635 F.3d 354 (8th Cir. 2011), 10-1407, McKenney v. Harrison

Docket Nº:10-1407.
Citation:635 F.3d 354
Opinion Judge:COLLOTON, Circuit Judge.
Party Name:Jelitha McKENNEY, Individually and as Special Administrator of the Estate of James C. Barnes, Deceased, Appellant, v. Lance HARRISON, Officer, individually and in their respective capacities as officers of the Omaha, Nebraska Police Department; Dawn Pollreis, Officer, individually and in their respective capacities as officers of the Omaha, Nebrask
Attorney:Denise Ellen Frost, argued, Omaha, NE, Clarence E. Mock, III, on the brief, Oakland, NE, for appellant. Thomas O. Mumgaard, argued, Michelle Peters, on the brief, Omaha, NE, for appellee.
Judge Panel:Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges. MURPHY, Circuit Judge, concurring.
Case Date:March 28, 2011
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 354

635 F.3d 354 (8th Cir. 2011)

Jelitha McKENNEY, Individually and as Special Administrator of the Estate of James C. Barnes, Deceased, Appellant,

v.

Lance HARRISON, Officer, individually and in their respective capacities as officers of the Omaha, Nebraska Police Department; Dawn Pollreis, Officer, individually and in their respective capacities as officers of the Omaha, Nebraska Police Department; City of Omaha, Nebraska, Appellees.

No. 10-1407.

United States Court of Appeals, Eighth Circuit.

March 28, 2011

Submitted: Dec. 14, 2010.

Page 355

[Copyrighted Material Omitted]

Page 356

Denise Ellen Frost, argued, Omaha, NE, Clarence E. Mock, III, on the brief, Oakland, NE, for appellant.

Thomas O. Mumgaard, argued, Michelle Peters, on the brief, Omaha, NE, for appellee.

Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

James C. Barnes died as a result of injuries he suffered during an encounter with Omaha, Nebraska, police officers Lance Harrison and Dawn Pollreis. Jelitha McKenney, on her own behalf and as special administrator of Barnes's estate, brought this action against Harrison and Pollreis in their individual and official capacities, and against the City of Omaha. The district court 1 granted summary judgment for Harrison, Pollreis, and the City. McKenney appeals, and we affirm.

I.

We recount the facts in the light most favorable to McKenney, the nonmoving party. On July 31, 2007, Harrison obtained from the city prosecutor's office three warrants for Barnes's arrest. The

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warrants declared that Barnes was subject to arrest for several misdemeanors: operating a motor vehicle to avoid arrest, driving with a suspended driver's license, driving recklessly, and failing to appear. They also provided an address of 2860 Manderson Street as Barnes's residence; this was the location of a house owned by Barnes's grandfather. Harrison went to the house to execute the warrants on July 31.

Harrison had encountered Barnes once before, when Harrison stopped a vehicle Barnes was driving earlier that month. Harrison told Barnes to get out of his car, but Barnes did not comply, instead fleeing in his vehicle. Police later discovered Barnes's vehicle not far from the Manderson Street address. Harrison found Barnes's state identification card in the vehicle. The address on the card was the same as the address on the arrest warrants.

While en route to Manderson Street, Harrison requested by radio that another officer assist him in executing the warrants, and Pollreis agreed to do so. Pollreis had never met Barnes, so when the officers arrived at the house, Harrison described Barnes to Pollreis. He also told her about Barnes's flight from the traffic stop.

The officers found the house in a state of disrepair. Harrison knocked at the front door, but no one answered. Pollreis found that the back door was open. Through the open door, Harrison and Pollreis could see into the kitchen. The room was dark and dirty, the refrigerator and cabinets were open and empty, there was trash on the floor, and no personal effects were visible. Based on the state of the house, Harrison and Pollreis concluded that it was abandoned. Harrison stated that they entered for two purposes: to check for squatters, and to investigate whether Barnes was there. They did not announce their presence when they entered.

Inside, the officers found no furniture or other signs that anyone lived there. When they approached a flight of stairs, however, they heard a fan running on the second floor. The officers proceeded up the stairs to investigate the sound. They found a woman in a bedroom and Barnes in a bathroom; neither was clothed. After the woman finished dressing, Harrison ordered Barnes to move to the bedroom, and Pollreis ordered Barnes to dress himself.

While Barnes was getting dressed, Harrison stood between Barnes and the bedroom's only doorway. Pollreis stood between Barnes and the room's two windows, one of which was covered with a picture and one of which was uncovered. Below the windows was the roof of an enclosed porch. Barnes was six to eight feet from the windows as he was dressing. The officers noticed that Barnes was looking around nervously and glancing at the windows. Harrison told Barnes not to do anything stupid. Pollreis, who had removed her Taser from its holster, told Barnes not to try anything and said " you don't want to be tased."

While Barnes was putting on his second shoe, he suddenly lunged toward the window. When he did so, Harrison immediately turned and ran down the stairs, anticipating that he would have to chase Barnes once he got out the window and down off the roof of the porch. Pollreis deployed her Taser as Barnes was passing her but before he reached the window. The Taser's two probes lodged in Barnes's back, but Barnes continued through the window.

When Harrison came out the front door, he found Barnes lying on the sidewalk, conscious but injured. Neither he nor Pollreis saw how Barnes had left the roof. Harrison called a rescue squad, which

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brought Barnes to the hospital. Barnes died from his injuries four days later.

McKenney, Barnes's mother and special administrator of his estate, sued Harrison, Pollreis, and the City of Omaha under 42 U.S. C. § 1983 and the Nebraska Political Subdivisions Tort Claims Act. She raised four claims that are at issue on appeal: (1) that the officers' entry into the house violated the Fourth Amendment, (2) that the use of the Taser was excessive force in violation of the Fourth Amendment, (3) that the officers' conduct constituted actionable negligence under state law, and (4) that the City failed adequately to train and supervise the officers in the use of their Tasers and failed to develop and implement adequate policies governing the use of Tasers. The district court granted the defendants' motion for summary judgment.

II.

We review de novo the district court's order granting summary judgment, viewing the evidence in the light most favorable to McKenney and drawing all reasonable inferences in her favor. Schoelch v. Mitchell, 625 F.3d 1041, 1045-46 (8th Cir.2010). Summary judgment is warranted where " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

A.

McKenney first contends that a genuine issue of fact precludes a finding that the officers are entitled to qualified immunity against her unlawful entry claim. Qualified immunity shields government officials from liability for civil damages and the burdens of litigation " insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). An official is entitled to qualified immunity against a § 1983 action unless (1) the facts, construed in the light most favorable to the party seeking damages, establish a violation of a constitutional or statutory right, and (2) the right was clearly established at the time of the violation. Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815-16, 172 L.Ed.2d 565 (2009). McKenney argues that the officers violated Barnes's clearly established right to be free from an unreasonable search when they entered the house without first knocking and announcing their presence, see Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), and without a reasonable belief that...

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