Cutlip v. City of Toledo, Case No. 10-4350

ROCKY CUTLIP, SR., individually and aspersonal representative of the estate ofdeceased, Rocky Cutlip, Jr., Plaintiff-Appellant,

v. CITY OF TOLEDO; TOLEDO POLICE DEPARTMENT;JOHN DOES, 1 THROUGH 5, Defendants-Appellees.

Case No. 10-4350

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Filed: July 5, 2012

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 12a0722n.06

ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE NORTHERN

DISTRICT OF OHIO

BEFORE: BATCHELDER, Chief Judge; CLAY and GILMAN, Circuit Judges.

ALICE M. BATCHELDER, Chief Judge. Death is inevitable. But when a person's death is sudden and inexplicable, all who observe it are marked by it, and the grief of the bereaved is particularly acute. And in those circumstances, we often feel compelled to assign a cause. This is such a case.

Rocky Cutlip, Jr. ("Rocky"), while gripped in the throes of a mental and emotional crisis, held a shotgun to his head, and when the police tried to take it away from him, he pulled the trigger. Rocky died instantly. Plaintiff-Appellant Rocky Cutlip, Sr. ("Cutlip") brought this 42 U.S.C. § 1983 lawsuit against the City of Toledo and the Toledo Police Department¹ because of their roles in theevents leading to his son's death. Cutlip claims that the City's failure to train and supervise its police officers regarding how to deal with mentally ill persons in these kinds of situations was a City policy that directly led to Rocky's death, and that the City was deliberately indifferent to the risk that this policy would violate someone's rights. The district court granted summary judgment to the City, holding that there were no disputes of material fact and that as a matter of law Cutlip could not demonstrate that either the police officers or the City violated Rocky's rights. Because Cutlip cannot demonstrate that the police officers were deliberately indifferent to Rocky's welfare during the incident in question, we AFFIRM the judgment of the district court.

I. Factual Background

On May 29, 2007, after a stand-off with the police that lasted approximately two hours, Rocky pulled the trigger of a shotgun and ended his life. Although the parties do not dispute this essential fact, they do disagree about whether Rocky is responsible for his own death or whether the City is in fact liable. The facts are these.

Beginning on May 27, 2007, Rocky began to display erratic and paranoid behavior, and at some point on the day of May 28, Rocky ingested a toxic amount—approximately twenty-five pills—of Adderall, which is a prescription amphetamine. Around 2:30 a.m. on May 29, Rocky called 911 and claimed that there were police outside his home pursuant to "federal warrants." In fact, there were no police officers outside his home and no warrants had been issued against him. Rocky told the 911 dispatcher that he had a gun in the house, that the gun was not meant for the police, and that there were children in the house. Rocky, himself a police officer employed at the Lucas County Common Pleas Court at the time of his death, also claimed that federal governmentagents had sneaked into his house and demobilized his service weapon. The 911 dispatcher had trouble making sense of Rocky's call and dispatched two Toledo police officers to check on his safety.

When the police officers arrived at Rocky's home, they spoke to Meegan Webb, Rocky's fiancée, who told them about the Adderall pills and that Rocky was behaving strangely. While speaking to Webb inside the doorway of the home, the police officers spotted Rocky at the top of the stairs and asked him to come talk to them, but Rocky ran down a hallway to a bedroom, grabbed a shotgun, and pointed it at his head. The police officers asked Webb to step outside the home, and after they were not able to convince Rocky to relinquish the shotgun, they called for a negotiator to come to the scene.

The police negotiators on duty and available at the time of the incident, Officers Gillen and Korsog, arrived within minutes of each other, at around 3:00 a.m. Gillen, who had arrived first and had begun speaking with Rocky, acted as the primary negotiator. When Gillen first arrived, Rocky was sitting on his bed and holding the shotgun to his head, but within approximately ten to fifteen minutes Gillen was able to convince Rocky to place the shotgun in his lap and engage the safety latch. Meanwhile, other police officers were working to remove the children from the house and interview neighbors, Webb, Cutlip, and Rocky's employer in order to better understand the issues with which Rocky was dealing. After receiving information that Rocky had diabetes in addition to having ingested an Adderall overdose, police officers contacted the local fire department to ask how they might deal with Rocky's potential chemical imbalance. Upon the fire department's suggestion, they gave Rocky a candy bar and a drink.

In negotiating with Rocky, Gillen tried to use "hooks" to form a bond with Rocky, and spoke to Rocky about his family, the fact that they were fellow police officers, and other common experiences, a tactic that is consistent with the crisis-intervention-team ("CIT") and hostage-negotiator training that Gillen had received. During the negotiation, Gillen and Korsog crouched in the bathroom doorway of the hall leading to Rocky's room, and Gillen could apparently see Rocky's eyes, gauge his expression, and clearly hear his words. Gillen's conversation with Rocky was "all over the map" because Rocky would fluctuate between calmness and excitement. Gillen stated that he had difficulty establishing a consistent rapport with Rocky, although at one point Rocky thanked Gillen for prolonging his life.

At some point in the negotiations, Rocky asked to speak with his father, a request that was granted provided Rocky put his shotgun down. Rocky, however, refused and immediately became more upset; he released the shotgun's safety, pointed the gun at his head, began crying, and said "it's time." Although the police had purportedly been prepared to negotiate for as long as it was necessary to ensure that Rocky would relinquish the shotgun of his own accord, Gillen now believed that Rocky was preparing to kill himself, and over a period of time the "frantic" negotiators made several calls requesting that the SWAT move in and prevent the suicide attempt. The negotiators and supervisors at the scene were aware that an attempt to force Rocky to relinquish the shotgun could lead to Rocky's killing himself, but believed that "he was ultimately going to hurt himself if we don't act immediately."

As Gillen's conversation with Rocky progressed towards its sad conclusion, other officers had formulated a contingency plan should negotiations fail, and when the negotiators informed themthat immediate intervention was needed, the plan was implemented. The police officers knew that Rocky would be able to see them coming up the hall to his room and would have time to shoot himself or the officers, so they hoped that deploying a "flash-bang" device would allow them to distract Rocky long enough for them to make a move. In most barricade situations, SWAT would throw the flash-bang device into the room with the barricaded individual in order to stun him, but the police officers were concerned that the close proximity of the flash-bang detonation could startle Rocky and cause him to pull the trigger involuntarily. Instead, the police officers decided to deploy the flash-bang device on a stick near the window of the room that Rocky was barricaded in, hoping that the effect would be to distract without startling him too much. Because SWAT had been informed that Rocky was occasionally pointing the shotgun away from his face, SWAT also hoped to detonate the flash-bang at a time when Rocky was not pointing the shotgun at himself. The police officers also decided to load the SWAT point-man's weapon with bean-bag rounds instead of conventional ammunition; the plan was that as soon as the flash-bang was deployed, the point-man would shoot Rocky and disarm him without seriously wounding him.

One police officer stated, "what happened was obviously [not] the result that we wanted. . . . It was the last thing we wanted." At approximately 4:38 a.m., SWAT detonated the flash-bang and moved toward Rocky's bedroom; moments after the flash-bang went off—"as the first officer entered the doorway"—Rocky pulled the trigger on the shotgun and killed himself.²

Cutlip filed this § 1983 suit against the City of Toledo, arguing that the City was deliberately indifferent to the safety of its citizens by failing to properly train and supervise its police force in how to deal with barricaded suspects who are suicidal or mentally ill, and that this lack of training and supervision was directly responsible for the death of his son. The City filed a motion for summary judgment, arguing that under DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 199-201 (1989), the City is not subject to liability under the facts of the case. The district court agreed, holding that neither the "state-created-danger" nor the "custody" exception to the DeShaney rule applies to this case, and that without an underlying constitutional violation the City is not subject to suit for failure to supervise or train its police officers. The district court also held that the unavoidable liability doctrine barred liability because if the police officers had done nothing the City might still have been subject to suit by Cutlip. Id. at 6-7. Cutlip filed a timely appeal, and we have jurisdiction.

II. Law

A. Standard of Review

In cases like this, where the district court has granted the defendant's motion for summary judgment, we review the arguments of the parties afresh. Jones v. Muskegon Cnty., 625 F.3d 935, 940 (6th Cir. 2010). We affirm summary judgment if "the pleadings together with depositions, answers to interrogatories, admissions on file, and affidavits, if any, 'show that...