                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0927n.06

                                          No. 12-5869
                                                                                      FILED
                                                                                Dec 15, 2014
                         UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT

KARISSA SWEAT,                                          )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )      ON APPEAL FROM THE
v.                                                      )      UNITED STATES DISTRICT
                                                        )      COURT FOR THE MIDDLE
JOE SHELTON,                                            )      DISTRICT OF TENNESSEE
                                                        )
       Defendant-Appellant.                             )



BEFORE: GIBBONS, KETHLEDGE, and STRANCH, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. This § 1983 case arises out of the shooting

death of Reginald Wallace by Nashville police officer Joe Shelton. Plaintiff-appellee Karissa

Sweat alleges that Shelton violated Wallace’s Fourth Amendment right to be free from excessive

force. Shelton appeals the district court’s denial of his motion for summary judgment on the

basis of qualified immunity. We conclude that we lack jurisdiction to hear this appeal and

therefore dismiss it.

                                               I.

       On the morning of March 12, 2010, someone broke into Kyle Marion’s home. Marion

was in his bedroom at the time and called 911. When the police arrived, the intruder had left and

several items were missing, including an iPod touch. Shelton, a K-9 officer, was on duty that

day with his dog “Memphis.” Shelton heard about the burglary over the radio dispatch and

drove to the scene of the crime. An officer at the scene took Shelton to the last place where he
No. 12-5869, Karissa Sweat v. Joe Shelton


had seen the suspect. Shelton deployed Memphis using a tracking harness and fifteen-foot

tracking lead and gave Memphis the command to search for the suspect. Eventually, Memphis

ran underneath the deck of a house and Shelton heard someone, later identified as Reginald

Wallace, make a noise “like he had had the wind knocked out of him.” Shelton gave Memphis

the command to apprehend Wallace, which means that Memphis was supposed to bite Wallace.

Shelton looked down to see Memphis and Wallace underneath the deck, but they quickly moved

behind the house, still underneath the deck and out of Shelton’s view. Shelton was surprised by

Wallace’s lack of reaction to Memphis, explaining that:

       Typically . . . when [Memphis] came into contact with somebody, there was a lot
       of screaming, a lot of yelling, people were in fear of the dog. They usually tried
       to fight off the dog. . . . And it was—95 percent of the time they complied
       immediately. . . . They were extremely fearful of the dog. And it was as though
       the dog was not there at all.

Shelton ran to the back of the house, laid down on the ground, and saw Wallace put his hand into

the right pocket of his pants while attempting to crawl out from underneath the deck. Wallace

ignored Shelton’s commands to show his hands and quit resisting. All the while, it appeared that

Memphis was biting Wallace or his clothing. Shelton testified that when Wallace put his hand in

his pocket, Shelton became fearful that Wallace was trying to access a weapon. In response,

Shelton drew his firearm and aimed it at Wallace. Shelton continued giving verbal commands to

Wallace, which were ignored. Shelton described the situation as it progressed:

       He’s struggling to get his hand out of his pocket the whole time he’s crawling.
       He [came] to the end of the deck, at which point I had actually gotten up. I was
       laying on the ground with my firearm pointed at him. I had gotten up and started
       towards the end of the deck in an effort to try to get closer to him when he [came]
       out from under the deck to try to help control him. His hand [came] out of his
       pocket. I could see there was nothing in his hand at that time. . . . He reached up
       and grabbed the deck and pulled himself out from under the deck. . . . Once I saw
       his hand come out, I immediately holstered my firearm and continued to give him
       verbal commands to quit resisting.




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No. 12-5869, Karissa Sweat v. Joe Shelton


At that point, Wallace “began kicking [Memphis] wildly.” Shelton advanced toward Wallace

and Memphis as Wallace attempted to escape over a fence in the backyard. Shelton pulled

Wallace off of the fence and Wallace swung his arm back at Shelton, striking “a glancing blow”

on the side of Shelton’s face. Shelton staggered back from the hit. As he approached Wallace

again, Wallace put his hand back into the right pocket of his pants. At this point, Shelton was

behind Wallace and to his right.      Shelton then utilized a technique whereby he “trapped”

Wallace’s hand inside his pocket by placing both of his hands on top of Wallace’s hand. Shelton

said that he “felt a gun.” More specifically, Shelton said he could feel “what felt like the squared

edges of a pistol.” As Wallace’s hand started to come out of his pocket, Shelton “could see what

appeared to be a metal, silverish object.” Wallace did not follow Shelton’s continued commands

to quit resisting. Shelton explained: “I began to think I was too close to the suspect. I could tell

I was losing my hold on him. I went to spin him around to get some distance from him and push

off. And I drew my weapon and fired.” Shelton shot Wallace three times without pausing

between shots. Wallace fell to the ground after he fired the third shot. Shelton said that he fired

the shots because he “was in fear of being shot by Mr. Wallace.” The object in Wallace’s pocket

was the iPod touch owned by Marion. Wallace died that day.

       On June 15, 2010, Quiana Johnson, Karissa Sweat, and Waynnesia Brooks1 filed suit

against the Metropolitan Government of Nashville and Davidson County, Joe Shelton, and John

Doe police officers. The complaint alleges that the defendants violated Johnson’s constitutional

rights, including his right to be free from unreasonable search and seizure under the Fourth

Amendment. Plaintiffs also brought several state law claims. The district court issued an order

1
  Quiana Johnson is the mother of Wallace’s son; Karissa Sweat was married to Wallace at the
time of his death; Waynnesia Brooks is Wallace’s daughter. (DE 1, Compl., 1–2.) An
amendment to the complaint, filed on July 19, 2010, added William Wallace, Wallace’s brother,
as a plaintiff. (DE 22, Amend. to Compl., 89.) Only Sweat is a party to this appeal.


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No. 12-5869, Karissa Sweat v. Joe Shelton


on September 13, 2010, dismissing all of the claims except Sweat’s § 1983 claims against

Shelton and the John Doe police officers in their individual capacities based on             alleged

violations of the Fourth Amendment.         After completion of discovery, Shelton moved for

summary judgment on the basis of qualified immunity. The district court denied this motion,

reasoning that it could not conclude, as a matter of law, that Shelton’s use of force was

reasonable. Shelton timely appealed.

                                                 II.

       We first consider our jurisdiction over this appeal. Under the collateral order doctrine,

this court has jurisdiction pursuant to 28 U.S.C. § 1291 to review the district court’s interlocutory

denial of qualified immunity to the extent that it turns on an issue of law. Austin v. Redford Twp.

Police Dep’t, 690 F.3d 490, 495 (6th Cir. 2012). “A defendant raising a qualified immunity

defense ‘may not appeal a district court’s summary judgment order insofar as that order

determines whether or not the pretrial record sets forth a genuine issue of fact for trial.’” Id.

(quoting Johnson v. Jones, 515 U.S. 304, 319–20 (1995)). However, “a defendant denied

qualified immunity may appeal . . . if the issue on appeal is whether the plaintiff’s facts, taken at

their best, show that the defendant violated clearly established law.” Quigley v. Tuong Vinh

Thai, 707 F.3d 675, 680 (6th Cir. 2013). “The district court’s characterization of the basis for its

ruling is not dispositive.” Stoudemire v. Michigan Dep’t of Corr., 705 F.3d 560, 564 (6th Cir.

2013). Even if the district court stated that it denied a defendant’s motion for summary judgment

because of the existence of a genuine issue of material fact, we may exercise appellate

jurisdiction over purely legal issues related to qualified immunity. Id. Although the parties have

not briefed the jurisdictional issue, we have “‘a duty to consider sua sponte whether appellate




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No. 12-5869, Karissa Sweat v. Joe Shelton


jurisdiction is properly invoked.’” Martin v. City of Taylor, 509 F.3d 234, 251 (6th Cir. 2007)

(quoting Mattingly v. Farmers State Bank, 153 F.3d 336, 336 (6th Cir. 1998)).

                                                 III.

       While challenges to the district court’s factual findings are the thrust of Shelton’s appeal,

he also makes two arguments that he seeks to characterize as legal. Stated simply, they are that

(1) the district court applied the wrong legal standard by examining the actual threat to Shelton

instead of Shelton’s reasonable perception of a threat, and (2) the district court inappropriately

applied the standard of Tennessee v. Garner, 471 U.S. 1 (1985), to this case. Both arguments

rely on inaccurate characterizations of the district court order.

       Shelton is correct that the district court’s denial of summary judgment is partly based on

the threat actually imposed by Wallace. Shelton is also correct that this question is not the

ultimate question for the jury. The ultimate question is whether Officer Shelton’s actions were

objectively reasonable in light of the facts and circumstances. Thus, the reasonableness of

Shelton’s perception that Wallace was a threat and the reasonableness of his response to that

perception would be at issue. But Shelton does not fairly and completely read the district court’s

order. The district court refers to the correct standard. It also cites case law noting that whether

a threat actually exists is relevant to the reasonableness of the officer’s actions. See Ciminillo v.

Streicher, 434 F.3d 461, 467 (6th Cir. 2006). As is clear from Shelton’s brief, this argument

quickly changes from a legal argument to an attack on the district court’s factual findings.

       The other so-called legal argument is merely a criticism of the district court’s choice to

cite Garner in passing. While this case is, as Shelton suggests, more properly categorized as a

self-defense case, as opposed to a fleeing felon case, the district court’s opinion makes clear that

it understood the applicable law.




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No. 12-5869, Karissa Sweat v. Joe Shelton


                                                 IV.

       We now turn to the heart of the matter. The basis for the appeal is the district court’s

finding that genuine issues of material fact existed as to whether Wallace actually posed an

immediate threat to Shelton and whether it was reasonable for Shelton to believe that the object

Wallace had in his pocket was a weapon. Precedent precludes our review of these findings in the

context of an interlocutory appeal challenging denial of qualified immunity. Johnson, 515 U.S.

at 319–20 (“[A] defendant, entitled to invoke a qualified immunity defense, may not appeal a

district court’s summary judgment order insofar as that order determines whether or not the

pretrial record sets forth a ‘genuine’ issue of fact for trial.”); see also Plumhoff v. Rickard, 134 S.

Ct. 2012, 2019 (2014) (“[A]n order denying summary judgment based on a determination of

‘evidence sufficiency’ does not present [an immediately appealable] legal question”); Romo v.

Largen, 723 F.3d 670, 674 (6th Cir. 2013).2

       Any skepticism we may have concerning the correctness of the district court’s findings

that fact issues exist concerning Shelton’s conduct provides no basis for an exception to this rule.

We may reverse a finding of a genuine issue of fact only “where the trial court’s determination



2
  In Romo, the district court denied officer Jeff Largen’s qualified-immunity summary judgment
motion, holding that there were genuine issues of fact regarding whether Largen truly pulled
over the same driver he saw commit a traffic violation and whether he truly felt heat radiating
from the hood of the truck, allegations inconsistent with plaintiff Candido Romo’s contention
that he had been sleeping in his truck on a cold night when Largen approached. 723 F.3d at 673.
This court declined jurisdiction: we noted that “the limitations on interlocutory appeals of
qualified immunity denials [require us] to accept the district court’s finding that a genuine
dispute of material fact existed as to whether Largen fabricated the whole or a part of his story,”
and we “refuse[d] to consider Largen’s factual disputations to the contrary.” Id. at 674 (citing
Johnson, 515 U.S. at 319–20). The Romo court also noted a narrow exception to Johnson for
certain district court orders determining whether the pretrial record sets forth a genuine issue of
fact for trial in the qualified-immunity summary judgment posture: a district court’s
determination that an issue of fact is “genuine” is reviewable only if the district court’s finding is
blatantly and demonstrably false, such that no reasonable jury could believe the plaintiff. Id. at
675 n.3 (internal citations omitted).


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No. 12-5869, Karissa Sweat v. Joe Shelton


that a fact is subject to reasonable dispute is blatantly and demonstrably false.” Romo, 723 F.3d

at 675 n.3 (internal quotation marks omitted).

       The infirmity of the district court’s findings arises from two sources. First, there is a real

question about whether, on this record, the jury could disbelieve Shelton’s account of the events

leading up to the shooting. Typically, “summary judgment is not appropriate where the opposing

party offers specific facts that call into question the credibility of the movant[’]s witnesses.”

TypeRight Keyboard Corp. v. Microsoft Corp., 374 F.3d 1151, 1158 (Fed Cir. 2004). But “when

challenges to witness’ credibility are all that a plaintiff relies on, and he has shown no

independent facts—no proof—to support his claims, summary judgment in favor of the

defendant is proper.” Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008); TypeRight,

374 F.3d at 1158.     Sweat offers no evidence calling into doubt the veracity of Shelton’s

testimony, and Shelton’s deposition, read in context, is not inconsistent and does not conflict

with other evidence. Sweat argues that Shelton lacks credibility because, had he truly believed

his life was in danger, he would have employed lethal force when he first thought Wallace (then

under the house) had a weapon. This argument may overlook the evidence that Shelton fired

only after he felt a silver, hard, and square-edged object in Wallace’s pocket and after observing

Wallace’s continued refusal to follow Shelton’s demands, but that is not for this court to decide.

       Second, there is a question about the weight given by the district court to expert Phillip

Davidson’s testimony. “Although juries are generally free to believe expert witnesses, a plaintiff

cannot survive summary judgment with an expert’s bare opinion on the ultimate issue.” Hirsch

v. CSX Transp., Inc., 656 F.3d 359, 363 (6th Cir. 2011) (internal citation omitted). “‘[A]n expert

who supplies nothing but a bottom line supplies nothing of value to the judicial process.’”

Brainard v. Am. Skandia Life Assurance Corp., 432 F.3d 655, 664 (6th Cir. 2005) (quoting Mid-




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No. 12-5869, Karissa Sweat v. Joe Shelton


State Fertilizer Co. v. Exch. Nat’l Bank, 877 F.2d 1333, 1339 (7th Cir. 1989)). In Fourth

Amendment excessive force cases, once the court has drawn all reasonable inferences in favor of

the nonmoving party, the determination of whether the defendant’s actions were reasonable

under the Fourth Amendment is a question of law. Scott, 550 U.S. at 381 n.8. It is unclear

whether Davidson offers more than his conclusion on this question of law or whether his opinion

helps the trier of fact to understand the evidence or determine a fact in issue.

        The difficulties posed by the district court’s determinations of the existence of genuine

issues of fact do not, however, rise to the level of blatant and demonstrable falsity. See Romo,

723 F.3d at 675 n.3 (internal citations omitted). Thus, we may not review them in this context.

                                                 V.

        Johnson and our court’s interpretation of it require that we dismiss the appeal for lack of

jurisdiction.




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