UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TINA L. HENDERSON, as personal 

representative to the ESTATE OF OTIS 

HENDERSON,

Plaintiff, Case Number 15-10807 

Honorable David M. Lawson

v.

EDWARD JACKSON, and 

CITY OF DETROIT,

Defendants.

____________________________________/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Detroit police officer Edward Jackson shot decedent Otis Henderson while attempting to

apprehend him to investigate a suspected carjacking. The bullet wound did not kill Henderson (he

died of causes unrelated to this case), and Henderson was not involved in the carjacking that Jackson

was investigating. Henderson’s personal representative filed this lawsuit against Jackson and the

City of Detroit seeking damages under 42 U.S.C. § 1983 and the Fourth Amendment and state law

for the shooting. The defendants moved for summary judgment, with Jackson relying on qualified

immunity and the City arguing that the facts do not establish its independent liability. The Court

heard oral argument on April 12, 2016. Because the parties’ versions of how the shooting occurred

differ in important respects, and Jackson’s qualified immunity defense is fact-bound, summary

judgment for him is not appropriate. However, the plaintiff has not produced evidence that proves

the City’s liability under the rule established in Monell v. Department of Social Services, 436 U.S.

658 (1978). The Court will grant the City’s motion and dismiss the case against that defendant. 

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I.

According to the defendants, on January 27, 2014 at approximately 10:10 p.m., a black

Cadillac STS was carjacked by three or four black males. The victim reported seeing what he

believed was a 2005 black Dodge Durango pull up next to him; one of the men jumped out of the

backseat with a handgun and told him to not move. The group of men robbed the victim and one

or more of them stole the Cadillac, driving off in an unknown direction. Non-defendant officers

Dennis Christie and Felisha Gambril radioed the Durango description and that the occupants were

possibly armed. Defendant Edward Jackson and his partner, officer Stephen Kue, received the

information while they were stopped at the Victory Inn Motel. The officers did not have a license

plate number for the Durango. 

At approximately 10:42 p.m., Jackson and his partner were leaving the motel parking lot, in

what Jackson described as a high crime area, when they saw a black Dodge Durango pulling into

the parking lot of the motel. According to Jackson, one of the occupants of the vehicle had

something covering his face, although he cannot remember which occupant it was. Jackson did not

include that observation in any of his reports. Jackson observed a brief exchange between the

passengers in the Durango. Officer Kue illuminated the inside of the vehicle through the front

windshield and observed three or four black males in the vehicle. The Durango immediately turned

away as if to evade the officers. Jackson, who was driving the police car, turned on the oscillating

lights and siren in an attempt to effect a traffic stop. Jackson pursued the vehicle as Kue tried to read

the license plate characters, but was unsuccessful because the plate was partially obscured by snow. 

Kue reported the pursuit over the department radio and described the vehicle as a “newer” model

2000 Durango. 

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During the pursuit, Jackson and Kue heard officer Christie transmit that the Durango

matched the description of the vehicle that the carjackers had used and that one of the rear occupants

may be armed. Approximately ten other police scout cars joined the pursuit following behind

Jackson’s vehicle. The pursuit ended after five to ten minutes when the Durango crashed into either

a snow bank or another car. 

After the crash, Otis Henderson, the plaintiff’s decedent, immediately exited the vehicle from

the rear passenger seat and fled on foot. According to Jackson, Henderson was holding his

waistband as he ran, which gave the impression that he may have a weapon. The 13-second video

taken from a nearby store confirms that Henderson’s left hand was at his waistband; however, it is

not clear whether he is holding a weapon or merely holding up his pants. Jackson jumped out of his

vehicle and gave chase. 

This is where the stories start to diverge. According to the preliminary complaint record,

Jackson asserted that he attempted to identify himself as a police officer several times and ordered

Henderson to stop. Henderson ran into an illuminated parking lot toward an alley on the far side of

the lot. According to Jackson, as Henderson reached the alley near the trash can, Henderson pointed

what appeared to be a gun at him. Jackson fired one shot as Henderson was facing away from him. 

Unknown to Jackson at that time, the shot hit Henderson in the back right shoulder. Henderson

entered the alley with Jackson still chasing. 

In his deposition, Jackson maintains that when he entered the alley, he saw Henderson turn

in his direction again, although this time Henderson did not appear to point anything at him. In

contrast, in his written report, Jackson stated that Henderson again turned and pointed what he

believed was a weapon in his direction a second time. Jackson fired another shot, which missed, and

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Henderson fell to the ground. Henderson was arrested then and put into handcuffs. Jackson stated

that for the most part Henderson was never out of his view. 

Henderson was taken to a hospital where he was treated for the gunshot wound and later

interviewed by a force investigation team. During the interview, Henderson stated that as soon as

the vehicle crashed, he exited the car and began running. Henderson said that he ran because he was

on probation. He stated that in the past he had been in a car when somebody else got pulled over

and “they gave [him] a year for police contact” and not informing his parole officer. He felt his only

way to avoid another sentence was to flee. 

For his part, Henderson, who was interviewed by the police after he was shot, stated that he

did not hear anything except the gun shots. Henderson contended that he was shot almost

immediately after exiting the vehicle and no more than 20 yards from the Durango. Henderson’s

assertions come from the record of his police interview, which is problematic for the plaintiff (his

mother), who has not identified an exception to the hearsay rule that would allow her to offer the

statements in evidence. But there is other evidence in the record to support Henderson’s version of

what happened. The evidence technician assigned to the scene, Raymond Diaz, noted that the events

transpired in the back parking lot of a business called the Gold Exchange. Mr. Diaz observed that

the blood trail began immediately behind the Gold Exchange and proceeded west toward a dumpster

near the back corner of the laundromat on the opposite side of the parking lot. At the dumpster,

there was considerably more blood. There also was a large amount of blood where Henderson

eventually dropped in the alley behind the laundromat. Mr. Diaz testified that, in his experience,

people do not just drop blood immediately when wounded; although it does happen, more often it

is delayed. Mr. Diaz’s diagrams and testimony suggest that Henderson was 60 feet or more from

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the dumpster, where Jackson alleged he first fired at Henderson. If the blood behind the Gold

Exchange was Henderson’s, it would suggest that Jackson could have been as close as 20 yards from

where Henderson exited the Durango near the corner of Ashton Street and West Warren Avenue.

Officer Kue’s deposition testimony also lends support to Henderson’s version of when the

first shot was fired. When Jackson and Kue stopped the vehicle, Jackson jumped out of the driver’s

seat and pursued Henderson on foot. Kue exited the vehicle and ran around the scout car to get into

the driver’s seat. According to Kue, as soon as he got into the driver’s seat, he heard the first

gunshot. The timing of the first shot is further corroborated by Darrio Warren, the driver of the

Durango, who stated that Jackson fired at Henderson within two to three seconds after beginning

the chase. 

Henderson always maintained that he did not have a gun (in his police statement and his

description at the hospital), and no firearm was found at the scene, after an extensive search. 

Henderson alleged that he never looked back, he never raised his arm toward Jackson, and he did

not throw anything away. In fact, when he learned that a camera may have captured part of the foot

chase, Henderson encouraged the officers to check the video recording, because it would verify his

version of the events. According to Henderson, he was shot almost immediately after exiting the

Durango. After he ran into the alley, Jackson shot at him again and he dropped to the ground. Once

he was on the ground, Henderson alleged that he was hit in the face repeatedly by the officers. All

other occupants of the Durango were apprehended without the use of force and without incident. 

It was later determined that the Durango had not been involved in the earlier carjacking. 

Henderson later was charged and pleaded guilty to resisting arrest. 

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The plaintiff (Henderson’s personal representative) filed an amended complaint in state court

alleging five counts against defendant Jackson and one count against defendant City of Detroit. She

alleges against Jackson excessive force under section 1983 (Count I); intentional infliction of

emotional distress (Count II); state constitutional claims (Count III); battery (Count IV); and gross

negligence (Count V). The plaintiff alleges that the City is liable to Henderson’s estate for failing

to train its police officers properly in the use of deadly force, and therefore was deliberately

indifferent to Henderson’s constitutional rights (Count VI). The defendants removed the case to this

Court. 

In their summary judgment motion, the defendants argue that the plaintiff has not shown that

the City has adopted a policy, custom, or practice that violated Otis Henderson’s rights, defendant

Jackson is entitled to qualified immunity against the plaintiff’s federal claims, and the plaintiff’s

state law claims based on the Michigan constitution, common law gross negligence, and intentional

infliction of emotional distress are not supported by the evidence. They also contend that the battery

claim is barred by Henderson’s wrongful conduct. 

II.

Summary judgment is appropriate “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). 

When reviewing the motion record, “[t]he court must view the evidence and draw all reasonable

inferences in favor of the non-moving party, and determine ‘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.’” Alexander v. CareSource, 576 F.3d 551, 557-58 (6th Cir. 2009)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).

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“The party bringing the summary judgment motion has the initial burden of informing the

district court of the basis for its motion and identifying portions of the record that demonstrate the

absence of a genuine dispute over material facts.” Id. at 558. (citing Mt. Lebanon Personal Care

Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002)). “Once that occurs, the

party opposing the motion then may not ‘rely on the hope that the trier of fact will disbelieve the

movant’s denial of a disputed fact’ but must make an affirmative showing with proper evidence in

order to defeat the motion.” Ibid. (quoting Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th

Cir. 1989)).

A party opposing a motion for summary judgment must designate specific facts in affidavits,

depositions, or other factual material showing “evidence on which the jury could reasonably find

for the plaintiff.” Anderson, 477 U.S. at 252. If the non-moving party, after sufficient opportunity

for discovery, is unable to meet her burden of proof, summary judgment is clearly proper. Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 

Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St.

Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). A fact is “material” if

its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d

574, 581 (6th Cir. 2001). “Materiality” is determined by the substantive law claim. Boyd v.

Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is “genuine” if a “reasonable jury could

return a verdict for the nonmoving party.” Henson v. Nat’l Aeronautics & Space Admin., 14 F.3d

1143, 1148 (6th Cir. 1994) (quoting 477 U.S. at 248).

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A. Timeliness of the Motion

As an initial matter, the plaintiff argues that the Court should not consider the merits of the

summary judgment motion because the defendants filed it after the January 4, 2016 deadline

established by the Case Management and Scheduling Order. That argument ignores the Court’s

discussion with the lawyers about form and filing. The defendants actually filed two motions for

summary judgment on January 4. However, at a status conference on January 7, 2016, the Court

pointed out that under the local rule, only one motion was permitted (absent leave of court), and it

appeared that the defendants attempted to circumvent the page limitation by filing two motions. See

E.D. Mich LR 7.1(c)(3). The Court admonished defense counsel and suggested that it may be in his

best interest to withdraw the motions and resubmit a single conforming motion. Defense counsel

expressed concern about the filing deadline. The Court, in the presence of plaintiff’s counsel, stated

that as long as the defendants resubmitted promptly, the Court would consider their motion. The

defendants resubmitted a conforming motion five days later on January 12, 2016. 

Plaintiff’s counsel was present when the Court admonished defense counsel and knew the

circumstances surrounding the late filing. The Court, therefore, is puzzled by his argument. In all

events, it has no merit. 

B. Municipal Liability

The City argues, without much elaboration, that the plaintiff has not offered evidence of the

City’s own liability for the plaintiff’s federal claims. The paucity of the argument perhaps is due

to the lack of specific detail in the amended complaint itself, which alleges generalities (that the City

failed to train its officers properly in the use of deadly force, Jackson exhibited a pattern of conduct

that showed a need to train him, the City had an unconstitutional policy regarding use of force on

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fleeing suspects, the City did not properly supervise Jackson) without any actual facts to back them

up. In her response to the summary judgment motion, the plaintiff acknowledges that the City has

a foot pursuit policy (with which she finds no fault), but she says that Jackson violated it. She also

contends that Jackson did not receive “excessive force training” twice each year per the City’s own

policy, and that the City acquiesced in Jackson’s past constitutional violations by not disciplining

him for earlier citizen complaints. The plaintiff also adds the argument that the City violated a

provision of a consent judgment with the United States Department of Justice that required the

police department to equip its patrol cars with in-car video cameras. 

It ought to be clear by now that a “municipality cannot be held vicariously liable under

section 1983 for an injury inflicted by its employees or agents.” Monell v. Dep’t of Soc. Servs, 436

U.S. 658, 694 (1978). Instead, “under § 1983, local governments are responsible only for ‘their own

illegal acts’” through its enactment or adoption of an unconstitutional policy, custom, or practice. 

Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479

(1986) (emphasis in original ). The Sixth Circuit has explained that “[t]he [city’s] official policy

or custom ‘must be the moving force of the constitutional violation’ to establish the liability of a

government body.” Jones v. City of Cincinnati, 521 F.3d 555, 560 (6th Cir. 2008) (quoting Polk

Cnty. v. Dodson, 454 U.S. 312, 326 (1981)). “A plaintiff can make a showing of an illegal policy

or custom by demonstrating one of the following: (1) the existence of an illegal official policy or

legislative enactment; (2) that an official with final decision making authority ratified illegal actions;

(3) the existence of a policy of inadequate training or supervision; or (4) the existence of a custom

of tolerance or acquiescence of federal rights violations.” Burgess v. Fischer, 735 F.3d 462, 478

(6th Cir. 2013). 

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The plaintiff’s argument that the city failed to meet its obligation under the consent judgment

to maintain operable in-car video cameras does not save her Monell claim against the City. There

are no allegations to support this argument in the complaint. A plaintiff may not expand claims and

assert new theories in response to a summary judgment motion. Bridgeport Music, Inc. v. WM

Music Corp., 508 F.3d 394, 400 (6th Cir. 2007) (citing cases). 

1. Failure to Train

Inadequate training may serve as the basis for municipal liability under section 1983 where

it “‘amounts to deliberate indifference to the rights of persons with whom the police come into

contact.’” Brown v. Chapman, 814 F.3d 447, 463 (6th Cir. 2016) (quoting City of Canton, Ohio v.

Harris, 489 U.S. 378, 388 (1989)). “In resolving the issue of a city’s liability, the focus must be on

adequacy of the training program in relation to the tasks the particular officers must perform.” City

of Canton, 489 U.S. at 390. 

Brown provides substantial guidance on the question presented here. In that case, police

officers used tasers on a suspect by firing the tasers at his chest. The suspect died shortly after being

struck with the tasers. The company that provided the tasers to the police department had sent

updated training materials prior to the incident which included materials that informed officers to

avoid chest shots when possible because of the risk of affecting the heart. However, the city

defendant had trained officers using outdated materials, which instructed officers to avoid the head

and neck when using the tasers. The court held that to impose liability on a municipality, the

plaintiff must show “‘(1) that a training program is inadequate to the tasks that the officers must

perform; (2) that the inadequacy is the result of the [City’s] deliberate indifference; and (3) that the

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inadequacy is closely related to or actually caused the plaintiff’s injury.’” Brown, 814 F.3d at 463

(quoting Plinton v. Cty. of Summit, 540 F.3d 459, 464 (6th Cir. 2008)). 

The court found that the first element of an inadequate training claim was met easily because

the defendant was using outdated materials and therefore “did not adequately train its officers how

to use a taser.” Id. at 463. Here, the plaintiff argues that the City did not train its officers adequately

because it failed to conduct regular training on use of force and foot pursuit procedures. But the

plaintiff has not identified any deficiency in the training program itself; rather, the plaintiff

challenges only the frequency of the training. However, Jackson received use of force training in

2009, 2010, 2012, and 2013. Although it appears that he did not receive the training in 2008 and

2011, he did receive training in each of the two years immediately preceding the events giving rise

to this action. As part of the use of force training, he was to receive foot pursuit training. When

asked if he was familiar with the foot pursuit policy, Jackson replied that he was, although he did

not know it so well that he could recite the policy verbatim. Indeed, all of the officers deposed

acknowledged familiarity with the foot pursuit policy and asserted that they received 40-hour blocks

of training annually. That evidence remains uncontested. The plaintiff has not met the first element

of an inadequate training claim because she has not shown how the policies themselves are

inadequate or how the frequency of the actual training is not a sufficient amount of training.

As to the second element, the Brown court found that deliberate indifference can be found

by a “‘failure to provide adequate training in light of foreseeable consequences that could result from

the lack of instruction, as would be the case, for example, if a municipality failed to instruct its

officers in the use of deadly force.’” Id. at 463 (quoting Cherrington v. Skeeter, 344 F.3d 631, 646

(6th Cir. 2003)) (some internal marks omitted); see also Berry v. City of Detroit, 25 F.3d 1342, 1345

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(6th Cir. 1994). The court held it foreseeable that officers would discharge their tasers at suspects’

chests because of the lack of proper training and that it may result in the death of a suspect, which

it ultimately did. Brown, 814 F.3d at 463. By contrast, in Berry, the Sixth Circuit reversed a money

judgment against the City of Detroit for failure to train police officers on the use of deadly force and

failure to discipline. The Berry court found that police officers received significant training on the

use of force in the police academy and continued to receive 40 hours of in-service training annually. 

Berry, 25 F.3d at 1347. The Berry court concluded that the City of Detroit’s written deadly force

policies were constitutional and that the policies were well known to all members of the police

department. Ibid.

Here, as in Berry, the City of Detroit had policies in place addressing the use of force and

how to conduct a foot pursuit of a suspect. The plaintiff has not alleged that the policies themselves

are unconstitutional. Instead, she argues that the officers were not trained in those policies with

enough frequency. The foot pursuit policy requires officers to be trained bi-annually, which the city

appears to have not done. But the plaintiff has not shown why annual training is insufficient. 

Furthermore, the plaintiff has not explained why the consent judgment with the Department of

Justice should be controlling in this case. Any violation of the consent judgment is between the City

of Detroit and the Department of Justice.

The small sample of officers who were deposed knew the policies, and with the exception

of Jackson, all followed the use of force and foot pursuit policies. However, even if Jackson was

insufficiently trained, that alone would not make the city liable because his “shortcomings may have

resulted from factors other than a faulty training program.” City of Canton, 489 F.3d at 390-91. 

There is nothing in the record to suggest why Jackson deviated from the foot pursuit policy, nor has

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the plaintiff shown a pattern or practice of training failures that amounts to a deliberate indifference

to the constitutional rights of citizens. The City has policies on the use of force and foot pursuit

procedures and conducts regular training. Therefore, it was not foreseeable that officers, such as

Jackson, who receive annual training, would ignore the training and that doing so would lead to the

types of injuries suffered by Henderson.

In the failure to discipline context, the plaintiff must show “a history of widespread abuse

that has been ignored by the City.” Berry, 25 F.3d at 1354. The plaintiff only alleges that the city

failed to discipline Jackson properly. A single alleged failure by the city does not amount to

widespread abuse amounting to deliberate indifference. Ibid. The plaintiff has not demonstrated

that the City was deliberately indifferent by failing to train or discipline its police officers.

As to the third element, the plaintiff has not shown how the city’s failure to train was the

cause of Henderson’s injuries. As noted above, the City conducts regular training, and the plaintiff

has not pointed to any defect in the training itself, except for its frequency. Unlike in Brown, where

the plaintiff in that case demonstrated that the city had ignored updated training materials that

reasonably led to the harm suffered by the plaintiff, plaintiff Henderson in this case has not

identified defective material or shown that Jackson did not receive sufficient training. The plaintiff

has also not satisfied the third element of an inadequate training claim. 

Taking the facts in the light most favorable to the plaintiff, no reasonable jury could conclude

that the City of Detroit failed to train its police officers on the use of force and foot pursuit

procedures. Nor could a jury find that the City failed to discipline its officers based on the alleged

failure to discipline a single officer. Moreover, neither of the alleged inadequate training programs

can be seen as the moving force behind the alleged constitutional violation. 

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2. Failure to Discipline

The plaintiff argues that the City of Detroit acquiesced to the violation of citizens’ rights by

not completely investigating all of the complaints against defendant Jackson. The Sixth Circuit has

recognized that a municipality may be held liable under section 1983 for its deliberate indifference

evidenced by its inaction. Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005). To

state a municipal liability claim under an inaction theory, the plaintiff must establish:

(1) the existence of a clear and persistent pattern of illegal activity;

(2) notice or constructive notice on the part of the defendant;

(3) the defendant’s tacit approval of the unconstitutional conduct, such that their

deliberate indifference in their failure to act can be said to amount to an official

policy of inaction; and

(4) that the defendant’s custom was the ‘moving force’ or direct causal link in the

constitutional deprivation.

Ibid. (internal marks omitted) (citing Doe v. Claiborne Cty., Tenn. By & Through Claiborne Cty.

Bd. of Educ., 103 F.3d 495, 508 (6th Cir. 1996)).

In Berry v. City of Detroit, the court noted that “deliberate indifference” in this context exists

only upon “a showing of a history of widespread abuse that has been ignored by the City.” 25 F.3d

at 1354 (citing City of Canton, 489 U.S. at 397). Here, the plaintiff has failed to come forward with

sufficient evidence of failure to discipline or respond to citizen complaints. The entirety of the

plaintiff’s argument that the City of Detroit failed to investigate defendant Jackson amounts to the

following sentence: “Further, Defendant City of Detroit has demonstrated an acquiescence and a

conscious disregard to violating citizens’ rights by not completely investigating all of the complaints

against Defendant Jackson. . . .” Response at 16. The sole basis for this assertion is the force

investigation report that states Jackson “had 35 citizen’s complaints with 86 areas of concern, 4

service, 13 force, 4 property, 3 search, 3 harassment, 6 arrest, 1 entry, 31 procedure, 21 demeanor

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of which the following findings revealed 42 non-sustained, 9 exonerated, 5 unfounded, 27 pending

and 3 sustained. The 27 pending date back to 2012.” Id. at 9. There is no indication whether any

of the complaints against Jackson were or were not investigated. And the only suggestion that the

number of complaints might be unusually high is in officer Willie Duncan’s deposition, where he

said that he thought Jackson had more citizen complaints than average. The plaintiff’s argument

is conclusory, not fact based, and therefore does not establish a triable fact issue for a failure to

discipline theory against the City.

C. Qualified Immunity

Jackson argues that he is entitled to qualified immunity from suit because he had received

information that suspects in a vehicle that matched Henderson’s Durango had been involved in a

serious crime of violence (carjacking), and when Jackson was pursuing Henderson on foot,

Henderson pointed what appeared to be a weapon at him which put him in fear for his life. The

plaintiff says that Jackson shot Henderson, an unarmed man, in the back as Henderson was

attempting to flee. 

Section 1983 claims are subject to the affirmative defense of qualified immunity, which

“shields government officials in the performance of discretionary functions from standing trial for

civil liability unless their actions violate clearly established rights.” McDonald v. Flake, 814 F.3d

804, 812 (6th Cir. 2016) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When the

qualified immunity defense is raised, the plaintiff must present evidence at the summary judgment

stage of the case that shows “that (1) the defendant violated a constitutional right and (2) that right

was clearly established.” Ibid. (citing Quigley, 707 F.3d at 680). 

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An officer is entitled to qualified immunity if “a reasonable officer could have believed” his

or her actions were lawful “in light of clearly established law and the information the [officer]

possessed.” Anderson v. Creighton, 483 U.S. 635, 641, 107 (1987). However, to succeed on a

summary judgment motion, the officer must be prepared to accept the plaintiff’s version of the facts

and all inferences that could be drawn reasonably from those facts in the record. See Booher v. N.

Ky. Univ. Bd. of Regents, 163 F.3d 395, 396 (6th Cir. 1998) (asserting that “a defendant seeking to

take an interlocutory appeal from the denial of qualified immunity ‘should be prepared to concede

the best view of the facts to the plaintiff and discuss only the legal issues raised by the case’”

(quoting Berryman v. Rieger, 150 F.3d 561, 564 (6th Cir. 1998))); see also McDonald, 814 F.3d at

813-14 (criticizing the defendant police officer for “barely even feign[ing] an attempt at accepting

the plaintiffs’ version of the facts . . . and instead propound[ing] his own version of the facts and the

inferences that he would draw from them”). Here, Jackson has ignored the plaintiff’s assertions of

the events and the evidence that supports them. 

As an initial matter, much of the plaintiff’s version of the events comes from Henderson’s

own statement to the police. Detroit police investigator Tonique Roche prepared a force

investigation report 2.5 months after the shooting. Part of the force investigation report included

a synopsis of the plaintiff’s decedent’s oral statement made to police officers in the hospital

approximately six hours after the shooting. The statement was transcribed and the plaintiff relied

on the statement in her opposition to the defendants’ motion for summary judgment. 

The force report is an out-of-court statement, and therefore is subject to a hearsay objection. 

The plaintiff has not made a case for admissibility of the force report under any hearsay exception

(business records, Fed. R. Evid. 803(6), or official reports Fed. R. Evid. 803(8), perhaps, are

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possibilities). But even if the report were admissible, Henderson’s statements incorporated into that

report offered to prove that what he said was true are vulnerable to a hearsay objection. See Almond

v. ABB Indus. Sys., Inc., No. 95-707, 2001 WL 242548, at *7 (S.D. Ohio Mar. 6, 2001) (explaining

that hearsay embedded in a document must have its own exception to qualify for admissibility, per

Federal Rule of Evidence 806, and an out-of-court statement by a party is still hearsay unless the

statement is offered against that party), aff’d sub nom. Almond v. ABB Indus. Sys., Inc., 56 F. App’x

672 (6th Cir. 2003). “A party opposing a motion for summary judgment cannot use hearsay or other

inadmissible evidence to create a genuine issue of material fact.” Sperle v. Mich. Dept. of Corr., 297

F.3d 483, 495 (6th Cir. 2002); see also Carter v. Univ. of Toledo, 349 F.3d 269, 274 (6th Cir. 2003). 

Even without Henderson’s own statements, however, fact questions preclude summary

judgment in Jackson’s favor on his qualified immunity defense. As a general rule, the constitutional

right to be free from excessive force was a clearly established right at the time of Henderson’s arrest. 

But “[i]t is important to emphasize that this inquiry must be undertaken in light of the specific

context of the case, not as a broad general proposition.” Brosseau v. Haugen, 543 U.S. 194, 198

(2004) (per curiam) (internal quotation marks and citation omitted). 

The Sixth Circuit has held that “[a]s a matter of law, an unarmed and nondangerous suspect

has a constitutional right not to be shot by police officers.” Floyd v. City of Detroit, 518 F.3d 398,

407 (6th Cir. 2008) (citing Sample v. Bailey, 409 F.3d 689, 696 (6th Cir. 2005). “Rather, the use

of deadly force is only constitutionally permissible if ‘the officer has probable cause to believe that

the suspect poses a threat of serious physical harm, either to the officer or to others. . . .” Livermore

ex rel Rohm v. Lubelan, 476 F.3d 397, 404 (6th Cir. 2007) (citing Tennessee v. Garner, 471 U.S. 1,

11 (1985)). The Fourth Amendment protects all citizens from the use of excessive force — deadly

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or not — by law enforcement officers in the course of an arrest. Graham v. Connor, 490 U.S. 386,

395 (U.S. 1989). As noted above, there is evidence from which a jury could conclude that

Henderson was unarmed, and that Jackson shot him in the back very shortly after Henderson

alighted from the Durango. Therefore, the plaintiff here has shown a well-established constitutional

right to be free from excessive force during an arrest.

The reasonableness of Jackson’s conduct is subject to question. The Sixth Circuit “has

highlighted three factors of particular relevance in assessing the reasonableness of an officer’s use

of force: (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to

the safety of the police officers or others, and (3) whether the suspect actively resisted arrest or

attempted to evade arrest by flight.” Floyd v. City of Detroit, 518 F.3d 398, 407 (6th Cir. 2008)

(citing Smoak v. Hall, 460 F.3d 768, 783 (6th Cir. 2006)). 

The crime Jackson was investigating was carjacking, a serious felony. However,

Henderson’s actual conduct amounted to nothing more than resisting arrest by fleeing from police

officers. In Garner, the Supreme Court noted that “[i]n the few States that do outlaw flight from an

arresting officer, the crime is only a misdemeanor,” which avoids the anomaly “of automatically

transforming every fleeing misdemeanant into a fleeing felon.” Tennessee v. Garner, 471 U.S. 1,

11 n.9 (1985). The Court noted that it was not persuaded that “shooting nondangerous fleeing

suspects is so vital as to outweigh the suspect’s interest in his own life.” Id. at 11. 

The second and third factors also weigh in the favor of the plaintiff. Often what triggers the

use of force by police officers is a suspect forcibly resisting arrest. Smoak v. Hall, 460 F.3d 768,

783 (6th Cir. 2006) (citing Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002)). In Burchett, the

court found that the force used to handcuff the suspect was reasonable because the suspect was

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twisting and turning when the officers attempted to handcuff him. Burchett, 310 F.3d at 944. Here,

however, Henderson was unarmed and running away from the officers and was not posing a threat

to them or others. Nor was Henderson forcibly resisting arrest; rather he was running away. The

defendants argue that Jackson’s actions were reasonable because he believed that Henderson had

pointed a gun at him as he was fleeing. But that version of the events does not account for the

plaintiff’s evidence, discussed earlier, that Henderson did no such thing. The plaintiff posits that

Jackson, without warning, fired at an unarmed man who was running away from officers, and there

is evidence to support that contention.

Fact questions presented by the record preclude the qualified immunity defense at this

summary judgment stage of the case. 

D. State Law Claims

Defendant Jackson argues that the plaintiff has not identified evidence to support her state

law claims. He also contends that all of the state tort claims — intentional infliction of emotional

distress, battery, and gross negligence — are barred by the wrongful conduct rule. 

1. Wrongful Conduct Rule

Under Michigan common law, when a plaintiff commences a tort action to recover for

injuries that are “based, in whole or in part, on his own illegal conduct,” the claim generally is

barred. Orzel by Orzel v. Scott Drug Co., 449 Mich. 550, 557, 537 N.W.2d 208, 212 (1995). In

Orzel, the plaintiff alleged that a pharmacy negligently filled a facially valid prescription for a

controlled substance to which the plaintiff became addicted, with consequent mental illness and loss

of working capacity. The plaintiff admitted that he also acquired the drug from other sources,

including illegal sources. The Michigan Supreme Court believed that “courts should not lend their

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aid to a plaintiff who founded his cause of action on his own illegal conduct,” id. at 559, 537 N.W.2d

at 213, and affirmed the trial court’s dismissal. 

In 2000, the Michigan legislature codified the rule in Michigan Complied Laws § 600.2955b. 

That statute bars claims for “bodily injury or death” caused by the plaintiff’s “commission, or flight

from the commission, of a felony,” or his “acts or flight from acts that the finder of fact in the civil

action finds, by clear and convincing evidence, to constitute all the elements of a felony.” Mich

Comp. Laws § 600.2955b(1)(a)-(b). The statute contains an exception that allows recovery when

such injuries “resulted from force.” Id. § .2955b(2) But that exception does not apply if the

defendant “[u]sed a degree of force that a reasonable person would believe to have been appropriate

to prevent injury to the defendant or to others,” or that was “appropriate to prevent or respond to the

commission of a felony.” Id. § .2955b(2)(a)-(b). 

The Sixth Circuit has noted that there is an open question whether the statute abrogated the

wrongful-conduct rule and therefore found it prudent to address both the common law rule and

Michigan statutory law. See Chorazyczewski v. Costco Wholesale Corp., 627 F. App’x 515, 517

(6th Cir. 2015). Another judge in this district has held that the statute “displaces the common law

rule.” Peterson v. Taliaferro, No. 12-13729, 2013 WL 6328826, at *3 (E.D. Mich. Dec. 5, 2013). 

This Court agrees. The key difference between the common law rule and the Michigan statute is

the consideration of the reasonableness of the defendant’s conduct. As the Peterson court noted “the

statutory rule is effectively of little worth as long as the common law rule continues to stand. If

courts are constrained to apply the longstanding common law rule in lieu of the statutory rule, suits

would be precluded before a determination of reasonableness is necessary.” Peterson, 2013 WL

6328826, at *3. In other words, if a defendant’s actions are deemed reasonable, the suit would be

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barred under both rules. Ibid. If, however, a defendant’s actions are deemed unreasonable, the

common law rule would bar the suit before reaching reasonableness under the statute. Ibid. 

The defendant argues that Henderson was injured because he pointed a “suspected weapon”

at officer Jackson, and then fled from police, as evidenced by his guilty plea to resisting arrest. 

Jackson reasons that because the plaintiff’s claim is based on wrongful conduct, her state tort claims

are barred. That reasoning is flawed under both the common law rule and the statute.

First, there is no evidence that Henderson pointed a weapon at Jackson. Jackson never saw

an actual firearm, and no gun was found at the scene. Second, it is true that Henderson was

committing a felony when he was fleeing from the police. See Mich. Comp. Laws § 750.81d(1)

(punishing as a two-year felony conduct consisting of, among other things, “resist[ing],

obstruct[ing], [or] oppos[ing] . . . a person who the individual knows or has reason to know is

performing his or her duties”). However, “[t]he mere status of a plaintiff as a lawbreaker at the time

of his injury is not sufficient of itself to bar him from resort to the courts.” Manning v. Noa, 345

Mich. 130, 136, 76 N.W.2d 75, 78 (1956). Instead, the plaintiff’s injury must be “a proximate result

of committing an illegal act.” Orzel, 449 Mich. at 565, 537 N.W.2d at 215. As the plaintiff points

out, Henderson’s flight from the vehicle did not proximately cause his injuries; rather, it was

Jackson’s firing of his weapon. The plaintiff’s status as a lawbreaker alone is not a substantial

causal connection to being shot in the back. See Manning, 345 Mich. at 136, 76 N.W.2d at 78. “The

unlawful act must be at once the source of both his criminal responsibility and his civil right.” 

Orzel, 449 Mich. at 565, 537 N.W.2d at 215. Henderson’s flight was not the source of injuries. 

Moreover, the Michigan statute allows redress for the unreasonable use of force even if a

party is guilty of a felony or is in flight from such a felony. See Mich. Comp. Laws § 600.2955b(1)-

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(2). Even if Henderson had been the suspected carjacker, accepting the facts in favor of the

nonmoving party, Michigan law would not bar the plaintiff’s recovery in tort. The plaintiff alleges

that once the vehicle he was riding in stopped, he fled. He ran from the vehicle empty handed and

never looked back. Within a few seconds and after running no more than 20 yards, he was shot in

the back by officer Jackson. Jackson disputes this sequence of events, but as noted above, there is

evidence in the record that supports the plaintiff’s version of the events. Under the plaintiff’s

version, it would be unreasonable for an officer to resort to deadly force when a crime suspect is

fleeing and made no threatening actions against the officer. On this record, a jury could conclude

that Jackson’s shooting an unarmed fleeing suspect was an unreasonable, excessive, and

inappropriate response to Henderson’s flight. 

The wrongful-conduct rule does not preclude the plaintiff’s state law tort claims.

2. State Constitutional Claims

The plaintiff brought a damages claim against defendant Jackson based on the due process,

equal protection, and search and seizure provisions of the Michigan constitution. The defendants

challenge the merits of those claims, and the plaintiff in her answer to the motion has conceded that

they must be dismissed, as she must. See Jones v. Powell, 462 Mich. 329, 335-37, 612 N.W.2d 423,

426-27 (2000) (holding that there is no money damage remedy for violation of the Michigan

constitution in a suit against individual governmental employees); Lavey v. Mills, 248 Mich. App

244, 250, 639 N.W.2d 261, 265 (2001) (stating that “no inferred damages remedy for a violation of

a state constitutional right exists against individual government employees”). Count III of the

amended complaint, therefore, will be dismissed.

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3. Intentional Infliction of Emotional Distress

Defendant Jackson asserts that the claim for intentional infliction of emotional distress

(IIED) is not sustained by the evidence presented so far, and it should be dismissed. The Court

agrees. 

Although the Michigan Supreme Court has not yet recognized the tort of intentional

infliction of emotional distress, the Michigan Court of Appeals has consistently accepted it. Mroz

v. Lee, 5 F.3d 1016, 1018 (6th Cir. 1993) (collecting cases). “Under Michigan law, a prima facie

case for intentional infliction of emotional distress requires the following elements: ‘(1) extreme and

outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress.’” 

Ruffin-Steinback v. dePasse, 267 F.3d 457, 464 (6th Cir. 2001) (quoting Andrews v. Prudential

Secs., Inc., 160 F.3d 304, 309 (6th Cir. 1998)). “The outrageous conduct requirement is satisfied

only by conduct that is so outrageous in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community. Liability arises, moreover, only where the distress inflicted is so severe that no

reasonable man could be expected to endure it.” Andrews, 160 F.3d at 309 (internal citations and

quotations omitted). “It is well accepted that intentional infliction of emotional distress claims may

entirely appropriately be dealt with on summary judgment or in a motion to dismiss.” Miller v.

Currie, 50 F.3d 373, 377-78 (6th Cir. 1995). 

The plaintiff has presented ample evidence that Jackson intended to cause physical injury

upon Henderson, but there is no evidence that the defendant intended to inflict emotional trauma. 

Moreover, Jackson’s conduct, viewed most favorably to the plaintiff, does not rise to the level of

outrageousness customarily thought to be necessary to establish this tort. The plaintiff has not cited

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a single case in which a police officer’s excessive force — even the use of deadly force — has been

found to support an IIED claim. In fact, Michigan law suggests the contrary. See VanVorous v.

Burmeister, 262 Mich. App. 467, 687 N.W.2d 132, 143 (2004), overruled on other grounds by

Odom v. Wayne Co., 482 Mich. 459, 760 N.W.2d 217 (2008). Count II of the amended complaint

will be dismissed.

4. Gross Negligence

The plaintiff brings a claim of gross negligence based on defendant Jackson’s alleged use 

of excessive force, which under state tort law would amount to a battery. The defendants respond

by arguing there is no tort of assault and battery by gross negligence citing Sudul v. City of

Hamtramck, 221 Mich. App. 455, 458, 562 N.W.2d 478, 479 (1997). The plaintiff points out

correctly that Sudul concerns jury instructions that conflated the concepts of gross negligence and

assault and battery and offers little guidance on the plaintiff’s claim. Both parties, however, failed

to recognize that the Sixth Circuit “has rejected attempts to transform claims [under state law]

involving elements of intentional torts into claims of gross negligence.” Bletz v. Gribble, 641 F.3d

743, 756 (6th Cir. 2011). Under Michigan law, intentional tort claims cannot be transformed into

alternative claims of negligence. See VanVorous, 262 Mich. App. at 467, 687 N.W.2d at 143

(finding that plaintiff failed to state a claim upon which relief could be granted for claim of gross

negligence where plaintiff alleged intentional tortious conduct); see also Livermore ex rel Rohm v.

Lubelan, 476 F.3d 397, 408 (6th Cir. 2007) (rejecting a gross negligence claim against a defendant

officer because it was “undoubtedly premised on the intentional tort of battery” where it was based

on a shooting that resulted in death). 

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It is true that a plaintiff is entitled to plead in the alternative. But here, the facts presented

do not allow for the possibility of finding Jackson responsible for grossly negligent conduct. It is

beyond dispute that his actions — reasonable or not — were intentional. Count V of the amended

complaint will be dismissed. 

III.

The plaintiff has not sustained a claim for municipality against the City of Detroit. 

Defendant Edward Jackson is not entitled to qualified immunity against the plaintiff’s federal claim

at this stage of the proceedings because fact questions preclude summary judgment. The plaintiff’s

claims for state constitutional violations, intentional infliction of emotional distress, and gross

negligence must be dismissed, for the reasons discussed above. The case will proceed to trial on the

counts alleging civil rights violations under 42 U.S.C. § 1983 and battery under state law. 

Accordingly, it is ORDERED that the defendants’ motion for summary judgment [dkt. #25]

is GRANTED IN PART AND DENIED IN PART. 

It is further ORDERED that Counts II, III, V and VI of the amended complaint are

DISMISSED WITH PREJUDICE. The amended complaint is DISMISSED as to the City of

Detroit. The motion is DENIED in all other respects. 

It is further ORDERED that the parties must submit their proposed joint pretrial order to

chambers on or before June 8, 2016. See E.D. Mich. LR 16.1(f). 

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: June 3, 2016

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PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on June 3, 2016.

s/Susan Pinkowski 

SUSAN PINKOWSKI

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