NOT RECOMMENDED FOR PUBLICATION

File Name: 23a0247n.06

No. 22-3055

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JAMES J. ENGLAND,

Plaintiff-Appellee,

v.

CITY OF COLUMBUS, OHIO; KEITH 

ABEL, in his individual and official 

capacity,

Defendants-Appellants.

)

)

)

)

)

)

)

)

)

)

)

ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE SOUTHERN DISTRICT OF 

OHIO

OPINION

Before: STRANCH, MURPHY, and DAVIS, Circuit Judges.

JANE B. STRANCH, Circuit Judge. On February 6, 2015, Defendant Officer Keith 

Abel shot Plaintiff James England twice while apprehending him on a felony warrant. England 

sued Abel and the City of Columbus pursuant to 42 U.S.C. § 1983, and the Defendants moved for 

summary judgment. Relevant here, Defendants contended that Abel was entitled to qualified 

immunity and that England’s claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994). 

After the district court denied their motions, the Defendants filed this interlocutory appeal. 

England moved to dismiss, arguing that this court lacks jurisdiction because the Defendants’ 

appeal does not raise purely legal issues. We DISMISS Defendants’ appeal for lack of 

jurisdiction.
No. 22-3055, England v. City of Columbus, et al.

-2-

I. BACKGROUND

A. Factual Background

On February 6, 2015, Officer Abel discovered an outstanding warrant for James England 

for felonious assault. After gathering three other officers—Douglas Fulwider, Armando Dungey, 

and Kenneth Griffis—Abel went to England’s house to execute the warrant. Abel covered the 

back of the house, and Fulwider and Dungey stood outside the front door. They told England that

they had a warrant for his arrest and ordered him to open the door. England responded that he 

wanted to secure his two dogs first. But England never opened the front door; instead, he went 

out the back door of the house onto a patio. There, he encountered Officer Abel, who was armed 

with a TASER. Abel was in the driveway, separated from England by a patio door that was nailed 

or bolted shut. Abel could see into the patio only through an uncovered square-shaped opening 

at the top of the patio door. The bottom two-thirds of the patio door were boarded with what 

appeared to be plywood.

Abel ordered England not to move, and England complied. He also ordered England to 

come toward the door and put his hands up; England complied again, approaching the door with 

his hands above his head. With his TASER still drawn, Abel grabbed England’s hands. At that 

point, the officers at the front of the house had heard Abel’s orders and joined him in the back of 

the house behind the patio door. Fulwider joined Abel in securing England through the window 

opening. Fulwider placed the first handcuff on England himself and he and Abel secured the 

second handcuff together. The handcuffs were secured but not “locked or double locked.” 

England remained handcuffed throughout the remainder of the encounter.
No. 22-3055, England v. City of Columbus, et al.

-3-

At some point, both of England’s dogs, at least one of which was a pit bull, came through 

a dog door onto the patio. The officers asked England to control the dogs; he tried to do so but 

only one dog heeded his commands.

With England and at least one of his barking dogs on the other side of a bolted patio door, 

the officers decided to secure England by pulling him through the small window opening at the 

top of the patio door. Abel, who is 5'6" tall, pulled himself “onto the boarded patio door to try and 

control [] England,” who weighed 180 pounds and was 5'9". Fulwider said Abel was standing on 

a bucket to gain an “improved position.” By this point, Abel had fumbled and dropped his TASER 

and drawn his service weapon. With his firearm in his right hand, Abel attempted to lift England 

from the patio with his left arm. Fulwider “grabbed hold of [Abel’s] gun belt to try to stabilize 

him as [] he went to pull [England] up.” Abel felt his “weight going over the patio door and onto 

th[e] patio.” He attributed this to England lunging forward, but he admitted that he did not see 

what England was doing when he felt his body weight shift. Conversely, England testified that he 

was “pushed forward.”

The rest of the incident is undisputed. Abel fired two shots at England, striking him in the 

torso. England then dove through the dog door on the back door and into the house. Fulwider 

entered, found England on the ground handcuffed and bleeding, and dragged him out of the house 

by his legs. The officers took England into custody and transported him to the hospital.

In the aftermath of the incident, there was disagreement within the Columbus Division of 

Police (CDP) as to whether Abel’s use of deadly force was in violation of police policy. The 

Critical Incident Response Team and Sergeant Griffis, Abel’s supervisor, found that the shooting 

was not in violation of policy. But the Firearms/Police-Involved Death Review Board, Lieutenant 

David Knight, Commander Mark Gardner, and Deputy Chief Ken Kuebler found that it was not 
No. 22-3055, England v. City of Columbus, et al.

-4-

objectively reasonable for Abel to use deadly force. Ultimately, the Chief of Police, Kim Jacobs, 

made a final determination that Abel did not violate policy. 

In addition to the felonious assault charge that had formed the basis of the warrant, the 

officers charged England with resisting arrest, and he pled guilty. The sworn complaint charging 

England with resisting arrest stated: “[England] would not comply with officers[’] orders. He 

tensed up and struggled with officers as they attempted to handcuff him. He then lunged forward 

dragging an officer over a walled partition.” In 2019, England moved to withdraw his plea, but

there is no record of England’s initial plea hearing in 2015. England testified that he had never 

seen or reviewed the complaint and that the facts in the complaint differed from his version of 

events on February 6, 2015. 

B. Procedural History

England sued Abel for excessive force and the City of Columbus under Monell v. 

Department of Social Services of the City of New York, 436 U.S. 658 (1978), pursuant to 42 U.S.C. 

§ 1983. The Defendants moved for summary judgment, arguing that Abel was entitled to qualified 

immunity and that the City was not liable under any Monell theory and for lack of an underlying 

constitutional violation by Abel. In his reply brief, Abel argued for the first time that Heck v. 

Humphrey, 512 U.S. 477 (1994), barred England’s excessive force claim because it would 

undermine the validity of his conviction for resisting arrest. England moved to strike this 

argument, requesting in the alternative to file a sur-reply, which was attached to the motion. 

The district court denied summary judgment in full. Regarding Abel’s entitlement to 

qualified immunity, the court held that genuine disputes of fact precluded a finding that there was 

no constitutional violation. Specifically, the court reasoned that:

When the dust settled, critical questions were left unanswered. First, what caused 

Officer Abel to tip forward? Did his weight shift because Mr. England lunged in a 
No. 22-3055, England v. City of Columbus, et al.

-5-

late-stage attempt to overtake Officer Abel—or merely because gravity affected his 

perch atop the plywood? Second, did Officer Abel know, or should he have known, 

that Mr. England was handcuffed? Did Officer Abel himself fasten the second cuff 

on Mr. England’s wrist—or did he reasonably believe that Mr. England’s hands 

were unrestrained? Whether Officer Abel had probable cause to believe that Mr. 

England posed an imminent threat of serious physical harm, and the use of deadly 

force was therefore justified under the circumstances, turns on these questions of 

fact. Accordingly, summary judgment is not appropriate.

England v. City of Columbus, No. 2:19-cv-1049, 2021 WL 5998530, at *7 (S.D. Ohio Dec. 20, 

2021). Additionally, the court held that England’s right to be free of excessive force was clearly 

established:

Construing the facts in the light most favorable to Mr. England, this case presents 

a circumstance in which a suspect was handcuffed on a partially-enclosed patio 

with two aggressive dogs, but was complying with officer commands, was not 

physically resisting the officers’ grasp, made no verbal threats to the officers, and 

was not armed. The arresting officer, who had drawn his service weapon, lost his 

balance and feared falling into the enclosure with the suspect and the dogs. Though 

a precarious scenario, the suspect was not the source of any threat. The suspect in 

this case was subdued and nondangerous—and had a constitutional right not to be shot.

Id. at *8 (citing Brown v. Battle Creek Police Dep’t, 844 F.3d 556, 567-68 (6th Cir. 2016)).

The district court considered England’s sur-reply and addressed Abel’s untimely

arguments regarding Heck’s applicability on the merits. It held that England’s excessive force 

claim was not barred by Heck because “the factual basis of Mr. England’s guilty plea is unclear at 

best, and because [his] pre-handcuffing conduct could form the sole basis of that plea, Mr. 

England’s excessive force claim does not necessarily imply the invalidity of the [resisting arrest] 

conviction.” Id. at *10. 

Finally, as to the City’s municipal liability, the district court held that there were genuine

disputes of fact whether Chief Jacobs’s approval of Abel’s use of deadly force “constitute[d] or 

confirm[ed] the existence of a City policy that deadly force may be used on a suspect when a CDP 
No. 22-3055, England v. City of Columbus, et al.

-6-

officer subjectively—but unreasonably—fears for his life,” and if any ratification was a moving 

force behind England’s injury. Id. at *12. 

The Defendants timely filed this interlocutory appeal, arguing that the district court erred 

in (1) denying Abel qualified immunity; (2) holding that England’s excessive force claim was not 

barred by Heck; and (3) denying the City summary judgment for lack of an underlying 

constitutional violation by Abel. England moved to dismiss for lack of jurisdiction, arguing that 

the appeal is based on factual disputes, and he also moved for sanctions for filing a frivolous 

appeal. 

II. ANALYSIS

On appeal, Defendants contend that the district court erred in denying Abel qualified 

immunity and raise two other issues—whether Heck bars England’s excessive force claim and 

whether the City is liable under Monell. We review the district court’s order de novo. Jones v. 

City of Elyria, 947 F.3d 905, 913 (6th Cir. 2020). At summary judgment, a government official is 

entitled to qualified immunity unless, viewing the record evidence in the light most favorable to 

the plaintiff, a reasonable jury could find that (1) the defendant violated a constitutional right and

(2) that right was clearly established. Quigley v. Tuong Vinh Thai, 707 F.3d 675, 680 (6th Cir. 

2013). We begin with our jurisdiction. 

The courts of appeals have jurisdiction to review “final decisions” from the district courts, 

28 U.S.C. § 1291, but final decisions are not necessarily “the last order possible to be made in a 

case.” Mitchell v. Forsyth, 472 U.S. 511, 524 (1985) (quoting Gillespie v. United States Steel 

Corp., 379 U.S. 148, 152 (1964)). Typically, the denial of summary judgment is not immediately 

reviewable, but a district court’s denial of qualified immunity—“to the extent that it turns on an 

issue of law”—is a final decision suitable for review. Id. at 530. We do not, however, have 
No. 22-3055, England v. City of Columbus, et al.

-7-

jurisdiction to review appeals that seek to challenge a district court’s “determination that the 

summary judgment record . . . raised a genuine issue of fact.” Johnson v. Jones, 515 U.S. 304, 

313 (1995). A defendant must generally “concede the most favorable view of the facts to the 

plaintiff” to invoke this court’s jurisdiction. Adams v. Blount County, 946 F.3d 940, 948 (6th Cir. 

2020). Where independent appellate jurisdiction lies, we may also exercise pendent jurisdiction 

over issues that are “inextricably intertwined” with a claim of qualified immunity. Meals v. City 

of Memphis, 493 F.3d 720, 727 (6th Cir. 2007).

England argues we lack jurisdiction because this appeal is an impermissible fact-based 

challenge to the district court’s determination that genuine disputes of material fact exist regarding 

Abel’s entitlement to qualified immunity. Defendants contend that they raise only the legal issues 

of whether Abel’s use of deadly force was objectively unreasonable, and, even if it was, whether 

any violation was clearly established.

A. England’s Excessive Force Claim

1. Constitutional Violation

England may show that Abel violated his constitutional right to be free from excessive 

force by demonstrating that the force used was objectively unreasonable. See Graham v. Connor, 

490 U.S. 386, 393-95 (1989). The use of deadly force is objectively unreasonable “unless an 

officer has probable cause to believe a suspect poses an immediate threat of serious physical harm 

to the officer or others.” Lee v. Russ, 33 F.4th 860, 863 (6th Cir. 2022) (citing Tennessee v. Garner, 

471 U.S. 1, 11 (1985)). 

The district court held that genuine disputes of material fact existed as to whether the 

deadly force Abel used against England—shooting him twice in the torso—was objectively 

unreasonable. See England, 2021 WL 5998530, at *7. The district court found two critical factual 
No. 22-3055, England v. City of Columbus, et al.

-8-

disputes. The first is whether England was handcuffed; in the light most favorable to England, the 

record showed that the officers succeeded in handcuffing him—with Abel fastening the second 

handcuff himself. Id. The second dispute regards the cause of Abel moving forward over the patio 

door just before shooting England. Id. In the light most favorable to England, Abel fell forward 

because of gravity, not because England lunged forward. Id. The district court reasoned that 

whether Abel used excessive force, i.e., whether the use of force was objectively unreasonable, 

“turns on these questions of fact.” Id.

Defendants argue that there is no dispute that Abel’s use of force was reasonable, wholly 

failing to concede the facts in England’s favor. See Adams, 946 F.3d at 948. For example, 

Defendants argue that “it was reasonable to believe that England posed an immediate threat to 

[Abel’s] safety” because “England had lunged forward, dragging [him] over a walled partition” 

and “was resisting arrest and attempting to evade arrest when he was shot.” The district court 

correctly credited England’s version of the facts and drew inferences in his favor in denying 

qualified immunity. Defendants fail to explain why, given the district court’s factual 

determinations and inferences, Abel prevails on his claim of qualified immunity as a matter of 

law. See Johnson, 515 U.S. at 313. Indeed, Defendants admit elsewhere that “England’s suggested 

fact-pattern would very likely defeat summary judgment.” The district court did not err in 

determining that disputes of material fact exist on this record.

Defendants next invoke Heck, a decision that bars a plaintiff’s § 1983 claim “if success on 

that claim ‘would necessarily imply the invalidity’ of an underlying state criminal conviction.” 

Hayward v. Cleveland Clinic Found., 759 F.3d 601, 608 (6th Cir. 2014) (quoting Heck, 512 U.S. 

at 487). If Heck applies, a plaintiff “has no cause of action under § 1983 unless and until the 

conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of 
No. 22-3055, England v. City of Columbus, et al.

-9-

habeas corpus.” Heck, 512 U.S. at 489. We have applied Heck to bar § 1983 excessive force 

claims in two circumstances: (1) when the crime of conviction included the lack of excessive force 

as an element and (2) when the plaintiff could have raised excessive force as an affirmative defense 

to the crime. Hayward, 759 F.3d at 608. 

Defendants’ arguments here conflate Heck with the separate doctrine of issue preclusion. 

Below, Abel argued that Heck barred England’s “new allegations” that he was not resisting arrest 

and his “new” factual claim that he did not lunge forward because England had pled guilty to a 

resisting-arrest complaint that asserted he “struggled with officers” and “lunged forward dragging

an officer over a walled partition.” Abel framed his analysis through a traditional Heck lens, 

arguing that, in Ohio, a conviction for resisting arrest requires a lawful arrest—one without 

excessive force. The district court therefore undertook a Heck analysis, ultimately holding that 

England’s claim would not necessarily undermine his resisting arrest conviction. But the former 

idea—that Heck bars England from asserting and relying on certain facts to support his claim—is 

different, more akin to issue preclusion. Heck, as we know it, bars claims, and Defendants did not 

expressly argue that Heck’s underlying logic should be extended to bar fact issues as well. Nor

did they expressly raise or develop an issue-preclusion defense before the district court or this

court.1 The issue is not before this court.

In sum, we agree with England that the issues Defendants raise regarding the first prong of 

qualified immunity are fact-based challenges that we do not have jurisdiction to review.

1 Two days before argument, Defendants filed a letter pursuant to Federal Rule of Appellate Procedure 28(j) providing 

supplemental existing authority to support an argument raised for the first time—issue preclusion. This late-breaking 

letter does not preserve the issue-preclusion argument for our review when Defendants failed to develop it at the 

district court or in their appellate briefing. United States v. Maliszewski, 161 F.3d 992, 1015 (6th Cir. 1998).
No. 22-3055, England v. City of Columbus, et al.

-10-

2. Clearly Established Law

Defendants also argue that the district court erred in holding that England’s right to be free 

from excessive force was clearly established. The district court held that England met his burden 

on this second prong of the qualified immunity analysis because it was clearly established at the 

time Abel shot England that using deadly force on a suspect that was “subdued and nondangerous”

and “not the source of any threat” violated the Constitution. England, 2021 WL 5998530, at *8. 

The district court’s holding was predicated on its finding the facts detailed above. See id.

Like their argument concerning the first prong of qualified immunity, Defendants’ 

argument regarding prong two improperly “rest[s] . . . on their own version of the disputed facts 

and the inferences they would draw from them.” DiLuzio v. Village of Yorkville, 796 F.3d 604,

611 (6th Cir. 2015). The Defendants argue that “there is no legal authority that a police officer 

may not use deadly force to stop himself from getting dragged over a walled partition . . . while 

attempting to arrest a violent and resisting felon.” This formulation of Abel’s conduct completely 

disregards the district court’s findings of fact. Accordingly, we also lack jurisdiction to review

Defendants’ argument regarding the second prong of qualified immunity.

In sum, Defendants’ arguments regarding Abel’s entitlement to qualified immunity are 

contingent on resolving, in Defendant’s favor, factual disputes identified by the district court. This 

court is not vested with jurisdiction to do so; accordingly, we grant England’s motion to dismiss 

the appeal for lack of jurisdiction. See Gillispie v. Miami Township, 18 F.4th 909, 917-18 (6th 

Cir. 2021).

B. England’s Motion for Sanctions

England moves for sanctions, arguing that Defendants’ fact-based appeal is frivolous. “If 

a court of appeals determines that an appeal is frivolous, it may . . . award just damages and single 
No. 22-3055, England v. City of Columbus, et al.

-11-

or double costs to the appellee.” Fed. R. App. P. 38. Appeals “obviously without merit and [] 

prosecuted for delay, harassment, or other improper purposes” are frivolous. McDonald v. Flake, 

814 F.3d 804, 816 (6th Cir. 2016) (quoting Bridgeport v. Music, Inc. v. Smith, 714 F.3d 932, 944 

(6th Cir. 2013)). Interlocutory appeals of denials of qualified immunity “can be employed for the 

sole purpose of delaying trial,” Yates v. City of Cleveland, 941 F.2d 444, 448 (6th Cir. 1991), and 

“litigants have been on notice for more than two decades that fact-intensive claims of entitlement 

to qualified immunity ‘can consume inordinate amounts of appellate time,’” Gillispie, 18 F.4th at

919 (quoting Johnson, 515 U.S. at 316). While “it is important to protect public officials from 

frivolous claims and burdens of trials, it is also important to curtail the outlay and delay of 

litigation, so that victims of official misconduct may receive the vindication that is their due.” 

Yates, 941 F.2d at 449 (quoting Abel v. Miller, 904 F.2d 394, 396 (7th Cir. 1990)).

Undoubtedly, Defendants’ interlocutory appeal and refusal to accept the factual disputes 

found by the district court have caused delay. Based on the entire record, however, we conclude 

that this appeal does not rise to the level of sanctionable conduct.

III. CONCLUSION

For the foregoing reasons, we DISMISS Defendants’ appeal for lack of jurisdiction, and 

we DENY England’s motion for sanctions.