346 F.3d 752 (7th Cir. 2003), 02-4085, Scott v. Edinburg

Docket Nº:02-4085
Citation:346 F.3d 752
Party Name:Scott v. Edinburg
Case Date:October 09, 2003
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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346 F.3d 752 (7th Cir. 2003)

Perry L. SCOTT, Sr., Michelle M. Scott, Phillip H. Scott, Jr., et al., Plaintiffs-Appellants,


Rodney L. EDINBURG and Village of Glenwood, a municipal corporation, Defendants-Appellees.

No. 02-4085.

United States Court of Appeals, Seventh Circuit

October 9, 2003

Argued May 14, 2003.

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Thomas C. Marszewski (argued), Montgomery & Associates, Chicago, IL, for Plaintiff-Appellant.

Steven M. Puiszis (argued), Hinshaw & Culbertson, Chicago, IL, for Defendant-Appellee.

Before POSNER, RIPPLE and MANION, Circuit Judges.

RIPPLE, Circuit Judge.

Perry L. Scott, Sr. and other individuals (collectively, "the plaintiffs") brought this action on behalf of the deceased Phillip Scott ("Mr. Scott") in Illinois state court.

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They claimed that Officer Rodney Edinburg ("Officer Edinburg") impermissibly had used deadly force in attempting to arrest Mr. Scott. The defendants, Officer Edinburg and his employer, the Village of Glenwood, removed the case to federal court. The plaintiffs' third amended complaint alleged a violation of 42 U.S.C. § 1983 based on an allegation of an illegal seizure in violation of the Fourth Amendment. The complaint also included an Illinois state survival action and wrongful death claim. 1 Having determined that Officer Edinburg's use of deadly force was objectively reasonable, the district court granted the defendants' motion for summary judgment. For the reasons set forth in this opinion, we affirm the judgment of the district court.



A. Facts

Rodney Edinburg was a police officer employed by the Village of Glenwood. At 11:10 p.m. on May 17, 1999, Officer Edinburg was off-duty and driving his personal car, a red convertible Ford Mustang. He parked the vehicle, with the top down, in a Marathon gas station on the South Side of Chicago, left the keys in the ignition, exited the car in search of something to eat, and approached J.J.'s hot dog stand adjacent to the gas station. While at the hot dog stand, Officer Edinburg learned that an individual had entered his car and was trying to steal it. The perpetrator was Phillip Scott. Officer Edinburg ran back to the car and stopped between three to five feet from the rear bumper. Officer Edinburg testified that he could not see Mr. Scott's right hand, which was either searching for something or perhaps turning the ignition.

Officer Edinburg yelled "stop, stop," "hey," and "that's my car." R.63, Ex.3 at 22. The car's reverse lights then came on, and it backed up toward him, so that Officer Edinburg was forced to run backward to avoid being hit. Mr. Scott was looking over his shoulder at Officer Edinburg as the vehicle backed up. As he moved out of the way, Officer Edinburg yelled "stop, police" and drew his revolver. Id. at 23-24. Two to four seconds later, the car stopped backing up and began to drive forward. The exact instant that the first shot was fired is unclear, but the parties agree that Officer Edinburg fired the shot no earlier than the instant when the car stopped moving backward and started to move forward. Officer Edinburg testified that, after the first shot was fired, the tires skidded and the car sped off.

Officer Edinburg stated that he noticed two individuals in the direct path of the car and that people were moving, ducking and running away as Mr. Scott drove through the parking lot at a very high rate of speed. The plaintiffs, however, introduced affidavits by two bystanders, stating that no one was in the car's direct path and that no one was forced to move out of the way. It is undisputed that there were between twelve and fourteen patrons in the gas station parking lot throughout the incident. While the car was still in the parking lot, Officer Edinburg fired a second shot. The vehicle then exited the parking lot, proceeding north on State

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Street. Officer Edinburg followed on foot and fired at least six more shots. Shortly thereafter, Mr. Scott died, and the car crashed. It is not clear which gunshot killed Mr. Scott; but, the parties agree that the fatal shot was one of the "first few shots fired by Officer Edinburg, while he was on the gas station property." R.58, Ex.C at 2; see Appellant's Br. at 3-4.

B. District Court Proceedings

Relying on the testimony that Mr. Scott tried to run Officer Edinburg down with the Mustang and the uncontradicted testimony that there were twelve to fourteen bystanders in the gas station parking lot, the district court concluded that the use of deadly force was justified under Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). See R.69 at 6 & 16. The plaintiffs argued that Mr. Scott did not try intentionally to run into Officer Edinburg and that Mr. Scott did not pose a danger to bystanders in the parking lot. See id. at 8. The district court noted that the plaintiffs did not introduce contradictory forensic evidence; rather, they attempted to challenge Officer Edinburg's story by arguing that his testimony is internally contradictory, inconsistent with prior statements, and contradicted by eyewitness testimony. See id. Nevertheless, the court concluded that these challenges to Officer Edinburg's testimony did not create a dispute over a material fact. See id. at 16.



A. Standard of Review

We review the district court's grant of the motion for summary judgment de novo. See Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 938 (7th Cir. 2003); Rauen v. United States Tobacco Mfg. Ltd. P'ship, 319 F.3d 891, 895 (7th Cir. 2003). Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In evaluating whether a genuine issue of material fact exists, all evidence and inferences must be viewed in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 320 (7th Cir. 2003). However, "the nonmoving party must set forth specific facts, more than mere conclusions and allegations, sufficient to raise a genuine issue for trial; 'the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment ....' " Balderston, 328 F.3d at 320 (quoting Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505 (emphasis in Anderson)); see Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548.

B. Fourth Amendment Analysis

The plaintiffs' § 1983 claim is based on an alleged violation of Mr. Scott's Fourth Amendment right to be free from unreasonable seizures. A police officer's use of deadly force constitutes a seizure within the meaning of the Fourth Amendment, and therefore it must be reasonable. See Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); Muhammed v. City of Chicago, 316 F.3d 680, 683 (7th Cir. 2002). In Tennessee v. Garner, the Supreme Court outlined the principles for evaluating...

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