Allen v. Muskogee, Okl.

Decision Date17 July 1997
Docket NumberNo. 96-7021,96-7021
Citation119 F.3d 837
Parties97 Daily Journal D.A.R. 1119 Marilyn ALLEN, Personal Representative of Terry Allen, deceased, Plaintiff-Appellant, v. MUSKOGEE, OKLAHOMA, a municipal corporation; Don Smith, Bentley McDonald, Brian Farmer, and James Crull, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Juliet N. Brennan, Albert R. Matthews, Bonds, Matthews, Bonds & Hayes, Muskogee, OK, for Plaintiff-Appellant.

Woodrow K. Glass (Reggie N. Whitten, with him on the brief), Mills & Whitten, Oklahoma City, OK, Jim T. Priest, David Walls, and Cathy A. Warden, McKinney, Stringer & Webster, P.C., Oklahoma City, OK, for Defendants-Appellees.

Before KELLY, BRISCOE, and LUCERO, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Plaintiff-Appellant Marilyn Allen appeals from an adverse ruling on her civil rights claim under 42 U.S.C. § 1983 as personal representative, alleging that the defendants used excessive force against her deceased husband in violation of the Fourth Amendment. The district court granted summary judgment to the individual Defendant-Appellee police officers on the ground that they did not violate the Fourth Amendment. Having determined that no constitutional violation occurred, the court also granted summary judgment to Defendant-Appellee City of Muskogee. Our jurisdiction arises under 28 U.S.C. § 1291. A unanimous panel reverses the judgment as to the individual officers, and a divided panel reverses as to the city.


On the morning of February 20, 1994, Terry Allen left his home after an altercation with his wife and children. He took ammunition and several guns with him, and later parked in front of the Muskogee residence of his sister, Rhonda Lee-Oakley. The altercation was reported to the Wagoner County Sheriff's Department, which sent a teletype to the Muskogee Police Department (MPD), describing Mr. Allen and his car and advising that Mr. Allen was armed and had threatened family members. The teletype also advised that there was a 1983 warrant outstanding for Mr. Allen's arrest for impersonating an officer. Lt. Donald Smith of the MPD relayed the information to other officers during a squad meeting at 1:30 p.m.

Some time after the meeting, Lt. Smith was advised that Mr. Allen might be at his sister's house in Muskogee. Before he could meet with other officers, a radio dispatcher advised him that a 911 call had been made from Ms. Oakley's home and that Mr. Allen was threatening suicide. Lt. Smith proceeded to the Oakley home, approached the bystanders who were standing near Mr. Allen's vehicle, and ordered them to step back, which they did. Mr. Allen was sitting in the driver's seat with one foot out of the vehicle. He had a gun in his right hand, which was resting on the console between the seats.

As Lt. Smith repeatedly told Mr. Allen to drop his gun, Officer Bentley McDonald arrived and joined Lt. Smith at the driver's side door. Lt. Smith then reached into the vehicle and attempted to seize Mr. Allen's gun, while Officer Bentley held Mr. Allen's left arm. Officer Bryan Farmer, who arrived with Officer Bentley, approached Mr. Allen's car from the passenger side, and attempted to open a passenger side door. Mr. Allen reacted by pointing the gun toward Officer Farmer, who ducked and moved behind the car. Mr. Allen then swung the gun toward Lt. Smith and Officer McDonald, and shots were exchanged. Lt. Smith and Officer McDonald fired a total of twelve rounds into the vehicle, striking Mr. Allen four times. The entire sequence, from the time Lt. Smith arrived to the time Mr. Allen was killed, lasted approximately ninety seconds.

Plaintiff brought this § 1983 claim against the officers involved and against the City of Muskogee. Defendants subsequently moved for summary judgment, and set forth a statement of facts in their brief supporting the motion. In her response, Plaintiff did not dispute Defendants' statement of facts. The district court granted Defendants' motion, holding that there was no genuine issue of material fact and that Defendants were entitled to judgment as a matter of law.


We review the grant of summary judgment de novo, and apply the same legal standard used by the district court under Rule 56(c). Goldsmith v. Learjet, Inc., 90 F.3d 1490, 1493 (10th Cir.1996). Summary judgment is appropriate only if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A disputed fact is "material" if it might affect the outcome of the suit under the governing law, and the dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). We construe the factual record and reasonable inferences therefrom in the light most favorable to the nonmovant. Gullickson v. Southwest Airlines Pilots' Assoc., 87 F.3d 1176, 1183 (10th Cir.1996).

The moving party need not affirmatively negate the nonmovant's claim in order to obtain summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2551-52, 91 L.Ed.2d 265 (1986). Instead, the movant only bears the initial burden of " 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. at 2554.

In granting summary judgment, the district court went beyond the agreed-upon facts and made its own findings. The court found, for example, that the officers knew that Mr. Allen had claimed to have killed three people before arriving at his sister's home. Whether the officers knew does not alter our review, but Plaintiff is correct in pointing out that the court's finding is not supported by the record.

Although the Supreme Court has said that findings of fact are sometimes helpful to an appeals court on summary judgment review, Anderson, 477 U.S. at 250 n. 6, 106 S.Ct. at 2511 n. 6, the district court on summary judgment should determine "whether ... there are any genuine factual issues that properly can be resolved only by a finder of fact," id. at 250, 106 S.Ct. at 2510. In this sense, traditional "findings of fact" are inappropriate in a summary judgment order, because if summary judgment is proper no findings of fact need be made and the case can be resolved as a matter of law. We read Anderson to mean only that it may be helpful when the district court summarizes undisputed facts. See Regalado v. City of Commerce City, 20 F.3d 1104, 1108 n. 1 (10th Cir.1994) (findings of fact are not required, but the reasons for granting summary judgment should be stated in the record).

I. The Individual Officers

We analyze a § 1983 claim of excessive force by determining whether the officers' actions were objectively reasonable in light of the surrounding facts and circumstances. Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989); Thompson v. City of Lawrence, Kan., 58 F.3d 1511, 1516 (10th Cir.1995). The district court found no genuine issues of material fact, and held that the officers acted in an objectively reasonable way. We conclude, however, that the individual Defendants failed to carry their initial burden of demonstrating the absence of a genuine issue of material fact.

The excessive force inquiry includes not only the officers' actions at the moment that the threat was presented, but also may include their actions in the moments leading up to the suspect's threat of force. Sevier v. City of Lawrence, Kan., 60 F.3d 695, 699 (10th Cir.1995). Of course, the use of force must be judged from the perspective of a reasonable officer "on the scene," who is "often forced to make split-second judgments ... about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396-97, 109 S.Ct. at 1871-72. However, as we stated in Sevier: "[t]he reasonableness of Defendants' actions depends both on whether the officers were in danger at the precise moment that they used force and on whether Defendants' own reckless or deliberate conduct during the seizure unreasonably created the need to use such force." 60 F.3d at 699. We will thus consider an officer's conduct prior to the suspect's threat of force if the conduct is "immediately connected" to the suspect's threat of force. Romero v. Board of County Comm'rs, 60 F.3d 702, 705 n. 5 (10th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 776, 133 L.Ed.2d 728 (1996); Bella v. Chamberlain, 24 F.3d 1251, 1256 n. 7 (10th Cir.1994), cert. denied, 513 U.S. 1109, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995); see also Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 1699-700, 85 L.Ed.2d 1 (1985) (objective reasonableness inquiry requires courts to examine "whether the totality of the circumstances justified a particular sort of search or seizure").

The Defendants have not shown that there is a lack of a genuine issue of material fact with regard to the officers' reasonableness. See Celotex, 477 U.S. at 325, 106 S.Ct at 2553. Indeed, it seems to us that Defendants have pointed out the presence of a genuine issue. Defendants acknowledged before the district court that there are differences among the eyewitness depositions. For example, some deposition testimony indicates that Lt. Smith ran "screaming" up to Mr. Allen's car and immediately began shouting at Mr. Allen to get out of his car; other testimony indicates that Lt. Smith approached cautiously and tried talking Mr. Allen into giving up the gun.

Appellees label these disputes as "minor," but the substantive law indicates otherwise. See Romero, 60 F.3d at 705 n. 5 (an officer's conduct prior to the suspect's threat of force is relevant if the conduct is "immediately connected" to the suspect's threat of force). The entire incident, from the time Lt. Smith arrived to the time of the shooting, took only ninety...

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