Heeter v. Bowers

99 F.4th 900

Karen HEETER, as administrator of the estate of Bill G. Heeter, deceased;Jonathan Heeter, individually and as heir to the estate of Bill G. Heeter, deceased;Stephanie Heeter, individually and as heir to the estate of Bill G. Heeter, deceased;Brandon Heeter, individually and as heir to the estate of Bill G. Heeter, deceased, Plaintiffs-Appellees, v. Kenneth BOWERS, individually and in his capacity as an employee of the City of Columbus, Ohio;Columbus Police Department, Defendants-Appellants.

No. 23-3296

United States Court of Appeals, Sixth Circuit

Argued: February 1, 2024

Decided and Filed: April 29, 2024

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:20-cv-06481—Algenon L. Marbley, Chief District Judge.

ARGUED: Alana V. Tanoury, CITY OF COLUMBUS, Columbus, Ohio, for Appellants. Louis E. Grube, FLOWERS & GRUBE, Cleveland, Ohio, for Appellees. ON BRIEF: Alana V. Tanoury, Alexandra N. Pickerill, CITY OF COLUMBUS, Columbus, Ohio, for Appellants. Louis E. Grube, FLOWERS & GRUBE, Cleveland, Ohio, for Appellees.

Before: SUTTON, Chief Judge; CLAY and BLOOMEKATZ, Circuit Judges.

BLOOMEKATZ, J., delivered the opinion of the court in which SUTTON, C.J., joined. CLAY, J. (pp. 922-28), delivered a separate dissenting opinion.

OPINION

BLOOMEKATZ, Circuit Judge.

On the morning of November 21, 2018, the day before Thanksgiving, Bill Heeter told his wife Karen he was about to commit suicide. Mr. Heeter's brother called the police to stop him. At about 10:05 a.m., officers began to arrive at the family's Columbus, Ohio home. They spotted Mr. Heeter through his kitchen window—he was sitting at a table smoking a cigarette, with one hand on his pistol. He told the officers he'd put his gun away if they left. At approximately 10:15 a.m., a group of officers entered the house with their weapons drawn. At 10:17 a.m., Officer Kenneth Bowers fired five rounds from his M16 service rifle into Mr. Heeter's chest. At 10:57 a.m., Mr. Heeter was pronounced dead at the hospital. Police bodycam footage captured almost everything that happened. It shows that a police sergeant called the paramedics. It also shows that Officer Bowers did not administer first aid or otherwise try to help Mr. Heeter while waiting for the paramedics to arrive, even though Mr. Heeter was audibly and visibly alive, hemorrhaging blood, and struggling to breathe.

The Heeters' three children and their mother (as the representative of Mr. Heeter's estate) sued Officer Bowers and the Columbus Police Department (a subdivision of the City of Columbus) for civil rights violations under 42 U.S.C. § 1983 and for violations of state tort law. Officer Bowers and the City asserted that qualified immunity and Ohio statutes meant they could not be sued. Based on careful review of the video, the district court granted the defendants immunity from some claims but denied others.

The two constitutional claims against Officer Bowers that survived qualified immunity in the district court are the central focus of this appeal. First, the Heeters claim that Officer Bowers used excessive force in violation of the Fourth Amendment when he shot and killed Mr. Heeter. Second, the Heeters claim that Officer Bowers violated Mr. Heeter's Fourteenth Amendment right to adequate medical care while in police custody because he stood idle after the paramedics were called, rather than provide the emergency first aid Mr. Heeter obviously needed.

We conclude, contrary to the Heeters' motion to dismiss this appeal, that we have jurisdiction to review both claims. On the merits, we affirm the district court's denial of state-law immunity and qualified immunity as to Officer Bowers in his individual capacity, so the Heeters' constitutional and state-law claims against him may proceed to trial. But, just as the district court held that the City was entitled to summary judgment on the federal claims, the City was also entitled to summary judgment on the state-law claims because of an Ohio municipal immunity statute. We reverse solely on the issue of municipal immunity for the City, and otherwise affirm.

BACKGROUND

I. Factual Background

Bill and Karen Heeter lived together in the Franklinton neighborhood of Columbus, Ohio with their three children: twenty-one-year-old Jonathan, nineteen-year-old Jennifer, and seventeen-year-old Brandon.

Kenneth Bowers is an officer with the Columbus Police Department, and in November of 2018 had just completed his twenty-first year of service. Through the course of his career, Officer Bowers received training in basic first aid, de-escalation, interacting with persons in mental health crises, and crisis intervention. The other officers most relevant to the appeal are Sergeant Steven Redding, Officer Linda Gibson, and Officer Robert Bruce.

A. The Heeters' Calls to the Police

Around 9:00 a.m. on November 21, 2018, either Ms. Heeter or Mr. Heeter's brother called Franklin County 911 Dispatch because Mr. Heeter was threatening to jump in front of a bus. Sergeant Redding and several other officers drove to the Heeters' house in response to this call. On the scene, Ms. Heeter told the officers that Mr. Heeter had attempted suicide before, and that he had threatened to shoot himself the prior evening but that she had been able to get his gun away from him. When the officers couldn't locate Mr. Heeter, they left.

About an hour later, Mr. Heeter's brother called 911, reporting that Mr. Heeter was back in the house, armed with a gun, threatening to shoot himself, and in need of "someone to talk him down before he gets hurt." Dispatch Log, R. 21-3, PageID 153. About two minutes into the call, the brother started to cry and told the dispatcher, "Please don't shoot him." Id.

B. The Police Response

The footage from three of the responding officers' body-worn cameras depicts much of the police response to this second call. See Bowers Footage, R. 21-2; Bruce Footage, R. 21-7; Redding Footage, R. 21-12. Officer Bowers, Sergeant Redding, Officer Bruce, and Officer Gibson arrived at the scene in quick succession. They knew from the 911 dispatch report that Mr. Heeter was armed, suicidal, and sitting in his dining room. They also knew that Mr. Heeter had not threatened to harm anyone else in the home.

Officer Bowers arrived first. He unracked his M16 service rifle, exited his police cruiser, then armed and aimed his rifle as he walked towards the Heeter residence. The other officers approached with their handguns holstered. After the officers surveyed the house for a few minutes, Ms. Heeter announced herself and walked out of the house onto the front porch. She told the officers that the couple's three children along with her niece (twenty-six-year-old Brittany) were upstairs and in the basement of the home. She also confirmed to the officers that Mr. Heeter was still sitting at the dining table alone and said he "would put the gun up if you guys just leave." Redding Footage, 2:45-3:15. Officer Bowers responded, "We can't take that chance—we're going home tonight, okay?" Id.

After Ms. Heeter walked out to the street, Sergeant Redding and Officers Bowers, Bruce, and Gibson approached the front door of the home, through which they could see Mr. Heeter seated at the dining table and smoking a cigarette. A handful of officers, including Gibson and Bruce, clustered with Bowers by the front door. Sergeant Redding stationed himself near a window on the porch where he could see Mr. Heeter more fully, and from there he relayed his view of Mr. Heeter to the officers at the front door. He relayed that Mr. Heeter had a gun in his right hand pointed down at the floor. The officers repeatedly ordered Mr. Heeter to drop his gun and exit the house with his hands up so they could get him help. Mr. Heeter occasionally responded by asking the officers to leave and telling them he'd put his gun away if they did.

After several minutes, Mr. Heeter stood up from the table and moved into the corner. In response to this movement, Sergeant Redding ordered Mr. Heeter again to put the gun down and come outside, warning him that he would be shot if he aimed his gun at the officers. Sergeant Redding then relayed to the other officers that Mr. Heeter had put his gun on the table and said, "You guys ready? We're gonna move in and take him before he gets that." Bruce Footage at 9:45-10:10.

Officers Bowers, Bruce, and Gibson then walked quickly into the home with weapons drawn, stopping so they stood in the archway to the dining room. Officer Bowers stood with his rifle aimed at Mr. Heeter. Sergeant Redding and a handful of other officers followed and stood behind. Mr. Heeter side-stepped so he better faced the officers. The officers in the archway tried for about a minute to persuade Mr. Heeter to drop his gun and raise his hands. Mr. Heeter stood still with his hands in his pockets.

Mr. Heeter largely remained silent as the officers instructed him several times to walk away from the table with his hands up. After some time, Mr. Heeter said, "You know, you guys are really starting to piss me off." Redding Footage at 10:45-10:50. An officer responded, "Just show us your hands, we'll get you some help." Id. at 10:50-11:11. Mr. Heeter replied, "I don't want no help . . . I just want you guys to just go out, I'll put my gun up, and I won't touch it no more." Id. One officer responded, "No, it doesn't work that way, Bill," and another chimed in, expressing that they did not want anyone to get hurt. Id. Mr. Heeter stood with his hands in his pockets for the entirety of this exchange.

The bodycam footage of the moments that followed is partially obscured—we can see the left side of Mr. Heeter's body, including his left hand. And while Sergeant Redding told the officers he saw Mr. Heeter put his gun onto the table, the video does not definitively resolve where the gun was: the Heeters' two black cats and other scattered objects obscure a clear view of the table.

We can see from...