82 F.3d 248 (8th Cir. 1996), 95-2635, Gardner v. Buerger

Docket Nº:95-2635EM.
Citation:82 F.3d 248
Party Name:Diane GARDNER; Kermit Gardner; Amy Gardner; Jesse Gardner; Sarah Gardner, by and through their next friend and natural mother Diane Gardner, Appellants, v. Walter BUERGER,
Case Date:April 29, 1996
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 248

82 F.3d 248 (8th Cir. 1996)

Diane GARDNER; Kermit Gardner; Amy Gardner; Jesse

Gardner; Sarah Gardner, by and through their next

friend and natural mother Diane Gardner,



Walter BUERGER, "Buck" Sheriff of Jefferson County,

Missouri, as an individual and in his official capacity; C.

Partain, Deputy Sheriff of Jefferson County, Missouri, as an

individual and in his official capacity, Appellees.

No. 95-2635EM.

United States Court of Appeals, Eighth Circuit

April 29, 1996

Submitted Jan. 12, 1996.

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[Copyrighted Material Omitted]

Page 250

Appeal from the United States District Court for the Eastern District of Missouri, Jean C. Hamilton, U.S.D.C., Judge.

E.D. Lofftus, Fenton, MO, argued, for appellant.

William A. Hellmich, St. Louis, MO, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, JOHN R. GIBSON and BOWMAN, Circuit Judges.


This is a civil-rights case. Deputy Sheriff Charles Partain, a Jefferson County, Missouri, police officer, shot and killed Charles Gardner while serving an ex parte order of protection. Mr. Gardner's wife, Diane Gardner, sued Deputy Partain and Jefferson County Sheriff Walter Buerger under 42 U.S.C. § 1983. She claimed that Deputy Partain used excessive force when he shot Mr. Gardner, and that Sheriff Buerger failed to train Deputy Partain adequately. After Ms. Gardner presented her case to the jury, the District Court granted the defendants' motion for judgment as a matter of law, Fed.R.Civ.P. 50(a), citing Ms. Gardner's "failure of proof ... as to what actually happened at the precise time of the shooting." Because we agree with Ms. Gardner that she presented enough evidence to permit a reasonable jury to decide that the defendants violated her husband's constitutional rights, we reverse.


Ms. Gardner built her case almost entirely on her own and Deputy Partain's testimony. 1 We assume, for now, that this testimony, and the facts it tends to prove, are true. One evening in February 1992, Mr. and Ms. Gardner had a serious argument. Mr. Gardner demanded that Ms. Gardner leave the house, and she did. The next day she applied for an ex parte order of protection. 2 Deputy Partain was dispatched to serve the order and, on the way, he picked up Ms. Gardner at a corner store near her house. He asked her if there were any guns in the house, and she said there were about 30, locked in a safe. When Ms. Gardner and Deputy Partain arrived at the Gardner home, she waited in the car while he went up to the house. About two minutes later, Ms. Gardner heard a gunshot, and she ran into the house. Deputy Partain told her, "Lady, I had to shoot him. He was going to get a gun." He also told her he had shot her husband in the back of the head.

Deputy Partain's testimony provides the only evidence about what happened inside the house; again, we assume this testimony is true. Deputy Partain testified that he knocked on the Gardners' door and Mr. Gardner cordially invited him in. But after Deputy Partain explained his purpose, and told Mr. Gardner he had to leave the house, Mr. Gardner became enraged and threatened to get a gun. Deputy Partain said something like, "You grab the gun and I will kill you," and he then "went after [Mr. Gardner]." The two men ended up in the middle of the dining room floor, with Mr. Gardner face down and Deputy Partain on top, gun drawn and pointed. Deputy Partain tried to use his handcuffs, but Mr. Gardner somehow got away. Mr. Gardner then tried to pick up a chair, but couldn't, because it was stuck under a table. Deputy Partain yelled, "Drop the chair" and "Don't do it. I'll shoot, I'll kill you." Deputy Partain admitted that Mr. Gardner never had or brandished a weapon, and that Mr. Gardner never hit him. No one testified about the shooting itself. We know only, from Ms. Gardner's testimony, that Deputy Partain shot Mr. Gardner in the back of the head.

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That was Ms. Gardner's whole case. 3 After she rested, the defendants moved for judgment as a matter of law because Ms. Gardner had presented no evidence about the precise moment Deputy Partain killed Mr. Gardner. The defendants admitted Deputy Partain shot Mr. Gardner, but contended there was no evidence from which the jury could conclude that Deputy Partain used unreasonable and excessive force. The defendants insisted that Ms. Gardner was inviting the jury to "speculate" about how Mr. Gardner was killed, and that Ms. Gardner could not rest her case on the mere hope that the jury might disbelieve Deputy Partain. The District Court, citing Cole v. Bone, 993 F.2d 1328 (8th Cir.1993), granted the defendants' motion for judgment, reasoning that "[it is not] sufficient simply to say that Mr. Partain shot this man, killed this man, and was there to serve an order of protection," because there was no evidence "from which the jury could infer there was an excessive use of force...." Ms. Gardner now appeals, and we reverse. 4


We review de novo the District Court's decision to grant judgment as a matter of law. Schulz v. Long, 44 F.3d 643, 647 (8th Cir.1995). Judgment as a matter of law is appropriate only when the nonmoving party fails to present enough evidence to permit a reasonable jury to decide in his favor. We do not judge witnesses' credibility, we give the nonmoving party the benefit of all reasonable inferences, and we look at the evidence in the light most favorable to him. Ibid. The evidence must point unswervingly to only one reasonable conclusion. Johnson v. Cowell Steel Structures, Inc., 991 F.2d 474, 478 (8th Cir.1993). This demanding standard reflects our concern that, if misused, judgment as a matter of law can invade the jury's rightful province. See Boodoo v. Cary, 21 F.3d 1157, 1161 (D.C.Cir.1994).

The Fourth Amendment forbids "unreasonable searches and seizures" by police officers. This prohibition protects not only our privacy and property; the Fourth Amendment is also a "primary source[ ] of constitutional protection against physically abusive government conduct." Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1870-71, 104 L.Ed.2d 443 (1989). For Fourth Amendment purposes, a police officer "seizes" a person when he, by physical force or show of authority, limits that person's liberty. California v. Hodari D., 499 U.S. 621, 625-26, 111 S.Ct. 1547, 1550-51, 113 L.Ed.2d 690 (1991). Terms like "seizure" and "intrusive governmental conduct," Graham, 490 U.S. at 395, 109 S.Ct. at 1871, cannot capture the facts of this case; it is an unavoidable understatement to observe that the shooting was a seizure. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir.1995); Tennessee v. Garner, 471 U.S. 1, 9, 105 S.Ct. 1694, 1700, 85 L.Ed.2d 1 (1985) ("The intrusiveness of a seizure by means of deadly force is unmatched."). But even if the translation is imperfect, we use the Fourth Amendment's objective-reasonableness standard to analyze excessive-force claims. Graham, 490 U.S. at 395, 109 S.Ct. at 1871; Schulz, 44 F.3d at 648.

We are careful not to indulge in armchair quarterbacking or exploit the benefits of hindsight when evaluating police officers' use of deadly force. It may appear, in the calm aftermath, that an officer could have taken a different course, but we do not hold the police to such a demanding standard.

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See Cole, 993 F.2d at 1333-34. Police officers have tough jobs, and the "calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving...." Graham, 490 U.S. at 396-97, 109 S.Ct. at 1871-72.

When is a deadly-force seizure reasonable? We apply the standard provided in Tennessee v. Garner: A seizure-by-shooting is objectively reasonable when "the officer [using the force] has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." 471 U.S. at 3, 105 S.Ct. at 1697; Ludwig, 54 F.3d at 471; Schulz, 44 F.3d at 649. We must balance "the nature and quality of the intrusion on ... Fourth Amendment interests against the countervailing government interests...." Graham, 490 U.S. at 396, 109 S.Ct. at 1871-72 (citation and internal quotations omitted). And as the District Court correctly observed, our analysis focuses on the reasonableness of the seizure itself--here, the shooting--and not on the events leading up to it. See Ludwig, 54 F.3d at 471; Schulz, 44 F.3d at 648-49; Cole, 993 F.2d at 1333.

So, to defeat the defendants' motion for judgment as a matter of law, Ms. Gardner needed to present enough evidence to permit a reasonable jury to conclude that Deputy Partain's use of deadly force was objectively unreasonable. The District Court concluded that Ms. Gardner's case rested on speculation and on an appeal to the jury to disbelieve Deputy Partain's story, and held that Ms. Gardner's failure to introduce evidence about the "seizure itself" required judgment as a matter of law. We disagree.

We do not agree that this was the right way to frame Ms. Gardner's case, for two reasons. First, this is not a case in which a plaintiff is armed with only the hope that jurors might disbelieve witnesses' testimony. 5 Quite the contrary, Ms. Gardner's...

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