Candice R. Sulfridge; Adam T. Davis v. John Huff

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0104n.06
Filed: February 9, 2009
No. 07-6180
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CANDICE R. SULFRIDGE; ADAM T. DAVIS,
Plaintiffs-Appellees,
v.
JOHN HUFF,
Defendant-Appellant,
LARRY G. MOORE, ET AL.,
Defendants.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF TENNESSEE
O P I N I O N
BEFORE: BOGGS, Chief Judge; COLE and COOK, Circuit Judges.
COLE, Circuit Judge. These consolidated actions, for injury and damages under 42 U.S.C.
§ 1983, arise from a shooting incident initiated by Defendant-Appellant John Huff (“Officer Huff”
or “Huff”) on April 4, 2005. Plaintiffs-Appellees Candice R. Sulfridge and Adam T. Davis
(collectively, “Plaintiffs”) claim that Officer Huff used excessive force in violation of their rights
under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution.
Officer Huff argues that the district court erred in denying him summary judgment on his
qualified-immunity claim because he claims that his use of deadly force was justified. He also
asserts that he is entitled to summary judgment as a matter of law because, as a result of the incident
giving rise to this lawsuit, Davis pleaded guilty to aggravated assault in a separate state criminal

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proceeding. Finally, Officer Huff claims that Sulfridge was never seized, and, therefore, cannot
claim an excessive force violation under 42 U.S.C. § 1983. For the reasons set forth below, we
AFFIRM the decision of the district court and REMAND for proceedings consistent with this
opinion.
I. BACKGROUND
A. Factual Background
On April 5, 2004, Davis drove Sulfridge to the Wal-Mart in Knoxville, Tennessee. Davis
parked Sulfridge’s car in the parking lot—the car was parked between two cars and facing another
car. Davis entered the Wal-Mart while Sulfridge waited in the car. At one point, Sulfridge left the
vehicle to look for Davis, but she returned to the car when she could not find him. Later, Davis
exited the Wal-Mart and got into the vehicle’s driver seat. It is here that the parties’ accounts of the
evening differ.
In her declaration, Sulfridge states the following:
9. A person in uniform came to the side of the car.
10. [Sulfridge] later learned that person was Knox County Sheriff Deputy John
Huff.
11. As Deputy Huff was at the driver side of the car he was yelling and cussing
at [Davis].
12. Deputy Huff’s [sic] was acting crazy, he was in a rage.
13. Deputy Huff was banging his gun on the car and on the window of the car.
14. [Sulfridge] was scared and terrified by Deputy Huff’s actions.
15. [Davis] began to back [Sulfridge’s] car out of the parking space.

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16. Deputy Huff walked along the car as [Davis] was backing it out of the space
yelling stop or [he’ll] shoot.
17. [Davis] stopped the car after backing out of the parking space.
18. Deputy Huff was standing to the left of the front left quarter panel of
[Sulfridge’s] car pointing his gun at [Davis].
19. [Davis] put up his hands.
20. Deputy Huff shot one shot.
21. The front of [Sulfridge’s] car was passed [sic] Deputy Huff when he shot the
first shot.
22. When [Davis] was shot by the first shot the car rolled forward and Deputy
Huff shot a second time.
23. Deputy Huff was at a 90-degree angle to the driver’s side window of
[Sulfridge’s] car and almost 1/2 of the car had passed him when he fired the
second shot through the driver’s window.
. . .
29. Deputy Huff was always to the side of the car.
30. The car was never pointed at Deputy Huff.
31. To [Sulfridge’s] knowledge the car did not touch Deputy Huff as [Davis] was
pulling out of the parking space.
(Decl. of Candice Sulfridge, Joint Appendix (“JA”) 457-58.) Davis avers that “[i]f the car touched
Deputy Huff as [Davis] was pulling out of the parking lot, that would have occurred because Deputy
Huff continued to walk closely along the side of the car as [Davis] was backing and any touching
was accidental.” (JA 493.)
In contrast, Officer Huff offers the following account of the confrontation:

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Ms. Sulfridge saw Officer Huff at the window before Plaintiff Davis started
backing out of the parking space. Officer Huff ordered Plaintiff Davis to get out of
the car. Ms. Sulfridge told Mr. Davis to give back the merchandise and to stop.
Instead, Mr. Davis backed the car all the way out of the parking space and stopped.
Ms. Sulfridge did not get out of the car when Officer Huff banged on the car or when
he told Mr. Davis to get out of the car. She did not get out of the car when Mr. Davis
backed the car out of the parking space and stopped the car before he started driving
forward.
Plaintiff Davis started the vehicle and struck Officer Huff on the left thigh
area with the vehicle while backing out of the parking space. Plaintiff Davis then put
the vehicle in drive and drove towards Officer Huff causing Officer Huff to jump out
of the way to avoid being struck again. Officer Huff then fired two shots.
(Final Br. of Appellant (“Huff Br.”) 11) (internal citations omitted).
Following the shooting, Davis drove Sulfridge out of the Wal-Mart parking lot to “another
place” nearby. (JA 459.) Davis exited the car and got down on the ground. Sulfridge left the car
to “see what happened to [Davis]”—Davis had been hit by at least one of Officer Huff’s shots. (JA
460, 491-92.)
Other officers arrived on the scene and ordered Sulfridge to the ground. Sulfridge alleged
that though she complied with the order, she was “kicked in [her] right leg and told to roll over.
They beat [her] pretty hard.” (JA 487.) Those officers handcuffed Sulfridge and placed her in the
back of a police cruiser. Later, after questioning her, Knox County officers released Sulfridge at the
University of Tennessee Hospital. They also arrested Davis and transported him to the same
hospital. Sulfridge’s car was seized and towed from the scene.
A state grand jury indicted Davis on eight counts, including two counts of aggravated assault
and theft. Davis pleaded guilty to one count of aggravated assault and one count of theft, and he
received the recommended four-year sentence.

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B. Procedural Background
In April of 2005, Sulfridge and Davis each filed separate lawsuits in both federal court and
state court against Defendants Knox County, Larry G. Moore, Janette Harris, Randy Hinton,
Chestnut Street Garage, several “John Does,” and Officer Huff stemming from the same incident
occurring on April 5, 2004. All four lawsuits were consolidated in federal court. Nonetheless,
because the district court declined supplemental jurisdiction over the state law claims and remanded
those claims to state court, Sulfridge and Davis’s 42 U.S.C. § 1983 claims were the only claims
before the district court.
In February of 2007, Defendants Knox County, Moore, Harris, and Huff filed motions for
summary judgment. The district court granted summary judgment in favor of Moore and Harris but
denied summary judgment as to Knox County and Huff. The district court found that genuine issues
of material fact existed as to “whether a reasonable officer in the position of defendant Huff had
probable cause to believe that Davis posed a serious threat of physical harm, either to Huff or to
anyone else.” (District Court Memorandum Opinion of Sept. 10, 2007 (“Mem. Op.”) 13, JA 107.)
The district court also determined that Plaintiffs had offered sufficient evidence that the shots Officer
Huff fired were objectively unreasonable.
Officer Huff then filed this interlocutory appeal, which challenges the district court’s denial
of qualified immunity. Plaintiffs responded that this Court lacks jurisdiction to hear the appeal
“because the district court’s summary judgment order merely determined that the pretrial record sets
forth a genuine issue of material fact for trial.” (Appellees’ Opening Br. 3.)

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II. LAW AND ANALYSIS
A. Jurisdiction
The first issue we must consider is whether this Court has jurisdiction. “Title 28 U.S.C. §
1291 limits appellate jurisdiction to ‘final decisions of the district courts.’” Estate of Kirby v. Duva,
530 F.3d 475, 480 (6th Cir. 2008). As a general matter, a district court’s grant of summary judgment
on a qualified-immunity claim constitutes a final appealable decision under 28 U.S.C. § 1291. See,
e.g., Dunigan v. Noble, 390 F.3d 486, 488 (6th Cir. 2004). A district court’s denial of summary
judgment on qualified immunity, however, is a final decision under § 1291 only “to the extent that
it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
As this has Court previously stated, “for appellate jurisdiction to lie over an interlocutory
appeal, a defendant seeking qualified immunity must be willing to concede the facts as alleged by
the plaintiff and discuss only the legal issues raised by the case.” Sheets v. Mullins, 287 F.3d 581,
585 (6th Cir. 2002) (citations omitted). To the extent that a defendant’s qualified-immunity
arguments “rely . . . on a disputed version of the facts, this court does not have jurisdiction to
consider [the] appeal.” McKenna v. City of Royal Oak, 469 F.3d 559, 561 (6th Cir. 2006). On the
other hand, to the extent that the “‘facts’ in dispute are the ultimate issues to be decided by applying
law to the basic facts[,] . . . [t]hese ‘facts,’ . . . are mixed issues of law and fact, which we treat as
issues of law, not issues of fact.” Williams v. Mehra, 186 F.3d 685, 690 (6th Cir. 1999) (en banc)
(citing Whitney v. Brown, 882 F.2d 1068, 1071 (6th Cir. 1989)). Because the issues on this appeal
involve precisely such mixed issues of law and fact, we find that this Court has jurisdiction to
consider Huff’s appeal.

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B. Qualified immunity
“Government officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). We review a district court’s denial of qualified immunity de novo. Sheets,
287 F.3d at 586. The defendant bears the burden of pleading the defense, id., while the burden of
proof is on the plaintiff to show that the defendant is not entitled to immunity. Wegener v.
Covington, 933 F.3d 390, 392 (6th Cir. 1991).
“[I]n judging whether [Huff’s] actions were reasonable, we must consider the risk of bodily
harm that [Huff’s] actions posed to [Plaintiffs] in light of the threat to the public that [Huff] was
trying to eliminate.” Scott v. Harris, 127 S. Ct. 1769, 1778 (2007). This Court has set out the
following factors “to evaluate whether an officer’s actions are reasonable: (1) the severity of the
crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or
others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight.”
Sigley v. City of Parma Heights, 437 F.3d 527, 534 (6th Cir. 2006) (citations omitted). A police
officer may, in certain circumstances, reasonably use deadly force to prevent escape “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 . . . .” Tennessee v. Garner, 471 U.S. 1, 11 (1985). But the proper
application of the test of reasonableness “requires careful attention to the facts and circumstances
of each particular case.” Graham v. Connor, 490 U.S. 386, 396 (1989) (citing Garner, 471 U.S. at
8-9).

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The legal reasonableness of Huff’s actions involves several questions of fact, including: (1)
the circumstances that led to Davis backing the car out of the parking spot; (2) whether and how
Officer Huff was struck by Sulfridge’s car; (3) whether Davis threatened Huff by pointing the vehicle
at Officer Huff; (4) when and from where Officer Huff fired his first shot; (5) whether Davis drove
the car toward Officer Huff after the first shot; and (6) when and from where Office Huff fired his
second shot. Taking the evidence in a light most favorable to the Plaintiffs, the testimony and
affidavits call into question whether the force used was reasonable under the circumstances. Because
we cannot resolve whether and to what extent Davis posed a continuing threat both to Officer Huff
and the public, we cannot conclude that Officer Huff’s use of force was reasonable as a matter of
law.
Similarly, Officer Huff is incorrect that issue preclusion or judicial estoppel bars Plaintiffs’
§ 1983 claims here. Huff is correct that Plaintiffs may not argue that Davis did not commit
aggravated assault. Davis pleaded guilty to committing aggravated assault, and Plaintiffs’ assertions
to the contrary must be rejected. But the fact that Davis assaulted Huff does not necessarily lead us
to determine that Officer Huff acted reasonably in employing deadly force during the encounter. See
Sigley, 437 F.3d at 534 (stating that reasonableness depends on, among other things, whether the
suspect posed an immediate threat to the officer or others). Huff attempts to argue the disputed facts
through these preclusive doctrines, but, the district court—in discussing preclusion and judicial
estoppel—correctly determined that “under the alleged facts, [Davis’s] guilty plea may not be
inconsistent with his claim of excessive force. Here, there are two points at which Davis may have
committed an aggravated assault . . . [and] Huff fired at Davis after the alleged assault occurred and

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not to prevent it from occurring.” (Mem. Op. 14, JA 108.) There is nothing inconsistent between
Davis’s guilty plea and Plaintiffs’ assertions that the assault and its perceived threat terminated
before Officer Huff shot into the vehicle. To be sure, Plaintiffs may prevail on their claims against
Officer Huff if they can show that the shots fired by Huff were not made in self-defense or in defense
of others because Davis no longer posed a threat of harm at the time of the shootings.
Because genuine issues of material fact as to Officer Huff’s qualified immunity claim exist,
we affirm the district court’s decision.
B. Whether Sulfridge was seized
Officer Huff also argues that Sulfridge cannot make a § 1983 excessive force claim because
“she was not struck by either shot [into the vehicle and, therefore,] Officer Huff’s actions did not
constitute a seizure under the Fourteenth Amendment.” (Huff Br. 29.) However, this argument was
neither presented to, nor considered by, the district court. “[T]he failure to present an issue to the
district court forfeits the right to have the argument addressed on appeal.” Savedoff v. Access Group,
Inc., 524 F.3d 754, 765 n.9 (6th Cir. 2008) (quoting Armstrong v. City of Melvindale, 432 F.3d 695,
700 (6th Cir. 2006)). Thus, we decline to consider the merits of Officer Huff’s arguments regarding
Sulfridge’s seizure. We note, however, that Officer Huff may present this argument on remand to
the district court. See McCloud v. Testa, 227 F.3d 424, 427 (6th Cir. 2000).
III. CONCLUSION
For the preceding reasons, we AFFIRM the district court’s denial of qualified immunity
and REMAND for proceedings consistent with this opinion.

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