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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

RACHEL TOMPKINS, PERSONAL 

REPRESENTATIVE OF THE ESTATE OF 

CHARLES BROWN, JR., 

 Plaintiff, 

v. Case No. 14-13332 

 

CITY OF WOODHAVEN POLICE OFFICER HON. AVERN COHN 

DENNIS DEWEESE, CITY OF WOODHAVEN 

POLICE OFFICER FRANK ZDANKIEWICZ, and 

CITY OF WOODHAVEN, a municipal corporation, 

jointly and severally, 

 Defendants. 

_______________________________________/

MEMORANDUM AND ORDER GRANTING DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT (DOC. 24). 

I. INTRODUCTION 

This is a 42 U.S.C. § 1983 case with pendent state law claims resulting from a 

fatal police shooting. Plaintiff Rachel Tompkins (Tompkins), personal representative of 

the estate of Charles Brown, Jr. (Brown), is suing the City of Woodhaven (the City) and 

Woodhaven police officers Dennis DeWeese (DeWeese) and Frank Zdankiewicz 

(Zdankiewicz).1 

The complaint (Doc. 1) is in three counts: 

Count I Constitutional Deprivation – 42 U.S.C. § 1983 

Count II Liability as to Defendant City of Woodhaven – 42 U.S.C. § 1983 

Count III Gross Negligence, Willful and Wanton Misconduct, Assault, 

Battery, Intentional Infliction of Emotional Distress – All Defendants. 

 

1

 Collectively Defendants were appropriate. 

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Tompkins concedes that Count II should be dismissed. (Doc. 26 at 9). The Court 

previously declined to exercise supplemental jurisdiction over the state law claims and 

dismissed Count III without prejudice. (Doc. 5). 

Now before the Court is Defendants’ Motion for Summary Judgment on Count I, 

the sole remaining claim, on the grounds that there is a lack of a genuine issue of 

material fact over whether or not DeWeese and Zdankiewicz acted reasonably based 

on the totality of the circumstances. (Doc. 24). For the reasons that follow, the motion 

will be granted and the case dismissed. 

II. BACKGROUND 

A. 

On June 19, 2012, City of Woodhaven police officers DeWeese and Zdankiewicz 

were dispatched to a Wal-Mart to investigate a complaint of a male and a female 

attempting to shoplift. The male suspect was later identified as Brown. The dispatcher 

advised the officers that the female suspect had fled the store and the male suspect had 

entered a stolen, red Oldsmobile. 2 

Upon entering the Wal-Mart parking lot, DeWeese was directed by a Wal-Mart 

employee to a vehicle matching the given description which was headed toward a 

parking lot exit. DeWeese activated the overhead lights on his vehicle and parked on an 

angle across the lane of traffic exiting the parking lot. Brown pulled to within 

approximately 10 feet of the front of DeWeese’s vehicle and stopped. DeWeese exited 

 

2

 The dispatcher provided a Michigan license plate number and advised Zdankiewicz 

and DeWeese that the Oldsmobile was stolen from Riverview, Michigan. DeWeese ran 

the license plate in his police vehicle computer to confirm that the Oldsmobile was in 

fact stolen. 

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his vehicle with his service weapon drawn and pointed at Brown.3 DeWeese could see 

that Brown was holding an object in his right hand, but he could not determine what it 

was because of the position of Brown’s hands.4

 DeWeese repeatedly yelled loudly at 

Brown to show his hands. 

Meanwhile, on his arrival from a different entrance into the Wal-Mart parking lot, 

Zdankiewicz activated the lights on his police vehicle, located the now stopped 

Oldsmobile and observed DeWeese outside his police vehicle standing between it and 

the open driver side door. Zdankiewicz parked behind Brown, exited his vehicle, pulled 

out his service weapon, and pointed it at Brown. 

Once stopped, Brown initially shrugged his shoulders and made non-verbal 

movements like he was going to comply with DeWeese’s orders. At that point, Brown 

began to open his driver side door as DeWeese began to walk around the front of his 

own vehicle to affect an arrest. DeWeese continued to order Brown to show his hands. 

In DeWeese’s words, the following then occurred: 

As I was in front of his vehicle and in between his vehicle and mine, the 

driver abruptly closed his door and squealed his tires accelerating 

backwards and rammed into Officer Zdankiewicz’s vehicle, which had 

been pulled in behind the suspect vehicle. This put Officer Zdankiewicz in 

eminent danger for his life. Upon ramming Officer Zdankiewicz’s vehicle I 

observed the vehicle accelerate forward toward me, putting me in eminent 

danger. I ordered the driver to stop but he did not comply. The driver was 

looking directly at me and made eye contact with me and continued to 

drive directly toward me. Feeling an immediate threat for my life and 

believing there was no other reasonable means to avoid being struck by 

the vehicle, I began moving to my right to avoid a crossfire situation with 

Officer Zdankiewicz and fired my weapon at the driver in an attempt to 

stop the deadly threat. 

 

3

 DeWeese’s position was not blocking Brown. Brown could have avoided DeWeese 

and turned into an aisle instead of driving directly toward DeWeese. (Doc. 26, Ex. B at 

14-15,18). 

4

 The object later was discovered to be a screwdriver. (Doc. 26, Ex. B at 18). 

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(Doc. 24, Ex. 1). At the same moment, Zdankiewicz fired his weapon, pointing toward 

Brown as well. The defendants’ shots fatally wounded Brown. 

The depositions of Zdankiewicz and DeWeese and multiple statements taken 

from on-scene witnesses confirmed the above description of events. (Doc. 24, Ex. 3; 

Doc 26, Exs. A & B). 

Following a review by the Wayne County Prosecutor’s Office’s Public Integrity 

Unit, the City was notified “[i]t is the conclusion of the Public Integrity Unit that [Officers 

DeWeese’s and Zdankiewicz’s] actions constituted self-defense and/or the defense of 

others involving a fleeing felon.” (Doc. 24, Ex. 4). No criminal charges were filed against 

the defendants. Id. 

B. 

Zdankiewicz and DeWeese each signed a form certifying that prior to June 19, 

2012, they had read and understood the Police Department’s policy regarding the use 

of force. According to the policy, “lethal force” is defined as “any force used by an officer 

that has a reasonable probability to cause death or serious physical injury.” (Doc. 24, 

Ex. 2). “The policy also defines Last Resort situations in part as situations wherein 

certain immediate and drastic measures must be undertaken by an officer in order to 

protect human life.” Id. According to department policy, officers are trained to “stop the 

threat” and to “shoot at center mass.” (Doc. 26, Ex. A at 21). 

C. 

Tompkins’ sole claim at this point in the case is that DeWeese and Zdankiewicz 

each used excessive force against Brown (Count I). (Doc. 1). 

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Defendants have filed a motion for summary judgment (Doc. 24) and a brief 

statement of material facts (Doc. 25). Tompkins has filed a response arguing that 

genuine issues of material fact preclude summary judgment against the defendants 

individually. Tompkins has conceded that Count II against the City should be dismissed. 

(Doc. 26). Defendants have filed a reply. (Doc. 27). 

III. LEGAL STANDARD 

 The standard for summary judgment is well known and is not repeated in detail. 

“The court shall grant summary judgment 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). Ultimately a district court must determine whether the 

record as a whole presents a genuine issue of material fact drawing “all justifiable 

inferences in the light most favorable to the non-moving party.” Hager v. Pike Cnty. Bd. 

of Ed., 286 F.3d 366, 370 (6th Cir. 2002). 

IV. DISCUSSION 

A. 

When analyzing a section 1983 claim, a two-step inquiry is made. First, “the court 

must determine whether the facts alleged show the officer’s conduct violated a 

constitutional right.” Cass v. City of Dayton, 770 F.3d 368, 374 (6th Cir. 2014)(citations 

omitted). Second, the court must determine “whether that right was clearly established” 

at the time of the violation. Id. (citation omitted). 

Here, Tompkins says that DeWeese and Zdankiewicz violated Brown’s Fourth 

Amendment rights through the use of excessive force. “[A]ll claims that law enforcement 

officers have used excessive force...in the course of an arrest, investigatory stop, or 

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other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 

'reasonableness' standard...” Schreiber v. Moe, 596 F.3d 323, 331-32 (6th Cir. 2010) 

(quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). The Supreme Court has 

summarized the reasonableness standard as follows: 

The “reasonableness” of a particular use of force must be judged from the 

perspective of a reasonable officer on the scene, rather than with the 

20/20 vision of hindsight...With respect to a claim of excessive force, the 

same standard of reasonableness at the moment applies: “Not every push 

or shove, even if it may later seem unnecessary in the peace of a judge's 

chambers,” violates the Fourth Amendment. The calculus of 

reasonableness must embody allowance for the fact 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. 

Graham, 490 U.S. at 396–97 (citations omitted). The Sixth Circuit “has noted 

that Graham's prohibition on using 20/20 hindsight carries great weight when all parties 

agree that the events in question happened very quickly, as here.” Untalan, 430 F.3d at 

315 (citation omitted). 

Graham calls for balancing “the severity of the crime at issue, whether the 

suspect poses an immediate threat to the safety of the officers or others, and whether 

he is actively resisting arrest or attempting to evade arrest by flight” when determining 

whether the use of deadly force violates a plaintiff's Fourth Amendment rights. Graham, 

490 U.S. at 396. The Sixth Circuit “has made the threat factor from Graham a minimum 

requirement for the use of deadly force: such force may be used only if the officer has 

probable cause to believe that the suspect poses a threat of severe physical harm, 

either to the officer or others.” Untalan v. City of Lorain, 430 F.3d 312, 314 (6th Cir. 

2005) 

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B. 

In support of their motion, Defendants say there is a lack of a genuine issue of 

material fact over whether DeWeese and Zdankiewicz violated Brown’s constitutional 

rights under the Fourth Amendment. They say that the use of force was not excessive 

and that DeWeese and Zdankiewicz acted objectively reasonably based on the totality 

of the circumstances. The Court agrees. 5 

In response to the motion, Tompkins raises two meritless arguments. First, 

Tompkins contends that there is a genuine issue of material fact as to whether Brown 

was attempting to comply with the officers’ commands. This is a misrepresentation of 

the undisputed facts. According to the defendants’ reports as well as multiple witness 

statements at the scene, Brown ignored commands to stop and purposely drove his 

vehicle backward into Zdankiewicz’s vehicle and forward toward DeWeese. 

Alternatively, Tompkins says that the defendants’ use of force exceeded what 

was reasonable and necessary under the circumstances. In support, Tompkins says 

that Brown made no threatening gestures when he initially started to get out of his 

vehicle, he was unarmed at the time he was shot, and he was driving at a slow rate 

when he drove forward toward DeWeese. 

Tompkins’ argument is directly contradicted by Sixth Circuit law and the facts of 

record. First, while Brown made no overt threatening gestures while initially getting out 

of his vehicle, he failed to comply with the defendants’ commands to show his hands or 

stop his vehicle. 

 

5 Because Tompkins fails to establish that DeWeese and Zdankiewicz violated a 

constitutional right, the Court only addresses the first step in the two-step qualified 

immunity analysis detailed above. Cass, 770 F.3d at 374.

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Second, both defendants’ statements and the accounts of witnesses say that 

Brown drove his vehicle rapidly – not slowly – backward toward Zdankiewicz and 

forward toward DeWeese. 

Third, while Brown may only have had a screwdriver in his hand and not a classic 

weapon, the Sixth Circuit has deferred to a police officer’s decision to use deadly force 

on an unarmed suspect driving a vehicle when the officer had reasonable belief that the 

vehicle presented an imminent danger. Cass, 770 F.3d at 375 (6th Cir. 2014)(“Although 

each case is tethered to its specific factual context, the critical question is typically 

whether the officer has reason to believe that the [fleeing] car presents an imminent 

danger to officers and members of the public in the area. An officer is justified in using 

deadly force against a driver who objectively appears ready to drive into an officer or 

bystander with his car”). See also Smith v. Freland, 954 F.2d 343 (6th Cir. 

1992)(holding that a police officer was justified in using deadly force to stop a suspect 

from fleeing by vehicle after the suspect had twice attempted to strike a police vehicle 

and endangered other officers attempting to stop him). See also Scott v. Clay County, 

205 F.3d 867 (6th Cir. 2000)(holding that a police officer did not violate the Fourth 

Amendment when he used deadly force on the driver of a vehicle that had nearly hit an 

unmarked police vehicle at 85 miles per hour and then accelerated toward the officer in 

question). 

In both Smith and Scott, “there was no question that the lives of the 

officers...were endangered by the fleeing suspects. Each suspect demonstrated 

multiple times that he either was willing to injure an officer that got in the way of escape 

or was willing to persist in extremely reckless behavior that threatened the lives of all 

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those around.” Smith v. Cupp, 430 F.3d 766, 775 (6th Cir. 2005). Further, in both 

cases, the “officers reacted with deadly force only after an extended interaction between 

police and the suspect proved that the suspect was likely to continue to threaten the 

lives of those around him in his attempt to escape.” Id. Therefore, the “use of force was 

held to be reasonable as a matter of law in both cases.” Id. 

Similarly here, the circumstances justify the defendants’ use of deadly force. 

Brown was suspected of shoplifting and possession of a stolen vehicle. He failed to 

comply with the commands to show his hands when he initially attempted to exit the 

vehicle. Instead of listening to the officers, he revved the vehicle’s engine and drove 

backward directly into Zdankiewicz’s police vehicle and then forward directly at 

DeWeese. The position of DeWeese and his parked vehicle were not blocking Brown’s 

vehicle entirely. Brown could have avoided DeWeese and turned right into an aisle, but 

he actively made the decision not to. While both officers had their weapons drawn upon 

arriving at the scene, neither discharged their weapon until Brown began to drive 

directly toward DeWeese and they both believed Brown to be an imminent, deadly 

threat. Like in Cupp, Brown demonstrated multiple times that he was willing to act 

recklessly and injure any officer that got in the way of his escape. Cupp, 430 F.3d at 

775. 

In sum, DeWeese and Zdankiewicz were forced to make split-second decisions 

based on the circumstances before them. There is no genuine issue of material fact that 

the decision to use deadly force in this situation was objectively reasonable. Brown’s 

Fourth Amendment right was not violated.6

 

 

6 Separately, Plaintiff filed the section 1983 claim against both the city and the officers in 

their official capacity. The claims against the officers individually are duplicative and 

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V. CONCLUSION 

For the reasons stated above, Defendants’ Motion for Summary Judgment is 

GRANTED. The case is DISMISSED. 

SO ORDERED. 

 S/Avern Cohn 

Dated: April 20, 2016 AVERN COHN 

Detroit, Michigan UNITED STATES DISTRICT JUDGE 

 

should be dismissed. Elbelt v. County of Ogemaw, 231 F. Supp. 2d 563, 568 (E.D. 

Mich. 2002)(holding that official capacity claims are the equivalent of a suit against the 

government entity, and as such, the plaintiff’s official capacity claims are duplicative and 

should be dismissed).

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