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Nelson v. City of Battle Creek

United States District Court, W.D. Michigan, Southern Division

February 21, 2018

PATRICIA NELSON, next friend of NK., a minor, Plaintiff,
CITY OF BATTLE CREEK, et al, Defendants.



         Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 against Defendant City of Battle Creek and police officer Esteban Rivera, after N.K., a minor, was shot in the right shoulder by Officer Rivera outside a convenience store on November 16, 2013 when Rivera responded to a 911 dispatch of a male carrying a gun. The City has since been dismissed. The sole remaining claim is Plaintiffs § 1983 claim of excessive force.

         The matter is before the Court on Defendant Rivera's Motion for Summary Judgment on the ground of qualified immunity (ECF No. 60). Plaintiff has filed a Response (ECF No. 61), and Defendant has filed a Reply (ECF No. 62). Defendant has also filed a notice of intent to rely on new authority (ECF No. 73), to which Plaintiff has filed an objection (ECF No. 74).[1] After full consideration, the Court concludes that oral argument is unnecessary to resolve the Motion. See W.D. Mich. LCivR 7.2(d). Defendant's Motion is denied.

         I. Stipulated Facts

         The parties stipulate to the following material facts:

1. On November 16, 2013, NK and three of his friends (SC, SW, and JW) were playing "Cops and Robbers" inNK's neighborhood.
2. On the day and times in question, NK had an Airsoft BB pistol, which he had colored all black with a Sharpie marker. The Airsoft gun had also been altered so that it no longer had an orange tip.
3. At some point, the girls (SC, SW, and JW) went to the Drive-Thru Party Store so they could use a bathroom.
4. The [dispatch] log indicates that at 11:58 am Officer Rivera was dispatched and en route to the call at the Party Store.
6. Officer Rivera did not activate his lights or siren.
7. NK was still crouched down by a Newport cigarette sign at the end of the store when he first saw Officer Rivera's car. With the Airsoft gun placed in his waistband, NK walked from the sign toward the front door of the store.
8. As Rivera turned right onto the street of the Party Store, Officer Rivera could see NK and he radioed Dispatch to say, "OK, I got him. He's walking towards the store now." 9. As Officer Rivera turned into the Party Store parking lot, he could see the girls exit the Party Store and saw NK walk toward them.
10. Officer Rivera pulled in and parked his patrol car at an angle and exited his car.
11. At some point, Officer Rivera fired his gun one time, hitting NK in the right shoulder.

         (Joint Statement of Material Facts (JSMF), ECF No. 72).

         II. Legal Standards

         Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The court must consider the evidence and all reasonable inferences in favor of the nonmoving party. Burgess v. Fischer, 735 F.3d 462, 471 (6th Cir. 2013); U.S. S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013) (citation omitted).

         The moving party has the initial burden of showing the absence of a genuine issue of material fact. Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 200 (6th Cir. 2010). The burden then "shifts to the nonmoving party, who must present some 'specific facts showing that there is a genuine issue for trial.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "There is no genuine issue for trial where the record 'taken as a whole could not lead a rational trier of fact to find for the non-moving party.'" Burgess, 735 F.3d at 471 (quoting Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). "The ultimate inquiry is '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.'" Sierra Brokerage Servs., 712 F.3d at 327 (quoting Anderson, 477 U.S. at 251-52).

         III. Analysis

         To state a viable claim under 42 U.S.C. § 1983, a plaintiff must allege (1) the violation of a right secured by the Constitution or laws of the United States; and (2) that the deprivation was caused by a person acting under color of state law. Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). Claims that law enforcement officers have used excessive force are analyzed under the Fourth Amendment's reasonableness standard. Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008). '"[T]he question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.'" Griffith v. Coburn, 473 F.3d 650, 656 (6th Cir. 2007) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989) (citation omitted)).

         The affirmative defense of qualified immunity applies to excessive force claims under § 1983. "Police enjoy qualified immunity unless (1) the facts alleged show that the police violated a constitutional right; and (2) the right was clearly established." Jones, 521 F.3d at 559. Under this test, "qualified immunity is proper unless 'it would be clear to a reasonable officer' that his use of excessive force 'was unlawful in the situation he confronted.'" Champion v. Outlook Nashville, Inc., 380 F.3d 893, 902 (6th Cir. 2004) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). "The burden is on the plaintiff to demonstrate that the officer is not entitled to qualified immunity." Coble v. City of White House, 634 F.3d 865, 870-71 (6th Cir. 2011).

         Defendant argues that Plaintiff has not met her burden to present a genuine challenge to Officer Rivera's qualified immunity from suit. Defendant contends that the facts concerning his shooting a teen who disobeyed police orders and instead seemingly drew a real weapon did not violate clearly established law because "[c]ourts nationwide recognize that when a person draws or brandishes a real-looking BB gun to an officer and disobeys police orders, an officer who shoots that person does not violate clearly established law because officers must diffuse reasonably perceived threats of serious harm, and BB guns (especially Airsoft ones) commonly look real" (ECF No. 60 at PagelD. 174-175).

         Plaintiff does not disagree that whether an officer's conduct is objectively reasonable depends, in part, on whether the suspect poses an immediate threat to the safety of the officers or others. Plaintiff contends, however, that Defendant's deployment of deadly force against N.K. was unreasonable and excessive because case law precedent at the time of the incident clearly established that "it is unlawful to shoot an unarmed man, who is neither fleeing nor a felon ..." (ECFNo. 61 atPageID.314).

         "Under Tennessee v. Garner,471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), the police may not use deadly force against a citizen unless 'the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.'" Sovav. City of Mt. Pleasant,142 F.3d 898, 902-03 (6th ...

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