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Gammon v. Blakeley12/4/1997
hat Chief Baumgart had any direct involvement in what transpired on Abby Avenue or encouraged, authorized or approved of the officers' actions. Appellant has failed to establish any of the prerequisites to liability for a supervisor under Section 1983.
Public officials, including police officers, who perform discretionaryfunctions are entitled to be shielded from liability by qualified immunity. This immunity is afforded to an officer who may have violated a constitutional right of a person, if the officer's actions are such that a reasonable officer could have believed that the actions were lawful when assessed in light of the clearly established legal rules at the time and the information possessed by the officer. Anderson v. Creighton (1987), 483 U.S. 635.
To survive a motion for summary judgment, appellant must designate specific facts which demonstrate the shooting of Jason Gammon was unreasonable. When a claim of qualified immunity is raised in a motion for summary judgment, the non-movant must allege facts sufficient to indicate that the act in question violated clearly established law at the time the act was committed. Then the plaintiff must present evidence sufficient to create a genuine issue of material fact as to whether the defendant committed the act. Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992). The ultimate burden is on the plaintiff to show that the defendant is not entitled to qualified immunity. Cook v. Cincinnati (1995), 103 Ohio App.3d 80, 85.
Appellants have presented no evidence or argument that the police officers violated any clearly established law. When addressing excessive force claims, the reasonableness of any use of force must be judged from the perspective of a reasonable officer on the scene without the use of 20/20 hindsight. The determination of reasonableness must allow for the fact that police officers often are forced to make split-second decisions about the amount of force to use in tense, uncertain, and rapidly evolving situations. Graham v. Connor (1989), 490 U.S. 386, 396-397. A court must avoid substituting its personal notions of proper police procedure for the instantaneous decision made by the officer at the scene. What constitutes `reasonable' action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure. Smith v. Freland, 954 F.2d 343 (6th Cir. 1992) at 347.
The reasonableness inquiry in an excessive force action is for the court to determine objectively based on the facts and circumstances of each case including whether there was an immediate threat to the safety of the officers or others. Russo, supra at 1044. If the officer had probable cause to believe that the suspect posed a significant threat of death or serious physical injury to the officer, deadly force may be used by the officer. Tennessee v. Garner (1985), 471 U.S. 1, 3.
In the instant case, there was a significant threat of death or serious physical harm to Officer Blakeley when Jason Gammon picked up a handgun, leaned out of an upstairs-window, and pointed the weapon in the direction of the police officer. The police officers who fired at Jason Gammon only had a split-second in which to make their decision to shoot at Jason Gammon. Appellant provided no evidence that the officers present at Abby Avenue that evening violated any clearly established law. At best, her evidence pointed to other alternative courses of action which could have been taken that night or to procedures that may have been better in light of the outcome. Appellant's evidence falls within the category of hindsight and is not sufficient to withstand a motion for summary judgment which asserts a defense of
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