CA6: SJ denied in excessive force case of shooting of infirm older man who was also allowed to bleed to death

Officers responded to a shots fired call and encountered a man who wore an eyepatch and moved slowly carrying a stick as a cane. “Miedzianowski radioed Officer Jeremy McGraw for assistance and stepped out of his car to speak with Scozzari. Miedzianowski asked Scozzari to drop the stick and to come closer, but Scozzari responded, ‘Fuck you, boy’ and continued walking. This reaction caused Miedzianowski to wonder if Scozzari was the armed person who had fired gunshots in the park.” After a couple of “fuck you”s, the man reached to his waistband for what the officer thought was a knife. Witnesses disputed the officers’ version. The man also found a hatchet and advanced on the officer who backed up and tripped dropping his gun. Ultimately he shot the man. After the shooting, the officers did nothing to aid the man while they waited for paramedics, and he died. Summary judgment on qualified immunity was denied as to excessive force and deliberate indifference. Scozzari v. Miedzianowski, 454 Fed. Appx. 455, 2012 FED App. 0004N (6th Cir. 2012) (unpublished)*:

Defendants argue that, like the officers in Chappell, they had probable cause to believe that Scozzari posed an imminent threat of serious physical harm. However, the differences between Chappell and this case are significant. Viewed in the light most favorable to Plaintiff, the evidence indicates that the Officers were standing 15 to 20 feet from Scozzari when they shot him. Further, Scozzari was 51 years old, 5’3′ and 133 pounds, blind in one eye and hardly physically intimidating. Additionally, there are genuine issues of material fact whether Scozzari was wielding a knife and hatchet over his head. Further, there is evidence that Scozzari was moving slowly. According to Miedzianowski, Scozzari walked or took “a couple steps” in McGraw’s direction; other witnesses recalled Scozzari moving slowly or not at all. In contrast to Chappell, the circumstances here present a genuine question whether the situation compelled a split-second decision to use lethal force. See Estate of Kirby, 530 F.3d at 482-83 (affirming denial of qualified immunity where, under plaintiff’s version of the facts, defendant officers were not in harm’s way “and critically, defendants had sufficient time … to assess the situation before firing several rounds at” the decedent); cf. Garner, 471 U.S. at 11 (“Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.”). Accordingly, the district court did not err in denying Defendant Officers qualified immunity with respect to Plaintiff’s excessive-force claim.

In the instant case, Defendants knew that the likely cause of Scozzari’s collapse was one or more gunshot wounds. Furthermore, as they waited to ensure that Scozzari was not faking injury, the Officers observed a large pool of blood near his neck and heard gurgling sounds coming from his mouth. Lastly, when McGraw felt Scozzari for a pulse, he found none. A layperson under these circumstances would immediately recognize that Scozzari risked serious harm unless given immediate medical attention. Therefore, the questions to resolve are whether medical treatment was unreasonably delayed for non-medical reasons and whether this delay was due to deliberate indifference on the Officers’ part. See Blackmore, 390 F.3d at 899.