COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72175 LYNN GAMMON, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION KEVIN BLAKELEY C/O EUCLID POLICE: DEPT., ET AL. : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION DECEMBER 4, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-259489 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: JAMES CORRIGAN (#0029130) Suite 1520, Standard Bldg. 1370 Ontario Street Cleveland, Ohio 44113 For Defendants-Appellees: DEBORAH WENNER LEBARRON (#0009629) Director of Law 585 East 222nd Street Euclid, Ohio 44123 SPELLACY, J.: Plaintiff-appellant Lynn Gammon, Administratrix of the Estate of Jason Gammon, ( appellant ) appeals from the grant of summary judgment in favor of the defendants-appellees. -2- Appellant assigns the following error for review: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS, IN GRANTING THE MOTION FOR SUMMARY JUDGMENT OF THE DEFENDANTS WITH RESPECT TO THE CLAIMS OF THE APPELLANTS BROUGHT UNDER 42 U.S.C. 1983 (USE OF EXCESSIVE FORCE), FAILURE TO TRAIN AND MONITOR AND WRONGFUL DEATH UNDER O.R.C. 2125.01. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On September 3, 1993, the Euclid Police Department received a call from Candy Rocco who informed the police that her children had telephoned her. The children, Brian and Bridget Lewis, and another minor, Jason Gammon, had guns and were threatening to shoot police officers and Mrs. Rocco's husband. A few hours later, Ed Lewis, the natural father of Brian and Bridget, also telephoned the Euclid Police regarding a similar phone call from the children. At 6:45 p.m., three or four juveniles with weapons were seen running through the backyards on Abby Avenue in Euclid. The juveniles were threatening to shoot the first police officer they saw. A Euclid police officer spotted four youngsters running through backyards in a street adjacent to Abby Avenue. Other officers arrived on the scene and chased the juveniles on foot. The teenagers discovered an unlocked rear basement door at a two- family home located at 19186 Abby Avenue. They entered the home and proceeded to the upstairs unit. The police officers discovered the location of the teenagers when the officers entered the door to the home. The officers could hear them laughing, swearing, and -3- breaking objects. The officers left the building and established a perimeter around the house. One officer attempted to speak to the juveniles but his efforts went unanswered. They continued to yell obscenities and to destroy property in the home. Furniture was thrown through the upstairs windows. At 7:35 p.m., fifteen-year old Brian Lewis contacted the Euclid police dispatcher. The conversation with the dispatcher lasted approximately twenty-five minutes and included thirteen-year old Bridget Lewis and seventeen-year old Jason Gammon. A fourth individual left the house and surrendered to police while this conversation was taking place. The youths fired shots out of the windows of the home, striking and damaging two police vehicles. The Special Weapons and Tactics (SWAT) team arrived at about 8:00 p.m along with two members of the Crisis Negotiation Team. Officer Kevin Blakeley, one of the negotiators, established telephone contact with the teens. Blakeley remained in contact with the juveniles throughout the evening, although the contact was intermittent. Over the course of the evening, Jason Gammon demanded money, a helicopter, and cigarettes. Jason Gammon told the police that he would die that night by either the police killing him or by suicide. He also threatened to shoot Bridget Lewis. Officer Blakeley unsuccessfully attempted to deliver the cigarettes by throwing them through an upstairs window. Jason Gammon became enraged over the failed try and screamed obscenities -4- and pointed his weapon out the window. One of the officers at the scene then discharged his weapon but the shot missed Gammon. Officer Blakeley continued to speak to Jason Gammon. It was decided that another attempt to deliver cigarettes would be made but this time the cigarettes would be placed near a rear, downstairs door. Without consulting the officer in charge, Officer Blakeley made his approach to the house. While Officer Blakeley made his way to the rear door, Jason Gammon remained at the upstairs kitchen window. No weapon was in his hands at that time. After Officer Blakeley tossed the cigarettes at the agreed upon place and began to walk away, Jason Gammon yelled at Officer Blakeley to return. When Officer Blakeley continued his retreat, Jason Gammon picked up a handgun and leaned out the window. Jason Gammon pointed the weapon in the direction of Officer Blakeley. Two officers positioned in the backyard saw the gun pointed toward their fellow officer. The officers discharged their weapons, striking Jason Gammon. Moments later, Brian and Briget Lewis began screaming that Jason had been shot and that Bridget was injured. Brian and Bridget Lewis left the house. The police entered and discovered Jason Gammon lying on the kitchen floor, dead. A silver handgun still was clutched in his hand. Appellant, as administratrix of Jason Gammon's estate and individually, filed a complaint against the City of Euclid and twenty John Doe police officers. The complaint brought causes of action for violations of 42 U.S.C. Section 1983 for using deadly -5- and excessive force, failure to train and monitor, and wrongful death. Euclid answered and counterclaimed for damage done to two police vehicles when the juveniles shot a tire and a windshield. Euclid filed a motion for summary judgment. Appellant filed a motion to amend her complaint in order to substitute the names of the police officers for the John Doe officers named in the complaint. At the hearing held on Euclid's summary judgment motion, the trial court granted appellant's motion to amend. The trial court then granted summary judgment for Euclid as well as for the police officers. In Gammon v. City of Euclid (July 25, 1996), Cuyahoga App. No. 69549, unreported, this court affirmed the trial court's judgment as to Euclid but reversed the judgment in favor of the police officers as they had not filed a motion for summary judgment. The police officers then filed a motion for summary judgment which was granted by the trial court. Appellant opposed the motion, attaching as evidence the deposition of an expert witness. The witness opined that the officer in charge at the scene failed to properly supervise and communicate with his officers as he did not know Officer Blakeley was going to deliver the cigarettes to the youths. The expert stated that Officer Blakeley should not have made an unprotected approach to the house, especially without all of the other officers being aware of what Blakeley was about to do. The expert did agree that if a person comes to a window and points a gun in the direction of a police officer, the police could fire their weapons at that person. The trial court granted the motion for summary judgment in -6- favor of the police officers. This appeal follows. II. In her assignment of error, appellant contends the trial court erred in granting summary judgment. She asserts the defendants did not demonstrate appellant lacked evidence to support her claims against the police officers. Appellant relies on the evidence offered by her expert witness that the conduct of the police officers was contrary to accepted police standards. That conduct led to the death of Jason Gammon. This case was decided by summary judgment. Civ.R. 56(C) provides that summary judgment is proper if the trial court determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate where the facts are subject to reasonable dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104. The moving party is entitled to summary judgment if the nonmoving party fails to establish the existence of an element essential to that party's case and on which that party will -7- bear the burden of proof at trial. Celotex Corp v. Catrett (1986), 477 U.S. 317, 322. Although appellant's assignment of error addresses the claims for failure to train and monitor and for wrongful death, those causes of action will not be addressed. The failure to train and monitor claim was against the City of Euclid only, not the individual officers. It was disposed of in the first appeal in which summary judgment for the City of Euclid was affirmed. Appellant never addressed her claim for wrongful death in either her brief in opposition to motion for summary judgment or in her brief on appeal. As appellant apparently did not dispute the grant of summary judgment on that claim, it is not now before this court. Appellant's remaining cause of action was for a violation of 42 U.S.C. Section 1983. Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. Section 1983 provides a remedy for violations of substantive rights created by the United States Constitution or federal statute. Roe v. Franklin Cty. (1996), 109 Ohio App.3d 772, 778. The statute is limited to deprivations of federal constitutional -8- and statutory rights. State ex rel. Carter v. Schotten (1994), 70 Ohio St.3d 89, 92. In order to bring a Section 1983 action, two requirements must be met. The plaintiff must allege that some person has deprived him of a federal right and that the person acted under color of law. Gomez v. Toledo (1980), 446 U.S. 635, 640. The officers clearly were acting under the color of law; whether Jason Gammon was deprived of a federal right is a question to be resolved as well as whether the officers are immune. One of the defendants in the instant case is the chief of police, Chief Wayne Baumgart. Chief Baumgart was not present at Abby Avenue that evening but remained at the police station. In actions brought under Section 1983, the liability of supervisory personnel must be based on more than the right to control employees. The failure of a supervisor to supervise, control, or train offending individual officers is not actionable absent a showing that the supervisor either encouraged the specific incident of misconduct or in some other way directly participated in it. A plaintiff must demonstrate the supervisor at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the police officers. Caplan v. Roseman, 667 F.Supp. 549 (N.D.Ohio 1987). There is no allegation or evidence in the record that 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 -9- 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 -10- 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 -11- 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 qualified immunity. Appellant's assignment of error lacks merit. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, P.J. and -12- DIANE KARPINSKI, J. CONCUR. LEO M. SPELLACY Judge N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .