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Reich v. City of Elizabethtown

United States Court of Appeals, Sixth Circuit

December 19, 2019

Amanda N. Reich; Elise Davidson, Successor Administratrix of Estate of Joshua Steven Blough, Plaintiffs-Appellants,
City of Elizabethtown, Kentucky; Matthew McMillen; Scot Richardson, Defendants-Appellees.

          Argued: July 31, 2019

          Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 3:16-cv-00429-Rebecca Grady Jennings, District Judge.


          Robert L. Astorino, Jr., STEIN WHATLEY ATTORNEYS, PLLC, Louisville, Kentucky, for Appellants.

          Jason B. Bell, BELL, HESS & VAN ZANT, PLC, Elizabethtown, Kentucky, for Appellees.

         ON BRIEF:

          Robert L. Astorino, Jr., Matthew W. Stein, STEIN WHATLEY ATTORNEYS, PLLC, Louisville, Kentucky, for Appellants.

          Jason B. Bell, BELL, HESS & VAN ZANT, PLC, Elizabethtown, Kentucky, D. Dee Shaw, Elizabethtown, Kentucky, for Appellees.

          Before: MOORE, COOK, and THAPAR, Circuit Judges.



         En route to a mental health treatment facility, Joshua Blough got out of his fiancée's vehicle holding his knife, walked through traffic, and wandered into a residential neighborhood. When he ignored his fiancée's repeated pleas to get back in the car, police officers intervened. After he refused commands to drop the knife, the officers fired three shots, killing Blough. His fiancée and his estate sued under federal and state law, claiming that the officers used excessive force by shooting Blough. Because the officers' use of deadly force was objectively reasonable under the Fourth Amendment, we hold that qualified immunity shields the officers and AFFIRM the grant of summary judgment.


         On July 6, 2015, Joshua Blough sought help at a Communicare mental health facility in Leitchfield, Kentucky. During his evaluation, he reported having auditory hallucinations (thinking television shows were talking to him) and paranoia. He told evaluating staff that he'd stopped taking his prescribed schizophrenia medication about four months earlier. Blough also reported three suicide attempts in the past two weeks, most recently five days earlier, but denied current suicidal ideation. A Communicare therapist recommended psychiatric hospitalization and arranged for Blough to voluntarily admit himself at a mental health facility nearby the next day.

         In the morning, Blough's fiancée, Amanda Reich, began the drive to the facility. Blough sat in the passenger seat and Reich, who had accompanied Blough to Communicare the previous day, took the wheel. About halfway into the trip, Blough saw a Kentucky State Police vehicle stopped on the side of the road. High on methamphetamine, Blough became "really upset" and started hallucinating, remarking that "there were police officers everywhere." Hoping a different road might calm Blough, Reich exited to take the highway.

         When they later stopped at a traffic light, Blough pulled out his three-inch knife, opened the blade, and jumped out of the car. Though they had not seen any other police officers, Blough climbed out and told Reich, "I'm not gonna let anybody hurt you but I'm not gonna let anybody hurt me either." Reich replied that there were no police around, and that Blough needed to get back in the car so he could get help. Blough complied but left the knife-blade open and locked-on his lap.

         When they stopped at another red light, without a word, Blough got out of the car with the knife. And this time he would not get back in. Blough took off on foot through traffic and walked to an empty field behind a residential neighborhood. Reich said that "it was like when he was walking he wasn't even acknowledging any cars coming by or nothing." Unable to "do anything with him," Reich dialed 911. She worried that, because Blough had a knife, "somebody else would get the wrong idea and call in thinking that [Blough] was a threat to someone and that he would end up getting shot."

         Reich told the dispatcher that Blough had "schizophrenia real bad," had not been taking his medication, had a knife, and thought "everybody [was] out to get him." The dispatcher relayed that information by radio to the Elizabethtown Police Department; Officer McMillen heard the message and responded. The dispatcher then connected Reich directly to Officer McMillen, who arrived at the scene "three or four minutes" later to conduct a welfare check. During that short window of time, Reich herself got out of the car and asked Blough to get back in and put down the knife, but he refused.

         With Officer McMillen now at the scene, Reich told him the information she shared with the dispatcher. Reich let the officer know that she thought it would be better if she "could handle it on [her] own," that Blough did not like the police, and that a Kentucky State Police officer shot him a few years ago. Officer McMillen agreed to let Reich try to get Blough back in the car and explained that, given Blough's paranoid state, "he could perceive [officers] as a threat and act upon it, especially if he's armed with a knife." He told Reich that police were "not going to actively search for [Blough]" and returned to his car.

         Once there, Officer McMillen advised dispatch of his discussion, including that officers should not actively look for Blough because "if [they] . . . did find him, there was a potential for it to go bad." He then drove away to make sure Blough had not entered the roadway. Around that time, Officer Richardson, from his car in a church parking lot, saw Blough-now in the neighborhood-"acting bizarre." He had his shirt off, pacing between houses, carrying something in his hand. Officer Richardson radioed Officer McMillen, who informed him that Blough had a knife. Officer McMillen then circled back toward the scene.

         Now alone, Reich pulled into the subdivision and set out on foot to go reason with Blough. As she approached him, however, she realized that he "must have seen the police . . . talking to [her]" and "thought that [she] was involved in trying to get him hurt, too." He again refused to return to the vehicle or put the knife down. Reich walked back to her car "to pull it up and park," and saw the police coming down the road. When the officers pulled up (no lights or sirens), Reich requested another chance to get Blough to put down the knife-neither officer responded, but neither tried to stop her. Blough then began walking toward the group.

         Reich approached Blough for a second time, now in a neighbor's front yard. She asked him the same two questions for "probably" the tenth time, and he gave the same answer to each: no. At that point, the officers had stepped out of their cars and "were just standing by" near their vehicles, which were parked on the neighborhood street in front of single-family homes. They then "told [Reich] to get out of the way."

         According to Reich, the officers next ordered Blough "to put the knife down" in a "very firm, loud tone." In response, Blough "took a step forward toward them" with his knife raised in his right hand in a stabbing position. And-again according to Reich-before or after this step, Blough told one of the officers, "you're gonna have to kill me mother ****er." Reich says Blough then "turned around" and took "one or two steps" before the officers fired.

         Both officers and three independent eyewitnesses disagree that Blough turned around. They all say that, at the time the officers fired, Blough was walking at a fast pace toward Officer Richardson; all but one stated that Blough had the knife in his right hand. See R. 61-14, Richardson Depo., PageID 4600; R. 61-11, McMillen Depo., PageID 2372, 2384-85; R. 55-11, PageID 823; R. 55-14, PageID 829; R. 55-17, PageID 839.[1] As for Reich, she testified that she did not remember whether Blough "ever raised his arm with his knife in it towards the officers."

         Officer Richardson fired two shots in rapid succession and Officer McMillen fired once; two of those three shots hit Blough, who fell face down in the grass. Both officers administered first aid, but Blough died shortly after.

         Reich and the administratrix of Blough's estate brought this suit under 42 U.S.C. § 1983 against the City of Elizabethtown and both officers, [2] alleging Fourth and Eighth Amendment violations, along with various state tort claims. After discovery concluded in February 2018, the City and officers moved for summary judgment. Plaintiffs filed a response that included an affidavit from Reich attesting-unlike her deposition-to the distance between Blough and the officers when they fired. The district court disregarded the affidavit and granted summary judgment for defendants, holding that qualified immunity shielded them from liability. This appeal followed.


         We review de novo a district court's grant of summary judgment on qualified immunity grounds. Burgess v. Fischer, 735 F.3d 462, 471 (6th Cir. 2013). A court must grant summary judgment if the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). When the movant carries this burden, the burden shifts to the opposing party, who must come forward with "specific facts showing that there is a genuine issue for trial." Haddad v. Gregg, 910 F.3d 237, 243 (6th Cir. 2018). No genuine issue exists when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Courts "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).


         A. Reich's Affidavit

         We start with Reich's affidavit. We review a court's "refusal to consider an affidavit filed as an appendix to a motion in opposition of a motion for summary judgment for an abuse of discretion." Myers v. Huron Cty., 307 Fed.Appx. 917, 918 (6th Cir. 2009); Briggs v. Potter, 463 F.3d 507, 511 (6th Cir. 2006). The district court declined to consider Reich's affidavit, filed with her response to the defendants' motion for summary judgment (more than two months after discovery closed), because it contradicted her sworn deposition testimony. Reich sees it differently, arguing her affidavit actually closely mirrors her deposition testimony and simply clarifies issues that she could not answer precisely. On this record, we cannot say that the district court abused its discretion in assessing the two as contradictory.

         "A party may not create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts her earlier deposition testimony." Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986). At summary judgment, to evaluate a post-deposition affidavit's admissibility, we ask first whether the affidavit "directly contradicts the nonmoving party's prior sworn testimony." Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 908 (6th Cir. 2006). If so, absent a persuasive justification for the contradiction, the court should not consider the affidavit. Id. But if no direct contradiction exists, "the district court should not strike or disregard th[e] affidavit unless the court determines that the affidavit 'constitutes an attempt to create a sham fact issue.'" Id. (quoting Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986)).

         Our precedents suggest "a relatively narrow definition of contradiction." Briggs, 463 F.3d at 513. If a party "was not directly questioned about an issue," a later affidavit on that issue simply "fills a gap left open by the moving party." Aerel, 448 F.3d at 907. After all, deponents have no obligation to volunteer information the questioner fails to seek. Id.; see Briggs, 463 F.3d at 513 (holding that a party has no obligation to volunteer the content of a conversation when deponent "was not expressly asked" what another said to him). But a deponent may not "duck her deposition" or "hold her cards in anticipation of a later advantage." Powell-Pickett v. A.K. Steel Corp., 549 Fed.Appx. 347, 353 (6th Cir. 2013). Where a deponent is "asked specific questions about, yet denie[s] knowledge of, the material aspects of her case, the material allegations in her affidavit directly contradict her deposition." Id.; see Biechele v. Cedar Point, Inc., 747 F.2d 209, 215 (6th Cir. 1984) (citation omitted) ("If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.").

         At her deposition, when first asked if she could estimate the distance between the officers and Blough, Reich responded that she could not-"[I]'m not sure . . . . I don't want to guess about it." R. 55-5, PageID 614. But she later guessed that Blough "was probably 20 feet [away] when he took a step toward them." Id. After more probing about the distances, Reich's attorney intervened, telling Reich that "if [she] fe[lt] comfortable with the distances" she could testify to that, but that she should not guess. Id., PageID 615. Reich then gave her final answer: "Yeah, I don't feel comfortable with the -- the estimated length of -- you know, I don't feel comfortable with it. Because it's been a long time and I just don't feel comfortable with estimating on that." Id. And the exchange ended with a definitive answer from Reich, removing any doubt as to her testimony on the issue:

Q: So your testimony is you have no idea how far [Blough] was from the officers when he was shot.
A: Right. But he was far enough that he wasn't a threat to them.
Q: Okay. But you have no idea how far he was when he was shot.
A: No.


         Almost a year to the day later, Reich's affidavit swore something different. She asserted that once she returned to the scene of the shooting in April 2018-over two months after discovery closed-she accurately recalled where all four stood when the officers fired on Blough. So nearly three years after the shooting she measured and recorded the distances between them. She placed the distance between Blough and Officer Richardson-who fired the first shot-at just over twenty-five feet. Her measurements put Officer McMillen over thirty-six feet away from Blough. And she placed herself thirty-four-and-a-half feet from him.

         Reich's affidavit plainly contradicts her deposition testimony. Counsel asked several times for her recollection regarding the distance between Blough and the officers. In the face of this direct and thorough questioning, Reich said that she did not know. Her affidavit, asserting that she does know, therefore contradicts. Powell-Pickett, 549 Fed.Appx. at 353; see Reid, 790 F.2d at 459-460 ("If such a statement had been made, she was required to bring it out at the deposition[.]"); Myers v. Huron Cty., No. 3:06CV3117, 2008 WL 271657, at *2 n.2 (N.D. Ohio Jan. 31, 2008) (holding that a post-deposition affidavit's new assertions, filed after the close of discovery should not be considered in deciding a motion for summary judgment), aff'd, 307 Fed.Appx. 917 (6th Cir. 2009). Reich offered no persuasive justification for this contradiction, so the district court disregarded it.

         Even generously viewing this affidavit as noncontradictory, Reich makes no real attempt to argue that she filed her affidavit to supplement or clarify her deposition testimony-in other words, that it should not be viewed as "an attempt to create a sham fact issue." Aerel, 448 F.3d at 908. All other signs point the same direction; Reich made no attempt to clarify or qualify her answers on this issue at her deposition when questioned by her own attorney, had access to the scene before (and after) her deposition testimony, and did not claim that her earlier testimony reflected confusion about the questions asked. See id. at 908-09 (citing these three factors as "[a] useful starting point for this inquiry"). In fact, her affidavit concedes that she "returned to the scene of the incident with [her attorney] to . . . respond to [defendants'] motion for summary judgment." R. 61-15, PageID 2565; see Lanier v. Bryant, 332 F.3d 999, 1004 (6th Cir. 2003).

         As for the dissent, it grounds its disagreement on Reich's not having access to the site during her deposition, and on the evidence therefore being "newly discovered." Not knowing the distances before her deposition, is one thing. But not using the many months between that deposition date and the end of the discovery period to visit the site, take measurements, and amend her testimony is quite another. Rather, she waited until after discovery closed and she could no longer be deposed to offer her revised view. This timing supports evaluating the evidence as "newly discovered" only in the sense that she refused to "discover" it earlier.

         We see no abuse of discretion in the district court so deciding.

         B. Excessive Force

         Reich argues the officers violated the Fourth Amendment in shooting Blough.[3] The officers assert the affirmative defense of qualified immunity. The district court held ...

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