UNITED STATES DISTRICT COURT
WESTERN DISCTRICT OF MICHIGAN
SOUTHERN DIVISION

ESTATE OF ROLAND ROHM, by its Personal
Representative, Geraldine Livermore,

Plaintiff,

vs. Case No. 1:04-CV-552 Hon. Richard Alan Enslen
DANIEL LUBELAN, individually, JOHN JULIN, individually, JERRY ELLSWORTH, individually, STEVE HOMRICH, individually, DAVID
BOWER, individually, jointly and severally,

Defendants.
_______________________________________/

Of Counsel:

HILL AND ASSOCIATES, LLP DeClercq Druminski & Perlman
James D. Hill (P88332) Anthony J. DeClercq
Attorney for Defendant Attorney for Plaintiff
161 N. Clark St. 55171 Pacific Ridge Drive Chicago, IL 60601 Macomb, MI 48042
(913) 706-9986 (586) 321-7630
JamesDonaldHill@gmail.com decler16@msu.edu

January 12, 2002

DEFENDANTS’ BRIEF IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT

TABLE OF CONTENTS

Table of Authorities........................................................................................................ii
Issues Presented...............................................................................................................1
Statement of Facts...........................................................................................................1
Summary of the Argument..............................................................................................3
Standard of Review.............................................................................................3 I. Argument.........................................................................................4

To defeat a government employee’s qualified immunity, the Plaintiff must prove there was a violation of a constitutional right and that the right that was violated was clearly established. It is undisputed the suspect raised his gun and aimed at officers. It is undisputed that the officers believed they were acting lawfully. Are officers who react to a threat posed by a suspect if they believe they are acting lawfully entitled to qualified immunity?

1. None of the Defendants Violated Rohm’s Fourth Amendment Constitutional Rights........................................................................5

2. Defendants are Entitled to Qualified Immunity Without Determining Whether a Constitutional Right was Violated.............7

Conclusion.....................................................................................................................8

TABLE OF AUTHORITIES

U.S. Supreme Court Cases

Anderson v. Creighton, 483 U.S. 635 (1987)........................................................................4, 7

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)..........................................................4, 7

Brosseau v. Haugen, 543 U.S. 194 (2004)................................................................................4

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)..................................................................3

Conn v. Gabbert, 526 U.S. 286 (1999)......................................................................................7

Graham v. Connor, 490 U.S. 386 (1989)..............................................................................5, 7

Harlow v. Fitzgerald, 457 U.S. 800 (1982)..............................................................................4

Pearson v. Callahan, 555 U.S. 223 (2009) ..............................................................................7

Saucier v. Katz, 533 U.S. 194 (1999)...................................................................................7, 8

Tennessee v. Garner, 471 U.S. 1 (1985).....................................................................5, 8, 9, 10

6th Circuit Cases

Boyd v. Baeppler, 215 F.3d 594 (6th Cir 2000).......................................................................8

Rhodes v. McDannel, 945 F.2d 117 (6th Cir 1991).................................................................8

Summers v. Leis, 368 F.3d 881 (6th Cir. 2004).....................................................................3, 4

Other Circuit Cases

Priester v. Riviera Beach, 208 F.3d 919 (C.A.11 2000)..........................................................7

Federal Rules of Civil Procedure

Fed.R.Civ.P. 56.........................................................................................................................3

Constitutions

U.S. Const. amend. IV..............................................................................................................5

STATEMENT OF FACTS
On August 31, 2001, Roland Rohm (“Rohm”) and Thomas Crosslin (“Crosslin”) failed to appear at a scheduled court hearing and subsequently a felony warrant was issued for each of their arrests. (Exhibit A, 9/04/01 Police Report, p. 1). The charges stemmed from an ongoing two-year investigation of Rohm and Crosslin, which related to the trafficking of drugs during music festivals that took place on Crosslin’s Rainbow Farm Campground (“RFC”), located in Cass County, Michigan. (Exhibit B, Zangaro Dep Tr., p. 6). On the same day the felony arrest warrant was issued, Rohm and Crosslin burned down all of the buildings on RFC except the residence, wherein they barricaded themselves from the police to avoid arrest. (Exhibit C. Lubelan Dep. Tr., 20).
An armed standoff ensued over the course of Labor Day weekend. During this standoff, Rohm and/or Crosslin shot weapons at a news helicopter, a police airplane, and a Light Armored Vehicle (“LAV”) being used by police. (Exhibit A, 9/04/01 Police Report, pp. 1-2). The Michigan State Police (“MSP”) Emergency Support Team (“EST”) and the FBI were both asked to assist with the standoff. On September 3, 2001, an FBI agent shot and killed Crosslin near the residence while Rohm remained inside. (Exhibit A, 9/04/01 Police Report, p. 2). In the early morning hours of September 4, 2001, a negotiation team was able to discuss and agree upon a peaceful means of surrender by Rohm to occur at 7:00 a.m. (Id.).
Around 6:00 a.m., the North side of the RFC residence began burning. (Exhibit C, Lubelan Dep. Tr., 72). A short time thereafter, Rohm exited the building wearing camouflage combat fatigues with war paint on his face and wielding a long gun. (Id., 73-74; Exhibit E, Autopsy Report Spectrum Health p. 2). Defendants Lubelan and Julin were located at a perimeter position observing Rohm from a distance. (Exhibit C, Lubelan Dep. Tr., 15). Defendants Homrich, Bower, and Ellsworth, as part of the arrest team, were mobilized in the LAV soon after Rohm exited the residence. (Exhibit A, 9/04/01 Police Report Document 66, p. 2-3). In order to communicate between the LAV and other members of the EST through their radios, Homrich and Bower needed to use their radios outside of the LAV roof hatches. (Exhibit D, Bower Dep. Tr., 12-13). These positions exposed Homrich and Bower from mid-abdomen up to the top of their heads as they approached Rohm’s position. (Id., 16). Homrich and Bower also helped navigate the LAV through the smoke, fire, and difficult terrain on the way towards Rohm. (Exhibit D, Dep. Bower Tr., 12-13, 26). Additionally, they were asked to provide top security and surveillance (protect inside officers from an attack through the hatches) while they were outside of the hatches. (Id.) While the LAV was approaching Rohm’s position, Ellsworth was consistently instructing Rohm to surrender and put down the weapon over the loudspeaker of the LAV. (Exhibit F, Ellsworth Dep. Tr., p. 30).
During the time the LAV was approaching, Lubelan watched Rohm and the LAV from his perimeter position. (Exhibit C, Lubelan Dep. Tr., 52-64). Rohm stayed in his same location, but he was searching and pointing his long gun in multiple directions. (Id.). Lubelan noticed officers were exposed through the top of the LAV was moving closer to Rohm’s position. (Id., 75). He also saw Rohm act is if he knew where the LAV was coming from. (Id.). Lubelan saw Rohm bring the weapon up into full aim at the LAV. (Id.). In order to eliminate the threat to Bower and Homrich, Lubelan fired a bullet at Rohm from his long gun and it Rohm in the left center mass. (Id., at 77). This gunshot wound ultimately caused the death of Rohm. (Exhibit E, Autopsy Report Spectrum Health p. 2).

SUMMARY OF THE ARGUMENT
Government employees are entitled to qualified immunity when they have not violated a constitutional right nor have they acted in a manner they reasonably knew to be unlawful. In this action, the evidence proves Rohm had already established himself as a threat. Therefore, when Rohm threatened police officers by aiming his gun at them, Lubelan was not violating Rohm’s constitutional right and Lubelan was well within the confines of the law to eliminate the threat posed to the officers in the LAV. The undisputed evidence shows there was no violation of Rohm’s rights, and all Defendants reasonably believed they acted lawfully. The Plaintiff is unable to establish either of both required elements of the qualified immunity test to defeat qualified immunity and, therefore, summary judgment is appropriate.
Standard of Review
Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. According to the Supreme Court in, Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986), “the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” In order to prevail on a motion for summary judgment, Plaintiff, the non-movant in this case, must present enough evidence to create a genuine issue of material fact that would require a determination by the fact finder. Summers v. Leis, 368 F.3d 881, 885 (6th Cir. 2004). This is a burden which Plaintiff will not be able to meet. A genuine issue of material fact is any factual dispute that has a tendency to change the outcome of a case under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The showing of a mere existence of some alleged factual dispute is not enough by itself to defeat a properly supported motion for summary judgment. Summers, 368 F.3d at 885. To prevail, “there must be [sufficient] evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. 242 at 252.
Argument
I. To defeat a government employee’s qualified immunity, the Plaintiff must prove there was a violation of a constitutional right and that the right that was violated was clearly established. It is undisputed the suspect raised his gun and aimed at officers. It is undisputed that the officers believed they were acting lawfully. Are officers who react to a threat posed by a suspect if they believe they are acting lawfully entitled to qualified immunity?

Qualified immunity functions to shield public officials from liability when their conduct does not violate a person’s established constitutional rights and, if the official knew of the right, then qualified immunity would not shield the official from liability. Harlow v. Fitzgerld, 457 U.S. 800, 818 (1982). The two pronged test used to determine if a defendant is not entitled to qualified immunity is: (1) whether a constitutional right has been violated, and (2) whether that right has been clearly established. Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (citing Anderson v. Creighton, 483 U.S. 635, 638 (1987)). 1. None of the Defendants Violated Rohm’s Fourth Amendment Constitutional Rights.
The Fourth Amendment of the United States Constitution provides that it is “[t]he right of the people to be secure…against all unreasonable searches and seizures….” U.S. Const. amend. IV. It has been well established that individuals have a constitutional right to be free from excessive force during an arrest. See, Graham v. Connor, 490 U.S. 386, 388 (1989). Moreover, all claims regarding whether or not officers used excessive force should be analyzed under the Fourth Amendment and its reasonableness standard. Graham, 490 U.S. at 395. This is particularly the case when use of deadly force is used to effectuate a seizure. Tennessee v. Garner, 471 U.S. 1, 7 (1985). The judgment of officer actions in uncertain and tense situations should be determined from a reasonable officer’s perspective on the scene. Graham, 490 U.S. at 396-99.
The use of deadly force is only constitutionally permissible if “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others….” Garner, 471 U.S. at 11. The Supreme Court has suggested three factors to consider to determine the reasonableness of force used during an arrest: (1) the severity of the crime at issue, (2) whether a suspect posed an immediate threat to the safety of police or others, and (3) whether the suspect actively resisted arrest or attempted to evade arrest by flight. Graham, 490 U.S. at 396. If an officer had probable cause to believe there was a threat of physical harm to an officer, or if the officer’s actions were reasonable, then no violation of the Fourth Amendment will have occurred.
In the case at hand, the Defendants’ use of deadly force against Rohm was reasonable under the Fourth Amendment and its reasonableness standard. The differences between the facts in Garner and the facts of the Rohm seizure are stark. In Garner, the Supreme Court declared the killing of a non-dangerous young, unarmed suspect attempting to flee a possible burglary scene by the Memphis police was unconstitutional. Garner, 471 U.S. at 21. In the Rohm seizure, the MSP had been in a standoff for four days, with armed suspects. (Exhibit F, Ellsworth Dep. Tr., p. 20). When Rohm left the house, after he had negotiated a peaceful surrender, he carried a long gun with him and aimed it at approaching police officers (Exhibit C, Lubelan Dep. Tr., p. 77).
The factors suggested by the Supreme Court to determine the reasonableness of force lay the groundwork for this Court’s determination. First, the crime at issue originally involved drug trafficking, but quickly escalated when Rohm and his accomplice shot multiple times at police vehicles while resisting arrest (Exhibit B, Zangaro Dep Tr., p. 6). Second, Rohm posed an immediate threat to the safety of police as evidenced by his exiting the house with a long gun and aiming it at the LAV where police officers were exposed. (Exhibit C, Lubelan Dep. Tr., p. 73, 74). Finally, Rohm had been actively resisting arrest by holing himself up in his residence for four days and actively participating in keeping police away. (Exhibit A, 9/04/01 Police Report, pp. 1-2). Most importantly, the amount of force used during this arrest was necessary to eliminate the threat posed to officers on the scene.
Looking at Lubelan’s actions, and in particular his perspective of the situation, Lubelan was justified in using deadly force. Lubelan glanced at the LAV and saw an officer exposed through the top hatch. (Exhibit C, Lubelan Dep. Tr., p. 73, 74). He then looked back towards Rohm who aimed his gun in the direction of the LAV. (Id.) Taking into consideration the totality of the circumstances and the factors mentioned above, it is obvious, and Lubelan admits, that he shot Rohm to eliminate a severe and immediate threat posed to Bower and Homrich. (Id., at 75).
In sum, the Defendants all acted reasonably given the totality of the circumstances. Moreover, a reasonable officer in the same position of Lubelan would have used deadly force to eliminate the threat Rohm posed to Bower and Homrich. There was no constitutional violation when the Defendants seized Rohm through deadly force since Lubelan was justified

2. Defendants are Entitled to Qualified Immunity Without Determining Whether a Constitutional Right was Violated.

In Pearson v. Callahan, 555 U.S. 223 (2009), the Supreme Court overturned Saucier v. Katz, 533 U.S. 194 (1999), which required qualified immunity to be assessed in a two step process. Previously, a court evaluating a claim of qualified immunity “must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation.” Conn v. Gabbert, 526 U.S. 286, 290 (1999). Under the Pearson Court’s holding, a court may skip ahead directly to determine whether there was a “clearly established right”.
The Supreme Court explained the term “clearly established” in Anderson v. Creighton, 483 U.S. 635, 640 (1987), when the Supreme Court stated, “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” In explaining why it is important for the qualified immunity standard set forth in Graham to be able to adapt to the circumstances in light of ever changing law, the Supreme Court stated:
Graham does not always give a clear answer as to whether a particular application of force will be deemed excessive by the courts. This is the nature of a test which must accommodate limitless factual circumstances….Qualified Immunity operates…to protect officers from the sometimes “hazy border between excessive and acceptable force,” Priester v. Riviera Beach, 208 F.3d 919, 926-927 (C.A.11 2000), and to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.
Saucier v. Katz, 533 U.S. 194, 206, (2001).

In the case at hand, and in light of the fact that the Sixth Circuit has upheld qualified immunity in multiple cases involving officers believing their actions were lawful, all Defendants should be granted qualified immunity. Defendants Ellsworth and Lubelan were both specifically asked about their actions. Defendant Ellsworth, as the highest ranking officer, stated that the initial reason for trying to contact Rohm was because he had an opportunity to travel west off of the property toward other residences. (Exhibit F, Ellsworth Dep. Tr. p. 41). For Ellsworth and his arrest team, this would have been unacceptable and would have brought danger to the surrounding community. Therefore, as the director of actions of his team, a reasonable person in Ellsworth’s position would consider his instructions to be lawful. Defendant Lubelan was asked more directly whether he believed he was justified shooting Rohm, and he responded, “Yes” because he did not shoot Rohm until Rohm presented a threat to the officers and aimed a firearm at them. (Exhibit C, Lubelan Dep. Tr. P. 41-42).
Since all of the Defendants were acting under the command of Ellsworth in what they believed was a lawful attempt at arresting a criminal, they should be entitled to qualified immunity. Moreover, Ellsworth and Lubelan alluded to the facts that their actions were justified. None of the Defendants believed they were about to break a law, nor did they actually break any law. All of the Defendants should be summarily entitled to qualified immunity regardless of the determination of whether a right was violated.

CONCLUSION
Due to the fact that all Defendants are entitled to qualified immunity, the Defendants respectfully request that this Honorable Court grant Defendants’ Motion for Summary Judgment and dismiss Plaintiff’s complaint. Defendants also request that this Honorable Court assess costs against Plaintiff for Defendants’ reasonable expenses incurred, sanction Plaintiff for continuous pursuit of a frivolous lawsuit, and for such further relief that this Honorable Court deems to be fair and just.

Respectfully submitted,
HILL AND ASSOCIATES, LLP
By: /s/ James D. Hill
HILL AND ASSOCIATES, LLP
James D. Hill (P88332)
Attorney for Defendant
161 N. Clark St.
Chicago, IL 60601
January 12, 2002 (913) 706-9986

Exhibits Attached

Exhibit A, 9/04/01 Police Report Document 66
Exhibit B, Zangaro Dep Transcript
Exhibit C, Lubelan Transcript
Exhibit D, Bower Transcript
Exhibit E, Autopsy Report Spectrum Health
Exhibit F, Ellsworth Transcript

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[ 1 ]. Lubelan was video interviewed by Detective Zangaro and was quoted as saying, “And all of a sudden, he noticed where the noise and the headlights were coming from, and he poked his head up like this. The truck came out and started to come around the side of the house there. And he brought the weapon up, he brought it down, and then he brought it back up into a full aim at the front of the vehicle there. And it was at that time I discharged my long rifle…” (Id., 77).
[ 2 ]. In Pearson v. Callahan, the Supreme Court adjusted the mandated two-step test used to evaluate when a police officer is not entitled to qualified immunity. Instead, courts may now look directly to either prong of the test to determine if a public official is still entitled to qualified immunity. 555 U.S. 223 (2009).
[ 3 ]. These cases include, but are not limited to: Boyd v. Baeppler, 215 F.3d 594 (6th Cir 2000); Rhodes v. McDannel, 945 F.2d 117 (6th Cir 1991).