Bertha Boyd v. Matthew Baeppler; David Wilsman

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0188P (6th Cir.)
File Name: 00a0188p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
BERTHA BOYD ,
Plaintiff-Appellee,
v.
M ATTHEW BAEPPLER; DAVID
W ILSMAN ,
Defendants-Appellants.
;>

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No. 99-3234
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 98-00047—Paul R. Matia, Chief District Judge.
Argued: February 4, 2000
Decided and Filed: June 6, 2000
Before: WELLFORD, BATCHELDER, and
DAUGHTREY, Circuit Judges.
_________________
COUNSEL
ARGUED: Thomas J. Kaiser, CITY OF CLEVELAND
LAW DEPARTMENT, OFFICE OF DIRECTOR OF LAW,
Cleveland, Ohio, for Appellants. Jaye M. Schlachet,
Cleveland, Ohio, for Appellee. ON BRIEF: Jennifer Sorce,
ASSISTANT DIRECTOR OF LAW, Cleveland, Ohio, for

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2 Boyd v. Baeppler, et al. No. 99-3234
Appellants. Jaye M. Schlachet, Cleveland, Ohio, for
Appellee.
WELLFORD, J., delivered the opinion of the court, in
which BATCHELDER, J., joined. DAUGHTREY, J.
(pp. 19-22), delivered a separate dissenting opinion.
_________________
OPINION
_________________
HARRY W. WELLFORD, Circuit Judge. Plaintiff Bertha
Boyd, administratrix of the estate of decedent Adolph Boyd,
Jr. (“Boyd”), filed a 42 U.S.C. § 1983 action against
Cleveland police officers Matthew Baeppler and David
Wilsman, police chief Rocco Pollutro, and the City of
Cleveland, asserting constitutional claims arising out of the
shooting death of Boyd. The case was removed from state
court to the federal district court. Subsequently, defendants
moved for summary judgment, which plaintiff opposed. The
district court denied defendants’ motion for summary
judgment with respect to officers Baeppler and Wilsman and
reserved judgment as to defendants Pollutro and the City of
Cleveland, concluding that:
Based upon the evidence presented by plaintiff, the Court
finds that genuine issues of fact exist as to whether the
amount of force used by the offices was justified.
. . . A genuine issue of fact exists as to whether it was
objectively reasonable to use deadly force where (1) a
suspect is running away from the officers in an attempt to
escape; (2) the officers did not witness the suspect fire
the weapon; and (3) no verified proof exists as to
whether the suspect committed a crime.
Defendants had moved for judgment on the accompanying
state law claims and the district court indicated that it would
not decide the state claims on their merits but would dismiss

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22 Boyd v. Baeppler, et al. No. 99-3234
this court of a panel “arrogating unto itself the role of
resolving on appeal the factual disputes presented by a
qualified immunity defense in a § 1983 action.” Scott v. Clay
County, 205 F.3d 867, 881 (6th Cir. 2000) (Clay, J.,
dissenting) (citing Claybrook v. Birchwell, 199 F.3d 350, 359-
60 (6th Cir. 2000)). Because I believe that the record
supports the district court’s conclusion that genuine disputes
remain regarding whether the defendants’ conduct was
reasonable, I therefore dissent.
No. 99-3234 Boyd v. Baeppler, et al. 3
them without prejudice “upon the resolution of the federal
claims.”
I. JURISDICTION
Regarding this court’s jurisdiction over an interlocutory
appeal from a denial of summary judgment based on qualified
immunity, we recently stated:
A district court’s order denying summary judgment that
is based on qualified immunity and turns on an issue of
law is immediately appealable as a final judgment under
the collateral order doctrine. However, as this court has
previously explained, “[u]nder the doctrine of Johnson v.
Jones, [515 U.S. 304 (1995),] this court cannot review on
interlocutory appeal a district court’s determination that
a genuine issue of fact exists for trial, but we retain
jurisdiction over the legal question of qualified
immunity, i.e., whether a given set of facts violates
clearly established law.” We review de novo the district
court’s denial of qualified immunity.
Hoard v. Sizemore, 198 F.3d 205, 211 (6th Cir. 1999)
(citations omitted). Plaintiff contends we lack jurisdiction,
because the district court denied summary judgment to
defendants on qualified immunity upon finding “that genuine
issues of fact exist” as to the use of deadly force. Defendants
argue, however, that the “genuine issues of fact, found by the
district court are not genuine and material, and that this appeal
presents purely legal questions based on essentially
uncontroverted material facts.” Specifically, defendants
assert that the district court:
erroneously applied a fleeing felon analysis, and
misidentified the governmental interest at stake in this
self defense case. The facts cited by the District Court as
precluding summary judgment under its erroneous
analysis are not relevant to a self defense inquiry, where
the government interests at stake are the lives of police
officers. In this regard, Appellants [defendants] do not
dispute the facts identified by the District Court as the

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4 Boyd v. Baeppler, et al. No. 99-3234
basis for the denial of summary judgment because those
facts are not material to the relevant qualified immunity
issues in this case.
We agree, and therefore, as we shall explain, we believe
that the district court’s assertion that there were genuine issue
of material fact does not destroy the appealability of its
qualified immunity ruling under the circumstances set forth.
Denial of summary judgment often includes a
determination that there are controverted issues of
material fact . . . and Johnson surely does not mean that
every such denial of summary judgment is
nonappealable.
* * * * * *
Johnson permits petitioner to claim on appeal that all of
the conduct which the District Court deemed sufficiently
supported for purposes of summary judgment met the
Harlow [v. Fitzgerald, 457 U.S. 800 (1982)] standard of
“objective legal reasonableness.”
Turner v. Scott, 119 F.3d 425, 428 (6th Cir. 1997) (quoting
Behrens v. Pelletier, 516 U.S. 299, 312, 313 (1996). We
determined in Turner that we had jurisdiction over purely
legal questions despite a district court’s order stating that
genuine issues of material fact existed; “[i]f it were otherwise
a district court could always insulate its qualified immunity
rulings from interlocutory review by mouthing the appropriate
shibboleth.” 199 F.3d at 428. Defendants assert that
“whether Boyd had committed a crime, fired shots, or was
running away are irrelevant to the reasonableness of both
Officer Wilsman’s and Office Baeppler’s reactions to the
threats with which they were faced.” Again, we agree. The
issues in this case are whether Boyd posed a threat to officers
Wilsman and Baeppler and, if so, whether their use of force
in response was reasonable. The district court made no
finding that there remained in dispute facts material to those
issues. Nonetheless, we will review the record to decide
No. 99-3234 Boyd v. Baeppler, et al. 21
autopsy, that, even while paralyzed, Boyd was “still fully able
to move his upper extremities, including his head, arms, and
torso.” The plaintiff challenges this assertion with the expert
testimony of Dr. Howard Tucker, whose reading of the
autopsy report supported his conclusion that scapular muscles
on both sides of Boyd’s body and both Boyd’s arms were hit
by bullets, and thus “impaired from a functional standpoint.”
Tucker admittedly did not know if these wounds were caused
by either Wilsman’s or Baeppler’s shots, but stated that even
without the wounds to Boyd’s arms and scapulae “there was
severe impairment of ability to turn and with medical
probability Mr. Boyd could not assume a defined posture
which would signal his intent and capability to return fire”
from his prone position.
The majority dismisses Dr. Tucker’s testimony as based on
mere probabilities, and any conclusions a jury might reach
from it as mere speculation. In so doing, the majority again
makes a determination as to which evidence it finds most
credible, and thus again wrongfully assumes the role of
factfinder. To my mind, this is a classic battle of the medical
experts, the outcome of which we must leave to the jury to
decide at trial. Doctors Challener and Tucker, working from
the same medical data, reach contrary results as to Adolph
Boyd’s ability to even appear to aim a gun at the defendants
from his prone position. In this case, it should be the task of
the jury, and not this court, to weigh the testimony of the
medical experts and determine which is more credible, and
thus decide if Boyd could have presented a risk to the officers
making each of Baeppler’s last shots, from the first to the
seventh, objectively reasonable. Cf. Russo v. City of
Cincinnati, 953 F.2d 1036, 1047 (6th Cir. 1992) (stating, in
context of qualified immunity defense to § 1983 failure to
train claim, that “we do not believe the opinions of experts are
to be given no weight . . . . [r]eliance on expert testimony is
particularly appropriate where, as here, the conclusions rest
directly upon the expert’s review of materials provided by the
City itself”).
Today the majority holds otherwise, and its decision
continues the unfortunate trend noted by other members of

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20 Boyd v. Baeppler, et al. No. 99-3234
brandish a weapon during their meeting. Were Boyd alive to
supplement the trace evidence with his version of events, I
imagine we would be more likely to find genuine issues of
material fact as to whether any use of deadly force by either
Wilsman or Baeppler was objectively reasonable.
Even were I to join my colleagues in assuming the truth of
the defendants’ version of their initial interaction with Adolph
Boyd, I could not join their reversal of the district court’s
decision as to officer Baeppler. I reach this conclusion after
reviewing carefully the sequence of the alleged series of
interactions between Boyd and the officers. According to the
defendants, as Boyd approached them officer Baeppler
ordered him to freeze; instead of stopping, however, Boyd ran
across Buckeye Road and into a driveway. While Boyd ran,
he pointed his gun at Baeppler, who then fired three or four
rounds of ammunition at Boyd. Boyd continued running
away from the officers and then brought his right arm and
hand across his chest and under his left armpit and pointed his
weapon at Wilsman. Wilsman then fired one round of
ammunition from his shotgun, which caused Boyd to fall to
the ground. The autopsy report on Boyd’s death stated that
one pellet from this shotgun blast lodged at Adolph Boyd’s
T9 vertebrae; according to Cuyahoga County coroner Dr.
Robert Challener, this pellet caused immedate paralysis of
Boyd’s lower extremities.
The defendants then claim that, after Boyd fell with his
stomach and face to the ground and while the officers
approached him, Boyd pulled his upper torso up from the
ground and brought his right hand, still holding the weapon,
across his shoulders and pointed it at Officer Wilsman,
twisting to the left to do so. At that point, Officer Baeppler
fired his weapon at Boyd seven more times until Boyd finally
fully collapsed.
Defendant Baeppler claims that Boyd’s continued
movement while paralyzed on the ground, including the
twisting of his upper torso and continued display of his
firearm, made shooting Boyd seven times an objectively
reasonable use of force in self defense. Baeppler supports this
assertion with Dr. Challener’s testimony, based on the
No. 99-3234 Boyd v. Baeppler, et al. 5
1A later police check of that area’s “curb, gutter, and sidewalk for
possible shell casing” met with negative results. A street sweeper did go
up Buckeye Road right after this incident and may have destroyed any
evidence that was in the street at this location.
whether, as plaintiff maintains, we lack jurisdiction under the
district court’s decision, or otherwise, as defendants assert.
Witness, Steve J. Arvai, submitted an affidavit stating that
on April 14, 1997, around 11:10 or 11:15 p.m., he heard a
gunshot from his home and looked out the window and saw
a black male armed and walking west on Buckeye near East
122nd. Arvai stated that the male was about six feet tall,
wore a dark blue jacket, blue jeans and white tennis shoes and
appeared to be holding a dark colored automatic. Arvai added
that he saw the man point the gun at three people outside of
Wendy’s but that he then lost sight of him.1 In any event,
Arvai promptly called the police operator and reported his
observations. This evidence was undisputed.
Defendant police officers Baeppler and Wilsman submitted
affidavits to the effect that on the night in question, they were
on duty together, Baeppler driving the police car, and that
shortly after Arvai’s call, they were called to respond to a
“Code One” emergency radio dispatch which indicated that
there was a male with a gun in the area of East 120th and
Buckeye Road, who met the general description given by
Arvai. Defendants proceeded to the area and Wilsman
notified radio headquarters of their arrival. As they
approached East 119th and Buckeye, Baeppler and Wilsman
“heard a broadcast from Officer Zbikowski that he had just
seen the male, that the male was armed with a gun, and that
the male was running towards us.”
There is no dispute but that this was the information
furnished these two defendant officers: a dangerous and
emergency situation on Cleveland public streets at a time near
midnight involving an armed man who had reportedly fired
shots, potentially endangering others in the area.

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6 Boyd v. Baeppler, et al. No. 99-3234
Baeppler and Wilsman testified that they then saw Boyd,
who sufficiently met the description given them and was in
the immediate area reported, running toward them with a gun
in hand. Baeppler stopped the marked police car in the
intersection of Buckeye Road and East 119th Street, and both
exited with their weapons drawn, Wilsman with a shotgun.
Both officers testified that they ordered Boyd to stop and
identified themselves as police, although it seems clear to us
that this should have been obvious to anyone present at the
time.
Cleveland police officers Zbikowski and Nabowski, who
also arrived on the scene pursuant to the police broadcast,
testified that at Buckeye and East 120th Street they saw a
person matching the description given of the suspect walking
west on Buckeye and into a parking lot and that he was armed
with a gun. Zbikowski added that the suspect ran down
Buckeye and that he reported his information on his car radio.
Both of these officers also drew their weapons when they
observed the suspect at close range.
Boyd did not stop, as ordered, nor did he drop the gun
which had been observed in his hand by a disinterested
witness and by four different police officers at close range.
We do not deem it to be a genuine issue of disputed fact that
Boyd was the suspect so observed and that he was armed. We
therefore do not give credence to Boyd’s counsel’s contention
that since forensic testing after Boyd’s death was either
inconclusive or negative as to whether Boyd had held or fired
a weapon, a genuine issue remained regarding whether Boyd
had carried, pointed, or fired the gun that five persons
testified that he held in his hand when they observed him that
No. 99-3234 Boyd v. Baeppler, et al. 19
________________
DISSENT
________________
MARTHA CRAIG DAUGHTREY, Circuit Judge,
dissenting. The majority awards summary judgment to
officers Baeppler and Wilsman because it finds, as a matter of
law, that Adolph Boyd posed a threat to their safety that made
the use of deadly force objectively reasonable. In so doing,
the majority discounts the plaintiff’s evidence suggesting the
existence of genuine issues of material fact that should, under
Johnson v. Jones, 515 U.S. 304 (1995), preclude our assertion
of jurisdiction here. Because I believe that our court lacks
jurisdiction to decide this appeal, at the very least as to
defendant Baeppler, and therefore that our decision today
preempts the jury’s role in deciding the sufficiency of the
plaintiff’s evidence, see Behrens v. Pelletier, 516 U.S. 299,
313 (1996), I must respectfully dissent.
In some sense, the majority’s analysis of the immediate
circumstances of Adolph Boyd’s death necessarily makes a
determination as to the credibility of Baeppler and Wilsman,
the only surviving eyewitnesses to the events, something the
law of this court forbids us to do while deciding a summary
judgment motion. See, e.g., Cain v. Nesbitt, 156 F.3d 669,
672 (6th Cir. 1998). The majority accepts the officers’
rendition of their interactions with Boyd as fact: that Boyd
ran toward them and then away from them, that he was
carrying a gun while he ran, and that he pointed the gun
towards them while running. Adolph Boyd is, of course,
unable to contest the truth of these highlighted facts; the
plaintiff here, Bertha Boyd, presents an alternate scenario, one
that necessarily lacks the specificity Adolph’s testimony
would have lent his case. The plaintiff’s counternarrative
clearly states one fact, however: that Adolph Boyd was not
carrying a gun. She supports this assertion with trace
evidence collected by the Cuyahoga County Coroner’s Office
that is inconsistent with his carrying a gun the night of
April 14. No one other than the defendants saw Adolph

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18 Boyd v. Baeppler, et al. No. 99-3234
plaintiff’s version of events. There was no conflict of expert
witnesses in Adams. In a comparable qualified immunity
situation, we stated:
At the summary judgment stage, whether the legal
violation alleged was clearly established at the time of
the incident, as well as whether a genuine issue of
material fact exists as to whether the alleged violation
occurred, are questions of law for the court.
Russo v. City of Cincinnati, 953 F.2d 1036, 1043 (6th Cir.
1992) (citing Dominque v. Telb, 831 F.2d 673, 677 (6th Cir.
1987)).
Behrens v. Pelletier, 516 U.S. 299 (1996), also cited by the
dissent, is certainly not controlling in this case. Behrens
stands for the proposition that defendants asserting the
defense of qualified immunity are not limited to one
interlocutory appeal. See id. We simply do not have that
issue in this case. Unlike the dissent, we see no relevance to
the majority opinion in Claybrook v. Birchwell, 199 F.3d 350
(6th Cir. 2000), in which the court granted summary judgment
to defendant police officers alleged to have violated the
plaintiffs’ substantive due process rights, an issue clearly
distinct from the one confronting us here.
Accordingly, we REVERSE the decision of the district
court and grant the qualified immunity claims of both
defendants.
No. 99-3234 Boyd v. Baeppler, et al. 7
2In plaintiff’s brief, Baeppler’s claim that he first saw Boyd with a
black object in his hand was dismissed as “incredible.” (Pl.’s Br. at 9.)
Counsel speculated, we believe unfairly and without justification, that the
police manufactured the contention that Boyd was armed, because the gun
found at the scene was not traced to Boyd, and identifiable prints were not
produced.
fateful night.2 The district court indicated no genuine dispute
as to whether Boyd was armed.
The district court made the following brief factual findings
that are pertinent at this juncture:
1. There was reported to the police that an
“African-American male had allegedly fired a
gun.”
2. A description of the suspect was furnished, and
“[t]his man turned out to be decedent Adolph
Boyd.”
3. “Boyd received several fatal shots that
effectuated his death.”
4. Officer Wilsman fired only one shot with his
shotgun “that led to Boyd’s death.”
5. Officer Baeppler fired at least six additional
shots, and “thirteen (13) entrance wounds were
discovered.”
6. The officers “assert that Boyd possessed a
weapon, and he aimed or pointed the weapon in
the direction of the officers.” No officer
witnessed “Boyd fire a weapon.”
7. Baeppler and Wilsman “pursue[d] Boyd on
foot,” after he ignored their order to stop, and
Baeppler fired the first shorts at Boyd, but it is
unclear whether any of those shots hit the
target.

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8 Boyd v. Baeppler, et al. No. 99-3234
3471 U.S. 1 (1985).
8. “The shotgun blast” fired by Wilsman, who
claimed that Boyd was pointing his weapon at
him, wounded and felled Boyd.
The district court further conceded that “[a] fact is
‘material’ only if its resolution will affect the outcome of the
controversy.” It is put more precisely, however, in Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986):
As to materiality, the substantive law will identify
which facts are material. Only disputes over facts that
might affect the outcome of the suit under the governing
law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or
unnecessary will not be counted. See generally 10A C.
Wright, A. Miller, & M. Kane, Federal Practice and
Procedure § 2725, pp. 93-95 (1983). This materiality
inquiry is independent of and separate from the question
of the incorporation of the evidentiary standard into the
summary judgment determination. That is, while the
materiality determination rests on the substantive law, it
is the substantive law’s identification of which facts are
critical and which facts are irrelevant that governs.
As we have already indicated, the issue before us in this
case is not whether Boyd presented these officers with a
Tennessee v. Garner3 fleeing felon situation--the situation as
to which the district court found that there remained genuine
issues of disputed fact--but rather, whether Boyd presented an
immediate threat to these officers to which they reacted with
an unreasonable degree of force. We now review what the
district court identified as “genuine” issues of fact to
determine whether these disputed facts are material to the
issues before us.
No. 99-3234 Boyd v. Baeppler, et al. 17
extremity and axillary wounds there was severe
impairment of ability to turn and with medical
probability Mr. Boyd could not assume a defined posture
which would signal his intent and capability to return fire
at that point.
(Emphasis added.) In sum, Dr. Tucker made assumptions
about the sequence of shots and the pathways of the bullets
and concluded, not within a reasonable degree of medical
certainty, but only “with probability,” that a more likely
scenario was that Boyd was unable to lift his torso and twist
to threaten officer Wilsman a second time. Nowhere does Dr.
Tucker point to any forensic evidence that proves what shot(s)
rendered Boyd unable to lift and twist his torso, or at what
point during the sequence of events the critical shot(s) hit
Boyd.
The speculation of plaintiff’s expert is not sufficient
evidence to create a genuine issue of material fact. In view of
the uncontroverted evidence in support of the testimony of
both officers Baeppler and Wilsman, any jury conclusion to
the contrary would necessarily be founded on mere
speculation, not on the evidence. Therefore, we REVERSE
the denial of summary judgment for both officers Baeppler
and Wilsman and find as fact that Boyd, as perceived by
reasonable police officers in the circumstances presented here,
was armed and remained an imminent threat and a danger
until he finally dropped his weapon after officer Baeppler
fired his last shots.
In assessing the weight of expert testimony, we do not
resort to a credibility determination. Rather, we conclude that
the coroner’s report is a clear medical statement not based
upon mere probabilities. We conclude that Dr. Tucker’s
report, which was based upon probabilities only, was
essentially a matter of speculation. Adams v. Metiva, 31 F.3d
375 (6th Cir. 1994), cited by the dissent, is clearly
distinguishable from this case. Adams involved a
confrontation and encounter between an unarmed person and
police with several independent eyewitnesses supporting the

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16 Boyd v. Baeppler, et al. No. 99-3234
officer Baeppler fired seven more rounds at Boyd until Boyd
dropped his weapon.
We are of the view also that the forensic evidence also
supports the police officers’ rendition of the event. The
coroner specifically testified that he could conclude, “within
a reasonable degree of medical certainty,” that “the wounds
Adolph Boyd sustained to his back . . . are consistent with
Officers Baeppler’s and Wilsman’s description immediately
prior to Officer Wilsman’s discharge of the shotgun;” and that
the pellet that caused the injury to Boyd’s spinal cord “caused
immediate paralysis of the lower extremities only. He was
still fully able to move his upper extremities, including his
head, arms and torso.” (Emphasis added.) Furthermore, the
state’s forensic evidence plainly indicates that neither the
sequence nor the exact direction of the shots could be
determined by an examination of Boyd’s body, and the
coroner testified that the coroner’s office did not undertake
any type of analysis of the musculature and/or nerve damage
inflicted by the shots.
The only inconsistent “evidence” relied upon by the dissent
is found in the report of plaintiff’s expert, Dr. Tucker, who
did not examine Boyd’s body, but only reviewed the state’s
autopsy report. This autopsy report was the sole basis for his
conclusion that Boyd might not have been able to turn and
point his weapon after officer Wilsman’s shot landed. Dr.
Tucker’s opinion, however, did not definitively conclude that
it would have been impossible for Boyd to raise himself up on
his arms to aim his weapon again. Dr. Tucker opined,
“[s]ince the entire spine from the neck to coccyx works as a
unit, rational movements are very limited throughout the
spine.” (Emphasis added.) Dr. Tucker further speculated:
Thus one can postulate with medical probability that
both arms were impaired from a functional standpoint by
bullet wounds. . . . Admittedly we do not know if these
upper extremity and axillary bullet wounds were suffered
before or after the alleged turning toward police
officer. . . . However with probability even without these
No. 99-3234 Boyd v. Baeppler, et al. 9
4Plaintiff’s brief indicates that Boyd had an apartment in the
immediate area of Buckeye Road.
1. Was Boyd running away from the officers in an
attempt to escape?
At first blush, it might appear that the district court made a
finding that there was a genuine issue of fact as to whether
Boyd was fleeing the officers in an attempt to escape. In fact,
the district court assumed that Boyd was fleeing, and this may
have been what caused it to apply the Tennessee v. Garner
analysis. However, the issue that is material here is not
whether Boyd was fleeing, but whether Boyd pointed his
weapon at the officers and thus posed an immediate threat to
them. The district court did not address this issue at all.
From what has been previously stated, it is clear that when
first observed by the police officers, Boyd was running
toward the officers, gun in hand. Each of the four officers, in
response to that observation, drew his or her weapon, not in
any attempt to pursue or chase Boyd but to confront a
situation fraught with danger. An independent witness had
reported that he heard gunshots, and then saw Boyd armed
and pointing the gun at people outside a public restaurant.
The police recognized Boyd as the suspect in the area in
which he had been observed and in which he apparently
lived.4 The police themselves independently confirmed that
Boyd was armed but none saw or heard him fire a shot.
Defendants ordered Boyd to stop, identifying themselves.
They testified that Boyd pointed the gun at them and ignored
their commands to stop. As he moved away, Boyd allegedly
continued to point the gun at the officers. At the outset, then,
Boyd was not running away from the officers. As the officers
confronted him, he ignored their orders and allegedly
continued to point his gun at them as he attempted to flee.
2. Did Boyd fire the weapon?
Whether Boyd actually fired the weapon is wholly
immaterial here. The issue is whether or not he threatened to
do so. It was reported to the officers that Boyd had probably

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10 Boyd v. Baeppler, et al. No. 99-3234
fired the gun and had pointed it at innocent observers at the
scene when observed. They saw Boyd with gun in hand as
did the independent witness. No officer testified that he or
she saw Boyd fire the weapon. We deem this, however, as
something other than a genuine and material issue of fact.
That the defendants did not see or hear Boyd fire the weapon
does not affect whether the police officers, acting reasonably
under the circumstances known to them, acted in defense of
their own safety and the safety of officers through the use of
deadly force.
3. Did Boyd commit a crime?
Again, this is wholly immaterial to the issue of whether
Boyd presented a threat to officers Wilsman and Baeppler. If,
indeed, Boyd fired his gun at other people or even pointed his
gun at them, then he may have committed a crime. No one,
however, much less the police, charged or claimed that Boyd
had just committed a crime when the police confronted him.
The police never purported to treat him as a fleeing felon
suspect. They confronted him as a dangerous armed man who
ignored their reasonable command to stop. That command
obviously included the direction to stop pointing his gun at
them, and this, too, was ignored.
The principal issue in Tennessee v. Garner, 471 U.S. 1
(1985), involved the use of deadly force by police in pursuit
of an unarmed minor burglar (a “non-violent suspec[t]”) was
not before the court with respect to these defendants claiming
qualified immunity. Garner, 471 U.S. at 10. Garner also
described the suspect victim as a “nondangerous fleeing
suspec[t].” Id. at 11. That was not the factual situation
presented to the court with respect to these defendants
claiming qualified immunity. The question, rather, from
Garner is this:
Where the officer has probable cause to believe that the
suspect poses a threat of serious physical harm, either to
the officer or to others, it is not constitutionally
unreasonable to prevent escape by using deadly force.
Thus, if the suspect threatens the officer with a weapon
No. 99-3234 Boyd v. Baeppler, et al. 15
are overborne by objective proof that Boyd was armed, or
reasonably perceived to be armed, by the police.
For the reasons indicated, we REVERSE the decision of
the district court as to defendant Wilsman. We find him
entitled to summary judgment based on qualified immunity
with respect to his firing one shot from his shotgun at Boyd
under the essentially uncontested material facts. We find as
fact that Boyd was armed and could be considered an
imminent threat and a danger to a reasonable police officer
and to his partner in Wilsman’s circumstances.
III. LIABILITY OF BAEPPLER
Much of our prior discussion applies to defendant Baeppler,
particularly as to his initial shots that may or may not have
struck Boyd. Certainly, these shots neither immobilized Boyd
nor incapacitated him. Boyd remained on the loose,
apparently still armed, and potentially dangerous. We
concede that the question of qualified immunity as to
defendant Baeppler is more difficult, especially since
Baeppler fired multiple shots that contributed to bringing
about Boyd’s death. The question of law on this case is
clear—it is about the conduct of police acting in self-defense,
not about pursuit of a fleeing felon or suspect, reasonably
thought to be armed and dangerous.
All of the eyewitness evidence in the record is consistent
with the police officers’ recitation of the events that
surrounded the shooting. Unfortunately, officers Wilsman
and Baeppler, and not Boyd, were the only ones available to
testify about the shooting. Their statements taken during the
police investigation, their deposition testimony and their
affidavits all tell the same consistent story. They testified that
they identified themselves as police officers and ordered Boyd
to stop; Boyd continued to flee with his weapon in hand;
officer Baeppler fired three to four rounds at Boyd, but Boyd
responded by turning and pointing his weapon at officer
Wilsman; officer Wilsman fired one shotgun blast and Boyd
fell face forward onto the ground; Boyd lifted his torso and
turned to point his weapon again at officer Wilsman; finally,

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14 Boyd v. Baeppler, et al. No. 99-3234
5Hopkins v. Andaya, 958 F.2d 881 (9th Cir. 1992), also relied upon
by plaintiff, involved a police encounter with an unarmed man. We do
not deem it pertinent, nor do we consider Martin v. Heideman, 106 F.3d
1308 (6th Cir. 1997), to be relevant to the factual circumstances of this
case.
plaintiff, supports our view that officer Wilsman is entitled to
qualified immunity for his part in the encounter in question.5
Our decision as to defendants and their qualified immunity
is also supported by the statement from Smith v. Freland, 954
F.2d 343, 347 (6th Cir. 1992), that
Thus, under Graham, we must avoid substituting our
personal notions of proper police procedure for the
instantaneous decision of the officer at the scene. We
must never allow the theoretical, sanitized world of our
imagination to replace the dangerous and complex world
that policemen face every day. What constitutes
“reasonable” action may seem quite different to someone
facing a possible assailant than to someone analyzing the
question at leisure.
Id. (citing Graham v. Connor, 490 U.S. 386, 396-97 (1989)).
See also, in a somewhat comparable situation, Bell v. City of
East Cleveland, No. 96-3801, 1997 WL 640116 (6th Cir. Oct.
14, 1997) (unpublished). With respect to our grants of
qualified immunity, contrary to assertions of the dissent, we
do not base our opinion upon conflicting factual contentions
or credibility determinations. The testimony of both
defendant police officers is supported by objective and
reasonable evidence. The eyewitness testimony of a number
of persons and the broadcasts to the defendants support a
conclusion that the deceased was armed, even that he had
probably fired his weapon. Plaintiff’s “counternarrative” in
her brief that Boyd was not carrying a gun, in our view, is not
based upon substantial and material evidence. See Bell, 1997
WL 640116. The various tests (fingerprint, residue, and
firearm trace) are inconclusive under the circumstances and
No. 99-3234 Boyd v. Baeppler, et al. 11
or there is probable cause to believe that he has
committed a crime involving the infliction or threatened
infliction of serious physical harm, deadly force may be
used if necessary to prevent escape, and if, where
feasible, some warning has been given.
Id. at 11, 12.
We note also that in Garner the complaint under 42 U.S.C.
§ 1983 had been dismissed against the individual police
officers actually involved in the shooting. Id. at 22. The
dissent in Garner made special mention of “the difficult,
split-second decisions police officers must make.” Id. at 23.
The case, according to the dissent, fell within “‘the rubric of
police conduct . . . necessarily [involving] swift action
predicated upon the on-the-spot observations of the officers
on the beat.’” Id. at 26 (quoting Terry v. Ohio, 392 U.S. 1, 20
(1968)). The main points that distinguish Garner from this
case are that the suspect in Garner was (1) deemed to be
unarmed; (2) non-violent; (3) non-dangerous; (4) a minor;
and (5) the suspect did anything but confront the police.
The inquiry in § 1983 actions against a police officer for
unlawful or unconstitutional use of force is an objective one
based upon the “information possessed” by the police officer
involved. Anderson v. Creighton, 483 U.S. 635, 641 (1987).
It involves what a reasonable police officer would believe to
be lawful based upon the information then possessed, not
what the officers subjectively may have believed. See id. In
the case before us here, the question is whether reasonable
officers in the position of officers Wilsman and Baeppler
would have believed that it was lawful under the
circumstances to use the same degree of force used by those
officers. We have already reviewed the information upon
which the officers initially acted, some based upon the
officers’ personal observation. We view the scene and
activity from the perspective, then, of the reasonable police
officer at the scene based on reports and information received
and what he has observed. See Graham v. Conner, 490 U.S.

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12 Boyd v. Baeppler, et al. No. 99-3234
386 (1989); Scott v. Clay County, ___ F.3d ___, No. 98-6157,
2000 WL 228300 (6th Cir. Mar. 1, 2000).
II. LIABILITY OF WILSMAN
Wilsman fired one shot from his shotgun which “propelled
Boyd towards the ground.” No one, including plaintiff’s
expert, testified or contended that Wilsman’s shot was the
deadly force that brought about Boyd’s death. The question
in Wilsman’s case, then, is whether he used “a degree of force
that was unreasonable under the circumstances and in
violation of decedent’s rights,” not whether he himself was
guilty of administering deadly force, and whether he acted in
concert with Baeppler in administering deadly force.
In our view, from the perspective of Wilsman, based upon
the information available to him and the circumstances from
his viewpoint at the time he fired the single shot, we believe
that he was entitled to qualified immunity, and we therefore
REVERSE the denial of summary judgment in this regard.
His contemporaneous report indicated an emergency call to
the scene at about 11:30 p.m. “for a male with a gun,
shooting.” Other police reported seeing the suspect “running
. . . with a gun in his hand,” and Wilsman then saw Boyd
“running towards me . . . with a gun in his right hand.”
Wilsman, in uniform, yelled “stop, police,” and Boyd
disregarded the warning, proceeding “diagonally across
Buckeye.” Wilsman “turned to run around the squad car to
cut him off.” While running on this mission, Wilsman “heard
a couple of shots.” He then saw Boyd “still running . . .
looked back at us . . . pointed his gun . . . back at us.” As
Wilsman saw it, Boyd “pointed the gun at me . . . right at my
head, I could see down the barrel, and I thought I was a
goner.” Wilsman then fired the shotgun at Boyd, and Boyd
went down, gun still in hand. Wilsman approached Boyd
telling him to drop the gun. Again, Boyd ignored that
command. Wilsman did not fire again, but his partner,
Baeppler–threatened–fired additional shots at closer range.
Wilsman did not know when he fired at Boyd, whether the
latter had fired his own pistol at them which Wilsman thought
No. 99-3234 Boyd v. Baeppler, et al. 13
was “a semi-automatic.” Boyd “appeared to fit the
description given” Wilsman for a male “supposed to be
shooting.” Wilsman’s affidavit was consistent with his
statement and response to questions, but it added that before
he fired, he “feared for [his] own life, the life of [his] partner,
and others. . . .” Plaintiff concedes in her brief that “it is
unknown whether any of Baeppler’s earlier shots struck
Boyd.” It was unknown to Wilsman, who heard shots,
whether Baeppler, Boyd, or perhaps some one else had fired
these shots. Plaintiff describes Wilsman’s stated observations
of Boyd’s pointing his gun at him while running as incredible.
(Pl.’s Br. at 12.) Most of the plaintiff’s brief, however, is
directed at officer Baeppler and his actions.
We do make all reasonable and justifiable inferences in
favor of plaintiff, the non-movant. Anderson v. Liberty
Lobby, 477 U.S. 242, 255 (1986). This is not, however,
insofar as officer Wilsman is concerned, a case as to whether
he used deadly force or excessive force to capture a fleeing
felon, or a suspect attempting to escape. As to Wilsman, it is
a case of whether he acted reasonably in response to a
dangerous, split-second encounter late at night with an armed
man reported to have been shooting the gun he had in hand
pointed at the officer.
Plaintiff relies upon Russo v. City of Cincinnati, 953 F.2d
1036 (6th Cir. 1992), but that case held that in the § 1983
claim, qualified immunity context, “plaintiff must present
‘evidence sufficient to create a genuine issue as to whether the
defendant in fact’” violated “clearly established law” in taking
the action he did. “Whether a genuine issue of material fact
exists” is a question of law. Id. at 1043. In Russo, we
emphasized that we must “look to the ‘facts and
circumstances of each particular case . . . whether the suspect
pose[d] an immediate threat to the safety of the officers or
others, and whether he [was] . . . attempting to evade arrest by
flight.’” Id. at 1044. We believe Ford v. Childers, 855 F.2d
1271, 1275-76 (7th Cir. 1988) (en banc), also cited by

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