RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0086p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

W ILLIAM T HOMAS , Plaintiff-Appellant ,

v

.

C ITY OF C OLUMBUS , O HIO ; K IMBERLEY J ACOBS ; W ILLIAM T. K AUFMAN , Defendants-Appellees

. ┐ │ │ │ │ │ │ │ │ ┘ No. 16-3375

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:14-cv-00906—Gregory L. Frost, District Judge. Argued: December 9, 2016 Decided and Filed: April 19, 2017 Before: McKEAGUE, GRIFFIN, and KETHLEDGE, Circuit Judges.

_________________ COUNSEL ARGUED: Nicholas A. DiCello, SPANGENBERG , SHIBLEY & LIBER, LLP, Cleveland, Ohio, for Appellant. Timothy J. Mangan, CITY ATTORNEY’S OFFICE, Columbus, Ohio, for Appellees. ON BRIEF: Nicholas A. DiCello, Jeremy A. Tor, SPANGENBERG, SHIBLEY & LIBER, LLP, Cleveland, Ohio, for Appellant. Timothy J. Mangan, Janet R. Hill Arbogast, CITY ATTORNEY’S OFFICE, Columbus, Ohio, for Appellees.

_________________ OPINION

_________________ McKEAGUE, Circuit Judge. This case primaril y concerns an officer’s decision to fire his weapon. Specifically, whether th at decision was reasonable when an apparent suspect exited 

### >No. 16-3375 Thomas v. City of Columbus, et al. Page 2

an ongoing burglary 40 feet away from the officer and then ran to wards the officer with a gun. For the following reasons, we hold that it was and that the district court properly granted summary judgment to the defendants on th e remaining claims. Thus, we affirm.

I In 2012, Destin Thomas lived in an apartment complex near Columbus, Ohio. His front door opened to a breezeway. On one end, the br eezeway led to a parki ng lot that Destin’s building shared with the others in the complex. On the other e nd, it led to a grassy area that separated Destin’s building from ot her developments and a nearby road. At around 8:45 a.m. on a July morning, two men broke through Destin’s front door. Destin called 911 from inside his bedroom and spoke quietly to avoid drawing the burglars’ attention. After a few minutes, however, the men tried to force their way into Destin’s room. A struggle ensued. As Destin confronted the intruders, the 911 di spatcher sent out a burglary alert. The Columbus Police Department considers a bu rglary in progress a “priority one” call—a designation reserved for “ongoing life-threatening crimes, and situ ations likely to result in serious physical harm to any person.” R. 32- 1, Kaufman Aff. Ex. A-3, PID 133. Normally, the Department requires that two officers respond to these calls. “However , if the circumstances indicate a present or an imminent threat to a citizen’s safety,” th e Department’s procedures state that “the first available sworn personnel shall respond directly and immedi ately to the scene.” Id. at Ex. A-4, PID 135 Five officers in the area responded to the aler t. Officer William Kaufman was the first to arrive on the scene. On his way to the apar tment complex, Officer Kaufman received updates from the dispatcher that let him know that the caller was inside a bedroom, that multiple suspects were in the apartment, and that the dispat cher heard yelling and crashing noises in the background. When Officer Kaufman pulled into the comple x’s parking lot, he stopped his cruiser a few spaces down from the breezeway’s entrance. He ran from his car toward the breezeway,No. 16-3375 Thomas v. City of Columbus, et al. Page 3

approaching it from between a parked car and truc k. Officer Kaufman says that as he ran, he could hear a commotion coming from the breezewa y. The complex was in a high-crime area and Officer Kaufman says that he expected a gun might be involved. Officer Kaufman had his weapon unholstered. When Officer Kaufman approached the breezeway’s entrance, two men exited Destin’s apartment and ran toward him. The first had a gun in his hand. Officer Kaufman stopped at the parking lot’s edge, about 40 feet from Destin’s front door. He shouted and then fired two shots at the person with the gun, who had closed the distance to what Officer Kaufman later estimated to be ten feet. The second suspect fled. Officer Kaufman ch ased him for a few steps before stopping. He then radioed out “shots fired” and reque sted an ambulance. Officer Kaufman never administered aid to the suspect that he shot, late r saying that he considered it unsafe to do so with an active crime scene. He also says that the suspect appeared to be dead. The person that Officer Kaufma n shot was not a burglar. Ra ther, it was Destin, who had managed to disarm a burglar before fleeing his apartment. Unbeknownst to Officer Kaufman, and perhaps Destin, the gun that Destin had wres tled away was unloaded. Tragically, Destin died from the two gunshot wounds.

When the next officer arrived on the scene a few minutes later, he entered the breezeway from behind the building. He found Officer Kaufman facing towa rd Destin’s apartment door with his gun drawn. Between the officers lay Des tin’s body, clothed only in the gym shorts that he had slept in. The officer asked Officer Ka ufman if he was okay. Officer Kaufman responded, “I think this was the homeowner.”

After more officers arrived and secured the scene, a sergeant transported Officer Kaufman to a nearby police station. There, he met with his union-retain ed attorney. Officer Kaufman then returned to the scene for initial questioning but declined to comment. Nine days later, he submitted a statement th rough his attorney claiming that Destin had pointed the gun at him. Destin’s father, William Thomas, finds this implausible because DestinNo. 16-3375 Thomas v. City of Columbus, et al. Page 4

had called the police. Further, Mr. Thomas note s that Destin’s bedroom faced the parking lot, meaning that he might have left his room sp ecifically to run to Officer Kaufman. Officer Kaufman stuck by his story duri ng his deposition, even agreei ng when the opposing lawyer suggested that the only thing that would make his firing a weapon reasonable would be Destin lifting the gun towards him. Besides Officer Kaufman, only one othe r living person witnessed the shooting

— the burglar that followed Destin out of the apartment. Police captured him, but he refuses to testify. Currently, he is pursuing relief for his fel ony murder conviction based on Destin’s death.

II In 2014, William Thomas sued Officer Kaufma n, the City of Columbus, and the City’s Police Chief, Kimberly Jacobs. He brought two claims against Officer Kaufman under 42 U.S.C. § 1983. The first allege d that Officer Kaufman used ex cessive force in violation of Destin’s right to be free from unreasonable seiz ures—a Fourth Amendment right applied against the states by the Fourteenth Amendment. The second asserted that O fficer Kaufman violated Destin’s Fourteenth Amendment due process ri ghts by showing deliberate indifference to his serious medical needs after the shooting. Mr. Th omas also brought state tort claims against Officer Kaufman based on the shooting. Finally, Mr . Thomas asserted that the City and Chief Jacobs failed to properly train Officer Kaufman, thus making them liable for the shooting under 42 U.S.C. § 1983. See Monell v. Dep’t of Soc. Servs. , 436 U.S. 658 (1978). The defendants moved for summary judgment, with Officer Kaufman asserting qualified immunity as a defense. The district court gran ted the motion on the federal claims and dismissed the state claims without prejudice. As to the excessive -force claim, the cour t concluded that no genuine dispute existed over Officer Kaufman’s te stimony that Destin pointed a gun at him, and thus it found no Fourth Amendment violation. See R. 44, Opinion and Order, PID 1311. The court then found for Officer Kaufman on the deliberate indifference cl aim, holding that he did not disregard the risk to Destin but acted practically un der uncertain circumstances. Id. at 22–23, PID 1325–26. Lastly, the district c ourt dismissed the failure-to-train claim because it found no constitutional violation. Id.No. 16-3375 Thomas v. City of Columbus, et al. Page 5

III Mr. Thomas appeals summary judgment on each cl aim. We review the district court’s decision de novo. Getz v. Swoap , 833 F.3d 646, 652 (6th Cir. 2016) . A court properly grants summary judgment when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). We “may affirm a de cision of the district court for any reason supported by the record, including on grounds differe nt from those on which the district court relied.” Stein v. Regions Morgan Keegan Select High Income Fund, Inc. , 821 F.3d 780, 786 (6th Cir. 2016).

IV

A The parties initially briefed this case by focu sing on the same issue th at the district court honed in on: whether a genuine disp ute existed that Destin pointe d the gun at Officer Kaufman. The district court held that no dispute existed because Mr. Thomas lacked sufficient evidence to undermine Officer Kaufman’s sworn testimony. On appeal, Mr. Thomas mostly attacked the errors he perceived in that holding. We ordered supplemental briefing on the question of whether Officer Kaufman would be entitled to qualified immunity ev en if a jury co uld disbelieve Officer Kaufman and find that Destin never aime d the gun at him. We now hold that Officer Kaufman was entitled to immunity regard less of whether Destin raised the gun. The Fourth Amendment guarantees the right to be free from unrea sonable seizures. This includes the right to be free from excessive force. Graham v. O’Connor , 490 U.S. 386, 388 (1989). The Fourth Amendment’ s “objective reasonableness” standard governs whether an officer’s force was excessive. See id. Deadly force is objectively reasonable when an officer “has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Tennessee v. Garner , 471 U.S. 1, 3 (1985). We analyze an officer’s decision to use fo rce “from the perspective of a reasonable officer on the scene, rather than w ith the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. We do so mindful that police officers face “tense, uncertain, and rapidly evol ving” situations thatNo. 16-3375 Thomas v. City of Columbus, et al. Page 6

require “split-second judgments.” Id. at 397. The Fourth Amendment only requires officers to act reasonably on the information they have; it does not require them to perceive a situation accurately. Cf. id. at 396 (“The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong pers on is arrested[.]”) (citation omitted). In this circuit, we consider the officer’s reasonableness under the circumstances he faced at the time he decided to use force. See Livermore v. Lubelan , 476 F.3d 397, 406 (6th Cir. 2007) (describing the so-called “segmented analysis” this circuit uses to analyze use-of-force claims). We do not scrutinize whether it was reasonable fo r the officer “to create the circumstances.” Id. (quotation marks and citations omitted). Even if an officer approaches a scene recklessly, this will not necessarily render a later decision to protect himself unreasonable. See Chappell v. City of Cleveland , 585 F.3d 901, 915–16 (6th Cir. 2009). Thus, we cannot, as Mr. Thomas urges, fi nd a constitutional violation based on how Officer Kaufman approached the crime scene. Arguably, Officer Kaufman’s decisions to rush toward the apartment without backup violated Columbus Police Department procedures. Arguably, his violations increased the likelihood that Officer Kaufma n might have to use force. But those decisions were not seizures. Their reasonableness is not at issue. Instead, we must consider the circumstances that Officer Kaufman faced in the moment he decided to use force. Officer Kaufman ha d responded to a dangerous call in a high-crime area. He was alone. He ran towards the breezeway between two vehicles and then stopped at the parking lot’s edge. Meanwhile, two people exited an apartment and then ran towards him, the first with a gun. About 40 feet initially separated Officer Kauf man from that person, and the distance only shrank as the person closed in on him. At this range, a suspect could raise and fire a gun with little or no time for an officer to react. Given th ese facts, a reasona ble officer would perceive a significant threat to his life in that moment. Thus, Officer Kaufman’s decision to fire his gun—even if Destin never raised his—was objectively reasonable. Mr. Thomas’s arguments to the contrary underplay the danger that Officer Kaufman faced. And they rely on the hindsight bias that we guard against. Consider three propositions that Mr. Thomas advances. Firs t, that Officer Kaufman should have warned Destin and thenNo. 16-3375 Thomas v. City of Columbus, et al. Page 7

waited to see if he complied. Second, that Officer Kaufman should have reflected on the situation and then pieced together that Destin was the victim because he was shirtless. Third, that Officer Kaufman should have waited to see if the pe rson running towards him with a gun would point it at him. If Officer Kaufman had followed Mr. Thomas’s advice, tragedy may have been avoided here. But if Destin had been an actual crimin al with a loaded gun, an officer who followed this advice could well be dead. That Mr. Thomas’s attorney elicited a diffe rent legal conclusion from Officer Kaufman does not change this analysis. The Fourth Am endment inquiry here relies on an objective reasonableness standard—not on an officer’s opinion. Cf. Graham , 490 U.S. at 397 (“[T]he ‘reasonableness’ inquiry in an excessive force ca se is an objective one: the question is whether the officers’ actions are ‘objec tively reasonable’ in light of the facts and circumstances confronting them, without regard to their unde rlying intent or motivation.”). And objective reasonableness is a legal conclusion reserved for this court. Chappell , 585 F.3d at 909 (“[O]nce the relevant set of facts is determined and all reasonable inferences are drawn in favor of the plaintiff, to the extent supporte d by the record, the question whethe r the detectives ’ actions were objectively unreasonable is a pure question of la w.”) (citations and quotation marks omitted). Similarly, Mr. Thomas cannot avoid summary judgment by citing his use-of-force expert’s legal conclusions. See DeMerrell v. City of Cheboygan , 206 F. App’x 418, 426 (6th Cir. 2006) (holding that the district court did not err in ignoring expert’s legal conclusions on objective reasonableness). Mostly, that expert worked from the same faulty legal premise as Mr. Thomas—he focused on Officer Kaufman’s re asonableness in approaching the scene. When pressed about whether an officer has prob able cause to believe someone running at him with a gun poses a signifi cant risk of death, the expert adop ted Mr. Thomas’s categorical rule that force can only be reasonable if a suspect raises his gun. That conclusion, however, is ours to make. And we reiterate that the circumstances here would give an officer reason to fear someone running towards him with a gun and leave him with little to no time to react if the suspect raised it. To be clear, we do not hold that an officer may shoot a suspect merely because he has a gun in his hand. Whether a suspect has a weapon constitutes just one consideration in assessingNo. 16-3375 Thomas v. City of Columbus, et al. Page 8

the totality of the circumstances. See Perez v. Suszczynski , 809 F.3d 1213, 1220 (11th Cir. 2016) (“Where the weapon was, what type of weapon it was, and what was happening with the weapon are all inquiries crucial to the reasonableness determination.”). Sometimes, the time or space available to an officer may mean that the reasona ble thing to do is to monitor the suspect, issue a warning, or take cover. See, e.g. , Dickerson v. McClellan , 101 F.3d 1151, 1163 (6th Cir. 1996); Brandenburg v. Cureton , 882 F.2d 211, 213 (6th Cir. 1989). But Officer Kaufman acted objectively reasonably when he used deadly force here—even if f acts beyond his knowledge meant that he actually faced no threat.

B

As to Mr. Thomas’s Fourteenth Amendment claim for deliberate indifference to serious medical needs, we adopt the district court’s reasoning. The Fourteenth Amendment prohibits police officers from acting with reckless disregard to those they injure. See, e.g. , Scozzari v. Miedzianowski , 454 F. App’x 455, 466 (6th Cir. 2012); Estate of Owensby v. City of Cincinnati , 414 F.3d 596, 604 (6th Cir. 2005). Th ey cannot unreasonably delay medical treatment. Scozzari, 454 F. App’x at 464. They also cannot prioritize activitie s “unrelated to securing the scene” or “unnecessary to their duti es” over trying to save the suspect’s life. Id. at 465–66. As the district court recogni zed, however, an officer does not act with reckless disregard when he immediately summons help and then fo cuses on his own safety. Here, Officer Kaufman was alone at a crime scene where multiple suspects exited a burglary—including one with a gun. He called for a medic and then took cover and waite d for backup to arrive. He did not violate the Constitution by failing to render aid when doing so appeared both dangerous and futile.

C Because no constitutional violations occurred, the district court properly granted summary judgment on Mr. Thomas’s failure-to-train claim against the city and Chief Jacobs. For a municipality to be liable under 42 U.S.C. § 1983, a plaintiff must show harm “caused by a constitutional violation.” Lee v. Metro. Gov’t of Nashville & Davidson Cnty. , 432 F. App’x 435, 449 (6th Cir. 2011). No constitutional violation means no m unicipal liability. See id.No. 16-3375 Thomas v. City of Columbus, et al. Page 9

V Officer Kaufman faced a tense, uncertain s ituation. Someone ran towards him with a gun after exiting a burglary about 40 feet away. Offi cer Kaufman fired when the person with the gun closed the distance to around 10 feet . A reasonable officer would fi nd a significant threat to his safety under these circumstances . Under the Fourth Amendmen t’s objective reasonableness standard, he could respond with de adly force. Thus, we affirm.