Opinion
Case No. 2:01-CV-02
December 26, 2001
For Plaintiff(s): Vincent R. Petrucelli.
For Defendant(s): Karl A. Weber/Mark Edward Donnelly.
OPINION
This is an action under 42 U.S.C. § 1983 brought by Plaintiff, Darlene VanVorous, following the shooting death of her son, decedent John VanVorous ("VanVorous"). Plaintiff alleges that Defendants, Eric Burmeister ("Burmeister"), a Menominee police officer, Daniel Bartell ("Bartell"), a Michigan state trooper, and Paul Anderson ("Anderson"), a Michigan state trooper (collectively, the "Individual Defendants"), violated her son's constitutional right to be free from excessive force by shooting him following a vehicle chase. Plaintiff claims that the City of Menominee authorized or acquiesced to certain practices that created a de facto policy of deliberate indifference toward such behavior and deprived VanVorous of his constitutional rights. Plaintiff also maintains state law claims for assault and battery, intentional infliction of emotional distress, and gross negligence.
Defendants Burmeister and City of Menominee now move this Court for summary judgment of the § 1983 claim. Defendants Bartell and Anderson move this Court for summary judgment of the § 1983 claim as well as the state law claims. The Individual Defendants argue that they are entitled to qualified immunity because their use of deadly force was reasonable and justified. Defendant City of Menominee argues that, since Burmeister is entitled to qualified immunity, any claims against it must also be dismissed.
Facts
At approximately 2 a.m. on September 7, 2000, Burmeister was dispatched, along with Sgt. Dennis Weaver ("Weaver") and officer Michael Pfankuch ("Pfankuch") of the Menominee police department, to a gas station to investigate a report of broken windows. (Burmeister Aff. ¶ 3, attached to Def. Burmeister's Br. Supp.) Burmeister observed someone crossing the street from an alley nearby and attempted to follow the individual on foot. (Police Rep. at 6, Pl.'s Br. Resp. Ex. 1.) As he entered another alley a block away, he heard someone yell and a vehicle squeal its tires. (Id.) Burmeister saw a red Blazer-type vehicle enter the alley and stop. (Id.) He then heard a vehicle accelerate rapidly and saw smoke coming from behind a nearby building. (Id.) Pfankuch also saw the red Blazer squeal its tires at this location and then drive around a corner and through a stop sign. (Id. at 3.) The officers later determined that VanVorous was driving the vehicle.
There is no allegation that VanVorous was involved in this activity. It was included in the report to explain why the officers were in the area when the vehicle chase began.
The vehicle turned out to be a GMC Jimmy. (Burmeister Dep. at 12, Pl.'s Br. Supp. Ex. 2.)
Burmeister, Pfankuch, and Weaver, each driving a Menominee police cruiser, turned on their overhead lights and pursued the vehicle through the streets of Menominee, generally traveling north and west. (Id.) VanVorous disregarded numerous stop signs along the way. (Id.) At one point, VanVorous briefly stopped to let a passenger out of his vehicle. (Id.) After the pursuit led the police out of the city limits, Weaver ordered Burmeister to break off and return to town. (Burmeister Dep. at 18-19, Pl.'s Br. Resp. Ex. 2.) Burmeister initially began to return to town, but when he heard on radio traffic the direction of the pursuit, he positioned his vehicle at the intersection of No. 2 Road and Highway 577, a place the pursuit was likely to cross. (Id. at 20-21.)
Burmeister later testified that he was not attempting to set up a road block at that intersection but rather position his vehicle so he could rejoin the pursuit. (Burmeister Dep. at 28.)
As VanVorous was traveling south on Highway 577, Weaver was in the lead car followed by Pfankuch. State troopers Bartell and Anderson overheard radio traffic about the pursuit and informed dispatch that they would attempt to place "stop sticks" at the intersection of Highway 577 and Sobieski Road. (Anderson Aff. ¶¶ 4-5, Defs. Anderson and Bartell's Br. Supp. Ex. 1.) The VanVorous vehicle reached that intersection before the troopers could position the stop sticks. (Police Rep. at 4.) When VanVorous reached the intersection of Highway 577 and No. 2 Road, he passed behind Burmeister's vehicle as Burmeister pulled forward to avoid him. (Burmeister Dep. at 28.) VanVorous turned west onto No. 2 Road, also known as River Road, and the troopers took the lead position in the pursuit, followed by Weaver and then Pfankuch. (Id. at 28-30.) Burmeister became the fourth vehicle in pursuit, about a quarter-mile behind them. (Id. at 29-30.) During this time, the vehicles were traveling between 40-50 miles per hour. (Bartell Dep. at 15, Pl.'s Br. Resp. Ex. 3.)
While driving west on River Road, VanVorous slowed down and turned his vehicle south onto a grassy area near a residential driveway. (Police Rep. at 4.) The VanVorous vehicle made a loop and headed back toward the road. (Bartell Dep. at 21-22.) Bartell and Anderson followed him onto the grass in their vehicle, and Weaver followed them in his vehicle. (Id.; Police Rep. at 4.) Weaver tried to make a sharper turn and get in front of VanVorous to box him in. (Bartell Aff. ¶ 8, Defs. Anderson and Bartell's Br. Supp. Ex. 2.) Pfankuch waited in the road when the vehicles entered the yard and then attempted to position his vehicle in front of the VanVorous vehicle as it turned around. (Police Rep. at 4.) VanVorous avoided both city police vehicles by slaloming between them. (Burmeister Dep. at 34-35, Bartell Dep. at 23.)
Burmeister was driving his vehicle in the westbound lane of No. 2 Road as he approached the scene. (Burmeister Dep. at 37.) As the VanVorous vehicle weaved between the police cars and left the grassy area, Burmeister slowed his car to 5-10 miles per hour. (Burmeister Aff. ¶ 7.) VanVorous returned to the road, traveling east. (Burmeister Aff. ¶ 8; Bartell Dep. at 25.) Despite the eastbound lane being open and unabated, VanVorous accelerated and crashed into Burmeister's cruiser. (Burmeister Dep. at 37, 40-41; Bartell Dep. at 25.) The front of the vehicles collided driver's side to driver's side but not directly head on. (Burmeister Dep. at 40.) Burmeister explained his reaction to the collision in an affidavit:
Immediately after the collision, I recall my airbag being deployed in the police cruiser, as well as the sound of metal crunching and plastic breaking. I remember thinking to myself, "I can't believe I'm alive," and was very concerned about my safety given the fact that the VanVorous vehicle was continuing to push my vehicle backwards. I distinctly remember the smell of burning rubber, as well as smoke. I was very concerned about my safety as I was unable to open my driver's side door. Ultimately, I was able to kick the door open and was able to roll out onto the pavement.
(Burmeister Aff. ¶ 11.) After the collision, the fronts of the two vehicles were locked or fused together. (Bartell Dep. at 31; Anderson Dep. at 37-38, Pl.'s Br. Resp. Ex. 4.) The VanVorous vehicle's engine continued to rev, causing the rear tires to burn rubber on the asphalt and produce large amounts of smoke. (Bartell Dep. at 30.) The fronts of the two vehicles were still engaged and the VanVorous vehicle continued to attempt to accelerate as Burmeister rolled from his vehicle onto the pavement. (Burmeister Dep. at 43.) At this same time, troopers Bartell and Anderson exited their cruiser and approached the VanVorous vehicle on the passenger side. (Bartell Dep. at 31.) The vehicles were traveling at about 2-3 miles per hour as the VanVorous vehicle pushed Burmeister's cruiser backwards. (Anderson Dep. at 34-35.) Bartell attempted to smash the passenger side window with his flashlight and Anderson began hitting it with his collapsible baton. (Bartell Dep. at 32-33; Anderson Dep. at 35.) Neither Bartell nor Anderson had any difficulty keeping pace with the vehicle as it slowly moved toward the ditch. (Anderson Dep. at 35-36; Bartell Dep. at 32.)
When Burmeister rose to his feet, he was at the edge of his cruiser's front bumper. (Burmeister Dep. at 43.) He testified that he saw VanVorous' hands moving the steering wheel to the right. (Id. at 44.) When Bartell smashed the passenger's side window, VanVorous continued to face forward and did not look in his direction. (Bartell Dep. at 33-34.) Bartell did not see VanVorous steering the wheel in Burmeister's direction. (Id. at 34.) Anderson saw Bartell and Burmeister yelling at VanVorous with their guns drawn, and he drew his weapon as well. (Anderson Aff. ¶ 12.) All of the officers testified that they shot VanVorous because they believed Burmeister's life was in danger because the VanVorous vehicle's engine continued to rev and vehicles began to separate from one another. (Burmeister Dep. at 59; Bartell Dep. at 41-42; Anderson Dep. at 46.) None of the officers involved in the shooting could remember who fired first. (Bartell Dep. at 43-44; Burmeister Dep. at 55; Anderson Dep. at 44, 46.) Although they could not specifically remember how many shots were fired, the reports showed that Burmeister shot 11 times, and Bartell and Anderson each shot four times. (Burmeister Dep. at 62; Bartell Dep. at 42; Anderson Aff. ¶ 14.)
This information was not included in the statement he made to a reporting lieutenant two hours after the incident. (Burmeister Dep. at 52.)
After the shooting, the VanVorous vehicle continued to accelerate and slowly push Burmeister's cruiser backward. (Anderson Dep. at 47; Bartell Dep. at 40.) Burmeister lost consciousness and fell to the ground. (Burmeister Dep. at 60-61.) When the shooting ceased, Pfankuch approached the VanVorous vehicle and smashed the driver's side window with his baton. (Police Rep. at 5.) He observed VanVorous sitting up with his head slumped to his chest. (Id.) Pfankuch unfastened the seat belt and pulled VanVorous from the vehicle, and Pfankuch and Anderson performed CPR, including the use of a defibrillator. (Id.; Anderson Dep. at 56-57.) Weaver notified dispatch of the accident and subsequent shooting, and he requested fire and medical assistance. (Police Rep. at 6.) Shortly after the arrival of medical personnel, VanVorous was pronounced dead at the scene. (Id.)
Summary Judgment Standard
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id.
The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986)).
Analysis
I. Claims Against the Individual Defendants
Burmeister, Bartell, and Anderson all testified that they do not know who fired first, and they all testified that they fired at VanVorous because of the threat the vehicle posed to Burmeister. All three maintain that the shooting was a justified used of reasonable force under the circumstances. Therefore, the claims against each of the Individual Defendants will be analyzed together.
The Individual Defendants have raised the defense of qualified immunity to Plaintiff's claims. "Qualified immunity is `an entitlement not to stand trial or face the other burdens of litigation. . . . an immunity from suit rather than a mere defense to liability.'" Saucier v. Katz, 121 S.Ct. 2151, 2156 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815 (1985)). The two-step inquiry for the Court when analyzing the assertion of qualified immunity is (1) whether a constitutional right would have been violated on the facts alleged and, if so, (2) whether the right was clearly established. Id. Thus, the Individual Defendants are entitled to summary judgment unless Plaintiff can show that the officers' actions violated clearly established law at the time. Sova v. City of Mt. Pleasant, 142 F.3d 898, 902 (6th Cir. 1998) (citing Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816-17).
A. Whether VanVorous' Constitutional Rights Were Violated
Plaintiff's suit is one for excessive force. The Supreme Court has held that all excessive force claims should be analyzed under the Fourth Amendment's "reasonableness" standard and not a "substantive due process" approach. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871 (1989). Plaintiff's claims under the Sixth and Fourteenth Amendment will be dismissed because the Fourth Amendment provides the textual source for constitutional protection against excessive force by law enforcement officials. Id.
Under Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694 (1985), a police officer may not use deadly force unless he has "probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Id. at 3, 105 S.Ct. at 1697. In determining the reasonableness of the officer's actions, the Court must give close 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 and others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396, 109 S.Ct. at 1872. This is an objective analysis "judged from the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hindsight." Id. The Court must recognize that "police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Id. at 397, 109 S.Ct. at 1872. The Individual Defendants will not be shielded by qualified immunity "if, on an objective basis, it is obvious that no reasonably competent officer would have [shot the victim]; but if officers of reasonable competence could disagree on this issue, immunity should be recognized."Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096 (1986). Put another way, "[t]he central legal question is whether a reasonably well-trained officer in the defendant's position would have known that shooting the victim was unreasonable in the circumstances." Sova, 142 F.3d at 903 (citing Malley, 475 U.S. at 345, 106 S.Ct. at 1098).
The Sixth Circuit provided further guidance on the issue of the reasonableness of the use of deadly force in Smith v. Freland, 954 F.2d 343 (6th Cir. 1992), a case involving a police car chase. The facts of the case were undisputed. A police officer had observed a car speed out of an apartment complex and run a stop sign. When the officer gave pursuit, the driver led him on a chase reaching speeds over 90 miles per hour. On two occasions, the driver attempted to hit the police cruiser, but the officer was able to avoid a collision. The driver pulled onto a dead-end residential street where he attempted to turn his car around. The police officer placed his cruiser nose to nose with the car, got out of his cruiser, and approached the other vehicle. The driver suddenly backed up his car, sped forward, and smashed into the officer's cruiser. After doing this is a second time, the driver maneuvered around the cruiser and began to drive away. The officer pulled his gun and shot the driver, killing him.
The victim's mother brought suit against the officer under § 1983 for excessive force. The district court granted summary judgment to the officer and the court of appeals affirmed. The court held that the officer's use of deadly force was reasonable because he had to make a split second decision whether to allow the driver to escape or to stop him. Id. at 347. The court stated that "we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day." Id. The court found that officer's actions were reasonable because the driver's car could be a deadly weapon and the driver presented a danger to the people in the neighborhood. Id. The fact that a roadblock was positioned at the end of the street was inconsequential to the reasonableness of the officer's actions because the driver presented a danger to those officers as well.Id.
The Sixth Circuit's opinion in Dudley v. Eden, 260 F.3d 722 (6th Cir. 2001), is also instructive. In that case, the plaintiff robbed a bank and then waited in a car for police officers to arrive. He hoped to commit suicide through police intervention in the situation. When police arrived at the scene, they approached the car with guns drawn and ordered the plaintiff to get out. He refused to comply and then suddenly sped away, but the officers were able to shoot one of his tires. The defendant police officer saw the plaintiff drive out of the lot, heard the gun shots, and pursued the plaintiff in his police cruiser. During the pursuit, the cars slowed down and then collided. The plaintiff claimed that the officer cut him off, but the defendant claimed that the plaintiff rammed into his door. Immediately after the collision, the officer fired three shots at the plaintiff, hitting him in the arm.
The driver brought a claim under § 1983 against the officer claiming that his Fourth Amendment rights were violated by the officer's use of excessive force. The district court granted summary judgment and the plaintiff appealed. He argued that the officer's use of force was unreasonable because he did not pose a serious threat to the police or anyone else. He was not armed and even though he drove away from the police, he did so at a low rate of speed. Finally, he argued that any threat he may have posed was eliminated when the cars collided and slowed to a near stop. The court of appeals rejected these arguments. Id. at 726. Since the plaintiff had robbed a bank, refused to comply with the officers' orders, attempted to evade arrest, and drove recklessly, the defendant officer's belief that he posed a threat to himself and others was reasonable. Id. at 727. The collision did not end the threat because the plaintiff could have backed up his car and continued his escape, again posing a danger to innocent motorists and pedestrians.Id.
While neither of these Sixth Circuit cases is factually identical to the instant case, the principles enunciated in those decisions lead this the Court to conclude that no reasonable jury could find that the Individual Defendants' actions in this case were not reasonable under the circumstances. When the officers shot VanVorous, it came at the end of a lengthy car chase that resulted in VanVorous' vehicle ramming into Burmeister's cruiser. Even though VanVorous had twice avoided collisions with the officers, in the end his vehicle rammed into Burmeister's cruiser despite the availability of the other lane in which to pass. This collision would inform the officers, especially Burmeister, that VanVorous was dangerous. After the collision, VanVorous' engine continued to rev, the tires continued to spin rapidly and produce smoke, and the vehicle continued to push Burmeister's cruiser backward. All of these factors contributed to a "tense, uncertain, and rapidly evolving" situation requiring split-second judgments.
Plaintiff argues that there is other evidence, however, indicating that VanVorous did not pose a threat to the officers or others. Plaintiff asserts that after the collision, any threat VanVorous may have presented was eliminated because the fronts of the vehicles were fused together. Plaintiff distinguishes this situation from the collisions in Dudley andFreland in which the cars were movable and the victims were not yet under control. Dudley, 260 F.3d at 727; Freland, 954 F.2d at 344. Bartell and Anderson both stated in their depositions that the vehicles were engaged and did not separate from each other. (Bartell Dep. at 31; Anderson Dep. at 36.) Burmeister originally explained, in a statement made two hours after the incident, that the vehicles were fused together, but he later said that, after reflecting and thinking more about the collision, that the vehicles were touching but not fused or connected. (Burmeister Dep. at 50-51.)
Contrary to Plaintiff's assertions, the present situation is similar toDudley and Freland. Bartell and Anderson testified that it appeared to them that the vehicles were beginning to come apart and that this separation prompted them to shoot at VanVorous. (Bartell Dep. at 41-42; Anderson Dep. at 42, 46.) Each feared that the vehicles would dislodge and that the VanVorous vehicle would accelerate directly at Burmeister. The fact that the vehicles did not actually separate from each other is irrelevant because this would be using "20/20 hindsight" in judging the reasonableness of the officers' actions at the time they made their decision. VanVorous, like the victims in Dudley and Freland, was not under control and still presented a danger to the officer and others at the time of the shooting.
Plaintiff also contends that there is conflicting testimony about whether VanVorous was moving after the collision and that this disputed fact precludes summary judgment. See Sova, 142 F.3d at 903 (holding that summary judgment is inappropriate where factual disputes exist that bear significance on whether the use of deadly force was reasonable and where the legal question of qualified immunity turns on the acceptance of different versions of facts). Bartell and Anderson stated that even after they had smashed the passenger's side window, VanVorous did not look in their direction. (Bartell Dep. at 33-34; Anderson Dep. at 36-37.) They testified that they did not see VanVorous steering the wheel in Burmeister's direction. (Bartell Dep. at 34; Anderson Dep. at 40.) Burmeister stated in his deposition that he saw VanVorous move his hands and turn the wheel to the right, in his direction. (Burmeister Dep. at 52, 55.)
While this information is relevant to the issue of whether VanVorous continued to threaten Burmeister's safety, it is not dispositive. All the officers testified that they feared for Burmeister's safety, regardless of whether VanVorous was moving his hands or not, due to the condition of the vehicles. The threat of the VanVorous vehicle becoming dislodged and accelerating at Burmeister made the use of force reasonable, and the fact that VanVorous may or may not have been moving his hands on the steering wheel does not preclude summary judgment. This is not a case like Sova where disputes exist over issues of material fact relating to the reasonableness of the defendant's actions. In that case, there was conflicting testimony about whether the victim was armed and whether he was charging at the officers when they shot him. Sova, 142 F.3d at 902-03. Here there is varying testimony concerning whether VanVorous' hands were moving the steering wheel, but there is no disagreement that the vehicles were coming apart when the officers chose to shoot VanVorous. This fact, coupled with VanVorous' evasion of arrest and the seemingly intentional collision, make summary judgment appropriate.
Finally, Plaintiff argues that one other fact is crucial to the determination that VanVorous did not endanger Burmeister's life. Plaintiff notes that after the shooting, the situation did not change. The VanVorous vehicle's engine continued to rev and the two vehicles continued to slowly move backward, eventually ending up in the ditch beside the road. (Bartell Dep. at 52, 55; Anderson Dep. at 47.) Bartell and Anderson both testified that they saw the VanVorous vehicle beginning to separate from Burmeister's cruiser, but the vehicles did not actually separate, and they continued on the same course. (Bartell Dep. at 52-53; Anderson Dep. at 47, 51.) Burmeister lost consciousness and fell to the ground after he finished shooting, but the VanVorous vehicle did not hit him. (Anderson Dep. at 55; Burmeister Dep. at 61.) Burmeister testified that he was standing in direct line of the VanVorous vehicle when he began shooting and stepped to his left to get out of the way. (Burmeister Dep. at 61.) It seems that if Burmeister was able to step out of the way of the vehicle, and if even after shooting VanVorous numerous times the speed and path of the vehicle did not change, Plaintiff argues, then Burmeister was not in immediate danger.
If the Court were to follow this argument, however, it would again be using 20/20 hindsight to determine the reasonableness of the officer's actions. Burmeister was able to move to his left to get out of the direct path of the vehicles. At the time of the shooting, however, he was in front of the VanVorous vehicle, and it could have separated and sped directly at him. The officers did not know at the time of the shooting that the vehicles would remain engaged and pass safely by Burmeister lying on the ground. It was a reasonable response to the situation for Burmeister to move out of the way of the vehicles as much as possible but attempt to prevent VanVorous from maneuvering his vehicle at Burmeister by shooting him.
No reasonable jury could conclude that the actions of the Individual Defendants were unreasonable when they used deadly force to subdue VanVorous. Therefore, the Court finds that VanVorous' constitutional right to be free from excessive force was not violated.
B. Whether the Constitutional Right was Clearly Established
Assuming, arguendo, that the defendant officers' actions did violate VanVorous' Fourth Amendment right against excessive force, the Court must inquire whether that right was clearly established. Saucier, 121 S.Ct. at 2156. To be clearly established, "`[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039 (1987)). A right must have been decided by the United States Supreme Court, the Court of Appeals, or the highest court of the state in which the alleged violation occurred in order to be clearly established. Neague v. Cynkar, 258 F.3d 504, 507 (6th Cir. 2001). "The relevant, dispositive inquiry . . . is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 121 S.Ct. at 2156.
It is clearly established, both by United States Supreme Court and Sixth Circuit decisions, that a police officer may not use deadly force unless he reasonably perceives that an individual is a threat to the safety of the officer or others. Garner, 471 U.S. at 11-12, 105 S.Ct. at 1701; Yates v. City of Cleveland, 941 F.2d 444, 447 (6th Cir. 1991). A reasonable officer in the position of the Individual Defendants would have known this right. This does not end the discussion, though, because the right "`must have been "clearly established" in a more particularized, and hence more relevant, sense.'" Saucier, 121 S.Ct. at 2156. As the Sixth Circuit explained, the "`pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.'" Cope v. Heltsley, 128 F.3d 452, 459 (6th Cir. 1997) (quoting Saylor v. Bd. of Ed. of Harlan County, 118 F.3d 507, 512 (6th Cir. 1997)).
Plaintiff has not cited a case, and this Court could find no case, from the Supreme Court, United States Court of Appeals for the Sixth Circuit, or Michigan Supreme Court that would clearly dictate to the Individual Defendants that their conduct was unlawful in this situation. While disputes of fact and the determination of reasonableness are normally left to a jury, the doctrine of qualified immunity by its nature allows room for an officer's discretionary judgment in these types of situations. Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley, 475 U.S. at 341, 106 S.Ct. at 1096. As the Supreme Court noted in Saucier,
Officers can have reasonable, but mistaken, beliefs as to the facts establishing the existence of probable cause or exigent circumstances, for example, and in those situations courts will not hold that they have violated the Constitution. Yet, even if a court were to hold that the officer violated the Fourth Amendment by conducting an unreasonable, warrantless search, Anderson still operates to grant officers immunity for reasonable mistakes as to the legality of their actions. The same analysis is applicable in excessive force cases, where in addition to the deference officers receive on the underlying constitutional claim, qualified immunity can apply in the event the mistaken belief was reasonable.Saucier, 121 S.Ct. at 2158-59. Even if the Court had ruled that the Individual Defendants acted unreasonably, qualified immunity still protects those officers from suit because any mistake they may have made in analyzing the situation was reasonable. The plethora of excessive force case law makes clear that the reasonableness inquiry is highly fact specific and leaves room for judgment calls. No one outcome is mandated by that case law in this situation involving a suspect evading arrest, a vehicle pursuit, a seemingly intentional collision by the suspect, and a potential threat to an officer.
Courts have noted the similarity in the analysis required in qualified immunity and Fourth Amendment reasonableness cases involving excessive force because both determinations turn on "objective reasonableness." See Leong v. City of Detroit, 151 F. Supp.2d 858, 863 n. 4 (E.D.Mich. 2001) (collecting cases). The Supreme Court made clear in Saucier, however, that the two inquiries must remain distinct and, thus, the Court required a two-step process that calls for a reasonableness determination at both steps. Saucier, 121 S.Ct. at 2156-59.
Therefore, the Individual Defendants are entitled to qualified immunity because even if their conduct amounted to a constitutional violation, any mistake they may have made in deciding the lawfulness of their actions was reasonable.
The affidavit of Plaintiff's proposed expert witness, R. Paul McCauley, does not change this conclusion. One, it is not clear that McCauley qualifies as an expert under Rule 702 of the Federal Rules of Evidence. Two, despite questions as to the admissibility of his testimony as an expert, his opinion that the Individual Defendants use of force was unreasonable and that they knew or should have known that it was unreasonable, (McCauley Aff.¶¶ 3(l), (m), Pl.'s Br. Resp. Ex. 9.), are mere conclusions that contradict the conclusions reached by the Court. They are not based on any information not presented to the Court, and they offer no additional analysis to that submitted by the parties and undertaken by the Court.
II. Claims Against Defendant City of Menominee
Plaintiff alleges that the City of Menominee Police Department authorized, tolerated, or acquiesced in certain policies and practices that deprived VanVorous of his Fourth, Sixth, and Fourteenth Amendment rights. (Compl. ¶¶ 23-24.) Defendant City of Menominee cites City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571 (1986) (per curiam), and argues that since Plaintiff's claims against it are contingent on Burmeister's alleged constitutional violation, these claims must be dismissed.
In Doe v. Sullivan County, 956 F.2d 545 (6th Cir. 1992), the Sixth Circuit noted that the Supreme Court in Heller was addressing a situation in which the jury had exonerated the defendant police officer of any alleged constitutional violations and, thus, the constitutional claims against the municipality should be dismissed as well. Id. at 554. The Court in Heller was not dealing with a police officer's assertion of qualified immunity. According to the Sixth Circuit, this is a significant distinction because
the dismissal of a claim against an officer asserting qualified immunity in no way logically entails that the plaintiff suffered no constitutional deprivation, nor, correspondingly, that a municipality (which, of course, is not entitled to qualified immunity) may not be liable for that deprivation. At most it means that an officer in the defendant's position could reasonably have believed that the conduct in question did not violate law that was clearly established at the time.Id.
The Court has determined that the Individual Defendants, including Burmeister, are entitled to qualified immunity. Unlike the court in Doe v. Sullivan County, however, this conclusion was not based solely on the reasonableness of the officers' belief that their conduct was lawful. Under Saucier, the Court was first required to determine whether VanVorous suffered a constitutional violation at all before asking whether that right was clearly established. The Court concluded that the Individual Defendants acted reasonably in using deadly force and did not violate VanVorous' Fourth Amendment rights. More recent Sixth Circuit opinions have made clear that a determination that the individual defendants committed no constitutional violation, whether by a court on summary judgment or by a jury, precludes municipal liability under § 1983. See Klemencic v. Ohio State Univ., 263 F.3d 504, 511 (6th Cir. 2001) (citing Smith v. Thornburg, 136 F.3d 1070, 1078 n. 12 (6th Cir. 1998)); Scott v. Clay County, 205 F.3d 867, 879 (6th Cir. 2000). When there is no underlying constitutional violation by individual officers, there can be no municipal liability either.
Therefore, the Court will grant the City of Menominee's motion for summary judgment of Plaintiff's claims.
III. State Law Claims
Plaintiff brought pendent state law claims against the Individual Defendants for intentional infliction of emotional distress, gross negligence, and assault and battery. The Court's jurisdiction over theses claims is based on supplemental jurisdiction provided in 28 U.S.C. § 1367. In deciding whether to exercise its supplemental jurisdiction, "[a] district court should consider the interests of judicial economy and the avoidance of multiplicity of litigation and balance those interests against needlessly deciding state law issues."Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993) (affirming district court's order granting summary judgment on federal claim and dismissing state law claims without prejudice). "When all federal claims are dismissed before trial, the balance of considerations usually will point to dismissing the state law claims, or remanding them to state court if the action was removed." Musson, 89 F.3d at 1254-55 (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 619 n. 7 (1988)). Because the Court has dismissed the federal claims against the Individual Defendants, the Court will decline to exercise supplemental jurisdiction over Plaintiff's remaining state law claims. See 28 U.S.C. § 1367(c)(3).
Conclusion
For the foregoing reasons, the Court will grant summary judgment on Plaintiff's constitutional claims against Defendants Burmeister, Bartell, and Anderson, based on those officers' qualified immunity. The Court will also grant summary judgment on Plaintiff's claims against Defendant City of Menominee. Plaintiff's state law claims will be dismissed for lack of jurisdiction because the primary federal claims have been dismissed.
An Order consistent with this Opinion will be entered.
ORDER
Pursuant to the Opinion filed on this date,
IT IS HEREBY ORDERED that Defendants Eric Burmeister and City of Menominee's Motion for Summary Judgment (docket no. 15) is GRANTED.
IT IS FURTHER ORDERED that Defendants Paul Anderson and Daniel Bartell's Motion for Summary Judgment (docket no. 30) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's state law claims are dismissed without prejudice pursuant to 28 U.S.C. § 1367(c)(3).