UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DANIEL SIMMONDS, as Personal 

Representative for the

Estate of Daniel Simmonds,

Plaintiff,

v.

COUNTY OF GENESEE, JOSH DIRKSE,

JAMES COMSTOCK, KEVIN SHANLIAN,

and DOUGLAS GEORGE STONE,

Individually,

Defendants.

/

Case Number: 09-12286

 

HON. MARIANNE O. BATTANI

OPINION AND ORDER GRANTING DEFENDANTS'

 MOTIONS FOR SUMMARY JUDGMENT

Before the Court is Defendants Comstock, Shanlian and Stone’s Motion for

Summary Judgment (Doc. No. 35), and Defendant Michigan State Police Trooper

Dirkse’s Motion for Summary Judgment Based on Qualified Immunity (Doc. No. 26). 

The Court heard oral argument on November 12, 2009, and at the conclusion of the

hearing, granted Plaintiff’s request for a continuance under Fed. R. Civ. P. 56(e), to

depose the law enforcement officers who were present at the scene when Kevin

Simmonds was shot. Plaintiff deposed Defendant officers and submitted a

supplemental brief in opposition to the summary judgment motions. The parties

appeared on January 19, 2010, for additional argument. For the reasons that follow, the

Court GRANTS Defendants’ motions. 
2

I. FACTUAL BACKGROUND

Plaintiff, Daniel Simmonds, Personal Representative for the Estate of Kevin

Simmonds, sued Defendants, County of Genesee, Josh Dirkse, James Comstock,

Kevin Shanlian, and Douglas Stone, alleging that law enforcement officers violated his

son Kevin’s constitutional rights on November 23, 2007, when Kevin Simmonds was

shot and killed. See First Amended Complaint. The facts giving rise to the claim follow.

Around 5:00 p.m. on November 23, 2007, Lieutenant Shanlian, who was

employed by the Genesee County Sheriff, overheard a radio traffic from 9-1-1 Central

Dispatch about a hit-and-run accident. Because he was in the vicinity of the incident, Lt.

Shanlian, who was off-duty, looked for the suspect vehicle, a gray, S-10 pick-up truck

driven by a white male. Shortly thereafter, Lt. Shanlian heard another call concerning a

domestic fight with possible gun involvement at 467 Simmonds Drive, the home of

decedent Kevin Simmonds and his parents. (Genesee Defs.’ Ex. A.) 

Daniel Simmonds, Kevin's father, called 9-1-1 because his son had threatened to

kill the parents of his former girlfriend. Daniel Simmonds informed the 9-1-1- operator

that his son might be armed. A second 9-1-1- call was made by the mother of Kevin’s

former girlfriend, Beverly Carey, regarding Kevin's threats. (Genesee Defs.' Ex. G). 

Michigan State Police Troopers Doug Kaiser and Defendant Trooper Dirkse were

dispatched. They requested backup due to their distance from the location. Richfield

Township Officer Bernard responded, as did personnel from the Genesee County

Sheriff’s Department--Defendant Lt. Shanlian, Defendant Deputy Comstock, and Sgt.

Tucker. 
3

Lt. Shanlian, Officer Bernard and Trooper Kaiser, and Deputy Comstock arrived

at the Carey’s residence and confirmed that Kevin Simmonds was not at the address. 

Trooper Kaiser remained at the Careys’ house to take a complaint. (Genesee Defs.'

Exs. A, B). The other officers went to Simmonds Drive where they met Sgt. Tucker,

Deputy Stone, and Trooper Dirkse. The officers talked with Daniel Simmonds and

decided to block off Simmonds Drive to prevent the suspect’s escape. They planned to

get shields and helmets and attempt negotiations with the suspect. (Genesee Defs.'

Exs. A, C). Before the plan could be implemented, Kevin Simmonds drove up a twotrack drive located on the property and met Trooper Dirkse and Sgt. Tucker. According

to Deputy Stone, he arrived at the Simmonds’ residence and assisted Trooper Dirkse in

blocking the exit from a two track located on the property. Trooper Dirkse activated his

overhead lights, as did Deputy Stone, and ordered Kevin Simmonds to show his hands

and exit the vehicle. Instead, Kevin Simmonds shifted into reverse and backed down

the two-track through the woods. 

Trooper Dirkse and Sgt. Tucker followed the pick-up in their vehicles. Deputy

Comstock and Officer Bernard jumped into Deputy Stone’s vehicle, and pursued the

pick-up. Lt. Shanlian remained at the house in case Kevin Simmonds returned on foot. 

After the pick-up got stuck in the snow, the officers exited the vehicles and again

repeatedly commanded Kevin Simmonds to show his hands. Deputy Stone approached

the driver’s side window from the rear. (Genesee Defs.' Exs. A, D). When he had

positioned himself near the rear of the driver’s door and partially opened the door, he

yelled “Taser, Taser,” and deployed his department issued taser model X26 at the

driver. Id. According to Deputy Stone, he believed he had been successful because
4

Kevin rolled toward the passenger seat. Id. When Kevin Simmonds leaned toward

the center console and the passenger side of the vehicle, he placed his back to the

officers who were positioned outside the driver’s side door of the pick-up. Kevin

Simmonds suddenly yelled he had a gun and turned abruptly toward the officers with his

hands extended in a firing posture. Deputy Comstock and Trooper Dirkse fired their

service weapons. (Genesee Defs.' Ex. A). Sgt. Tucker was unable to fire because

Deputy Stone was in his line of fire. (Genesee Defs.' Ex. E). Deputy Stone stated he

was certain Kevin was going to shoot him in the face and he turned his face and body

toward the rear of the truck, hoping he would be shot in the back of his vest rather than

his face. (Genesee Defs.' Ex. A). Officer Bernard sought cover. 

After the shooting, Deputies Comstock and Stone began life saving efforts;

however Kevin Simmonds did not survive. 

II. STANDARD OF REVIEW

The Federal Rule of Civil Procedure authorize this Court to grant summary

judgment “if the pleadings, the discovery and disclosure of materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). There is no

genuine issue of material fact if there is no factual dispute that would affect the legal

outcome of the issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In

determining whether summary judgment is appropriate, this Court “must construe the

evidence and draw all reasonable inferences in favor of the nonmoving party.” Hawkins

v. Anheuser-Busch Inc., 517 F.3d 321, 332 (6th Cir. 2008). However, a party opposing

summary judgment “may not rely merely on allegations or denials in its own pleading;
1 The Court recently reiterated the benefits of the Saucier test in determining qualified

immunity, but held that courts need not apply the analysis in a rigid two-step sequence. 

Pearson v. Callahan, 129 S.Ct. 808, 811 (2009)

5

rather, its response must--by affidavits or as otherwise provided in this rule--set out

specific facts showing a genuine issue for trial.” FED. R. CIV. P. 56(e)(2). In assessing

Plaintiff's excessive-force claim, the Court must construe all of the facts in the record "in

the light most favorable" to Plaintiff. Champion v. Outlook Nashville, Inc., 380 F.3d 893,

901 (6th Cir.2004), cert. denied, 544 U.S. 975 (2005). Only then can the Court consider

whether "Defendants' actions were objectively unreasonable, which is 'a pure question

of law.' " Chappell v. City of Cleveland, 585 F.3d 901, 909 (6th Cir. 2009) (quoting Scott

v. Harris, 550 U.S. 372, 381 n. 8 (2007)).

III. ANALYSIS

A. Qualified Immunity

In general, government officials are immune from civil liability under 42 U.S.C. §

1983 when performing discretionary duties, provided “their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Government officials will

not be held liable for mere mistakes in judgment, whether the mistake is in law or in fact. 

Groh v. Ramirez, 540 U.S. 551, 567 (2004). 

The United States Supreme Court has set forth a two-prong test1 to determine

whether an officer-defendant is entitled to qualified immunity. Saucier v. Katz, 533 U.S.

194, 200 (2001). The first prong requires the reviewing court to inquire whether the

facts, viewed in the light most favorable to the plaintiff, “show the officer’s conduct
6

violated a constitutional right.” Id. at 201. The court must “concentrate at the outset on

the definition of the constitutional right and [then] determine whether on the facts

alleged, a constitutional violation could be found.” Id. If a constitutional violation could

be found, the second prong requires the court to decide whether a reasonable official

would, at the time the act was committed, understand that his conduct violated that

right. Id. A government official will be entitled to immunity as long as the conduct does

not amount to a violation of a clearly established right of which a reasonable person

would have known. Harlow, 457 U.S. at 818. A right is clearly established when “it

would be clear to a reasonable officer that his conduct was unlawful in the situation that

he confronted.” Saucier, 533 U.S. at 202. 

 Accordingly, the Court begins its analysis of this claim with the identification of

the specific constitutional right allegedly violated by the defendants. See Graham v.

Connor, 490 U.S. 386, 394 (1989). The Fourth Amendment guarantees an individual’s

right to be secure in his person against unreasonable searches and seizures without a

warrant based upon probable cause, see U.S. CONST. amed. IV, and protects

individuals from excessive force by the police. The Fourth Amendment’s “objectively

reasonable” standard is utilized when analyzing a plaintiff’s excessive force claim. 

Graham v. Connor, 490 U.S. at 388.

The factors used to evaluate the reasonableness of a police officer’s actions are:

(1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat

to the safety of the officer or others; and (3) whether the suspect is actively resisting

arrest or attempting to evade arrest by flight. 

In determining whether an officer’s actions were reasonable, the specific
7

facts of each case are key. Courts should pay particular attention to “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.” While courts must

look to the totality of the circumstances in determining whether a seizure

was reasonable, they must be sure to view those facts “from the

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

20/20 vision of hindsight.

 

Kostrzewa, 247 F.3d at 639 (citations omitted). 

For purposes of this motion, it is undisputed that Kevin Simmonds was not armed

at the time of the shooting; that he was shot on private property inside his vehicle within

minutes of his encounter with law enforcement officials; and that his vehicle was

blocked in by the officers’ vehicles. Just before the shooting took place, Kevin was

talking on a two-way, walkie-talkie cell phone. It is further undisputed that his parents

begged the officers not to harm his son, and that Daniel Simmonds begged the officers

to let him speak to his son to diffuse the situation. 

Nevertheless, Plaintiff’s assertion that these facts demonstrate that Kevin posed

no threat is advanced with 20/20 hindsight. It fails to account for the officers' knowledge

of these facts at the time of the shooting. The officers repeatedly commanded Kevin to

show his hands and get out of the vehicle. Kevin refused. Although after the shooting it

was established that Kevin was not armed, the officers had reason to believe that

Plaintiff might be armed and knew Kevin’s father had characterized Kevin as “nuts,”

suicidal, and wanting to harm others. (Genesee Defs.' Ex. B). The officers also knew

that Kevin Simmonds had made death threats against several people. His parents were

afraid for their own safety and the safety of others. Finally, each witness deposed

testified that Kevin yelled he was going to shoot and moved his hands as if he were
8

going to do so. 

Looking at the totality of the circumstances leading up to the arrest, “from the

perspective of a reasonable officer on the scene,” the shooting was objectively

reasonable. The officers do not have to wait to see a gun before firing. Once they

perceived the threat of imminent harm, the officers are justified in using deadly force.

Dudley v. Eden, 260 F.3d 722, 727 (6th Cir. 2001); see also Chappell v. City of

Cleveland, 585 F.3d 901, 910 (6th Cir. 2009) (qualified immunity granted where

teenager refused to drop knife and instead advanced on the officers, who were in close

proximity, with the knife raised). 

The factual inconsistencies raised by Plaintiff in his supplemental brief do not

alter the Court's analysis because they do not demonstrate the existence of a genuine

issue of material fact. Specifically, Plaintiff challenges the testimony of Trooper Dirkse,

who asserted that Kevin swung the driver’s side door wide open and got out of the

vehicle with his hands held together “as if he was pointing or holding a gun, pointed it in

the direction of myself and the other officers,” and yelled “I have a gun, I have a gun.” 

(Genesee Defs.' Ex. A, at 48). His testimony contrasts with the forensic evidence and

the other officers testimony that Kevin Simmonds shot through the driver’s side window,

which was down. See Pl.'s Exs. E, Comstock Dep. at 44; Ex. D, Tucker Dep. at 63-64. 

According to Plaintiff it is unreasonable to believe the Officers’ testimony that Kevin

yelled he had a gun because of the discrepancies in the officers' testimony. The

inconsistent testimony as to whether Kevin shot through the window or exited the

vehicle is immaterial In light of the officers' uniform recital that he raised his hands as if

to shoot and yelled that he had a gun. All of the officers perceived an immediate threat

of serious harm.
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In addition, Plaintiff asserts a genuine issue of material fact is created by the fact

that Trooper Dirkse and Deputy Comstock shot simultaneously, inasmuch as Kevin

Simmonds could not have been pointing his hands at both officers at the same time. 

The Court finds this argument unavailing for two reasons. First, Trooper Dirkse testified

the two officers were standing close together, and second, as soon as Kevin Simmonds

pointed in the direction of any officer and yelled he had a gun, the conduct that occurred

was reasonable. 

As further evidence that the officers’ version of the events leading up to the

shooting should not be credited, Plaintiff points to the testimony of Lt. Shanlian, who

estimated he was three to four hundred feet away, but could hear the tires spinning,

Pl.'s Ex. B at 45, the officers screaming commands, id. at 49, someone screaming I’ve

got a gun, and handgun fire followed by shotgun fire, id. at 50. Plaintiff concludes that

the officers are taking advantage of the fact that the only eye witnesses are law

enforcement officers. 

The supposition fails to create a genuine issue of material fact. No officer's

deposition testimony contradicted his report made at the time of the incident. The

challenge to the credibility of Lt. Shanlian is speculative. The Court therefore finds

Trooper Dirkse and Deputy Comstock committed no violation of Kevin's constitutional

rights. Their use of force was objectively reasonable under the circumstances. 

Accordingly, the Court has no need to determine whether the right was clearly

established.
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B. Qualified Immunity relative to tasing

Plaintiff contends that, under the circumstances, Deputy Stone’s use of the taser

was grossly disproportionate to the amount of force needed to effectuate the arrest. In

supporting this position, Plaintiff relies on Landis v. Cardoza, 515 F.Supp.2d 809 (E.D.

Mich. 2007), aff'd 297 Fed. Appx. 453 (6th Cir. Oct. 16, 2008). In Landis, the

plaintiff/personal representative sued on behalf of the decedent, Keiser, who was

suspected of moving construction equipment into the highway and blocking traffic. 

Keiser ran away and was pursued by police officers. He continued to run after verbal

commands to stop. The district court held that the officers used excessive force in

attempting to arrest Keiser, given that minor offense, the fact that he was unarmed,

knee deep in muddy water, and surrounded by at least four law enforcement officers. 

He was no longer trying to resist arrest, he had been struck by a baton, shocked with a

taser, and pushed into a position that submerged his head in muddy water. 

The facts in Landis, distinguish it from this case, and the Court finds the use of

the taser was objectively reasonable. Plaintiff’s excessive force claim is undermined by

the fact that Kevin refused to show his hands and get out of his car. Although Simmons

was not physically or verbally threatening anyone at the time the taser was used,

Deputy Stone opted for nonlethal force in effort to gain compliance over a suspect who

was noncompliant with repeated demands. Moreover, Deputy Stone had received

information that Kevin had threatened to kill a former girlfriend and believed Kevin

Simmonds was armed. Deputy Stone only used the taser after repeated verbal

commands failed. In sum, Kevin had made serious threats against others, attempted to

evade arrest by the officers, and refused to follow their verbal commands to get out of

the truck and show his hands. The taser was used to avoid having to resort to physical
2

For example, Plaintiff notes that Deputy Comstock testified that he did not know

that Deputy Stone had tased Simmonds and denied hearing Deputy Stone yell taser,

taser. See Ex. E, Comstock Dep at 43. According to Plaintiff, this testimony cannot be

credited because Deputies Comstock and Stone were less than ten feet apart. 

Moreover, even though Deputy Comstock did not hear, Sgt. Tucker, who was standing

on the opposite side of the vehicle, heard Deputy Stone. See Ex. D, Tucker Dep. at 61.

11

or lethal force, putting both Kevin and the other officers at risk of serious harm. See

Alexander v. City of Shelby Tp., Slip Copy, 2009 WL 3241974 (E.D. Mich. October 8,

2009) (declining to find a constitutional violation occurred when an officer deployed a

taser after repeated requests were not obeyed, given the plaintiff had shown a

belligerent attitude, and threatened officers following his arrest). Therefore, the Court

finds as a matter of law that use of the taser, albeit unsuccessful, was objectively

reasonable under the circumstances. 

The fact that not every officer heard Deputy Stone yell taser before he used it is

immaterial to the Court's analysis.2

 Given the situation facing the officers, the rapidity

with which the events unfolded, the fact that all the officers testified that they were

yelling at Kevin to show his hands, no reasonable juror would expect each and every

officer's attention or recollection to be identical. 

C. Supervisory Liability

Although he was off-duty, Lt. Shanlian was the ranking Genesee Sheriff Deputy

at the scene. Under long standing Sixth Circuit precedent, Lt. Shanlian could be

responsible for another officer's use of excessive force if he owed the victim a duty of

protection against the use of excessive force. Turner v. Scott, 119 F.3d 425, 429 (6th

Cir. 1997). See also Bruner v. Dunaway, 684 F.2d 422, 426 (6th Cir. 1982) (holding

that police officers who stood by and did nothing while the plaintiff was beaten by other
12

officers could be held liable under § 1983).

In light of the Court's finding that no constitutional violation occurred, this claim

fails as a matter of law. Specifically, the Court has found that there was no officer used

excessive force so there can be no basis for holding Lt. Shanlian liable. Moreover, even

if excessive force had been used, Lt. Shanlian lacked the opportunity and the means to

prevent the harm from occurring. It is undisputed that Lt. Shanlian was with at the

family residence at the time Kevin Simmonds was shot. He was not physically present

at the tasing or the shooting and could not have intervened given the instantaneous

unfolding of events. Accordingly, he is entitled to summary judgment. 

IV. CONCLUSION

The Court therefore GRANTS Defendants’ motions for summary judgment. 

IT IS SO ORDERED.

s/Marianne O. Battani 

 MARIANNE O. BATTANI

 UNITED STATES DISTRICT JUDGE 

Dated: March 25, 2010

CERTIFICATE OF SERVICE

Copies of this Order were served upon counsel of record on this date by

ordinary mail and/or electronic filing.

s/Bernadette M. Thebolt

Case Manager