Campbell v. Cheatham Cnty. Sheriff's Dep't

47 F.4th 468

Mark CAMPBELL ; Sherrie Campbell, Plaintiffs-Appellees,

v.CHEATHAM COUNTY SHERIFF'S DEPARTMENT, et al., Defendants,James Douglas Fox, Defendant-Appellant.

No. 21-5044

United States Court of Appeals, Sixth Circuit.

Argued: May 4, 2022

Decided and Filed: August 29, 2022

ARGUED: Robyn Beale Williams, FARRAR & BATES LLP, Nashville, Tennessee, for Appellant. John H. Morris, NASHVILLE VANGUARD LAW PLLC, Nashville, Tennessee, for Appellees. ON BRIEF: Robyn Beale Williams, FARRAR & BATES LLP, Nashville, Tennessee, for Appellant. John H. Morris, NASHVILLE VANGUARD LAW PLLC, Nashville, Tennessee, Andrew S. Lockert, LOCKERT LAW, PLLC, Ashland City, Tennessee, for Appellees.

Before: BOGGS, GIBBONS, and NALBANDIAN, Circuit Judges.

GIBBONS, J., delivered the opinion of the court in which BOGGS, J., joined. NALBANDIAN, J. (pp. 482–90), delivered a separate dissenting opinion.

JULIA SMITH GIBBONS, Circuit Judge.

Mark and Sherrie Campbell filed a complaint under 42 U.S.C. § 1983 against the Cheatham County Sheriff's Department, the Municipal Government of Cheatham County, Cheatham County Sheriff Mike Breedlove, and Officers James Fox and Christopher Austin. The district court granted summary judgment for all defendants except Fox, concluding that Fox was not entitled to qualified immunity on the Campbells’ excessive force claim against him. Fox appeals, and we affirm.

I

On August 21, 2018, around 9:15 p.m., Fox and Austin were dispatched to the Campbells’ residence to conduct a welfare check after a 9-1-1 dispatcher received two hang-up calls from a phone located on the property. They arrived at the Campbells’ home around 9:39 p.m. They did not activate the emergency lights on their cars but kept their headlights pointed toward the house.

Fox walked up onto the small porch and knocked on the front door. He did not announce himself as law enforcement. The district court compiled a useful table of what occurred next, which we adopt here after confirming its accuracy with video footage¹ and the other record evidence.

Seconds Elapsed	Description of Event
0	Fox knocks three times
1–5	Fox walks down the steps and stands next to Austin
10	Mark says, "You got a gun?" through the closed door
12–17	Fox unholsters his gun and walks to the other side of Austin while saying, "Mark ... come on out Mark, what's up man?"
18	Mark again says, "You got a gun?"
21	Fox says, "What's going on Mark?"
23	Mark says, "I got one too."
24–25	Fox draws his gun and turns his back to the door as he walks behind Austin
26	Mark begins to open the door
27	Fox turns quickly back toward the door
28	Fox says, "Do what Mark?" and then fires two shots toward the door in rapid succession
29	Austin trips or jumps to the ground
30	Fox says, "You good?"
31	Fox fires six shots toward the door in rapid succession

Campbell v. Cheatham Cnty. Sheriff's Dep't , 511 F. Supp. 3d 809, 814 (M.D. Tenn. 2021) (footnotes omitted).

The parties dispute what the officers saw when Mark began to open the door, and the video footage does not resolve the dispute. Mark says he may have had a cell phone in his hand, but not a gun. Both officers contend they thought Mark had a gun. However, there is evidence that on the evening of the incident, the officers did not know what, if anything, Mark was holding.

Following Fox's first shots, Mark fell to the floor and kicked the door shut. He yelled to his wife, Sherrie, to call 9-1-1 because somebody was shooting at them. Sherrie was asleep in the bedroom, woke to gunshots, and heard her husband yelling. She called 9-1-1. Although Fox fired eight shots at the home, no one was hit.

After the shots, Fox and Austin made their way behind Fox's car as Fox reported over the radio that shots were fired. Mark yelled profanities through the closed door. A few minutes later, Mark walked onto his porch holding a flat reflective rectangular item. Fox and Austin yelled at Mark to get on the ground and show his hands. Mark yelled that his phone was in his hand and lifted his empty left hand. He yelled that he was not getting on the ground, to shoot him, and profanities, before returning inside his home. Mark opened the door again a minute later and stood in the doorway as he appeared to talk on the phone and pointed at the officers. Again, Fox and Austin yelled at Mark to show his hands. Mark yelled back and then returned inside and shut the door.

Several other officers soon arrived at the Campbells’ home, and one of them apprehended Mark in the yard of the home. After Mark's arrest, Fox, Austin, and a detective went inside the home. They told Sherrie, who was still in the bedroom, to come out with her hands visible. Sherrie complied, and the officers detained her while they cleared the house. No firearms were found in the home. Mark was charged with two counts of aggravated assault, both of which were ultimately dismissed.

The Campbells sued Fox in his individual capacity for excessive use of force under 42 U.S.C. § 1983. Fox argued that the statute of limitations barred the Campbells’ § 1983 claim and that he was entitled to qualified immunity because (1) he did not seize the Campbells within the meaning of the Fourth Amendment, and (2) his use of force was objectively reasonable. The district court disagreed with each of these arguments. Fox appealed. We decline to exercise jurisdiction over Fox's statute of limitations argument, and we affirm the district court's denial of summary judgment.

II

"We review de novo a district court's denial of a defendant's motion for summary judgment on qualified immunity grounds." Stoudemire v. Mich. Dep't of Corr. , 705 F.3d 560, 565 (6th Cir. 2013). Summary judgment is appropriate only when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; see Fed. R. Civ. P. 56(a). We view the facts and reasonable factual inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Where there is video footage of an incident, we view the facts in the light depicted by any unambiguous footage. See Scott v. Harris , 550 U.S. 372, 378–81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

III

Fox contends that the district court erred in denying him summary judgment because the Campbells’ § 1983 claim is barred by the statute of limitations and because he is entitled to qualified immunity.

A

Fox argues Tennessee's one-year statute of limitations applies to the Campbells’ § 1983 claim. We lack jurisdiction to address this argument.

We have jurisdiction to review "final decisions" from the district courts. 28 U.S.C § 1291. Under the collateral order doctrine, however, some interlocutory orders are immediately appealable, because they amount to final decisions. United States v. Mandycz , 351 F.3d 222, 224 (6th Cir. 2003). Such orders include only "decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action." Id. (quoting Swint v. Chambers Cnty. Comm'n , 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) ). An order must satisfy all three of these requirements to be appealable under the collateral order doctrine. Id.

The district court determined the Campbells’ § 1983 claim was timely under the applicable statute of limitations. "A statute of limitations is not an immunity from suit; it is a defense to liability." DeCrane v. Eckart , 12 F.4th 586, 601 (6th Cir. 2021). Therefore, Fox's argument on the statute of limitations can be effectively reviewed after a final judgment. As this issue does not satisfy the requirements under the collateral order doctrine, we lack jurisdiction to review it.² See id. at 601–02.

B

We turn to qualified immunity. Unlike the statute of limitations defense, qualified immunity enables a defendant to avoid litigating a dispute. DeCrane , 12 F.4th at 601. We may "review the district court's interlocutory denial of qualified immunity only to the extent that it turns on an issue of law." Stoudemire , 705 F.3d at 564.

The Campbells alleged that Fox violated their constitutional rights by using excessive force against them. Fox, as a government official, is entitled to qualified immunity from this claim unless the Campbells can show that Fox violated a constitutional right that was clearly established at the time of his alleged misconduct. Id. at 567.

We start with the constitutional right. A § 1983 claim of excessive force implicates "either the Fourth Amendment's prohibition against unreasonable seizures of the person, or the Eighth Amendment's ban on cruel and unusual punishments, which are the two primary sources of constitutional protection against physically abusive governmental conduct." Graham v. Connor , 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Where, as here, "the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen," it invokes "the protections of the Fourth Amendment, which guarantees citizens the right ‘to be secure in their persons ... against unreasonable ... seizures’ of the person." Id. (quoting U.S. Const. amend. IV ). Fox contends the Campbells cannot establish a violation of the Fourth Amendment because they were not seized.

A seizure can occur in one of two ways: (1) use of force with the intent to restrain; or (2) show of authority with acquisition of control. Torres v. Madrid , ––– U.S. ––––, 141 S. Ct. 989, 998, 1001, 209 L.Ed.2d 190 (2021). The first type covers uses of physical force, such as when an officer shoots an individual. Id. at 999. Had Fox's shots hit the Campbells, then they would have been seized under this category. Since Fox missed and there was no physical contact, we look to the second type—acquisition of control. As the Supreme Court has explained, "[u]nlike a seizure by...