Schulz v. Long
| Decision Date | 03 January 1995 |
| Docket Number | No. 94-1256,94-1256 |
| Citation | 44 F.3d 643 |
| Parties | Steven Paul SCHULZ, Plaintiff-Appellant, v. William LONG; Robert Vanalmsick; Col. Gilbert H. Kleinknecht; Frank C. Bick; Robert W. Flagg; Brainerd Latourette, Jr.; Joseph L. Mason; James Raymond; St. Louis County, Missouri; St. Louis County Police Department, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Thomas P. Howe, St. Louis, MO, argued (Henry B. Robertson, on the brief), for appellant.
Michael A. Shuman, Clayton, MO, argued, for appellees.
Before HANSEN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.
Steven Schulz appeals the final judgment of the district court 1 granting several defendants summary judgment, granting one defendant judgment as a matter of law, and entering judgment on a jury verdict in favor of the remaining defendant in this 42 U.S.C. Sec. 1983 claimed use of excessive force case. Schulz contends that the district court erred in: (1) granting defendant Robert Vanalmsick judgment as a matter of law; (2) excluding certain evidence at trial; and (3) granting several defendants summary judgment on Schulz's failure to train claim. Finding no error, we affirm.
Steven Schulz (hereinafter "Appellant") is a diagnosed paranoid schizophrenic who has been hospitalized on several occasions for mental health treatment, with one hospitalization being an involuntary commitment. On July 17, 1986, Appellant began throwing, breaking, and sawing items in his basement bedroom at the home of his parents, Virgil and Doris Schulz. Virgil Schulz unsuccessfully attempted to negotiate with his son to go to the hospital for treatment. Mr. and Mrs. Schulz then conferred with a psychiatrist who had treated Appellant on a prior occasion. The psychiatrist suggested that the police might have to be called for assistance in taking Appellant to the hospital.
Eventually, Doris Schulz called the police. Defendant Robert Vanalmsick, a St. Louis County Police Officer, arrived first at the Schulz residence. He was joined shortly thereafter by defendant William Long, who is also a St. Louis County Police Officer. Mr. and Mrs. Schulz advised each officer when they arrived of Appellant's mental condition, including his prior involuntary confinement, and that he was destroying items in the basement. Mr. and Mrs. Schulz also informed the officers that Appellant did not have access to weapons, and they did not believe he was dangerous but was in need of treatment at a mental hospital.
Officer Vanalmsick went downstairs shortly before Officer Long's arrival and engaged Appellant in conversation. At the foot of the stairs, Appellant had erected a chest-high barricade, consisting of tables, chairs, boxes, and other items. Officer Vanalmsick stood on the landing at the bottom of the stairwell as he spoke with Appellant, who was on the other side of the barricade. When Officer Long arrived, he also went downstairs and stood several steps above Officer Vanalmsick.
During his conversation with the officers, the Appellant stated that if he went to the hospital, he wanted to speak with a "negotiator" upon arrival. However, he would not tell the officers whom he would accept as a negotiator. Appellant also expressed a concern that the officers were going to "rush him" and hurt him. (Trial Tr. at 149.) Officer Vanalmsick assured Appellant that the officers had no plans to "rush him," nor did they intend to hurt him. Approximately fifteen minutes after Officer Long arrived, the conversation began to stagnate with the officers being unable to convince Appellant to go to the hospital. Officer Long then went upstairs and contacted the police dispatcher to send a supervisor to the premises, stating "get here as soon as possible but don't expedite" and then returned to the basement. (Trial Tr. at 92.)
Sometime thereafter Appellant retrieved a single-bladed hatchet from his bedroom area. After several requests from Officer Vanalmsick to put down the hatchet, Appellant acquiesced and set it down on a nearby shelf. As the conversation between Officer Vanalmsick and Appellant continued, Appellant again picked up the hatchet. Officer Vanalmsick testified at trial that during this time, while he did not feel that Appellant was threatening him with the hatchet, he remained concerned about its presence. (Trial Tr. at 150-51.)
After continued dialogue, Appellant apparently relented to Officer Vanalmsick's requests to put down the hatchet and go to the hospital. He told the officers that he wanted to write down their names and pack a few things for the trip to the hospital. He placed the hatchet on an adjacent shelf and returned to his bedroom area. Officer Vanalmsick retrieved the hatchet from the shelf and handed it to Officer Long, who tossed it to the top of the stairs.
Appellant saw the officers remove the hatchet and became incensed. He screamed obscenities at the officers and commenced hurling bricks at them. The officers took shelter from the flying bricks. When Appellant ceased throwing bricks, he looked around confusedly. Officer Vanalmsick decided to try to get past the barricade to subdue Appellant. Officer Vanalmsick testified that he believed the officers were authorized to subdue or control Appellant because an assault had been committed on the officers and Appellant posed a danger to the officers' safety. (Trial Tr. at 158.)
However, Officer Vanalmsick became entangled in the barricade. As he attempted to free himself, he momentarily took his eyes off Appellant. Appellant then retrieved a long-handled, double-bladed ax and began approaching Vanalmsick "at a very deliberate" pace. (Trial Tr. at 101.) Officer Long testified that Appellant was holding the ax with both hands, in a cocked position, with the blade at the top and at about head level. (Trial Tr. at 100-01.) Officer Long then unholstered his gun, pointed it at Appellant, and warned him twice, "Drop the ax or I'll shoot." (Trial Tr. at 101.) Appellant did not respond to these warnings and continued to approach Officer Vanalmsick. When Appellant got within 6-8 feet of Officer Vanalmsick, Officer Long started firing at him. Appellant continued to approach Officer Vanalmsick unimpeded until Officer Long's fourth shot felled him. He ended up about 3-5 feet short of Officer Vanalmsick, who was still entangled in the barricade.
Appellant later commenced this 42 U.S.C. Sec. 1983 action, alleging violations of his rights under the Fourth and Fourteenth Amendments to be free from an unreasonable seizure. Count I of the complaint charged Officers Long and Vanalmsick in their individual capacities with violating these rights. Count II set forth a failure to train claim against St. Louis County, Missouri, as well as various other defendants.
Prior to trial, the district court granted the Count II defendants' motions for summary judgment. At trial, the district court granted Officer Vanalmsick's motion for a judgment as a matter of law. The jury returned a verdict in favor of Officer Long, the only remaining defendant. Appellant appeals.
Appellant contends that the district court erred in granting judgment as a matter of law to Officer Vanalmsick. Appellant argues that a jury question remained concerning whether Officer Vanalmsick was liable for an unreasonable seizure because he set in motion a chain of events which culminated with Appellant being shot. The district court granted Vanalmsick judgment as a matter of law because he did not "seize" Appellant. The district court observed that Vanalmsick did not physically restrain Appellant, did not fire the shots that stopped the Appellant's movement, and in fact, did not even touch Appellant during the encounter. (Trial Tr. at 185-86.)
We review de novo a district court's decision to grant judgment as a matter of law. Medtronic, Inc. v. ConvaCare, Inc., 17 F.3d 252, 255 (8th Cir.1994).
Judgment as a matter of law is appropriate only where the nonmoving party has presented insufficient evidence to support a jury verdict in his or her favor, and this is judged by viewing the evidence in the light most favorable to the nonmoving party and giving him or her the benefit of all reasonable inferences from the evidence, but without assessing credibility.
Abbott v. City of Crocker, 30 F.3d 994, 997 (8th Cir.1994).
The gravamen of Appellant's constitutional claims is that Officers Vanalmsick and Long employed excessive force in the course of subduing him. In Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989), the Supreme Court held that "all claims that law enforcement officers used excessive force--deadly or not--in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard...." As a necessary predicate to determining whether the district court erroneously granted Officer Vanalmsick a judgment as a matter of law because he did not "seize" Appellant, we must identify at what point Appellant became "seized" in this case.
A "seizure" occurs only when a citizen is physically touched by law enforcement officers or when he otherwise submits to a show of authority by the officers. California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 1550-51, 113 L.Ed.2d 690 (1991). An assertion of authority by a law enforcement officer without a corresponding submission by the citizen does not constitute a seizure within the meaning of the Fourth Amendment. Id. at 626, 111 S.Ct. at 1550-51. "Neither usage nor common-law tradition makes an attempted seizure a seizure." Id. at 626 n. 2, 111 S.Ct. at 1551 n. 2. 2
In Cole, we applied Hodari D. in addressing the plaintiff's claim that the officers' unsuccessful measures to stop a fleeing truck were "seizures." 993 F.2d at 1332. We stated that ...
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