If You Barricade Yourself, Burn Your House, And Raise A Rifle, Then Getting Shot Is YOUR Fault

LIVERMORE v. LUBELAN, USCA-6 No. 06-1465, 2007 U.S.App. LEXIS 2594, on appeal from USDC-MIWD, before USCJ-6 Batchelder and Griffin and USDJ-TNED Phillips, opinion by Griffin, filed 07 Feb 2007.

LONG STORY SHORT: The proximate cause of the subject's death was his threatening posture with a rifle after he had exhibited very violent behavior, and both the lieutenant who commanded the raid on his house and the sergeant who shot the subject were entitled to qualified immunity. Binding in KY, MI, OH, TN.

FACTS: Cass County, Michigan residents Crosslin and Rohm advocated marijuana production and use, and practiced what they preached at Rainbow Farms Compound, which Crosslin owned. On 31 Aug 2001, Rohm blew off a required court appearance, and he and Crosslin set fire to some outbuildings at Rainbow Farms, inspiring the Cass County Sheriff's Department to surround the premises and call for help from the Michigan State Police Emergency Services Team. Crosslin, visibly armed, refused officers entry and later that day fired at least one bullet into a news helicopter. The standoff continued for days.

On 03 Sep 2001, FBI agents found Crosslin while he was returning from a burglary, and had to shoot and kill him in self-defense. On 04 Sep, Rohm agreed by phone with MSPEST negotiators to surrender if he could talk with his son, but instead Rohm set fire to his house, took up a rifle, and hid between two trees in his backyard. MSPEST had received word that the house was rigged with explosives. A Light Armored Vehicle commanded by Lieutenant Ellsworth of MSPEST approached and by loudspeaker he ordered Rohm to surrender. To use their radios, the two MSPEST sergeants in the LAV with Lieutenant Ellsworth had to sit partially exposed in the open roof hatches, but still could not see Rohm in the early daylight and smoke.

MSPEST sharpshooter Sergeant Lubelan, 150 yards away in a concealed observation position, could see Rohm and his rifle, and testified that Rohm was in a left-handed firing position, appearing to track the LAV and preparing to shoot at the exposed officers. Sergeant Lubelan testified that he fired two shots at Rohm's back. However, autopsy and reconstruction showed that the first and fatal shot passed through Rohm's rifle stock and into his chest. The sergeants in the LAV testified that when they learned Rohm had been shot, they were back inside the LAV, but one sergeant testified that he was still exposed at the exact time Rohm was shot.

PROCEDURE: Plaintiff, Rohm's mother, sued Sergeant Lubelan and Lieutenant Ellsworth in U.S. District Court for the Western District of Michigan per 42 U.S.C. § 1983 for violating Rohm's Fourth Amendment right to be free from unreasonable seizure, and for liability under Michigan state law. Plaintiff claimed that Lieutenant Ellsworth had already ordered his sharpshooters to fire at Rohm if he aimed a rifle at the LAV, and presented expert testimony that police acted deliberately or recklessly to provoke Rohm's actions. After discovery, Defendants moved for summary judgment on grounds that as a matter of law they had not acted unreasonably, and were entitled to qualified immunity. The trial court ruled that the LAV sergeants' testimony that they were inside the LAV when they learned of the shooting, plus Rohm's stepfather's testimony that Rohm always fired rifles right-handed, together with Plaintiff's police practices expert's testimony, established a genuine issue of material fact as to both qualified immunity and Michigan state law liability. SUMMARY JUDGMENT DENIED in all respects. Defendants appealed immediately to the U.S. Court of Appeals for the Sixth Circuit.

DECISION: If any material facts affecting qualified immunity are still in dispute, no appellate court has jurisdiction. However, the Sixth Circuit held that even taking the facts in the light most favorable to Plaintiff, only issues of law remained, establishing appellate jurisdiction. Under these facts, the police did not make the trouble any more than any responding officer does when presented with lawbreaking or violence; in fact, police have a duty to intervene.

Whether or not Lieutenant Ellsworth ordered anyone to fire at Rohm if he raised a weapon at the LAV was immaterial. The two shots that Sergeant Lubelin fired at Rohm constituted the only "seizure" under the Fourth Amendment, and courts may only look at the split-second judgments of the officer who made the actual seizure. Under these facts, a supervisor such as Lieutenant Ellsworth could not be liable, and he was entitled to summary judgment.

Beyond dispute, Rohm was holding his rifle when he was shot, as evidenced by the bullet hole in it. Even if Sergeant Lubelin did not see Rohm point his rifle toward the LAV, a reasonable officer in Sergeant Lubelin's position had probable cause to believe that Rohm was about to do deadly harm. Rohm's violent behavior and the inherent dangerousness of a rifleman close to the LAV were justification for Sergeant Lubelin's well-aimed shots, and he was entitled to summary judgment. Furthermore, under Michigan law, Rohm's own behavior, not any police provocation or recklessness, proximately caused his own death, meaning that all officers were entitled to summary judgment. DENIAL OF SUMMARY JUDGMENT REVERSED.

EDITORIAL: Two great big thumbs up to the Sixth Circuit and Michigan Assistant Attorney General Margaret A. Nelson for a splendid job. Now that's what I call world-class appellate advocacy. I feel for the guy's mother, but nobody gets to raise a hand, much less a deadly weapon, to the law without severe consequence. Bravo Zulu to Sergeant Lubelin for fulfilling the police sharpshooting mission perfectly; righteous shots that hit only the guilty person, stop the fight, and save innocent lives.