                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 07a0292n.06
                             Filed: April 26, 2007

                                             No. 06-3893

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


THERESA LEWIS,                                      )
                                                    )
        Plaintiff-Appellant,                        )
                                                    )
        v.                                          )   ON APPEAL FROM THE UNITED
                                                    )   STATES DISTRICT COURT FOR THE
ADAMS COUNTY, et al.                                )   SOUTHERN DISTRICT OF OHIO
                                                    )
        Defendants-Appellees.                       )




        Before: DAUGHTREY and ROGERS, Circuit Judges; OBERDORFER, District Judge.*


        OBERDORFER, District Judge. On July 9, 2002, Everett Lewis was shot and killed by

the police in Adams County, Ohio. His wife, Theresa Lewis, on her own behalf and as

administrator of his estate, filed suit in federal district court alleging that the use of deadly force

against Lewis violated the Fourth, Fifth, Sixth and Eighth Amendments to the United States

Constitution and various state laws. Finding no constitutional violations, the district court

granted summary judgment for the defendants on all of the federal claims and dismissed the

remaining state law claims without prejudice. The plaintiff now appeals, challenging only the

district court’s grant of summary judgment on the Fourth Amendment claims and its dependent



        *
        The Honorable Louis F. Oberdorfer, United States District Court Judge for the District
of Columbia, sitting by designation.
dismissal of the state law claims. Because no rational juror could find that the defendant-

officers’ use of deadly force violated the decedent’s Fourth Amendment rights, we affirm the

district court's grant of summary judgment.

                                       I. BACKGROUND

A.     Facts

       Up to a point, the facts in this case are not in dispute. The events leading up to Lewis’s

shooting began on the morning of July 9, 2002. At approximately 7:30 that morning, Lewis, who

lived at 1111 Barrackman Road, drove over to David Copher’s house, who lived at 510

Barrackman Road, and asked Copher to make a telephone call for him because Lewis did not

have phone service at the time. (Although Copher and Lewis were “neighbors,” the area was

rural and the houses were not within sight of each other.) Lewis asked Copher to call Baxla

Tractor Sales, where Lewis worked, and to tell them that he would not be at work that day.

Lewis also told Copher that he was getting a divorce.

       Rather than calling Baxla Tractor Sales, Copher decided that he would stop by there and

relay Lewis’s message while he was in town running other errands. Copher left his residence at

around 8:00 a.m. and returned home some time between 11:00 a.m. and 11:30 a.m. At

approximately 12:00 p.m., Lewis showed up again.

       Hearing Lewis’s truck pull up outside the house, Copher went out onto to his porch to see

what Lewis wanted. According to Copher, Lewis raised his hands, motioned Copher back away

from his truck, and said, “I shot the mother f-----s. They’re laying in the yard dead. . . . Dial 911.

. . . Dave, don’t come near the truck.” JA 407. When Copher asked whom Lewis had shot,

Lewis responded, according to Copher, “The mother f-----s that are moving the stuff out of my


                                                  2
house and her.” JA 414. Copher thought “her” was Lewis’s wife, Teresa. Copher later testified

at his deposition that Lewis’s “eyes were red and his speech was like he had done it.” JA 407.

       In response to Lewis’s request to Copher to call 911 and to report what Lewis had just

told Copher, Copher told Lewis he would do so. Lewis then left, telling Copher that he was

going back to his house. Through his window, Copher saw Lewis drive his orange Dodge truck

to the end of Copher’s driveway and turn right onto Barrackman road, which was the direction

back toward Lewis’s house.

       At approximately 12:36 p.m., Copher called 911 and had the following conversation with

the dispatcher there:

       Copher:          Yes ma’am my name is David Copher and Everett Lewis just
                        cam[e] up here and said that he has 2 victims uh 2 victims up there
                        where he lives at I guess he shot ‘em or somethin.

       Dispatcher:      Two victims?

       Copher:          That’s what he told me to say.

       Dispatcher:      What’s his name?

       Copher:          Everett Lewis lives out there on Barrackman Road.

       ...

       Dispatcher:      He shot ‘em

       Copher:          He said he did, he told me not to come up near the truck.

       Dispatcher:      Where’s he at now?

       Copher:          He just left, he’s driving an orange and white Dodge pick up truck, looks
                        like (I can’t make it out) but I don’t know. He’s been going through a
                        divorce type thing.

       Dispatcher:      Ok did he say he was going back to the . . .


                                                  3
       Copher:         He said he was going to try to work something out. I don’t know what
                       he’s going to do. He’s driving slow so apparently he’s going back up
                       there. I don’t know, he shot ‘em I guess. I don’t know what to do go over
                       there or stay here.

                       ...

       Dispatcher:     Sir, did he go back toward his house or which way did he go?

       Copher:         Yeah he said he was goin back toward his house so he just told me to call
                       911.

       Dispatcher:     You don’t happen to know his phone number or anything else do ya?

       Copher:         His phone been disconnected.

       Dispatcher:     Disconnected.

       Copher:         I let him use my phone yesterday to call the Sheriff he said something
                       about getting a restraining order.

       Dispatcher:     Ok, and did he say who he shot?

       Copher:         He didn’t say anything he just said he had two victims laying on the
                       ground so I don’t know what . . .

       Dispatcher:     Ok we’ll get somebody right up there.

JA 661-63. After receiving Copher’s call, the dispatcher immediately alerted the police and

officers were sent to Lewis’s house to investigate.

       Copher then had a second conversation with a 911 dispatcher that was not transcribed.

During that conversation, Lewis reappeared at Copher’s house. He asked Copher whether he had

called 911 and whether the police were coming. He also told Copher that he had hostages in his

house, and he warned Copher that no one should come within 100 yards of the house. Lewis was

yelling, appeared to have been drinking, and appeared “mad at something.” Although the

dispatcher could not understand exactly what Lewis was saying, she could hear that he “was


                                                 4
agitated” and sounded angry. JA 529. Lewis then left again. As he left, the wheels on his truck

were spinning and throwing gravel. Copher relayed to the 911 dispatcher that Lewis had told

him there were three hostages in the house and that no one should come within 100 yards of the

house.

         At approximately 1:05 p.m. Copher had his third conversation with a 911 dispatcher,

during which the following exchange occurred:

         Copher:       The first time he showed up he was kinda calm about it. The
                       second time he was kinda pissed so apparently he said he’s got
                       three of them in the house.

         Dispatcher:   Adams County to 14 be advised he had stated that there was three
                       at the house.

                       (background noise)

         Dispatcher:   These were the three victims or just three people?

         Copher:       The first time he said there’s two victims in the yard.

         Dispatcher:   Two in the yard?

         Copher:       and I said what happened he said I shot ‘em

         Dispatcher:   Ok hang on

         Copher:       Then he said, he came back the second time and said I’ve got three
                       of them in the house and anybody who comes within 100 yards I’m
                       gonna shoot ‘em.

         Dispatcher:   Ok hang on one second . . . Adams County to 14

                       14 - 14

         Dispatcher:   Be advised there was two in the yard shot and then he comes back
                       and the guy said three in the house.

                       (Background noise)


                                                 5
       Dispatcher:    Be advised he had three in the house this is from the 911 caller.

       Dispatcher:    100 yards

       Copher:        He said don’t come ya know once your in the driveway or get up in the
                      driveway or apparently he can get a shot out I don’t know

       Dispatcher:    Ok but how far is that?

       Copher:        Well he said don’t come within 100 yards of the house.

       Dispatcher:    Ok . . . Adams County to 14 be advised 100 yards of the residence.

       Copher:        He has guns there he’s a deer hunter.

       Dispatcher:    He has several guns.

       Copher:        Uh I know he’s I’ve heard a shot gun that he had. I don’t know what he
                      shot ‘em with but I was in the house so he does deer (noise)

       Dispatcher:    Yeah but he does have weapons, he is a hunter. He does have weapons.
                      He is a hunter.

       ....

JA 663-64.

       During and after each conversation with Copher, the dispatchers relayed the additional

information he was reporting to the police. After Copher reported that Lewis claimed to have

hostages and was threatening serious consequences to anyone who came within 100 yards of the

house, the responding officers were told not to approach the residence or Lewis himself until

other officers arrived at the scene. One officer, Detective Jeffrey A. McCarty, told the 911

dispatcher to get the Special Response Team to the location.

        Ultimately, seven Adams County police officers responded and headed to 1111

Barrackman Road, Lewis’s home address: Sheriff Kermit G. Howard, Deputy John Sheeley,



                                                6
Detective Jeffrey A. McCarty, Deputy Benjamin Mathias, Deputy Shawn D. Cooley, Deputy

Richard L. DeMint, and Chief Deputy Harry Bowman. Deputy Sheeley was the first officer on

the scene. As instructed, he stopped on Barrackman Road about one-third of a mile away from

the end of the driveway and waited for other officers to arrive. Because it was a long driveway

(approximately 400 yards) and there was a rise in the driveway between the house and the road,

the house itself was not visible from the road. While Deputy Sheely was waiting for other

officers to arrive, he saw Lewis’s orange pickup truck approaching from the other direction, turn

into the driveway and head toward the house.

       Once other police officers began to arrive, they moved to where the driveway met

Barrackman Road, planning to await the arrival of a SWAT team and/or a hostage negotiator

before taking any further action. In the meantime, Deputy Sheeley drove to an adjacent property,

hoping to find a point from which to observe the Lewis property. By climbing up on a fence and

using binoculars, he was able to see the top half of the front door of Lewis’s house and about one

foot of the top of Lewis’s pickup truck, but he could not see the yard. While Sheeley was

watching, Lewis emerged from the house, got into his pickup truck, did three “donuts” in the

yard, and then began driving down the driveway toward Barrackman Road. Sheeley radioed this

information to the officers gathered at the end of the driveway and then headed back there

himself.

       Lewis stopped his truck before he got to the end of the driveway. He got out and,

standing behind the door of the truck, began yelling at the officers. The officers could not

understand what he was saying. Lewis then reached into his truck and pulled out a rifle and

pointed it at the officers through the driver’s door window. The officers ordered Lewis to drop


                                                 7
his rifle and get on the ground, but he refused. Instead, Lewis got back into his truck and began

backing up rapidly toward his house.

       When Lewis starting backing up, the officers got into their vehicles and pursued him.

Detective McCarty and Deputy DeMint were in the lead vehicle, followed by Deputies Cooley

and Mathias in a second, larger vehicle. Neither car was able to get around Lewis’s truck to stop

him before he got back to the house because of the dust created by his vehicle. When these four

officers arrived at the house, virtually simultaneously, Lewis was already out of his truck. He

was rapidly sidestepping from his truck to the porch, holding his rifle low and pointing it at the

officers as he moved across the yard. The officers got out of their cars and ordered Lewis to put

his rifle down, but he ignored the orders and continued moving toward the porch of his house.

       Precisely what happened next is disputed. According to the defendants (and the district

court), Lewis got onto his porch, backed up toward the door of the house, and grabbed the door

knob as if to enter. He then stopped and aimed his rifle directly at the officers. According to the

plaintiff, whether or not Lewis was actually on the porch when he was shot, and whether or not

Lewis was actually pointing his rifle at the officers at the time he was trying to enter the house

are disputed facts.1

       What happened next is not disputed. All four officers on the scene – Detective McCarty,

Deputy Cooley, Deputy Mathias, and Deputy DeMint – fired (virtually simultaneously) at Lewis.

After Lewis fell to his knees, Deputy Cooley ran up onto the porch and moved Lewis away from

his gun, while another officer took possession of the gun. Lewis made no other sounds or


       1
        The plaintiff’s attorney’s suggestion at oral argument that there is a genuine issue as to
whether Lewis actually had a gun simply because there is no crime scene picture of him holding
a gun borders on frivolous in light of the substantial record evidence to the contrary.

                                                  8
movements after he was shot. Following the shooting, some of the officers entered the house

looking for hostages, but none were found. The officers also searched the premises for shooting

victims, but found none. Medical help for Lewis was called, but he died from his wounds. The

other officers arrived on the scene after Lewis had been shot.

          Two bullets hit Lewis. The trajectory of the fatal gunshot wound was from back to front,

right to left, and slightly downward, with the entrance in the right lateral chest and the projectile

recovered in the left breast soft tissue. The other gunshot entrance wound was in the left buttock

with the trajectory from back to front without significant lateral or vertical deviation. It was not

possible to determine from which gun any particular bullet was fired. Lewis never fired his

weapon.

          In the immediate aftermath of the shooting, there was an investigation. While the

investigation team made a number of apparent errors, none are material to the issues raised on

appeal.

B.        Procedural History

          Following Lewis’s death, his wife Teresa, on her own behalf and as the administrator of

his estate, filed the pending complaint in federal district court for the Southern District of Ohio,

alleging that the officers’ use of deadly force violated Lewis’s rights under the Fourth, Fifth,

Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Ohio law. She

named as defendants six Adams County police officers (in their individual and official

capacities): Sheriff Howard, Detective McCarty, and Deputies Mathias, Cooley, DeMint, and




                                                  9
Sheeley2; Adams County; the Adams County Sheriff’s Department; and the three Adams County

Commissioners (in their official capacities).

          The district court granted the defendants’ motion for summary judgment. Concluding

that Lewis’s Fourth Amendment rights were not violated because the officers’ use of deadly

force was “‘objectively reasonable’ in light of the facts and circumstances confronting them,” the

district court dismissed the Fourth Amendment excessive force claims against all of the

defendants.3 It also ruled that the Fifth, Sixth, and Eighth Amendments were “clearly

inapplicable” to the case. Having resolved all the federal claims in favor of the defendants, the

district court dismissed the state law claims without prejudice, pursuant to 28 U.S.C. § 1367(c).

          The plaintiff filed the instant appeal, challenging the district court’s grant of summary

judgment for the defendants on the Fourth Amendment excessive force claims and, should it

succeed in reversing summary judgment on those claims, seeking reinstatement of its state law

claims.

                                      II. LEGAL PRINCIPLES

A.        Summary Judgment Standard

          We review de novo the district court's grant of summary judgment. See Ciminillo v.

Streicher, 434 F.3d 461, 464 (6th Cir. 2006). Summary judgment is permitted “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if


          2
       For reasons that are not immediately apparent from the record, she did not name Chief
Deputy Bowman as a defendant.
          3
        The district court’s other reasons for dismissing the Fourth Amendment claims against
these defendants are not relevant given our agreement with the district court that there was no
underlying Fourth Amendment violation.


                                                   10
any, show that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue is “genuine . . . if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A fact is “material” if the dispute over it

might affect the outcome of the lawsuit under the governing law. Id. In determining whether

there are genuine issues of material fact, the evidence of the nonmovant is to be believed and all

justifiable inferences are to be drawn in its favor. Id.

B.     Fourth Amendment Excessive Force Claim

       The Fourth Amendment guarantees that “[t]he right of the people to be secure in their

persons . . . against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const.

Amend. IV. Under the Fourth Amendment, “the ‘reasonableness’ of a particular seizure depends

not only on when it is made, but also on how it is carried out.” Graham v. Connor, 490 U.S. 386,

395 (1989) (citing Tennessee v. Garner, 471 U.S. 1, 7-8 (1985); St. John v. Hickey, 411 F.3d

762, 771 (6th Cir. 2005). “The ‘reasonableness’ inquiry in an excessive force case is an

objective one: the 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. The Supreme Court in Graham instructed reviewing

courts to consider various factors in evaluating excessive force claims. St. John v. Hickey, 411

F.3d at 771. The reasonableness inquiry “requires careful attention to the facts and

circumstances of each particular case, including the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396 (citing


                                                  11
Garner, 471 U.S. at 8-9). “[T]he ultimate question is ‘whether the totality of the circumstances

justifies a particular sort of seizure.’” St. John v. Hickey, 411 F.3d at 771 (quoting Graham, 490

U.S. at 396). In resolving this question, the court must “carefully balance the nature of the

intrusion on the [individual’s] Fourth Amendment rights against ‘the countervailing

governmental interests at stake.’” Id. (quoting Garner, 471 U.S. at 8). The Sixth Circuit has

noted that “‘[t]his 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.’”

Id. (quoting Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002)). Finally, whether the force

used was reasonable must be judged from the perspective of a reasonable police officer on the

scene. Graham, 490 U.S. at 396.

       With respect to the use of deadly force, certain specific rules apply. For example, “the

Fourth Amendment prohibits a police officer’s use of deadly force to seize an unarmed,

non-dangerous suspect.” Sample v. Bailey, 409 F.3d 689, 696 (6th Cir. 2005) (citing Garner,

471 U.S. at 11). Rather, the use of deadly force is only constitutionally permissible 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 . . . .” Garner, 471 U.S. at 11; see also Sample, 409 F.3d at 697 (noting

that “only in rare instances may an officer seize a suspect by use of deadly force” (internal

quotations omitted)).

                                        III. DISCUSSION

       In the present case, the plaintiff contends that the defendants deprived Lewis of his Fourth

Amendment rights by using excessive (deadly) force against him, resulting in his death. The

district court concluded that the shooting of Lewis was reasonable because Lewis posed an


                                                 12
immediate threat to the officers and to the hostages the officers believed were inside the

residence. It explained its decision as follows:

       Taken in the light most favorable to plaintiff, the facts alleged do not show that
       the defendant officers’ conduct violated Everett Lewis’s Fourth Amendment
       rights. The officers’ actions in shooting Lewis were ‘objectively reasonable’ in
       light of the facts and circumstances confronting them. It had been reported to the
       officers, but not verified, that Lewis had shot two individuals and had three
       hostages in his house; Lewis posed an immediate threat to the safety of the
       officers or others since he was armed with a rifle that he had aimed at the officers
       and appeared willing to use; and Lewis was attempting to flee from the officers
       and enter his residence when they shot him. The officers were therefore
       confronted with a rapidly evolving and highly volatile situation that required them
       to use their judgment on-the-spot, without the benefit of consultation and the
       verification of information provided by the police dispatchers. Neither the court
       nor a jury can, with the benefit of hindsight, adjudge the actions of these officers
       in dealing with an armed individual who posed a threat to the safety of both the
       officers and possibly to individuals being held hostage to have been unreasonable.

Dist. Ct. Op. at 18-19 (JA 39-40).

       On appeal, the plaintiff argues that the district court erred in granting summary judgment

for the defendants on the Fourth Amendment excessive force claims because it ignored

“conflicting evidence concerning how Mr. Lewis died,” and failed to “construe the facts most

strongly in favor of the [plaintiff],” leading it to conclude erroneously that the individual officers

did not use excessive force when they shot at and killed Lewis. Rather, the plaintiff asserts, the

facts and physical evidence, viewed in their entirety and in the proper light, suggest (and a

reasonable jury could conclude) that shooting Lewis was unreasonable. For the reasons

explained below, we disagree.

A.     Did the District Court’s Analysis Ignore Conflicting Evidence?

       The plaintiff contends that the district court’s analysis ignored material conflicting

evidence, in particular an affidavit from the plaintiff’s expert forensic witness, Mr. Larry Dehus,


                                                   13
opining that the physical evidence in the case was not consistent with the individual officers’

statements as to how the shooting occurred. In relevant part, Dehus’s affidavit states:

       For Mr. Lewis’s wounds to have occurred while he was standing on the front
       porch, he would had to have been facing the northwest corner of the porch at the
       time they[sic] side wound was inflicted and would had to have been facing the
       front door at the time the wound to the buttocks was inflicted. Therefore, his back
       would have been towards the officers based upon their reported locations and the
       location of the fired cartridge casings. Diagram # 1 shows the probable trajectory
       of the bullet that struck Mr. Lewis in the right side and his position at the time of
       that shot. Diagram # 2 shows the probable trajectory of the bullet that struck Mr.
       Lewis in the left buttocks and his position at the time he was struck by that bullet.
       Considering these positions, it is the opinion of this examiner that it is highly
       unlikely that Mr. Lewis could have been pointing the rifle at the deputies at the
       time that they discharged their weapons.

JA at 198-99 (emphasis added). Dehus also opined that based on the trajectory of the bullets,

“Either Mr. Lewis was not on the porch when this shot was fired or the deputies were firing from

an extremely high position.” JA 197.

       The plaintiff argues that the Dehus affidavit creates genuine issues as to three facts – (1)

whether or not Lewis was facing the officers at the time the officers fired; (2) whether or not

Lewis was pointing his rifle at the officers at the time the officers fired; and (3) whether or not

Lewis was on the porch at the time the officers fired – and that these are material disputes,

thereby precluding summary judgment on the question whether the officers used excessive force

against Lewis. We will consider first whether the Dehus affidavit creates a genuine issue as to

any of these facts and then consider whether, if it does, that disputed fact is material.

       1.      Is there a genuine issue as to whether Lewis was facing the officers?

       The plaintiff argues that the Dehus affidavit calls into question the officers’ testimony

that Lewis was facing them when they fired. There are two problems with the plaintiff’s



                                                  14
argument. First, it supposes that there is testimony from the officers that Lewis was facing them

when they fired their guns. However, as the district court noted and as a review of the officers’

testimony confirms, the officers did not testify that Lewis was facing them, but rather that the

upper portion of his body was turned toward them. See, e.g., McCarty Aff., JA 250-51 (“His face

was also turned to his right and he was looking directly at us. The anterior portion of his body

was about 90 degrees turned away from us to our right.”). Thus, there is no “conflict” between

the Dehus affidavit and the officers’ testimony. Second, the defendants do not contend that

Lewis was facing them when they fired. Rather, they “agree” with the Dehus affidavit that at the

time the shots were fired the front of Lewis’s body was facing the northwest corner of the porch

– not directly facing the officers. Def. Br. at 32. And they took the same position before the

district court. See Dist. Ct. Op. at 19-20 (JA 39-40) (“defendants do not allege, and have not

presented any evidence to suggest, that Lewis was standing with his body facing the officers

when they shot him”). Accordingly, the district court did not ignore conflicting evidence, but

rather correctly recognized that there was no conflict between the Dehus affidavit and the

officers’ testimony on this point and, therefore, no “issue.”

       2.      Is there a genuine issue as to whether Lewis was pointing his rifle at the
               officers?

       The plaintiff argues that the Dehus affidavit also calls into question the officers’

testimony that Lewis was pointing his rifle at them when they fired and that this conflict creates a

genuine issue of material fact, precluding summary judgment. In this instance, there is a clear

conflict between the officers’ testimony (all of whom testified that Lewis raised his arm and

pointed his rifle directly at them) and the Dehus affidavit which states that, in his opinion, it is



                                                  15
“highly unlikely that Mr. Lewis could have been pointing the rifle at the deputies at the time that

they discharged their weapons.” The district court recognized that Dehus’s affidavit conflicted

with the officers’ testimony, but concluded that it alone was “insufficient to create an issue for

the trier of fact as to whether plaintiff was pointing his rifle at the officers when they fired at

him” in the face of the consistent deposition testimony from all of the officers at the scene and

the opinion of the medical examiner that the physical evidence was consistent with the officers’

testimony. Dist. Ct. Op. at 18 (JA 38).

        As noted previously, an issue is “genuine” if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party. Liberty Lobby, 477 U.S. at 248. The court

determines whether sufficient evidence has been presented to make the issue of fact a proper jury

question, but does not weigh the evidence, judge the credibility of witnesses, or determine the

truth of the matter. Id. at 249; Weaver v. Shadoan, 340 F.3d 398, 405 (6th Cir. 2003). The

standard for summary judgment mirrors the standard for directed verdict. Anderson, 477 U.S. at

250. A court must decide “whether the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”

Id. at 251-52. If a court concludes a fair-minded jury could not return a verdict in favor of the

nonmoving party based on the evidence presented, it may enter a summary judgment. Id.;

Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).

        The question on appeal is whether the district court properly determined that even though

there was a dispute over whether Lewis was pointing his gun at the officers, there was not

enough evidence from the plaintiff to send that issue to the jury or whether the district court

improperly “weighed” the evidence on summary judgment. We agree with the district court that


                                                   16
the plaintiff did not submit enough evidence to get to a jury on the issue of whether Lewis was

pointing his rifle at the officers. One expert’s opinion that it is “highly unlikely” that Lewis was

pointing his rifle at the officers in the face of the consistent deposition testimony from all of the

officers at the scene and the opinion of the medical examiner that the physical evidence was

consistent with the officers’ testimony is simply not enough to take that issue to a jury. Cf.

DeMerrell v. City of Cheboygan, 206 Fed. Appx. 418, 427 (6th Cir. 2006) (holding that a single

expert report speculating that the facts might be different than reported was not sufficient to

create a genuine issue of material fact); Boyd v. Baeppler, 215 F.3d 594, 603 (6th Cir. 2000)

(same).

          3.     Is there a genuine issue as to whether Lewis was on the porch when he was
                 shot?

          The plaintiff also argues that the Dehus affidavit creates a genuine issue as to whether

Lewis was on the porch when he was shot. The district court rejected that exact argument,

explaining its reasoning as follows:

          Those present at the scene all placed Lewis on the porch at the time he was shot,
          and their accounts are consistent with the fact that the blood found at the scene
          was on the porch. Accordingly, a reasonable fact-finder could not discount the
          officers’ testimony that Lewis was on the porch about to enter his house when
          they fired based only on Mr. Dehus’s conjectural opinion that either plaintiff was
          not on the porch when one of the two shots struck him or the officers were firing
          from an extremely high position.

Dist. Ct. Op. at 18-19 (JA 38-39). In this instance, the district court’s conclusion is clearly

correct. Given that all of the blood was on the porch, we do not see how a reasonable jury could

conclude that Lewis was not himself on the porch at the time he was shot.

          4.     If there is a genuine issue, is the dispute material?



                                                   17
        As explained above, we are not persuaded that the district court overlooked any “genuine

issues.” Even if the dispute over whether Lewis was pointing his gun at the officers were a

“genuine issue,” the question would remain whether that dispute is material. That is, assuming

the truth of the plaintiff’s version of the facts, would it lead to the conclusion that the officers

used excessive force? As explained below, we do not believe that it would.

B.      Did the District Court Fail To Construe Evidence in the Plaintiff’s Favor?

        The plaintiff also contends that the district court failed to construe the evidence in her

favor and that this failure led to the erroneous conclusion that the use of deadly force was

justified. Specifically, she faults the district court for concluding that the following two facts

were immaterial to the lawfulness of the decision to use deadly force: (1) the individual officers’

failure to verify, in her words, the “preposterous” telephone calls by David Copher; and (2) again

in her words, the “indiscriminate” shooting into Lewis’s residence.

        1.      Did the district court fail to construe the evidence in the plaintiff’s favor
                when it concluded that the failure to verify Copher’s 911 report was
                “immaterial”?

        The district court concluded that the failure to verify Copher’s telephone calls was

“immaterial . . . given the . . . circumstances that confronted the officers after they responded to

the call.” Dist. Ct. Op. at 23 (JA 43). The plaintiff argues that if the district court had properly

construed the evidence in her favor, it would have concluded that the officers’ failure to verify

was material because these were “ludicrous” phone calls from a paranoid schizophrenic.

        The primary problem with the plaintiff’s argument is that it assumes facts for which there

is absolutely no evidentiary support. Throughout her brief, the plaintiff refers to Copher as a

“paranoid schizophrenic.” However, the plaintiff has not identified, and we have not found, any


                                                  18
record evidence to support the plaintiff’s suggestion that Copher’s condition was or should have

been “known” to the 911 dispatchers and/or the police officers at the scene, thereby alerting them

to the possibility that he was not accurately reporting what Lewis told him. Indeed, there is

deposition testimony to the contrary. See, e.g., Howard Dep. at 71-72 (JA 474). Thus, although

the plaintiff suggests that the issue is whether the police should verify a report of murders and

hostage-taking from a known paranoid schizophrenic before using deadly force, the facts of the

present case do not actually raise that question and, accordingly, we will not attempt to answer it

here.4

         The plaintiff also faults the district court for not mentioning the opinion of her police

practices expert, Ken Katsaris, that the failure to verify Copher’s call rendered the application of

deadly force “unquestionably objectively unreasonable and excessive.” Pl. Br. at 25. However,

an expert opinion that merely expresses a legal conclusion is properly ignored. See DeMerrell,

206 Fed. Appx. at 426.

         Accordingly, we conclude that the district court did not fail to construe the facts in the

plaintiffs’ favor in terms of evaluating the materiality of the failure to verify Copher’s 911 report.

         2.     Did the district court fail to construe the evidence in the plaintiff’s favor
                when it concluded that the “indiscriminate” shooting was immaterial?



         4
         We note that current law holds only that it is a “relevant factor” in evaluating the
reasonableness of an officer’s conduct in a direct encounter that the officer knows that person
with whom the encounter is occurring is “experiencing some sort of mental or emotional
difficulty.” See, e.g., Griffith v. Coburn, 473 F.3d 650, 658 (6th Cir. 2007); see also Champion
v. Outlook Nashville, Inc., 380 F.3d 893, 904 (6th Cir. 2004) (“It cannot be forgotten that the
police were confronting an individual whom they knew to be mentally ill or retarded, even
though the Officers may not have known the full extent of [his] autism and his unresponsiveness.
The diminished capacity of an unarmed detainee must be taken into account when assessing the
amount of force exerted.”).

                                                  19
       In relevant part, the bullet damage was as follows:

       [T]he front of the house had several possible gunshot holes. . . . Several gunshot
       holes were observed on the south, west and east walls. One projectile was
       observed on [the] floor in front of [the] middle bedroom door. A second
       projectile was observed on [the] bed in [the] first or master bedroom.

       ...

       The front of the residence contained approximately eight round[s] in the front
       gable and facing. One round entered the right side of the front porch to the left of
       the bedroom window. The screen door had gunshot hole[s] in the lower portion
       of the door and one to the left side of the screen door frame. Search inside
       residence revealed several gunshot holes in the south and west wall[s]. The
       screen door glass had shattered from gunshots. . . . [O]ne round [removed] from
       west wall and another round had entered south wall and exited the house into the
       side yard.

JA 198.

       The district court concluded that “the facts that shots were fired into the house when the

officers’[sic] fired at Lewis does not, however, call into question the reasonableness of the

officers’ use of deadly force against Lewis.” JA 39. On appeal, the plaintiff argues that the court

should have considered the bullet damage because “the number and location of the shots that

penetrated the residence directly counters [the officers’] claim that they believed the residence

was occupied.” Rather, she maintains, it is evidence that the officers “did not truly believe

hostages remained in the residence.” Pl. Br. at 32. And absent a risk to hostages, the use of

deadly force to prevent Lewis from entering his own house was unlawful. The plaintiff’s theory

is supported by the Dehus affidavit, which states that “[i]f the deputies were concerned about the

safety of hostages within the interior of the house, that was not displayed when a large number of

shots were fired into the house.” JA 198. However, the evidence that the officers actually and

reasonably believed that Lewis had hostages is substantial, including Copher’s multiple 911


                                                 20
calls, the absence of any obvious reason to doubt the truth of Copher’s report, the deposition

testimony of all of the officers, and the fact that all of the officers fired at once. In order for a

jury to believe the inference that the plaintiff suggests it could draw from the bullet damage, it

would have to also believe that all of the officers were lying and that they simultaneously and

without conversation all knew that there weren’t any hostages but decided to fire anyway.

Although the plaintiff is entitled to have all reasonable inferences drawn in her favor, to infer

from the bullet locations that the officers were shooting indiscriminately and, therefore, that they

didn’t really believe that there were hostages inside, is simply not a reasonable inference given

the other evidence in the record. Accordingly, we conclude that the district court did not fail to

construe the bullet evidence in the plaintiff’s favor when it concluded that it was “immaterial.”

C.        Under the totality of the circumstances was the shooting of Lewis objectively
          reasonable?

          The plaintiff’s bottom line is that the district court erred in concluding based on the

undisputed facts and as a matter of law that the use of deadly force was objectively reasonable.

Of the various specific challenges the plaintiff makes to the district court’s analysis (discussed

above), we have found none to be meritorious. The question remains whether taking the

uncontroverted facts as stated by the district court and drawing all plausible inferences in the

plaintiff’s favor, whether the shooting was objectively reasonable – that is, did the officers have

probable cause to believe that Lewis posed a serious threat of injury to the police officers or

others?

          What the officers knew at the time was: that there had been a 911 report by Copher that

Lewis had claimed to have killed two people and to have three others held as hostages in his



                                                   21
house; that Lewis had recently separated from his wife and that she had taken all of his children;

that he had been trying to get a restraining order against his wife that morning; that he had left his

house in his pickup truck, driven partway down his driveway toward the police, gotten out of his

car and pointed the gun at them; that while out of his car in the driveway he had ignored police

instructions to put down his gun and surrender; that he had gotten back into his car and backed

up to his house, exited the car carrying his gun and scurried back onto his porch, apparently

trying to reenter his house through the screen door; that while moving from his truck to the porch

door, he ignored police instructions (again) to put down his gun and surrender; that he pointed

his gun at them; that the police had no reason not to believe that Copher was not accurately

reporting what Lewis told him to tell the 911 dispatcher; and that the only reason the police

might have doubted the veracity of Lewis’s claim at the time was that they did not see any dead

bodies in the yard. Given these circumstances, we conclude that the officers’ actions were

objectively reasonable.

       As noted above, the plaintiff contends that the district court erred in treating as

“uncontroverted” the fact that Lewis pointed his gun at the officers. But even if Lewis did not

point his gun at the officers (or if we assume that there is a genuine issue as to that fact), the

outcome would not change. If Lewis was not pointing his gun at the officers, the immediate

danger to them is arguably diminished. But see Livermore v. Lubelan, 476 F.3d 397, 405 (6th

Cir. 2007) (“Even assuming that [the suspect] was not aiming his rifle at the [light-armored

vehicle] when he was shot, we nonetheless conclude that [the police officer who shot him] had

probable cause to believe that [the suspect] posed a serious threat to the officers in the [light-

armored vehicle] . . . due to his proximity to the [light-armored vehicle] while armed with a rifle,


                                                  22
his prior violent behavior, and his continued refusal to surrender and face arrest.”) Moreover, in

the present case the officers had another basis for shooting – to protect the hostages they believed

Lewis held inside the house. Ultimately, police in the circumstances could have reasonably

believed that there were hostages in the house, that Lewis would shoot them if he could, and that

application of deadly force to Lewis was the last clear chance to save them. The fact that there

turned out not to be any hostages is immaterial. As long as the evidence supports the conclusion

that the officers had probable cause to believe that Lewis posed a serious threat of injury to

hostages, the shooting was justified. See, e.g., Untalan v. City of Lorain, 430 F.3d 312 (6th Cir.

2005) (no Fourth Amendment violation where an officer reasonably, though perhaps incorrectly

in hindsight, perceives an immediate and serious threat from the suspect).

       Our conclusion here is consistent with two recent Sixth Circuit cases where the court

found no Fourth Amendment violation. In the first, Livermore, which is cited above, the suspect

was on his own property, armed, and refusing to surrender to the police (he had emerged from his

residence after setting it on fire). The police attempted to confront him by entering onto his

property in a light-armored vehicle. In order to have radio communication, two of the three

officers in the vehicle had to partially emerge, exposing themselves to danger. The officers in the

vehicle could not see the suspect due to darkness and smoke. A police-stationed sniper 150 yards

away saw the suspect pointing his gun at the vehicle and tracking it as it moved. Believing that

the exposed officers were in danger, the sniper fired and killed the suspect. The district court

denied the defendants’ motion for summary judgment, but this court reversed, concluding that

the sniper’s use of deadly force against the suspect was objectively reasonable, even if the

suspect was not actually pointing his gun at the officers. In the second, DeMerrell v. City of


                                                 23
Cheboygan (also cited above), the suspect was intoxicated, agitated, waving a gun around and

inviting the officers to shoot him. The officer who shot and killed the suspect fired after the

suspect pointed the gun at him and took a few steps in the officer’s direction. The other officers

on the scene did not fire, although they testified that they were about to. It turned out that the

suspect only had a pellet gun. The district court concluded, and this Court affirmed, that there

was no Fourth Amendment violation.

                                       IV. CONCLUSION

       For the foregoing reasons, we affirm the district court’s grant of summary judgment for

all defendants.




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