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
from the United States District Court for the Western
District of Kentucky at Louisville. No. 3:16-cv-00429-Rebecca
Grady Jennings, District Judge.
L. Astorino, Jr., STEIN WHATLEY ATTORNEYS, PLLC, Louisville,
Kentucky, for Appellants.
B. Bell, BELL, HESS & VAN ZANT, PLC, Elizabethtown,
Kentucky, for Appellees.
L. Astorino, Jr., Matthew W. Stein, STEIN WHATLEY ATTORNEYS,
PLLC, Louisville, Kentucky, for Appellants.
B. Bell, BELL, HESS & VAN ZANT, PLC, Elizabethtown,
Kentucky, D. Dee Shaw, Elizabethtown, Kentucky, for
Before: MOORE, COOK, and THAPAR, Circuit Judges.
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.
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.
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
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.
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
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.
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.
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.
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.
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."
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.
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. As for Reich, she testified that she did
not remember whether Blough "ever raised his arm with
his knife in it towards the officers."
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.
and the administratrix of Blough's estate brought this
suit under 42 U.S.C. § 1983 against the City of
Elizabethtown and both officers,  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.
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).
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.
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)).
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.").
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
Q: Okay. But you have no idea how far he was when he was
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.
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.
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).
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.
no abuse of discretion in the district court so deciding.
argues the officers violated the Fourth Amendment in shooting
Blough. The officers assert the affirmative
defense of qualified immunity. The district court held ...