Key Points

  • The Sixth Circuit affirmed the denial of qualified immunity, accepting the plaintiff's factual version that the deputy's belief of a threat was unreasonable.
  • Interlocutory qualified immunity appeals cannot challenge a district court's determination that material facts are disputed; the defendant must accept the plaintiff's facts.
  • The court held that a person with evident mental illness who is unarmed and non-threatening does not justify deadly force, even if erratic and noncompliant.
  • The decision reinforces that in mental-health encounters, disputed issues of dangerousness are for the jury, not for the appellate court on an immunity appeal.

On April 23, the Sixth Circuit affirmed a district court's denial of qualified immunity to Deputy Jennifer Smiley, who shot an unarmed man in a park after interpreting his odd behavior as dangerous. The case, Driscoll v. Montgomery County Board of Commissioners, reinforces that when historical facts are disputed, a law enforcement officer's subjective perception of threat does not entitle her to immunity at summary judgment.

In May 2020, Cory Driscoll, who has schizoaffective and bipolar disorders, was praying and speaking in tongues at a Montgomery County park. A concerned bystander called a non-emergency line. Deputy Smiley responded and encountered Driscoll holding a jug of lake water. She ordered him to drop it; he eventually complied but continued acting erratically, speaking in tongues and at one point walking toward her with open hands. Smiley shot him in the abdomen, severely injuring him.

Driscoll sued for excessive force. Smiley moved for summary judgment claiming qualified immunity. The district court denied the motion, finding genuine disputes of material fact about whether Driscoll posed an imminent threat. Smiley appealed.

The Sixth Circuit panel—Judges White, Stranch, and Murphy—affirmed. Writing for the majority, Judge White underscored the limited nature of interlocutory qualified immunity appeals. 'The appeal cannot be from a district court's determination that there is a genuine dispute of material fact,' she wrote. 'The defendant appealing a denial of qualified immunity must concede the plaintiff's facts.'

Applying that standard, the panel accepted Driscoll's version of events. Under that version, Smiley had no objective basis to believe Driscoll was armed or dangerous. The court stated: 'Deputy Smiley has presented no evidence undermining the district court's determination that, viewing the evidence in Driscoll's favor, Deputy Smiley's belief that he was drinking gasoline was unreasonable.' Video showed Driscoll drank from the jug without reaction; no one reported smelling gasoline.

The court further concluded that Driscoll's erratic behavior and noncompliance did not justify deadly force. 'Driscoll did not verbally or physically threaten Deputy Smiley or anyone else,' the opinion said. Because his diminished capacity was 'plainly evident,' officers were required to de-escalate. 'Given that Driscoll posed no threat to Deputy Smiley or anyone else, his evident diminished capacity supports the conclusion that Deputy Smiley's actions throughout the encounter were unreasonable.'

The majority held the constitutional violation was 'obvious' under Tennessee v. Garner, which says police may not shoot 'an unarmed, nondangerous suspect.' Precedent such as Martin v. City of Broadview Heights, involving a noncompliant mentally ill person, put Smiley on notice. The dissent argued the law was not clearly established and would have granted immunity.

The Sixth Circuit also affirmed the denial of state statutory immunity because it 'overlaps entirely' with the federal qualified immunity defense. The case will return to district court for trial.