Professional Liability

The Sixth Circuit considered appellate jurisdiction when there is a question of fact, the extent that a self-serving affidavit can be used in cases with body camera footage, and the bounds of an officer’s responsibility to respond to a medical emergency. 

Columbus, Ohio, officers, including Officer Bowers, responded to a call for a suicidal man, with a gun, in his own residence. The man was not making threats to his family, just to himself. From outside of the house, the officers saw that the man was sitting at his kitchen table with the gun in his right hand. The officers ordered him to drop the weapon, and he responded that he would put the weapon away if they police just left him alone. The police, instead, entered the home. Upon entry, the man got up from the table and stepped away with his hands in his pockets. The officers continued to order him to show his hands, but the man refused. At one point, Officer Bowers asked aloud where the gun was. The officers again ordered the man to show his hands. The man started to bring his hands out of his pockets and leaned forward. Officer Bowers opened fire, claiming that he saw the outline of the gun in the man’s pocket and that the man was lunging towards him. No other officer took a shot, and one officer was attempting to speak to the man as the shots were fired. 

After the shooting, Officer Bowers ordered another officer to cuff the man as he was lying face down in a puddle of blood. As he was being cuffed, the man audibly groaned and was breathing. Despite this, no one offered him medical assistance beyond calling for paramedics, who arrived eight minutes after the shooting. The man succumbed to his wounds.

The Sixth Circuit was very critical of Officer Bowers’ actions and denied him both state and federal immunity. This case is impactful in the fact that it was accepted for review at all. A case is not appropriate for appellate review if there is a question of fact. The court found that the video evidence was sufficient to allow them to examine the evidence despite the existence of a fact dispute between the parties. The court admitted that the video did not show the man’s right side and did not show the gun on the table through surrounding clutter. However, they found that the video was obvious in that there was no gun in the man’s pocket and that he did not lunge at Officer Bowers but, instead, leaned forward. Officer Bowers argued that his self-serving and unopposed affidavit attesting that he saw the outline of the gun in the man’s pocket was sufficient to find in his favor. However, the court held that a self-serving affidavit cannot fill the gaps in video evidence where the benefit of the doubt belongs to the plaintiff pursuant to dispositive motion standards.

The court also underlined the new approach to reviewing deliberate indifference claims. The court wrote that the new standard is a reckless disregard and that Officer Bowers did not reasonably respond to the man’s threat of harm from his medical condition. Officer Bowers pointed to Stevens-Rucker v. Columbus, 739 F.App’x 834 (6th Cir. 2018) to argue, calling paramedics was sufficient intervention for immunity purposes. This court distinguished Stevens-Rucker, holding that it is “unreasonable to stand idle—even for a few minutes and even while paramedics were on their way—rather than administer the first aid (Bowers) was trained to provide.” Stevens-Rucker allows an officer to just call for paramedics and do nothing more when there is a reasonable belief that the officer’s aid would not have helped. In this matter, Bowers’ complete inaction was reckless and immunity was not warranted. 

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_{Case Law Alerts, 3rd Quarter, July 2024 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2024 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.}