387 F.3d 949 (8th Cir. 2004), 03-2043, Parks v. Pomeroy

Docket Nº:03-2043.
Citation:387 F.3d 949
Party Name:Tamara Jean PARKS, individually and as Trustee for the heirs and next of kin of Perry Michael Parks, Appellee, v. Michael POMEROY, in his individual capacity as an officer of the Woodbury Police Department, Appellant. Jeff Gottstein, in his individual capacity as an officer of the Woodbury Police Department; City of Woodbury, Defendants.
Case Date:November 05, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 949

387 F.3d 949 (8th Cir. 2004)

Tamara Jean PARKS, individually and as Trustee for the heirs and next of kin of Perry Michael Parks, Appellee,


Michael POMEROY, in his individual capacity as an officer of the Woodbury Police Department, Appellant.

Jeff Gottstein, in his individual capacity as an officer of the Woodbury Police Department; City of Woodbury, Defendants.

No. 03-2043.

United States Court of Appeals, Eighth Circuit

November 5, 2004

Submitted: Feb. 13, 2004

Page 950

[Copyrighted Material Omitted]

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Joseph E. Flynn, argued, Lake Elmo, MN (Pierre N. Regnier, on the brief), for appellant.

Robert Bennett, argued, Minneapolis, MN (Eric Hageman, on the brief), for appellee.

Before MELLOY, McMILLIAN and COLLOTON, Circuit Judges.

MCMILLIAN, Circuit Judge.

Tamara Jean Parks ("plaintiff") brought this § 1983 civil rights action in the United States District Court for the District of Minnesota on behalf of herself and the heirs and next of kin of her deceased husband, Perry Michael Parks ("Parks") against the City of Woodbury, Minnesota, and Woodbury police officers Michael Pomeroy and Jeff Gottstein. In her complaint, plaintiff asserted a Fourth Amendment claim, among others, alleging that Pomeroy had used objectively unreasonable force when he fatally shot Parks during a struggle between Gottstein and Parks in Parks's house after Pomeroy and Gottstein responded to plaintiff's 911 call reporting a domestic dispute. Now before this court is an interlocutory appeal from an order of the district court denying Pomeroy's motion for summary judgment based upon qualified immunity. Parks v. Pomeroy, No. 00-2191, 2003 WL 1571587 (D.Minn. Mar. 14, 2003) (memorandum and order) (hereinafter "slip op."). For reversal, Pomeroy argues that the district court erred in failing to hold that (1) in view of certain undisputed material facts, plaintiff cannot establish a constitutional violation as a matter of law, or (2) even if plaintiff can establish a constitutional violation, he is entitled to qualified immunity. For the reasons stated below, we reverse the district court's denial of qualified immunity and remand the case to the district court for further proceedings consistent with this opinion.

The district court had original jurisdiction based upon 28 U.S.C. §§ 1331, 1343. We have appellate jurisdiction under the collateral order doctrine. See Johnson v. Jones, 515 U.S. 304, 310-12, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (citing, e.g., Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)).

The following summary of the facts is based upon plaintiff's allegations, viewed in the light most favorable to plaintiff. See Appellant's Appendix, Vol. I, at 56-129 (Deposition of Tamara Jean Parks). On the evening of Saturday, June 3, 2000, plaintiff and Parks went to a restaurant and bar called "Sunsets of Woodbury" ("Sunsets"), located near their home. While at Sunsets, plaintiff had less than two beers, and Parks drank approximately three 22-ounce mugs of beer. Shortly after 9:00 p.m., while plaintiff and Parks were preparing to leave Sunsets, their 17-year-old daughter called them on their cellular phone. After the phone call, plaintiff and Parks had a disagreement, and plaintiff began giving Parks the "silent treatment." Plaintiff went to retrieve their car and, with plaintiff driving, they returned home at approximately 9:30 p.m. Shortly after they arrived home, Parks began yelling and swearing at plaintiff. Their 12-year-old daughter began crying and told Parks to stop. Parks continued yelling and slammed his hand on the kitchen counter. Plaintiff grabbed the telephone

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and told him that she would call the police if he did not calm down. He responded by saying something to the effect of "go ahead." She called 911. Her conversation with the 911 dispatcher included the following pertinent remarks:

Dispatcher: 911 Emergency.

Plaintiff: Can you send someone to 2704 Horseshoe Lane.

Dispatcher: What's happening?

Plaintiff: It's a big mess here. Uh, my husband's drunk, and he's getting very violent.

Dispatcher: Okay, is it physical?

Plaintiff: What?

Dispatcher: Is it physical?

Plaintiff: N-not- well, not yet. But it's gonna get there. My girls are here.


Plaintiff: Come get him out of here.

Dispatcher: Yep, we are.


Dispatcher: All right. And this occurred--occurred before?

Plaintiff: Well, this is the first time I've seen him this bad.

The dispatcher instructed plaintiff to remain on the line until help arrived. Meanwhile, a call went out for officers to respond. Gottstein was the first to respond by radio. The 911 dispatcher gave him the address and the following information: "Husband/wife. Male is [drunk]. No weapons. It's not physical at this point, but it sounds like it might get there." Pomeroy also responded to the dispatcher by radio, and he received the same information. Both Gottstein and Pomeroy proceeded to the house. The dispatcher reiterated the following information to the officers: "It's a husband/wife domestic ... the father is [drunk] ... [a]pparently it's husband versus wife. The husband is [drunk]. Children are involved."

Gottstein and Pomeroy arrived at the house at roughly the same time, and they entered the house together. Plaintiff told them that Parks was in the kitchen. When the officers went into the kitchen, Parks had calmed down and was standing by the sink loading the dishwasher and eating a snack. 1 Gottstein said to Pomeroy: "We're going to get you out of here." Parks responded: "No. This is my house. I didn't do anything." Gottstein lunged forward and attempted to grab Parks. Gottstein is 5'5"' and weighs approximately 170 pounds. Parks was 5'11"' and weighed approximately 220 pounds. As Gottstein lunged forward, Parks raised one hand and blocked Gottstein, causing Gottstein to stumbled backward. Gottstein regained his balance, grabbed Parks by the throat, and sprayed Parks several times in the face with Oleoresin Capsicum or "OC" spray (similar to mace). Parks began waving his hands in front of his face, while resisting Gottstein's efforts to gain control of him. The two ended up in a physical struggle on the kitchen floor, facing in opposite directions with Parks on top of Gottstein. Pomeroy remained close by, but at this point had not engaged in the physical struggle between Parks and Gottstein. While Gottstein and Parks were struggling on the floor, Gottstein yelled out: "I think he's going for my gun." 2 At that point, Pomeroy drew his firearm and pointed it directly into the back of Parks's

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right shoulder. Plaintiff, upon seeing Pomeroy draw his gun, screamed and ran over to Parks, who was on his hands and knees, on top of Gottstein. Plaintiff tried to pull Parks up by the shoulders and told Pomeroy not to shoot. She could feel the effects of the OC spray in her throat, but her eyes were not affected by it. She heard Pomeroy's gun click, but it did not discharge. Pomeroy told Parks not to go for the gun, to which Parks replied: "I'm not. I can't see." Plaintiff was on Parks's left side and could see that Parks's left hand (the one closest to Gottstein's gun) was on the floor bracing himself and not touching Gottstein's gun. She observed Pomeroy reach in between Parks and Gottstein with one hand and bring his gun upward with his other hand. Pomeroy's gun came to a location where it was pointed directly at plaintiff, causing her to scream and back away. As she was backing away, she observed Pomeroy fire his gun directly into the back of Parks's right shoulder. 3 Parks died moments later. At the moment Pomeroy shot Parks, Parks was still on his hands and knees. The total amount of time that elapsed between the officers' arrival at the house and the shooting of Parks was approximately three to four minutes.

The district court held that the facts presented at the summary judgment stage, when viewed in the light most favorable to plaintiff, could reasonably support the conclusion that Pomeroy violated Parks's Fourth Amendment rights when he fatally shot Parks. The district court reasoned:

Viewing the record in the light most favorable to Plaintiff, a reasonable jury could find that Officer Pomeroy shot Mr. Parks despite the fact that he could see that Mr. Parks' hand was not on Officer Gottstein's firearm, and that therefore Mr. Parks did not pose an immediate threat to the safety of the officers or others.

Slip op. at 12. The district court also specifically rejected Pomeroy's argument that he reasonably relied upon Gottstein's statement: "I think he's going for my gun." The district court explained:

This argument misses the point. Officer Pomeroy asserts that he saw Parks' hand on Officer Gottstein's firearm. Officer Pomeroy's testimony leads to the inescapable conclusion that he was in a position to see what Officer Gottstein couldn't--whether Parks was in fact attempting to acquire Officer Gottstein's firearm. Officer Pomeroy cannot rely on Officer Gottstein's belief to support his actions when he was in a better position to assess the situation.

Id. at 13. Thus, the district court concluded that Pomeroy was not entitled to judgment as a matter of law on the merits of plaintiff's Fourth Amendment claim.

On the separate question of whether Pomeroy was nevertheless entitled to qualified immunity because plaintiff could not establish a violation of a "clearly established" right, the district court reasoned that, at the time of the events in question, a reasonable police officer would have been clearly on notice that no greater force may be used in making an arrest than is reasonable under the circumstances and, more specifically, that deadly force is unreasonable unless there is "probable cause to believe that officers or others [are] faced...

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