NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 12a1178n.06

No. 11-5266

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ESTATE OF KELLY A. ALLEN, Deceased;

CLAUDIA G. ALLEN; MARIA NICOLE ALLEN,

a minor by next friend, Kenneth B. Allen; ALEXIS

LANE ALLEN, a minor by next friend, Kenneth B.

Allen; WHITNE RICKARD, a minor child,

individually, and as surviving daughter of Donald

Rickard, deceased, by and through her mother

Samantha Rickard, as parent and next friend,

Plaintiffs-Appellees,

v.

CITY OF WEST MEMPHIS, et al.,

Defendants,

OFFICER VANCE PLUMHOFF; OFFICER JOHN

BRYAN GARDNER; OFFICER TONY GALTELLI;

OFFICER LANCE ELLIS; OFFICER JIMMY

EVANS; OFFICER JOSEPH FORTHMAN,

individually and in their official capacity as an officer

of the West Memphis Police Department,

Defendants-Appellants.

On Appeal from the United

States District Court for the

Western District of

Tennessee

AMENDED

/

Before: GUY and CLAY, Circuit Judges; HOOD, District Judge.

*

The Honorable Denise Page Hood, United States District Judge forthe Eastern District of Michigan, *

sitting by designation.
No. 11-5266 2

RALPH B. GUY, JR., Circuit Judge. This litigation arose following the fatal

shooting of Donald Rickard and Kelly Allen by West Memphis, Arkansas police officers.

Plaintiffs each brought constitutional claims under 42 U.S.C. § 1983, as well as claims under

state law against the individual police officers, the Mayor, and the Chief of Police. At

plaintiffs’ request all cases were consolidated for trial. All defendants filed motions for

summary judgment, but the only issue involved in this appeal is the district court’s

determination that, as to plaintiff Rickard’s excessive force claims, the defendant officers

were not entitled to either qualified immunity or immunity under state law from liability for

their actions.

1

I.

West Memphis, Arkansas Police Officer Joseph Forthman stopped a white Honda

Accord on July 18, 2004, at approximately midnight, for the reason that the car had only one

operating headlight. The car was driven by Donald Rickard and had one passenger, Kelly

Allen, seated in the front passenger seat.

As he approached the car, Forthman noticed an indentation in its windshield. Allen

volunteered that the indentation in the windshield resulted from hitting a curb. Forthman

The district court dismissed the claims brought against the Mayor and Chief of Police. The court 1

also dismissed the Fourth Amendment excessive force claims of the Allen plaintiffs. The Allen plaintiffs

filed a cross-appeal from the dismissal of their excessive force claims, but the appeal was dismissed sua

sponte by another panel of this court.
No. 11-5266 3

questioned Rickard for a few moments, then asked him to get out of the car. Rather than get

out, Rickard drove away. Forthman got in his police cruiser and began a pursuit.

Several additional West Memphis officers joined in the pursuit. Officer Vance

Plumhoff became the lead officer in the chase. Four additional vehicles joined in the chase,

driven by Officers Jimmy Evans, Lance Ellis, Tony Galtelli, and Bryan Gardner. Video

cameras on three of the vehicles recorded all or part of the chase and subsequent activity.

Rickard entered the I-40 freeway heading east into Memphis and crossed over a bridge

from Arkansas into Tennessee. During the chase, Plumhoff stated on the police radio that

“he just tried to ram me.” Forthman’s statement that “he is trying to ram another car” was

recorded, followed by his statement that “[w]e do have aggravated assault charges on him.”

In deposition, three officers (driving or riding in three different cars) described what

appeared to them to be Rickard attempting to veer and/or ram his car into the moving police

cars, which they reported over the police radio during the pursuit.

After Rickard and the pursuing police officers left the freeway via an exit ramp and

entered Memphis, Tennessee

the Rickard vehicle turned and exited I-40 onto Danny Thomas Boulevard.

The pursuit was momentarily on Alabama Avenue before the Rickard vehicle

turned right onto Danny Thomas Boulevard. At that point, Plumhoff made a

statement on the radio about ending the pursuit. Evans replied, “terminate the

pursuit?” Another voice can then be heard on the radio saying, “negative. See

if you can get in front of him.” As the Rickard vehicle approached Jackson

Avenue, it made a quick right turn onto Jackson Avenue and contact occurred

between the Rickard vehicle and a police vehicle. The contact caused the

Rickard vehicle to spin around in a parking lot at the intersection of Danny

Thomas Boulevard and Jackson Avenue. Separate Defendants assert that the
No. 11-5266 4

Rickard vehicle then turned directly toward Plumhoff’s vehicle and had a

head-on collision with it. Plaintiffs dispute these statements and aver that the

Rickard vehicle was still moving forward from the momentum caused by the

spinout after contact with Evans’ vehicle and that this momentum caused the

collision with Plumhoff’s vehicle.

At or near this stage of events, the other officers formed a semicircle

around the Rickard vehicle, attempting to use the building in the parking lot

to prevent the vehicle from fleeing. Because of the building and the location

of the police cars, the only unobstructed way for Rickard to escape was to back

up. Rickard reversed in an attempt to escape, and as he did so Evans and

Plumhoff exited their vehicles and approached the Rickard vehicle. Evans

tried to get into the vehicle by pounding on the passenger-side window with

his gun in his hand. Gardner and other officers also approached the vehicle.

At this point, the wheels of the Rickard vehicle were spinning, and the vehicle

made contact with Gardner’s vehicle. Separate Defendants assert that the

vehicle’s engine was “revving,” but Plaintiffs dispute this and state that the

vehicle was rocking back and forth, and it is unclear whether the engine noise

in conjunction with this rocking motion should be characterized as revving the

engine.

Plumhoff fired three shots into the Rickard vehicle. The video from

unit # 279 shows that Plumhoff was near the passenger-side of the vehicle

when he fired those shots. The Rickard vehicle then reversed in a 180 degree

arc onto Jackson Avenue heading east. As the Rickard vehicle reversed,

Galtelli exited his vehicle and ran to join the other officers who were chasing

the vehicle as it maneuvered onto Jackson Avenue. Ellis was standing near the

rear passenger-side of Rickard’s vehicle and had to step to his right to avoid

the vehicle. Gardner then fired ten shots toward the vehicle, initially from the

passenger side and then from the back of the vehicle. Gardner fired all ten

shots while the vehicle was moving forward (i.e., away from the officers).

Galtelli also fired two shots at the vehicle. As the officers were shooting,

Rickard was fleeing down Jackson Avenue. Rickard then lost control of the

vehicle, and the Rickard vehicle crashed into a building at the corner of

Jackson Avenue and Manassas Street. Both Rickard and Allen were killed.

Estate of Allen, et al. v. City of West Memphis, et al., Nos. 05-2489/2585, 2011 WL 197426,

at *3 (W.D. Tenn. Jan. 20, 2011) (citations omitted) (unpublished).
No. 11-5266 5

In its ruling on summary judgment as to the Rickard claims brought under § 1983, the

district court determined that the facts, considered in a light most favorable to the plaintiff,

established a violation of the Fourth Amendment. Id. at *10. Next, the district court found

that the facts did not support the finding that a reasonable officer would have considered

Rickard’s continued flight a clear risk to others. Id. at *11. For this reason, the district court

denied qualified immunity to all of the officers on the scene as to the Rickard § 1983 claims.

Concerning the Rickard state law claims, the district court determined that Tennessee

law applied, and that the officers were therefore not eligible for statutory immunity under

Arkansas law. The district court also determined that immunity was not available to the

officers under various provisions of Tennessee law. Id. at *14-15.

This appeal followed the district court’s ruling. After it was filed, the Rickard

plaintiff moved to dismiss the appeal for lack of jurisdiction. A panel of this court initially

granted the motion on the grounds that the qualified immunity determination of the district

court turned on disputed factual issues. That order was vacated, and the issue was referred

to the merits panel, following the defendants’ petition for rehearing.

2

II.

A. Qualified Immunity

On September 14, 2011, this court granted rehearing to consider ourjurisdiction to review the denial

2

of state law immunity, vacated our earlier dismissal of the qualified immunity appeal, and referred the entire

motion to dismiss for action by the merits panel.
No. 11-5266 6

A motion for qualified immunity denied on the basis of a district court’s determination

that there exists a triable issue of fact generally cannot be appealed on an interlocutory basis.

Johnson v. Jones, 515 U.S. 304, 313 (2005). The Supreme Court, however, carved out an

exception to this rule in Scott v. Harris, 550 U.S. 372 (2007). The Court emphasized that:

“Where the record taken as a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no ‘genuine issue for trial.’” Id. at 380 (citations omitted).

Reconciling Scott and Johnson, we stated that “where the trial court’s determination that a

fact is subject to reasonable dispute is blatantly and demonstrably false, a court of appeals

may say so, even on interlocutory appeal.” Moldowan v. City of Warren, 578 F.3d 351, 370

(6th Cir. 2009) (citations and internal quotation marks omitted); see also Austin v. Redford

Twp. Police Dep’t, 690 F.3d 490, 496 (6th Cir. 2012) (after viewing video, affirmed denial

of qualified immunity).

What makes these cases particularly relevant to the case at bar is the similarity of the

facts here to the facts in Scott. The multi-car police chase of a fleeing speeder in Scott ended

when one of the police cars intentionally rammed into the back of the fleeing car causing it

to leave the road and crash, resulting in crippling injuries to the driver. All of this was

captured on videotape. When the subsequent excessive force case was brought by the injured

driver, the police defendant sought the protection of qualified immunity, which was denied.

On interlocutory appeal, the court of appeals affirmed. The Supreme Court granted review

and reversed. As might be expected, the police defendants in our case vigorously argue that
No. 11-5266 7

Scott should control. Although the framework of the two cases is similar, as always, the

devil is in the details, and it is those details that cause us to conclude that Scott is

distinguishable.

The fleeing motorist in Scott was still fleeing at very high speeds when he was

rammed from behind. Scott framed the issue as: “Can an officer take actions that place a

fleeing motorist at risk of serious injury or death in order to stop the motorist’s flight from

endangering the lives of innocent bystanders?” The Court answered this question in the

affirmative. In our case, the fleeing vehicle was essentially stopped and surrounded by police

officers and police cars although some effort to elude capture was still being made.

Further, although the police in Scott used a maneuver to stop the fleeing car that might

very well cause a crash and injury, the police here fired fifteen shots at close range, all but

two of which apparently hit the subjects and twelve of which hit the driver. It’s also worthy

of note that when deciding to use lethal force, the police knew there was a passenger in the

fleeing vehicle thus doubling the risk of death. The police make much of the fact that they

felt they were in personal danger, but the degree to which that was true is not resolved by the

video recordings.

Also, since the plaintiff in Scott survived, there were actually three versions of what

occurred: the plaintiff’s, the police defendants’ and the video. The Supreme Court, in

reversing the court of appeals, determined that the video resolved the questions at issue and

granted summary judgment in favor of the defendant. It wasn’t that the video did not support
No. 11-5266 8

plaintiff’s version of what occurred, but rather that conceding plaintiff’s version which was

supported by the video, the conduct of the officer was reasonable as a matter of law. This

is what the defendants ask us to conclude in this case.

However, the case at bar is more complex in its facts than was Scott. After carefully

reviewing the video, as did the district judge, we cannot conclude that it provides clear

support for either the plaintiff’s or the defendants’ version of what occurred. That is

particularly true as it relates to the degree of danger that the officers were placed in as a result

of Rickard’s alleged conduct. Unlike in Scott, we cannot conclude that the officers’ conduct

was reasonable as a matter of law.

3

Defense counsel stated at oral argument, in essence, that if lethal force is justified,

officers are taught to keep shooting until the threat is over. The dictionary synonym for

“lethal” is “deadly.” As the Court in Scott explained in distinguishing the use of deadly force

in Tennessee v. Garner, 471 U.S. 1 (1985), “‘[a] police car’s bumping a fleeing car is, in fact,

not much like a policeman’s shooting a gun so as to hit a person.’” Scott, 550 U.S. at 383

(quoting Adams v. St. Lucie County Sheriff’s Dept., 962 F.2d 1563, 1577 (11th Cir. 1992)

(Edmonson, J., dissenting), adopted by 998 F.2d 923 (11th Cir. 1993) (en banc)). Nor does

the Supreme Court’s decision in Sykes compel a different result. Sykes v. United States, 131

S. Ct. 2267 (2011). The holding in Sykes that vehicular flight from an officer may

categorically present “a serious potential risk of physical injury to another” so as to constitute

The district court made a number of findings as to disputed issues of fact, which we do not repeat 3

here, and which we cannot say were “blatantly and demonstrably false.”
No. 11-5266 9

a “violent felony” for purposes of sentencing enhancement under 18 U.S.C. § 924(e)

addresses a question distinct from whether the force applied—including deadly force—to

effect the seizure of a fleeing suspect in a given case was objectively reasonable as a matter

of law under the Fourth Amendment.

4

Usually, when we review an appeal from a denial of qualified immunity, we dismiss

the appeal for lack of jurisdiction if the immunity was denied on the basis of genuine factual

disputes. Johnson, 515 U.S. at 307. After Scott, however, it would appear that an

interlocutory appeal of a denial of qualified immunity which makes a good faith Scott claim

requires us to review the record. Scott, 550 U.S. at 319 (“we concede that a court of appeals

may have to undertake a cumbersome review of the record”). After this review if we reach

the same conclusion as did the district judge, as we do here, it would seem that what we are

doing is affirming that judgment. Whether we call it a dismissal for lack of jurisdiction or

an affirmance of the denial of qualified immunity, the result is the same. See, e.g., Austin,

690 F.3d at 498-99.

B. State Law Immunity

We note that the officers have filed all pleadings as a group and no distinctions were made among 4

the officers. In Bishop v. Hackel, 636 F.3d 757, 767 (6th Cir. 2011), a qualified immunity appeal, the panel

held “[t]he district court erred in this case by failing to evaluate the liability of each Deputy individually”

and then proceeded to do so. We have not been asked to make such a review, nor have the defendants raised

as an issue on appeal that there was no individual determination made in the district court. Nothing in this

opinion, however, precludes the district courtfromconsidering on remand whetherthe individual defendants

who did not fire their weapons may be entitled to qualified immunity. Additional discovery may be taken

if necessary.
No. 11-5266 10

The officers also contend they should be immune from liability under state law, and

that the district court erred in determining they were not. These determinations by the district

court are legal determinations, and our review is de novo. DiCarlo v. Potter, 358 F.3d 408,

414 (6th Cir. 2004).

The ruling of the district court concerning immunity under Arkansas law is only

summarily addressed by the officers. Defendants state only that: “The trial court ruled that

the officers were not eligible for statutory immunity pursuant to Arkansas law because they

were in Tennessee: this is a question of law that this court can resolve.” The officers do not

dispute that Tennessee law applies to their state law claims, and have presented neither

argument nor authority to establish why they might be entitled to statutory immunity under

Arkansas law. We find this issue to lack merit and, in any case, to have been waived on

appeal. See United States v. Phinazee, 515 F.3d 511, 520 (6th Cir. 2008) (holding issues

adverted to in only a perfunctory manner, unaccompanied by any effort at developed

argument, are deemed waived).

Defendants rely first on the Interstate Fresh Pursuit Act, Tenn. Laws Ann. § 40-7-201,

et seq., to claim entitlement to immunity under Tennessee law. This statute gives officers

of another state (here, Arkansas), who enter into Tennessee in “fresh pursuit” of a person

they believe to have committed a felony in that other state, authority regarding actions they

take to effect arrest and hold suspects in custody in Tennessee. As plaintiff points out,
No. 11-5266 11

however, nothing in that statute addresses a police officer’s immunity from suit for alleged

civil rights violations, and we decline to further address this issue.

The officers’ additional assertion that they are entitled to immunity under the

Tennessee Governmental Tort Liability Act (TGTLA), Tenn. Code Ann. § 29-20-101 etseq.,

merits no further consideration. The defendants, officers from West Memphis, Arkansas, do

not contest the district court’s determination that they do not meet the statute’s requirements

because “employees” covered by the statute are those of “governmental entities,” which is

defined as “any political subdivision of the State of Tennessee.” TENN.CODE. ANN. § 29-20-

102(3) (emphasis added).

Finally, defendants argue that Tennessee’s public duty doctrine shields them against

negligence claims brought by plaintiff. The public duty doctrine is aimed at shielding a

public employee from liability for an injury to an individual member of the public due to the

public employee’s breach of a duty owed to the public at large. As discussed in Ezell v.

Cockrell, 902 S.W.2d 394 (Tenn. 1995), various public policy considerations support the

recognition of the public duty doctrine, such as avoiding landing police officers in the

“untenable position of insuring the personal safety of every member of the public, or facing

a civil suit for damages.” Id. at 398. The doctrine would not offer an officer protection from

liability for an injury to the subject of the pursuit whose civil rights were allegedly infringed

by that officer. The doctrine has no application here.

AFFIRMED.
No. 11-5266 12

CLAY, Circuit Judge, concurring. The majority statesin footnote four: “Additional

discovery may be taken if necessary.” This language is at the very least misleading. It

should be noted that additional discovery is not necessary for the qualified immunity inquiry

here, because a qualified immunity defendant must argue “merely that his alleged conduct

did not violate clearly established law.” Everson v. Leis, 556 F.3d 484, 496 (6th Cir. 2009)

(citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). Defendants “must be prepared to

overlook any factual dispute and to concede an interpretation of the facts in the light most

favorable to the plaintiff’s case.” Id.; Marvin v. City of Taylor, 509 F.3d 234, 244 (6th Cir.

2007). Additional discovery with regard to the qualified immunity inquiry would run

contrary to caselaw and thwart its purpose. Skousen v. Brighton High School, 305 F.3d 520,

527 (6th Cir. 2002) (“By refusing to address qualified immunity when it was raised, the

district court had undercut one of the primary rationales for such immunity—to save officials

from unwarranted discovery.”) Thus, the language of footnote four risks confusing the

district court into believing it would need to take additional discovery with respect to its

qualified immunity determination; it does not.

To the extent the language merely encourages the district court to proceed with

managing the case, which may include conducting additional discovery related to the merits

of each claim asserted against each defendant following this appeal, the district court is fully

aware of its power to do so.