadly force.

        For reasons more fully developed below, we agree with defendants on the latter two
points. What’s most important at this stage, however, is that defendants are not “merely
No. 08-4456          Chappell v. City of Cleveland, et al.                               Page 6


quibbling with the district court’s reading of the factual record,” see Leary, 528 F.3d at 441,
but have identified purely legal issues that are, pursuant to the collateral order doctrine,
subject to appellate jurisdiction. Livermore, 476 F.3d at 403. We therefore overrule
Chappell’s objection to this court’s exercise of appellate jurisdiction.

                                       III. ANALYSIS

        A. Qualified Immunity Framework

        Chappell alleges that Detectives Habeeb and Kraynik are liable under 42 U.S.C.
§ 1983 for using excessive force in responding to the discovery of her grandson in his
bedroom and that killing him represents an unreasonable seizure in violation of his rights
under the Fourth Amendment. In defense, the detectives have invoked qualified immunity,
which if it applies, is a defense not just against liability, but against suit itself. Pearson v.
Callahan, 129 S.Ct. 808, 815 (2009). Hence, the immunity questions should be resolved
as early in the litigation as possible. Id.

        Qualified immunity shields government officials from liability for civil damages if
their actions did not violate clearly established statutory or constitutional rights of which a
reasonable person would have known. Pearson, 129 S.Ct. at 815. Qualified immunity
ordinarily applies unless it is obvious that no reasonably competent official would have
concluded that the actions taken were unlawful. Ewolski v. City of Brunswick, 287 F.3d 492,
501 (6th Cir. 2002). 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, 343,
341 (1986)). Qualified immunity applies irrespective of whether the official’s error was a
mistake of law or a mistake of fact, or a mistake based on mixed questions of law and fact.
Pearson, 129 S.Ct. at 815.

        Plaintiff bears the burden of showing that defendants are not entitled to qualified
immunity. Untalan v. City of Lorain, 430 F.3d 312, 314 (6th Cir. 2005). Plaintiff must show
both that, viewing the evidence in the light most favorable to her, a constitutional right was
violated and that the right was clearly established at the time of the violation. Scott, 550 U.S.
at 377; Harrison, 539 F.3d at 517. If plaintiff fails to show either that a constitutional right
No. 08-4456            Chappell v. City of Cleveland, et al.                                       Page 7


was violated or that the right was clearly established, she will have failed to carry her
burden. Moreover, to satisfy the second prong of the standard, plaintiff 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. Brosseau v. Haugen, 543 U.S. 194, 199-200 (2004). In determining whether the
required showing has been made, the court has discretion to decide which of the two
elements to address first. Pearson, 129 S.Ct. at 818. The district court’s decision is
                                                      1
reviewed de novo. Ewolski, 287 F.3d at 501.

         B. Objective Reasonableness

         There is no dispute regarding the correctness of the general legal standards
employed by the district court in evaluating the § 1983 excessive force claim. They are
summarized by the district court as follows:

                 It is axiomatic that individuals have a constitutional right not to
         be subjected to excessive force during an arrest, investigatory stop, or
         other “seizure” of his person. Graham v. Connor, 490 U.S. 386, 388, 395
         (1989). A claim that the government used excessive force during the
         course of a seizure is analyzed under the Fourth Amendment’s “objective
         reasonableness” standard. Id. In Graham, the Supreme Court
         established the test for analyzing objective reasonableness:
                  Determining whether the force used to effect a particular
                  seizure is ‘reasonable’ under the Fourth Amendment
                  requires a careful balancing of the nature and quality of
                  the intrusion on the individual’s Fourth Amendment
                  interests against the countervailing governmental interests
                  at stake.



         1
           In response to plaintiff’s state law claims for wrongful death, assault and battery, and willful,
wanton and reckless conduct resulting in death, defendants moved for summary judgment, contending they
are entitled to statutory immunity from liability as public employees and police officers under Ohio law,
O.R.C. § 2744.03(A)(6). Such immunity applies unless defendants are shown to have acted “outside the
scope of [their] employment or official responsibilities” or “with malicious purpose, in bad faith, or in a
wanton or reckless manner.” Id. Plaintiff contends the immunity does not apply because defendants acted
recklessly.
          The district court analyzed the matter of state law immunity in a manner paralleling its qualified
immunity analysis, and concluded that questions of fact precluded summary judgment on the state law
claims as well. While defendants challenge this ruling, too, both sides recognize that the availability of
both federal qualified immunity and state law immunity depends on the correctness of the district court’s
finding of the existence of the very same questions of fact. Hence, we address the issues, as the parties
have, primarily through the lense of the federal qualified immunity analysis.
No. 08-4456        Chappell v. City of Cleveland, et al.                                Page 8


       Id. at 396. Application of this test “requires careful attention to the facts
       and circumstances of each particular case, including the [1] severity of
       the crime at issue, [2] whether the suspect poses an immediate threat to
       the safety of the officers or others, and [3] whether he is actively resisting
       arrest or attempting to evade arrest by flight.” Id. Further, the
       “reasonableness” of a particular use of force is objective and “must be
       judged from the perspective of a reasonable officer on the scene, rather
       than with the 20/20 vision of hindsight,” Graham, 490 U.S. at 396, and
       “in light of the facts and circumstances confronting [the officers], without
       regard to their underlying intent or motivation,” id. at 397. Indeed, it is
       not for the Court to substitute its own notion of the “proper police
       procedure for the instantaneous decision of the officer at the scene.”
       Boyd v. Baeppler, 215 F.3d 594, 602 (6th Cir. 2000). “The calculus of
       reasonableness must embody allowance for the fact that police officers
       are often forced to make split-second judgments – in circumstances that
       are tense, uncertain, and rapidly evolving – about the amount of force
       that is necessary in a particular situation.” Graham, 490 U.S. at 396-97.
               Moreover, with regard to the constitutionality of an officer’s use
       of deadly force, which also is subject to the objective reasonableness
       standard of the Fourth Amendment, the Supreme Court has noted 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 others.” Tennessee v. Garner, 471 U.S. 1, 7, 11 (1985);
       see Sample v. Bailey, 409 F.3d 689, 697 (6th Cir. 2005) (stating that
       “only in rare instances may an officer seize a suspect by use of deadly
       force”); see also Williams v. City of Grosse Pointe Park, 496 F.3d 482,
       487 (6th Cir. 2007) (“[A]n officer may use deadly force whenever he or
       she, in the face of a rapidly evolving situation, has probable cause to
       believe that a suspect poses a serious physical threat either to the police
       or members of the public.”).
ROA 87, Corrected Opinion and Order pp. 26-28 (footnote omitted).

       Thus, plaintiff’s excessive force claim requires a showing that the detectives’ use
of deadly force was objectively unreasonable. The district court held that plaintiff made
a sufficient showing to create a genuine issue of fact and forestall summary judgment.
Defendants contend the district court misapplied the standard by viewing the question
of objective unreasonableness as a question of fact rather than a question of law.

       At the summary judgment stage, once the relevant set of facts is determined and
all reasonable inferences are drawn in favor of the plaintiff, to the extent supported by
No. 08-4456          Chappell v. City of Cleveland, et al.                             Page 9


the record, the question whether the detectives’ actions were objectively unreasonable
is “a pure question of law.” Scott, 550 U.S. at 381 n.8; Dunn v. Matatall, 549 F.3d 348,
353 (6th Cir. 2008). Careful review of the district court’s opinion reveals that the court
did not erroneously treat this ultimate question as one of fact. Rather, the court found
there to be a genuine fact issue as to whether McCloud posed a serious and immediate
threat of harm. Indeed, if there is some evidence—more than a mere scintilla of
evidence—that McCloud, through his conduct, judged from the perspective of
reasonable officers on the scene, did not give the officers probable cause to believe that
he posed a serious threat of harm, a genuine fact dispute is created. The district court
found there to be such a fact dispute and, resolving it in favor of plaintiff, concluded that
defendants could be found to have used force that was “excessive,” because it is well
established, as a matter of law, that use of deadly force is objectively unreasonable
absent probable cause to believe the suspect posed a serious threat of physical harm.
Garner, 471 U.S. 7, 11. It was on this basis that the district court denied defendants
qualified immunity.

         For the reasons set forth below, we hold the district court erred in this conclusion,
but not because it mistook a legal question for a factual question. Rather, its error lies
in the determination that there is a genuine dispute at to whether McCloud gave the
officers probable cause to believe he posed a serious threat of harm. But this is the
subject matter of defendants’ next objection. The present argument, that the district
court committed legal error by treating the objective unreasonableness inquiry as a
question of fact, is based on a mischaracterization of the district court’s opinion and we
reject it.

         C. Genuine Dispute of Material Fact?

         The district court correctly recognized that the first step in the qualified immunity
analysis required the court to determine the relevant facts. Scott, 550 U.S. at 1774. The
court also recognized that it was obliged to view the factual evidence in the light most
favorable to plaintiff Chappell. The court went on to consider each of four factual
No. 08-4456        Chappell v. City of Cleveland, et al.                          Page 10


disputes asserted by plaintiff. The court rejected the first two, but found merit in the
latter two.

        First, the court rejected the argument that the manner in which the detectives
obtained and executed the search warrant (i.e., defendants’ conduct leading up to but
prior to the actual confrontation with McCloud in the bedroom) was relevant in assessing
the objective reasonableness of their use of force. The court correctly observed that this
assessment is based on a “segmented analysis” of the totality of the circumstances facing
the detectives at the time they made their split-second judgments immediately prior to
using deadly force. Livermore, 476 F.3d at 406. Because it is the reasonableness of the
“seizure” that is the issue, not the reasonableness of the detectives’ conduct in time
segments leading up to the seizure, the district court properly held that any fact issues
relating to the issuance of the warrant and initial entry into the Chappell residence are
immaterial.

        Second, the district court addressed plaintiff’s contention that there is evidence
refuting the detectives’ account that McCloud was holding the knife when they fired on
him. The court clearly explained why it found the forensic evidence insufficient to
create a “genuine issue.” The court specifically cited the lack of affirmative evidence
contradicting the detectives’ account or indicating that the knife had been moved after
the shooting.

        Neither side has challenged the district court’s conclusions on these first two
asserted fact issues. Third, the court considered the record evidence relating to whether
McCloud’s actions gave the detectives probable cause to believe he posed a threat of
serious physical harm to them. The court summarized the pertinent facts as follows:

               Upon entering the dimly lit bedroom, the Detectives noticed
        McCloud standing in a closet. Detective Habeeb immediately instructed
        McCloud to come out of the closet and show his hands. McCloud
        stepped forward, out of the closet and toward the Detectives. The
        distance between McCloud and the Detectives was approximately five to
        seven feet, and a mattress was lying on the floor between the closet and
        the Detectives. At the same time, McCloud raised his right hand which
        contained a knife, blade up. The Detectives commanded McCloud to
No. 08-4456         Chappell v. City of Cleveland, et al.                           Page 11


        drop the knife; he did not do so; and they shot him ten times in a single
        volley.
ROA 87, Corrected Opinion and Order at 33-34 (footnote omitted). This summary of
the extant record is accurate, but incomplete. Also relevant and undisputed, but
conspicuously lacking from this summary, is the consistent testimony of both officers
that McCloud continued moving toward them 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.

        These are the relevant facts, as disclosed in the record. None of these facts are
refuted by physical or circumstantial evidence and none are disputed by contrary
testimony. In fact, there are no other witnesses who could testify to the circumstances
facing the detectives in the bedroom immediately before they fired their weapons.

        Based on these undisputed facts, defendants argue they are entitled to qualified
immunity as a matter of law. They acknowledge they did not actually know McCloud’s
state of mind, but they knew he had admitted using knives in numerous armed robberies
and they saw him quickly moving toward them with a knife. It all happened in darkness,
in close quarters, within a matter of seconds. They insist that ultimately, McCloud’s
state of mind is irrelevant; they are entitled to qualified immunity unless their actions are
shown to have been objectively unreasonable. They remind the court that the prohibition
against second-guessing their actions based on 20/20 hindsight “carries great weight”
where the events in question happened very quickly. Untalan, 430 F.3d at 315. Still,
the fact that the situation unfolded quickly does not by itself legitimize the use of deadly
force. Kirby v. Duva, 530 F.3d 475, 483 (6th Cir. 2008).

        The district court denied qualified immunity, reasoning as follows:

                [T]he Detectives’ position fails to take into account that, in the
        assessment of objective reasonableness, this Court must view the facts in
        the light most favorable to Chappell. Saucier v. Katz, 533 U.S. 194, 201
        (2001). When it does so, it is apparent that there is a genuine issue of
        material fact regarding the threat of danger posed by McCloud.
        McCloud was not charging the officers, a mattress separated McCloud
        from the Detectives, and McCloud was not waving the knife about in a
No. 08-4456        Chappell v. City of Cleveland, et al.                          Page 12


       threatening manner–the knife was pointed upward and was not in a
       position to directly threaten the Detectives. Further, the evidence
       plausibly suggests that McCloud was merely complying with the
       Detectives’ instructions. That is, he stepped out of the closest when
       instructed to do so and raised the knife in response to the command to
       show his hands. Although he did not immediately drop the knife when
       ordered to do so, there is no evidence indicating that McCloud had
       sufficient time to comply. Indeed, the evidence suggests that all of the
       events occurred in rapid succession.
ROA 87, Corrected Opinion and Order p. 38 (footnote omitted). The district court thus
purports to have viewed the facts in the light most favorable to plaintiff’s claim. In our
opinion, however, the court also gave plaintiff the benefit of inferences and suppositions
that are not only not supported by the record facts, but are directly contradicted by the
record facts. The district court’s reasoning is explicit and deserves careful scrutiny.

       The district court noted there was no evidence that McCloud was “charging” the
detectives. Yet, the detectives’ statements that McCloud was continuing to move
quickly toward them and had closed to within seven feet with knife held high are not
contradicted. The detectives did not characterize McCloud’s movement as “charging”
them, but the semantic difference between “charging” and “moving quickly toward” is
immaterial. The knife-wielding suspect was undisputedly moving toward the officers
and had closed to within five to seven feet in a dark, cluttered, enclosed space. Both
detectives were backed up against a wall in the small bedroom and there was no ready
means of retreat or escape. Considering McCloud’s stature (5'7", 165 lbs.) and the size
of the knife (described and depicted in photograph as a standard “steak knife” with
serrated edge), it is apparent that if the detectives had hesitated one instant, i.e., long
enough to allow McCloud to take even one more step, they would have been within his
arm’s reach and vulnerable to serious or even fatal injury.            These undisputed
circumstances clearly support probable cause to believe that serious harm was
imminently threatened and that use of deadly force in self-defense was justified.

       The district court noted that a mattress separated McCloud from the detectives.
This is accurate insofar as “separated” means that the mattress was between McCloud
and the defendants. But the mattress was lying flat on the floor and did not pose much
No. 08-4456        Chappell v. City of Cleveland, et al.                         Page 13


of a barrier. The top surface of the mattress was no more than a foot higher than the
floor. The mattress would thus have posed little impediment to a knife-wielding
assailant of McCloud’s stature. Thus, the mere presence of the mattress on the floor
does not undermine probable cause to believe that serious harm was threatened.

       The district court noted, based on the detectives’ testimony, that McCloud was
not waving the knife in a threatening manner. This hardly negates their testimony,
however, that when he turned quickly and moved from the closet toward them, he
displayed the knife (formerly concealed behind his body), held it up, and refused to
release it as he continued to move toward them. The district court mused, because the
blade was pointed upward, that it was not in a position to immediately threaten them.
Yet, whether the knife was held in a position more conducive to slashing than stabbing
can hardly be deemed to undercut the formation of probable cause to believe that serious
harm was imminently threatened. Further, the district court’s musing about the
significance of the knife’s position in McCloud’s hand, speculation at odds with both
officers’ on-the-scene perceptions, represents exactly the sort of theoretical speculation
that the courts are prohibited from engaging in. Graham, 490 U.S. at 396-97. It
represents the impermissible substitution of the district judge’s own personal
notions—about what might have been, could have been, or should have been—in a
“sanitized world of . . . imagination” quite unlike the dangerous and complex world
where the detectives were required to make an instantaneous decision. See Boyd v.
Baeppler, 215 F.3d 594, 602 (6th Cir. 2000).

       Finally, the district court deemed it “plausible” that McCloud had not actually
refused to drop the knife, but was attempting to comply with the detectives’ commands.
The court observed that there is “no evidence indicating that McCloud had sufficient
time to comply.” ROA 87, Corrected Opinion and Order p. 38 (emphasis added). Thus,
again, the district court relied on an inference drawn, not from the record evidence, but
from a lack of evidence. Indeed, Kraynik testified that the whole encounter “happened
real, real fast . . . in seconds.” ROA 63-2, Kraynik dep. p. 117. Yet, from the time
Habeeb, who entered the bedroom first, initially spotted McCloud in the closet, he had
No. 08-4456         Chappell v. City of Cleveland, et al.                           Page 14


sufficient time to make the following observations: that McCloud “presented a threat;”
that he (Habeeb) needed to “put distance between us until I couldn’t anymore;” that
McCloud “turned and produced a knife;” that McCloud did not comply with Habeeb’s
multiple commands “to drop the knife;” that McCloud, upon exiting the closet,
continued to move forward—“almost lunging”—“as if he were stepping onto the bed;”
that McCloud had closed to within such close proximity of him that Habeeb thought he
was “going to be killed.” ROA 63-1, Habeeb dep. pp. 190-99. Although it may be fair
to say there is no evidence that McCloud, in the unknown inner workings of his mind,
had sufficient time to comply, the record shows there was sufficient time for the
detectives to make observations of McCloud’s actions—actions that, viewed objectively,
strongly indicated his intentions were not innocent and compliant, but defiant and
hostile. And ultimately, of course, the objective reasonableness of the detectives’
conduct must be measured in light of what they actually observed in the circumstances
confronting them, not in light of speculation that may arise with the benefit of hindsight.
Graham. 490 U.S. at 397.

        Furthermore, to withstand a properly supported motion for summary judgment,
plaintiff must do more than rely merely on the allegations of her pleadings or identify
a “metaphysical doubt” or hypothetical “plausibility” based on a lack of evidence; she
is obliged to come forward with “specific facts,” based on “discovery and disclosure
materials on file, and any affidavits,” showing that there is a genuine issue for trial. Fed.
R. Civ. P. 56(c); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986). Plaintiff has failed to carry this burden by adducing evidence refuting
the detectives’ account of the circumstances they confronted.            Nor is there any
substantial likelihood that the record could be improved in trial. The factual record on
which the court must rule whether the detectives’ conduct was objectively reasonable
as a matter of law is fully developed.

        The record affords no basis for holding that the detectives’ conduct was
objectively unreasonable under the circumstances they faced. There is no genuine issue
of material fact. The district court reached a contrary conclusion not based upon
No. 08-4456        Chappell v. City of Cleveland, et al.                          Page 15


“specific facts” shown by discovery materials and affidavits, but based on what it
considered to be plausible inferences drawn from a lack of conclusive evidence on
McCloud’s state of mind. To make out a genuine issue of material fact, plaintiff must
present significant probative evidence tending to support her version of the facts,
evidence on which a reasonable jury could return a verdict for her. Scott, 550 U.S. at
380-81 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). In Scott,
the Court specifically rejected the dissent’s argument that the duty to afford the
nonmoving party the benefit of reasonable inferences required it to find a genuine fact
issue based on an unsupported hypothetical. Id. at 380-81 n. 8 (concluding that once the
relevant facts are determined and all inferences drawn in favor of the nonmoving party
“to the extent supportable by the record,” whether the circumstances reasonably
warranted the use of deadly force presents a “pure question of law.” (emphasis in
original)).

        The district court buttressed its reasoning on the basis of plaintiff’s fourth
asserted factual dispute, concerning whether McCloud even knew the intruders in his
bedroom were police officers. The court reasoned that if the record showed that
McCloud did not recognize the intruders as police officers, and this failure was
attributable to defendants, then such evidence would bear on the reasonableness of their
use of force. Earlier in its opinion, the court had correctly rejected plaintiff’s argument
that the manner in which the detectives executed the search warrant was relevant in
assessing the objective reasonableness of their use of force. Yet, in evaluating the
circumstances immediately prior to the seizure, the court believed it was obliged to
“assume” that McCloud did not know the intruders were police officers based on its duty
to read the record in the light most favorable to plaintiff. Yet again, ignoring for the
moment the question of its relevance, the court’s “assumption” is not based on the record
evidence, but on a lack of evidence.

        There is no direct evidence as to whether McCloud knew the two men who
confronted him in the darkness of his bedroom were police officers. Both detectives
testified that they announced themselves in a command voice as “Cleveland Police”
No. 08-4456        Chappell v. City of Cleveland, et al.                         Page 16


several times as they performed the protective sweep and made their way to McCloud‘s
bedroom. ROA 63-1, Habeeb dep. pp. 166-68; ROA 63-2, Kraynik dep. pp 104-05, 113-
14. Habeeb remembered making this announcement as he reached the top of the steps
and entered into the hallway leading to McCloud’s bedroom, and as he approached the
closed door and pushed it open. ROA 63-1, Habeeb dep. at 171-72, 177, 181. Kraynik,
too, remembered making the announcement as they reached and faced the closed door
of McCloud’s bedroom. ROA 63-2, Kraynik dep. at 114. Yet, as the district court
observed, Melvin Chappell and Cleveland Police Officers Shawn Smith and Marcus
Jones, who were stationed near but outside the house during the sweep, testified they did
not hear the detectives announce themselves as “Cleveland Police.”

       This discrepancy, the district court reasoned, created a genuine factual dispute
as to whether the detectives identified themselves and whether McCloud recognized
them for who they were. Further, the court concluded the dispute is one of material fact,
because the detectives’ failure to identify themselves as they made their way through a
dark house evidences not mere negligence, but recklessness, potentially justifying a jury
finding that their eventual use of deadly force was not objectively reasonable. We
disagree with both conclusions.

       First, the three witnesses’ failure to hear the “Cleveland Police” announcements
does not refute the detectives’ testimony that they in fact made several such
announcements; it establishes only that the witnesses didn’t hear the announcements.
In other words, the discrepancy doesn’t actually raise a genuine dispute of fact. Indeed,
even though, as the district court observed, the conditions were such that Melvin
Chappell and Officers Jones and Smith may have been in a position to hear the
announcements, it is likely they were paying attention to other matters. Specifically,
Melvin Chappell and Jones were talking with each other on the porch. ROA 73, Jones
dep. pp. 18-20. And Smith was occupied talking with Dorothy Chappell in the rear
driveway. ROA 63-5, Smith dep. pp. 11-12. So, the fact that all three witnesses did not
notice the detectives announcing themselves does not necessarily impugn the veracity
of the detectives’ account.
No. 08-4456        Chappell v. City of Cleveland, et al.                         Page 17


       Second, even if a genuine fact dispute were deemed presented, it is not material,
because the events before the shooting are not a factor in determining whether the
detectives had probable cause to use deadly force once they entered the bedroom.
Livermore, 476 F.3d at 406-07 (holding that evidence of recklessness by one officer in
events leading up to shooting was immaterial in evaluating objective reasonableness of
shooting officer’s decision to use deadly force in the situation he faced at time of
shooting); Claybrook v. Birchwell, 274 F.3d 1098, 1104-05 (6th Cir. 2001) (applying
temporally segmented analysis to possibly erroneous actions taken by officers and
finding error that preceded shooting segment to be immaterial); Boyd, 215 F.3d at 599
(applying segmented analysis to excessive force claim in determining which facts were
material); Dickerson v. McClellan, 101 F.3d 1151, 1161-62 (6th Cir. 1996) (holding the
time frame is crucial and evaluating reasonableness of officers’ use of deadly force at
the time of the seizure, irrespective of their prior unreasonable conduct in creating the
circumstances).

       Notwithstanding this case law, the district court deemed Yates v. City of
Cleveland, 941 F.2d 444 (6th Cir. 1991), to be controlling. In Yates, the Sixth Circuit
affirmed the denial of qualified immunity where an officer, without identifying himself,
entered into the dark hallway of a house in which he could hear shouting and threatening
language and, upon encountering occupants, opened fire, seriously injuring one.
According to the officer, he used deadly force because he had been pushed, kicked and
beaten and felt vulnerable to further attack. The shooting victim’s version was different.
He stated that the officer tripped while moving backward and then purposefully shot him
after he recognized the intruder as a policeman, raised his hands, and said, “Don’t
shoot.” Id. at 445-46. Recognizing that these two versions presented a classic factual
dispute, the Yates court held the reasonableness of the shooting was a jury question. In
dictum, the court observed that “[a]n officer who intentionally enters a dark hallway in
the entrance of a private residence in the middle of the night, and fails to give any
indication of his identity, is more than merely negligent.” Id. at 447.
No. 08-4456         Chappell v. City of Cleveland, et al.                           Page 18


        In applying Yates, the district court overlooked the fact that the Yates ruling was
driven by two obviously conflicting versions of the facts and instead focused on the
court’s comment about the unreasonableness of the officer’s conduct. The district court
viewed this dictum as suggesting that unreasonable conduct by an officer in events
leading up to the shooting may be a legitimate factor in assessing the reasonableness of
the subsequent shooting. The court reasoned that the more recent case law’s emphasis
on a time-segmented analysis of the officers’ conduct has no impact on application of
Yates to this case because here, as in Yates, the detectives’ failure to identify themselves
as police officers was not part of an earlier time segment, but was integral to the
circumstances leading directly to the use of deadly force:

        Here, taking the facts in the light most favorable to Chappell, the
        Detectives’ objectively unreasonable actions similarly may have caused
        McCloud to take the potentially threatening response of picking up a
        knife and hiding in the closet, because he believed the Detectives were
        intruders. And, like the violent response to the officer’s actions in Yates,
        this response to the Detectives’ actions by McCloud in turn precipitated
        the Detectives’ use of deadly force.
ROA 87, Corrected Opinion and Order p. 42.

        The district court’s analysis suffers from several defects. First, the court gives
inordinate weight to what is clearly a “thing said in passing” in Yates. Second, whereas
in Yates, it was undisputed that the officer did not identify himself, here it is undisputed,
as explained above, that the officers did identify themselves.

        Third, it was not McCloud’s actions of picking up a knife and hiding in the closet
that precipitated the use of deadly force. If the detectives had fired immediately upon
finding McCloud hiding in the closet with a knife, their actions would certainly be held
objectively unreasonable. Instead, it was McCloud’s undisputed actions of quickly
advancing toward the officers while holding the knife up and refusing to drop it that
precipitated their use of deadly force. Even assuming the detectives had not effectively
identified themselves as police officers and that McCloud still failed to recognize them
as such even as they stood in his bedroom with flashlights and handguns trained on him,
McCloud had a momentary opportunity to consider how to react to their commands.
No. 08-4456        Chappell v. City of Cleveland, et al.                           Page 19


After pausing for a moment in the closet, McCloud chose to comply with the command
to come out of the closet. He chose to comply with the command to show his hands. He
chose not to comply with the command to drop the knife. And he chose to continue
advancing toward the officers with the knife held high until he reached a point within
five to seven feet of them before they fired in self-defense.

       In Yates, in contrast, the assailants had no reason to believe, in the midst of an
angry, violent setting, that the particular intruder they encountered in the dark hallway
was a police officer. Yet, according to the Yates plaintiff’s version, it was only after he
realized that the intruder was a policeman and after he raised his hands in submission
and said, “Don’t shoot,” that the officer responded with deadly force, at a time when he
was not threatened with serious harm.

       Thus, even assuming the Yates dictum was not overruled by Livermore, Yates is
distinguishable on its facts. Most importantly, it is undisputed that Detectives Habeeb
and Kraynik were confronted with what they perceived to be an imminent threat of
serious harm. Irrespective of any errors that contributed to the circumstances, they were
entitled to defend themselves unless their perception is shown by some evidence not to
have been reasonable. Considering what the record shows they knew at the moment of
McCloud’s attack, their use of deadly force to defend themselves in close quarters
against a knife-wielding assailant who had closed to within five to seven feet and was
still advancing toward them cannot be deemed objectively unreasonable. See Livermore,
476 F.3d at 406-07 (expressly rejecting the argument that officers can be liable despite
the reasonableness of a seizure if they recklessly created the circumstances which
required use of deadly force).

       For these reasons, the putative dispute as to whether the detectives identified
themselves as they conducted the sweep is not a dispute of material fact and represents
no grounds for denying defendants qualified immunity.

       In sum, plaintiff has failed to present a genuine issue of material fact on her claim
that defendants violated McCloud’s Fourth Amendment right to freedom from
unreasonable seizure. At best, plaintiff has presented grounds for speculation that
No. 08-4456             Chappell v. City of Cleveland, et al.                                       Page 20


defendants misread her grandson’s innocent intentions when he came out of the closet
and advanced toward them with knife in hand. Yet, qualified immunity protects officers
from liability for mistakes of law and fact. Plaintiff has failed to adduce facts
demonstrating that defendants, in potentially misinterpreting McCloud’s actions, were
plainly incompetent or deliberately violated his rights when they acted in self-defense.
Plaintiff has thus failed to carry her burden under the first prong of the qualified
immunity analysis of demonstrating that defendants violated McCloud’s constitutional
rights. She has failed to demonstrate that they are not entitled to qualified immunity.
Moreover, there being insufficient evidence of a constitutional violation, defendants, in
effect, have no need of qualified immunity and are actually entitled to summary
judgment as matter of law. Dunn, 549 F.3d at 353.2, 3

                                         IV. CONCLUSION

         The shooting death of a fifteen-year old boy in his own bedroom at the hands of
police is a deplorable tragedy. With the benefit of hindsight, it appears the detectives
might have executed the search warrant differently, so as to minimize the risk of a
violent confrontation. Yet, assessing the undisputed facts through the lens of governing
Sixth Circuit case law compels the conclusion that the split-second decision of
Detectives Habeeb and Kraynik to use deadly force in self-defense is not shown to have
been objectively unreasonable. For the reasons set forth above, we conclude that the
district court’s denial of defendants’ motion for summary judgment must be
REVERSED and the case must be REMANDED to the district court for entry of
JUDGMENT in favor of the detectives on all of plaintiff’s claims, under federal and
state law.

         2
           Because plaintiff has failed to make the requisite showing of the violation of a constitutional
right, we need not address the second prong of the qualified immunity analysis and determine whether the
asserted right was clearly established in a particularized sense at the time of the fatal shooting.
         3
          Based on the same analysis, we conclude there are no genuine issues of material fact and that
defendants are similarly entitled to immunity from liability in connection with plaintiff’s claims under state
law. Inasmuch as plaintiff has failed to demonstrate that defendants’ conduct was objectively
unreasonable, it follows that she has also failed to demonstrate that defendants acted with “malicious
purpose, in bad faith, or in a wanton or reckless manner,” such as is required to avoid statutory immunity
under Ohio law. O.R.C. § 2744.03(A)(6)(b); Ewolski v. City of Brunswick, 287 F.3d 492, 517 (6th Cir.
2002).
