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DICKERSON v. MCCLELLAN

February 17, 1994

CHAD TIMOTHY DICKERSON and DEON DENAY DICKERSON, a minor, by and through her mother and legal guardian, SHARON DALE STEPHENS, Plaintiffs,
v.
CORY D. McCLELLAN and CHARLES L. (LONNIE) STEVENS, individually and in their official capacities as police officers for the METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE and the TENNESSEE and the METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, Defendants.



The opinion of the court was delivered by: THOMAS A. WISEMAN, JR.

 Before the court is the question of whether a district court may certify an interlocutory appeal under Mitchell v. Forsyth, 472 U.S. 511, 530, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985), as frivolous and thereby retain jurisdiction to proceed to trial. This court, answering that question in the affirmative, is then presented with the question of what standard to apply to determine frivolousness. The appropriate standard is taken to be whether disputes clearly exist with regard to material facts on which the qualified immunity defense is based or whether, on the undisputed facts, qualified immunity is clearly unjustified. Applying this standard to the case at hand, the defendants' interlocutory appeal is found to be frivolous.

 I

 The underlying facts of this case have been previously detailed. See this court's Mem. of Jan. 12, 1994, at 1-3. Briefly stated, early in the morning on February 1, 1992, Officer Cory D. McClellan and Sergeant Charles L. Stevens (the "officers" or the "officer defendants") responded to a "shots fired" call on Harlin Drive in Nashville. On arrival at the general vicinity of the supposed shots, the officer defendants were directed to the home of Mr. Joel William Dickerson. The officers entered the porch area of Mr. Dickerson's home and heard a loud voice coming from the back of the house. Finding the primary door to the residence open and the storm door closed but unlocked, the officers entered Mr. Dickerson's home without knocking or announcing their presence. The officers had heard no shots coming from Mr. Dickerson's home and had no specific information that anyone was inside being held at bay.

 Mr. Dickerson apparently heard the entry of someone into his home and headed toward the front door, carrying a pistol according to the officers. Hearing Mr. Dickerson coming their way, Officer McClellan retreated out the front door and Sergeant Stevens took up a position which placed him behind Mr. Dickerson as he passed. The officers stated that Mr. Dickerson muttered threatening words and then aimed a gun at Officer McClellan, at which point the officers began firing at Mr. Dickerson. A witness across the street stated that she never saw Mr. Dickerson aim a gun at Officer McClellan before the officers' volley of shots began. In all, Mr. Dickerson suffered nine gunshot wounds, from which he died. No command or warning was given to Mr. Dickerson before the firing began, no verbal identification of the officers was made, and it is unclear whether Mr. Dickerson was able to identify the police officers visually.

 On January, 28, 1993, the children of Mr. Dickerson filed a lawsuit against the officer defendants and the Metropolitan Police Department and Government of Nashville and Davidson County. Among plaintiffs' claims was a cause of action under 42 U.S.C. § 1983 alleging that the officer defendants had violated Mr. Dickerson's Fourth Amendment rights. The officer defendants filed a motion for summary judgment, claiming among other things that qualified immunity protected their actions from suit.

 On January 12, 1994, this motion was denied. Two conclusions precluded granting qualified immunity. First, the actions of the officers in entering the home of Mr. Dickerson were objectively unreasonable in light of the clearly established law regarding the knock and announce rule and its exceptions. Second, material factual disputes existed regarding the reasonableness of using lethal force against Mr. Dickerson. In the order denying qualified immunity, the court granted permission to the officer defendants to seek an interlocutory appeal under Mitchell v. Forsyth, 472 U.S. 511, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985), if they so chose. The officer defendants promptly filed a notice of appeal. Plaintiffs responded with a motion to certify this appeal as frivolous. A hearing on this motion was held on February 14, 1994.

  II

 Plaintiffs' motion raises two questions: (1) Within the Sixth Circuit, may a district court certify a Forsyth appeal as frivolous and thereby retain jurisdiction over the case? (2) If so, what is the standard for determining the frivolousness of such an appeal?

 The first question has been clearly answered by the Sixth Circuit; the second question has not.

 A. Power to Certify a Forsyth Appeal as Frivolous

 In 1985, the Supreme Court ruled that "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). When such a "Forsyth appeal" is taken, the district court is divested of jurisdiction and proceedings are stayed pending a decision by the appellate court. See Stewart v. Donges, 915 F.2d 572, 576 (10th Cir. 1990); Apostol v. Gallion, 870 F.2d 1335, 1338 (7th Cir. 1989).

 In 1986, the Sixth Circuit ruled that Forsyth appeals are "subject to the same rules of waiver and procedural default as have been traditionally applied to other cases." Kennedy v. City of Cleveland, 797 F.2d 297, 300 (6th Cir. 1986), cert. denied, 479 U.S. 1103 (1987). The impetus behind this ruling was the realization that Forsyth appeals "are of course subject to abuse. Even when employed in good faith, [such appeals] are bound to create delay and inconvenience both to the plaintiff and to the court." Id.1 Accordingly, a district court may impose reasonable time limits within which a qualified immunity defense must be asserted and denial thereof appealed. See id. at 300-01. "The quid pro quo is obvious: in exchange for the defendant's right to interrupt the judicial process, the court may expect a reasonable modicum of diligence in the exercise of that right." Id. at 301.

 In 1989, the Seventh Circuit ruled that a district court retains jurisdiction over a § 1983 case when a Forsyth appeal is frivolous. Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989). The Seventh Circuit, like the Sixth Circuit in Kennedy, was moved to this action by the potential for abuse and needless delay inherent in the Forsyth doctrine. See id. at 1338-39. The Apostol court urged district courts not to sit idly by as a frivolous appeal goes up, but rather to "certify to the court of appeals that the appeal is frivolous and get on with the trial." Id. at 1339. This ...


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