Summary Judgment Inappropriate Even Where Plaintiff’s Only Eyewitness Account Is Contradicted by Others on the Scene as Well as by the Witness’s Original Police Statement, Holds Sixth Circuit

In Gambrel v. Knox Cnty., Ky., No. 20-6027 (6th Cir. Feb. 8, 2022), the panel reverses in part summary judgment in a § 1983 Fourth Amendment excessive force case. Applying Scott v. Harris, 550 U.S. 372 (2007), the panel holds that the principle that witness testimony may be disregarded on summary judgment if it is “blatantly contradicted” by the rest of the record did not extend to where situations where it simply “conflicts with other witnesses’ testimony.

“Responding to a 911 call, two [defendant] officers came upon Jessie Mills bizarrely and dangerously carrying his kidnapped daughter down the middle of an unlit road on a dark night. After a struggle, one of the officers shot and killed Mills. The ensuing police investigation initially revealed a largely consistent story from the officers and bystanders: Mills had threatened to harm the officers, fought them with ‘super-human’ strength, and charged at one of them just before the shooting. In this litigation, however, one of the bystanders, Ricky Hobbs, claimed that he had lied to the police during that investigation. He now says that the officers brutally beat Mills even though Mills did not resist, that they could have easily handcuffed him, and that the shooting should not have happened.”

Hobbs was on the scene because he was an acquaintance of Mills, who testified that he was following Mills on foot down a dark highway, “flicker[ing] his cellphone light to signal the group’s presence to oncoming cars.” When law enforcement arrived, Hobbs was situated to see the police recover the kidnapped girl and attempt times try to subdue Mills with a taser and physical force.

Hobbs’s account of what happened differed markedly from the other witnesses. He (and a second witness) testified that “one or both of the Officers hit Mills in the back of the head with a flashlight or other dark object,” causing Mills to fall to the ground. Hobbs alone also testified that “the Officers ‘just kept hitting’ Mills even though he was not fighting back” and that “the Officers took a break from hitting Mills only because they ran out of breath, at which point Mills was nearly unconscious.” Hobbs stated his belief that “[d]uring this beating . . . the Officers had ‘every opportunity’ to handcuff Mills.” Finally, Hobbs testified that an officer fired “after Mills took just a step or two—at a walking pace—toward him. At the time of the shooting, Hobbs further recalled, Mills had his arm extended toward Ashurst but was looking behind himself in the opposite direction. Mills was at least six to eight feet away.”

It was also noted that Hobbs’s statement to the police in his original police interview jibed with what other witnesses on the scene and the defendant officers saw: a criminal suspect who was actively and violently resisting arrest. “Hobbs claimed in his initial police interview that Mills was ‘fighting all the time’ while on the ground.” Only in his later deposition testimony did Hobbs perceive that the officers “repeatedly just kept hitting [Mills]” even though he was “not fighting” back.

The plaintiff’s executor (Gambrel) appealed summary judgment on all claims. The Sixth Circuit reverses (in part) the award of summary judgment to the officers on qualified immunity grounds.

“[T]he Officers do not contest our view of the law: that an unnecessary beating would have violated Mills’s clearly established rights. They instead contest our view of the facts: that Hobbs’s testimony would allow a jury to find such a beating. Relying on Scott v. Harris, 550 U.S. 372 (2007), the Officers ask us to ignore his testimony on the ground that it is ‘blatantly contradicted’ by the rest of the record” and thus did not present a genuine despite of material fact under Fed. R. Civ. P. 56.

In Scott, though, the Supreme Court faced a record where the plaintiff’s testimony was contradicted by video evidence (of a high-speed chase) that rendered the plaintiff’s account completely incredible. While Hobbs’s testimony is subject to impeachment with his police interview and is possibly against the weight of the other witnesses’ accounts, that did not warrant summary judgment under Scott.

“Yet simply because Gambrel might find it difficult to convince a jury to believe Hobbs does not allow us to ignore his testimony now. See 10A Charles A. Wright et al., Federal Practice and Procedure § 2725.2, at 440 (4th ed. 2016). Under the Supreme Court’s summary judgment rules, we must ‘believe[]’ the nonmoving party’s ‘evidence’ at this stage, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and ‘disregard’ the moving party’s conflicting evidence ‘that the jury is not required to believe,’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000). When witnesses tell differing stories, therefore, we cannot credit the story of the witness that we find more believable. See Anderson, 477 U.S. at 255. That is the jury’s job. We instead must resolve evidentiary disputes over specific historical facts—such as whether Mills fought with the Officers—in favor of Gambrel.”

“Circuit courts have debated Scott’s scope. Is it limited to situations in which a witness’s testimony blatantly contradicts unchallenged video evidence? Cf. Harris v. Pittman, 927 F.3d 266, 275–76 (4th Cir. 2019); Darden v. City of Fort Worth, 880 F.3d 722, 729–30 (5th Cir. 2018). Or is it a specific application of a general rule that allows courts to disregard ‘incredible’ testimony on the ground that the testimony does not create a ‘genuine’ dispute of material fact under Federal Rule of Civil Procedure 56? Cf. Robinson v. Pezzat, 818 F.3d 1, 10 (D.C. Cir. 2016); Morton v. Kirkwood, 707 F.3d 1276, 1284–85 (11th Cir. 2013); 10A Wright, et al., supra, § 2727.2, at 521.

“We need not enter this debate. Even under the broader view of Scott, Hobbs’s deposition testimony is not so ‘inherently incredible’ as to allow us to disregard it now. Morton, 707 F.3d at 1284 (citation omitted); see Robinson, 818 F.3d at 10–11. Hobbs seemingly is a disinterested witness. And his testimony does not conflict with objective (and indisputably authentic) evidence like a video or audio recording; it conflicts with other witnesses’ testimony. The Officers identify no case that has allowed courts to reject one person’s sworn testimony as ‘incredible’ simply because other witnesses had a different recollection. In addition, some circumstantial evidence supports Hobbs’s revised account. The Officers testified that they suffered no physical injuries during the confrontation, save a knot on [officer] Ashurst’s leg. They also had only Mills’s blood (none of their own) on their clothes. In short, this factual dispute about what happened is for the jury at trial—not for us at summary judgment.”

In addition to the beating, the panel on the same rationale reverses summary judgment on the shooting, again denying qualified immunity. “Under Hobbs’s version of events, we cannot say that Ashurst acted reasonably. According to that version, the Officers had just brutally beaten a nonfighting Mills even though they could have handcuffed him at any time while he remained on the ground. Hobbs also indicated that, for some unknown reason, the Officers ‘riled’ a nearly unconscious Mills ‘up’ by standing over him and kicking him . . . . After he got up, the unarmed Mills took only a step or two toward Ashurst at a walking pace when Ashurst fired. Although Ashurst shouted a warning, he waited only a second to fire. At that moment, Mills was not even looking at Ashurst and was six to eight feet or more away. Accepting these alleged historical facts at this stage, they show that Ashurst shot a mentally unstable yet otherwise ‘unarmed and nondangerous’ arrestee.”

The panel affirms summary judgment for the county on the deliberate-indifference and causation elements, as well as for the officers on a claim of excessive force earlier in the encounter when they were trying to recover the daughter from the scene.

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