NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 04a0012n.06
                          Filed: October 6, 2004


                                        03-3517

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


HESTON CUFFY,                               )
                                            )
      Plaintiff-Appellant,                  )
                                            )
v.                                          )   ON APPEAL FROM THE UNITED
                                            )   STATES DISTRICT COURT FOR THE
MAJOR LARRY A VAN HORN et al.,              )   NORTHERN DISTRICT OF OHIO
                                            )
      Defendants-Appellees.                 )




      Before: KENNEDY, DAUGHTREY, and COOK, Circuit Judges.


      PER CURIAM. In this civil rights action filed pursuant to 42 U.S.C. §1983, plaintiff

Heston Cuffy appeals the district court’s grant of summary judgment to all but two of the

defendants on qualified immunity grounds. At the time of the incident giving rise to this

litigation, the defendants were all law enforcement personnel. Larry Van Horn, Paul

Basinger, Matt Redick, Bret Lee, Jerry Morris, Danny Thompson, Sam Crish, Brian

Winegardner, Todd Mohler, Brad Jacomet, Mark Baker, and Terry Sneary were deputies

in the Allen County (Ohio) Sheriff’s Department. Defendant Daniel Beck was the Allen

County Sheriff, and Defendant Angel Cortes was a sergeant employed by the Lima (Ohio)

Police Department. Defendant Jana Gutman was an Assistance Allen County Prosecutor.

Defendant Anthony Denisco was a physician employed by Allen County. The district court
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denied summary judgment to Brad Jacomet and Todd Mohler in their individual capacity

on the plaintiff’s claims that they violated his Fourth Amendment right to be free from

excessive force. Those claims have since been tried to a jury, which returned a verdict

finding no liability on the part of the two defendants.


       Cuffy, who suffered from a bipolar condition, was injured when police officers shot

him in the leg as he descended from a hiding place in his attic wielding a two-foot-long

machete that he had used an hour earlier in the day to assault several people at his

cousin’s home, at the same time threatening to chop up his cousin’s small dog. The

defendant fled from the scene when his cousin called police out of fear for the safety of his

family. A local police officer who had heard an APB for Cuffy broadcast over the radio in

his patrol car spotted the plaintiff’s car and gave chase. Cuffy refused to pull over and

sped through several stop signs. The chase ultimately led to Cuffy’s residence, where he

got out of his car, still wielding the machete, refused to drop it at the pursuing officer’s

command, and escaped into his house. When back-up officers arrived a few minutes later,

they initially tried to reach Cuffy inside the house by telephone, but were unsuccessful. Not

aware of whether anyone else was in the house, they eventually entered it by force, based

upon the opinion of the county prosecutor that a warrant was unnecessary. At this point,

they discovered that Cuffy was holed up in the attic. He initially refused their orders to

come down, and when he did emerge, he was still wielding the machete, leading one of

the officers closest to him to fire a shot into Cuffy’s leg.



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     The plaintiff filed this section 1983 action, alleging that the officers had entered his

home illegally and that there were no exigent circumstances to excuse the police conduct

that resulted in his injury. He also claimed that the officers should be held liable in their

official capacity because their actions were the result of an official “use of force” policy and

because they acted on the advice of the county prosecutor that they could enter his

residence without a warrant. The district court found no proof to support the latter

contention. As to the question of the officers’ warrantless entry into the house, the district

judge found that the officers were not in “hot pursuit” by the time they made the entry,

because “his pursuit was neither immediate not continuous.” We disagree, concluding on

the facts presented in the record that there were exigent circumstances to support the

officers’ conduct. This disagreement with the district court is academic, however, because

the court ultimately found that the officers might reasonably have believed that they were

in hot pursuit and, on this basis, extended qualified immunity to them in connection with

the plaintiff’s Fourth Amendment claim. The result of invoking either analysis is the same:

the motion for summary judgment was properly entered in favor of the defendants.


         Having had the benefit of oral argument, and having studied the record on appeal

and the briefs of the parties, we are not persuaded that the district court erred in granting

summary judgment to the defendants. Accordingly, we AFFIRM the judgment of the district

court.




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