                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0104n.06
                           Filed: February 9, 2009

                                            No. 07-6180

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


CANDICE R. SULFRIDGE; ADAM T. DAVIS,                       )
                                                           )        ON APPEAL FROM THE
       Plaintiffs-Appellees,                               )        UNITED STATES DISTRICT
                                                           )        COURT FOR THE EASTERN
v.                                                         )        DISTRICT OF TENNESSEE
                                                           )
JOHN HUFF,                                                 )                           OPINION
                                                           )
       Defendant-Appellant,                                )
                                                           )
LARRY G. MOORE, ET AL.,                                    )
                                                           )
       Defendants.                                         )
                                                           )


BEFORE:        BOGGS, Chief Judge; COLE and COOK, Circuit Judges.

       COLE, Circuit Judge. These consolidated actions, for injury and damages under 42 U.S.C.

§ 1983, arise from a shooting incident initiated by Defendant-Appellant John Huff (“Officer Huff”

or “Huff”) on April 4, 2005. Plaintiffs-Appellees Candice R. Sulfridge and Adam T. Davis

(collectively, “Plaintiffs”) claim that Officer Huff used excessive force in violation of their rights

under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution.

       Officer Huff argues that the district court erred in denying him summary judgment on his

qualified-immunity claim because he claims that his use of deadly force was justified. He also

asserts that he is entitled to summary judgment as a matter of law because, as a result of the incident

giving rise to this lawsuit, Davis pleaded guilty to aggravated assault in a separate state criminal
No. 07-6180
Sulfridge, et al. v. Huff, et al.

proceeding. Finally, Officer Huff claims that Sulfridge was never seized, and, therefore, cannot

claim an excessive force violation under 42 U.S.C. § 1983. For the reasons set forth below, we

AFFIRM the decision of the district court and REMAND for proceedings consistent with this

opinion.

                                         I. BACKGROUND

A.      Factual Background

        On April 5, 2004, Davis drove Sulfridge to the Wal-Mart in Knoxville, Tennessee. Davis

parked Sulfridge’s car in the parking lot—the car was parked between two cars and facing another

car. Davis entered the Wal-Mart while Sulfridge waited in the car. At one point, Sulfridge left the

vehicle to look for Davis, but she returned to the car when she could not find him. Later, Davis

exited the Wal-Mart and got into the vehicle’s driver seat. It is here that the parties’ accounts of the

evening differ.

        In her declaration, Sulfridge states the following:

        9.        A person in uniform came to the side of the car.

        10.       [Sulfridge] later learned that person was Knox County Sheriff Deputy John
                  Huff.

        11.       As Deputy Huff was at the driver side of the car he was yelling and cussing
                  at [Davis].

        12.       Deputy Huff’s [sic] was acting crazy, he was in a rage.

        13.       Deputy Huff was banging his gun on the car and on the window of the car.

        14.       [Sulfridge] was scared and terrified by Deputy Huff’s actions.

        15.       [Davis] began to back [Sulfridge’s] car out of the parking space.

                                                  -2-
No. 07-6180
Sulfridge, et al. v. Huff, et al.

        16.      Deputy Huff walked along the car as [Davis] was backing it out of the space
                 yelling stop or [he’ll] shoot.

        17.      [Davis] stopped the car after backing out of the parking space.

        18.      Deputy Huff was standing to the left of the front left quarter panel of
                 [Sulfridge’s] car pointing his gun at [Davis].

        19.      [Davis] put up his hands.

        20.      Deputy Huff shot one shot.

        21.      The front of [Sulfridge’s] car was passed [sic] Deputy Huff when he shot the
                 first shot.

        22.      When [Davis] was shot by the first shot the car rolled forward and Deputy
                 Huff shot a second time.

        23.      Deputy Huff was at a 90-degree angle to the driver’s side window of
                 [Sulfridge’s] car and almost 1/2 of the car had passed him when he fired the
                 second shot through the driver’s window.

        ...

        29.      Deputy Huff was always to the side of the car.

        30.      The car was never pointed at Deputy Huff.

        31.      To [Sulfridge’s] knowledge the car did not touch Deputy Huff as [Davis] was
                 pulling out of the parking space.

(Decl. of Candice Sulfridge, Joint Appendix (“JA”) 457-58.) Davis avers that “[i]f the car touched

Deputy Huff as [Davis] was pulling out of the parking lot, that would have occurred because Deputy

Huff continued to walk closely along the side of the car as [Davis] was backing and any touching

was accidental.” (JA 493.)

        In contrast, Officer Huff offers the following account of the confrontation:


                                                 -3-
No. 07-6180
Sulfridge, et al. v. Huff, et al.

                Ms. Sulfridge saw Officer Huff at the window before Plaintiff Davis started
        backing out of the parking space. Officer Huff ordered Plaintiff Davis to get out of
        the car. Ms. Sulfridge told Mr. Davis to give back the merchandise and to stop.
        Instead, Mr. Davis backed the car all the way out of the parking space and stopped.
        Ms. Sulfridge did not get out of the car when Officer Huff banged on the car or when
        he told Mr. Davis to get out of the car. She did not get out of the car when Mr. Davis
        backed the car out of the parking space and stopped the car before he started driving
        forward.

                Plaintiff Davis started the vehicle and struck Officer Huff on the left thigh
        area with the vehicle while backing out of the parking space. Plaintiff Davis then put
        the vehicle in drive and drove towards Officer Huff causing Officer Huff to jump out
        of the way to avoid being struck again. Officer Huff then fired two shots.

(Final Br. of Appellant (“Huff Br.”) 11) (internal citations omitted).

        Following the shooting, Davis drove Sulfridge out of the Wal-Mart parking lot to “another

place” nearby. (JA 459.) Davis exited the car and got down on the ground. Sulfridge left the car

to “see what happened to [Davis]”—Davis had been hit by at least one of Officer Huff’s shots. (JA

460, 491-92.)

        Other officers arrived on the scene and ordered Sulfridge to the ground. Sulfridge alleged

that though she complied with the order, she was “kicked in [her] right leg and told to roll over.

They beat [her] pretty hard.” (JA 487.) Those officers handcuffed Sulfridge and placed her in the

back of a police cruiser. Later, after questioning her, Knox County officers released Sulfridge at the

University of Tennessee Hospital. They also arrested Davis and transported him to the same

hospital. Sulfridge’s car was seized and towed from the scene.

        A state grand jury indicted Davis on eight counts, including two counts of aggravated assault

and theft. Davis pleaded guilty to one count of aggravated assault and one count of theft, and he

received the recommended four-year sentence.

                                                -4-
No. 07-6180
Sulfridge, et al. v. Huff, et al.

B.      Procedural Background

        In April of 2005, Sulfridge and Davis each filed separate lawsuits in both federal court and

state court against Defendants Knox County, Larry G. Moore, Janette Harris, Randy Hinton,

Chestnut Street Garage, several “John Does,” and Officer Huff stemming from the same incident

occurring on April 5, 2004. All four lawsuits were consolidated in federal court. Nonetheless,

because the district court declined supplemental jurisdiction over the state law claims and remanded

those claims to state court, Sulfridge and Davis’s 42 U.S.C. § 1983 claims were the only claims

before the district court.

        In February of 2007, Defendants Knox County, Moore, Harris, and Huff filed motions for

summary judgment. The district court granted summary judgment in favor of Moore and Harris but

denied summary judgment as to Knox County and Huff. The district court found that genuine issues

of material fact existed as to “whether a reasonable officer in the position of defendant Huff had

probable cause to believe that Davis posed a serious threat of physical harm, either to Huff or to

anyone else.” (District Court Memorandum Opinion of Sept. 10, 2007 (“Mem. Op.”) 13, JA 107.)

The district court also determined that Plaintiffs had offered sufficient evidence that the shots Officer

Huff fired were objectively unreasonable.

        Officer Huff then filed this interlocutory appeal, which challenges the district court’s denial

of qualified immunity. Plaintiffs responded that this Court lacks jurisdiction to hear the appeal

“because the district court’s summary judgment order merely determined that the pretrial record sets

forth a genuine issue of material fact for trial.” (Appellees’ Opening Br. 3.)



                                                  -5-
No. 07-6180
Sulfridge, et al. v. Huff, et al.

                                     II. LAW AND ANALYSIS

A.      Jurisdiction

        The first issue we must consider is whether this Court has jurisdiction. “Title 28 U.S.C. §

1291 limits appellate jurisdiction to ‘final decisions of the district courts.’” Estate of Kirby v. Duva,

530 F.3d 475, 480 (6th Cir. 2008). As a general matter, a district court’s grant of summary judgment

on a qualified-immunity claim constitutes a final appealable decision under 28 U.S.C. § 1291. See,

e.g., Dunigan v. Noble, 390 F.3d 486, 488 (6th Cir. 2004). A district court’s denial of summary

judgment on qualified immunity, however, is a final decision under § 1291 only “to the extent that

it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

        As this has Court previously stated, “for appellate jurisdiction to lie over an interlocutory

appeal, a defendant seeking qualified immunity must be willing to concede the facts as alleged by

the plaintiff and discuss only the legal issues raised by the case.” Sheets v. Mullins, 287 F.3d 581,

585 (6th Cir. 2002) (citations omitted). To the extent that a defendant’s qualified-immunity

arguments “rely . . . on a disputed version of the facts, this court does not have jurisdiction to

consider [the] appeal.” McKenna v. City of Royal Oak, 469 F.3d 559, 561 (6th Cir. 2006). On the

other hand, to the extent that the “‘facts’ in dispute are the ultimate issues to be decided by applying

law to the basic facts[,] . . . [t]hese ‘facts,’ . . . are mixed issues of law and fact, which we treat as

issues of law, not issues of fact.” Williams v. Mehra, 186 F.3d 685, 690 (6th Cir. 1999) (en banc)

(citing Whitney v. Brown, 882 F.2d 1068, 1071 (6th Cir. 1989)). Because the issues on this appeal

involve precisely such mixed issues of law and fact, we find that this Court has jurisdiction to

consider Huff’s appeal.

                                                  -6-
No. 07-6180
Sulfridge, et al. v. Huff, et al.

B.      Qualified immunity

        “Government officials performing discretionary functions generally are shielded from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). We review a district court’s denial of qualified immunity de novo. Sheets,

287 F.3d at 586. The defendant bears the burden of pleading the defense, id., while the burden of

proof is on the plaintiff to show that the defendant is not entitled to immunity. Wegener v.

Covington, 933 F.3d 390, 392 (6th Cir. 1991).

        “[I]n judging whether [Huff’s] actions were reasonable, we must consider the risk of bodily

harm that [Huff’s] actions posed to [Plaintiffs] in light of the threat to the public that [Huff] was

trying to eliminate.” Scott v. Harris, 127 S. Ct. 1769, 1778 (2007). This Court has set out the

following factors “to evaluate whether an officer’s actions are reasonable: (1) the 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 the suspect is actively resisting arrest or attempting to evade arrest by flight.”

Sigley v. City of Parma Heights, 437 F.3d 527, 534 (6th Cir. 2006) (citations omitted). A police

officer may, in certain circumstances, reasonably use deadly force to prevent escape “where the

officer has probable cause to believe that the suspect poses a threat of serious physical harm, either

to the officer or to others . . . .” Tennessee v. Garner, 471 U.S. 1, 11 (1985). But the proper

application of the test of reasonableness “requires careful attention to the facts and circumstances

of each particular case.” Graham v. Connor, 490 U.S. 386, 396 (1989) (citing Garner, 471 U.S. at

8-9).

                                                  -7-
No. 07-6180
Sulfridge, et al. v. Huff, et al.

        The legal reasonableness of Huff’s actions involves several questions of fact, including: (1)

the circumstances that led to Davis backing the car out of the parking spot; (2) whether and how

Officer Huff was struck by Sulfridge’s car; (3) whether Davis threatened Huff by pointing the vehicle

at Officer Huff; (4) when and from where Officer Huff fired his first shot; (5) whether Davis drove

the car toward Officer Huff after the first shot; and (6) when and from where Office Huff fired his

second shot. Taking the evidence in a light most favorable to the Plaintiffs, the testimony and

affidavits call into question whether the force used was reasonable under the circumstances. Because

we cannot resolve whether and to what extent Davis posed a continuing threat both to Officer Huff

and the public, we cannot conclude that Officer Huff’s use of force was reasonable as a matter of

law.

        Similarly, Officer Huff is incorrect that issue preclusion or judicial estoppel bars Plaintiffs’

§ 1983 claims here. Huff is correct that Plaintiffs may not argue that Davis did not commit

aggravated assault. Davis pleaded guilty to committing aggravated assault, and Plaintiffs’ assertions

to the contrary must be rejected. But the fact that Davis assaulted Huff does not necessarily lead us

to determine that Officer Huff acted reasonably in employing deadly force during the encounter. See

Sigley, 437 F.3d at 534 (stating that reasonableness depends on, among other things, whether the

suspect posed an immediate threat to the officer or others). Huff attempts to argue the disputed facts

through these preclusive doctrines, but, the district court—in discussing preclusion and judicial

estoppel—correctly determined that “under the alleged facts, [Davis’s] guilty plea may not be

inconsistent with his claim of excessive force. Here, there are two points at which Davis may have

committed an aggravated assault . . . [and] Huff fired at Davis after the alleged assault occurred and

                                                 -8-
No. 07-6180
Sulfridge, et al. v. Huff, et al.

not to prevent it from occurring.” (Mem. Op. 14, JA 108.) There is nothing inconsistent between

Davis’s guilty plea and Plaintiffs’ assertions that the assault and its perceived threat terminated

before Officer Huff shot into the vehicle. To be sure, Plaintiffs may prevail on their claims against

Officer Huff if they can show that the shots fired by Huff were not made in self-defense or in defense

of others because Davis no longer posed a threat of harm at the time of the shootings.

        Because genuine issues of material fact as to Officer Huff’s qualified immunity claim exist,

we affirm the district court’s decision.

B.      Whether Sulfridge was seized

        Officer Huff also argues that Sulfridge cannot make a § 1983 excessive force claim because

“she was not struck by either shot [into the vehicle and, therefore,] Officer Huff’s actions did not

constitute a seizure under the Fourteenth Amendment.” (Huff Br. 29.) However, this argument was

neither presented to, nor considered by, the district court. “[T]he failure to present an issue to the

district court forfeits the right to have the argument addressed on appeal.” Savedoff v. Access Group,

Inc., 524 F.3d 754, 765 n.9 (6th Cir. 2008) (quoting Armstrong v. City of Melvindale, 432 F.3d 695,

700 (6th Cir. 2006)). Thus, we decline to consider the merits of Officer Huff’s arguments regarding

Sulfridge’s seizure. We note, however, that Officer Huff may present this argument on remand to

the district court. See McCloud v. Testa, 227 F.3d 424, 427 (6th Cir. 2000).

                                       III. CONCLUSION

        For the preceding reasons, we AFFIRM the district court’s denial of qualified immunity

and REMAND for proceedings consistent with this opinion.



                                                -9-
