Billingsley v. City of Omaha

Decision Date12 November 2001
Docket NumberDEFENDANTS-APPELLEES,PLAINTIFF-APPELLANT,No. 01-1487,01-1487
Citation277 F.3d 990
Parties(8th Cir. 2002) PAUL A. BILLINGSLEY,, v. CITY OF OMAHA, A MUNICIPAL CORPORATION; FRED PFEFFER, IN HIS CAPACITY AS A POLICE OFFICER EMPLOYED BY THE CITY OF OMAHA AND AS AN INDIVIDUAL, Submitted:
CourtU.S. Court of Appeals — Eighth Circuit

Appeal from the United States District Court for the District of Nebraska.

Before Loken, Lay, and Heaney, Circuit Judges.

Lay, Circuit Judge.

Paul Billingsley filed a complaint, pursuant to 42 U.S.C. § 1983, alleging an Omaha police officer, Fred Pfeffer, used excessive force in effecting his arrest. The complaint included a claim against the City of Omaha, alleging Officer Pfeffer's use of excessive force resulted from the City's failure to train, supervise, and discipline him. The district court 1 bifurcated the claims. The excessive force claim against Officer Pfeffer was tried before a jury and a verdict was returned in favor of Pfeffer. Billingsley, thereafter, filed a timely motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50 and combined therewith a motion for a new trial pursuant to Fed. R. Civ. P. 59. The district court denied Billingsley's motion on both counts. Billingsley subsequently filed the present appeal. We now affirm.

Facts

At around 6:00 P.M. on June 23, 1996, Officer Pfeffer was off-duty and at his home. His wife, Sally, noticed a man, later found to be Paul Billingsley, cross the street and attempt to enter their front yard. Billingsley's progress was impeded by bushes abutting the front yard. Billingsley then proceeded down the sidewalk, down a neighbor's driveway and in between some houses. Sally informed her husband of the foregoing events. Officer Pfeffer directed his attention to Billingsley and observed him walking between the houses.

Pfeffer went outside and watched Billingsley attempt to enter two different neighbors' homes through the back door, but was rebuffed because they were locked. Pfeffer instructed his wife to call 911. He retrieved his service revolver and proceeded outside. Billingsley crossed the neighbor's yard and eventually came to and entered the home of the Machals.

Pfeffer waited for police back-up to arrive, but finally decided to enter the Machals' home, tracing Billingsley's method of entrance. Once inside, Pfeffer reached an area where the staircase lead to an upper level of the home and saw Gary Machal at the top of the stairs. They heard a noise emanating from the upstairs and investigated.

Officer Pfeffer, with his service revolver drawn, informed Billingsley he was a police officer, to halt, and put his hands up. Billingsley had a purse in his left hand, but Pfeffer could not observe his right hand. Despite Officer Pfeffer's warning, Billingsley stepped to the side and ran out the back door onto the deck. He jumped over the deck railing onto the ground, which was some fifteen feet below. Pfeffer ran to the railing with his gun drawn and repeated the earlier warning. Billingsley landed in a crouched position and then rotated his left shoulder. Officer Pfeffer fired a shot that struck Billingsley in the lower right back and exited out his groin. Billingsley was found to be unarmed.

I. Motion for Judgment as a Matter of Law

The first issue on appeal is whether sufficient evidence exists to support the jury's finding that Officer Pfeffer had probable cause of an immediate threat of death or serious bodily injury when he shot Billingsley. This court reviews de novo a district court's denial of a motion for judgment as a matter of law. E.E.O.C. v. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998); Deneen v. Northwest Airlines, Inc. 132 F.3d 431, 435 (8th Cir. 1998). The evidence is considered in the light most favorable to the non-moving party. EFCO Corp. v. Symons Corp., 219 F.3d 734, 738 (8th Cir. 2000).

When considering a motion for judgment as a matter of law, it is an "invasion of the jury's historic function for an appellate court to weigh the conflicting evidence, judge the credibility of witnesses and arrive at a conclusion opposite from the one reached by the jury." Lavender v. Kurn, 327 U.S. 645, 652-53 (1946); Estwick v. City of Omaha, 9 F.3d 56, 59-60 (8th Cir. 1993) (stating it is the duty of the jury to resolve conflicting testimony). Rather, the function of this court's review is exhausted when the evidentiary basis of the verdict becomes apparent, even though the court might draw a contrary inference or feel another conclusion is more reasonable. Basham v. Pennsylvania R. Co., 372 U.S. 699, 700 (1963). As a result, this court will not reverse a jury verdict for insufficient evidence unless no reasonable juror could have returned a verdict for the non-moving party. Denesha v. Farmers Ins. Exchange, 161 F.3d 491, 497 (8th Cir. 1998); see also Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir. 1996) ("This demanding standard reflects our concern that, if misused, judgment as a matter of law can invade the jury's rightful province.").

A § 1983 claim for apprehension by force, deadly or not, constitutes a seizure subject to the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395 (1989); Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). Whether a seizure occurred is not at issue. Rather, the inquiry is whether the seizure by deadly force was objectively reasonable pursuant to the dictates of the Fourth Amendment. Graham, 490 U.S. at 395; Tennessee v. Garner, 471 U.S. 1, 7 (1985); Kreuger v. Fuhr, 991 F.2d 435, 438 (8th Cir. 1993). The Supreme Court has observed:

"The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application," however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

Graham, 490 U.S. at 396 (quoting Bell v. Wolfish, 441 U.S. 520, 529 (1979)). In short, the objective reasonableness test examines whether the totality of the particular circumstance justifies the seizure by deadly force. Id.; Garner, 471 U.S. at 8-9. In Garner, the Supreme Court established, absent probable cause of an immediate threat of death or serious bodily injury, use of deadly force is not objectively reasonable. Garner, 471 U.S. at 9.

The aforementioned reasonableness of force is judged from the perspective of the officer on the scene, taking into consideration the facts known to him, as opposed to one possessing the illuminating power of hindsight. Nelson v. County of Wright, 162 F.3d 986, 989 (8th Cir. 1998).

At issue in the present case is the interaction between Officer Pfeffer and Billingsley prior to the shooting. Officer Pfeffer informed Billingsley three times he was a police officer and to halt. Billingsley had a purse in his left hand. Officer Pfeffer did not observe his right hand. Billingsley did not halt, rather, he fled out of the room onto the deck. Upon reaching the deck, Officer Pfeffer issued another warning. Billingsley then leapt off the deck onto the ground, fifteen feet below. As Billingsley landed, he turned and rotated his shoulder. It was at that time Officer Pfeffer shot him. At no time did the officer observe a weapon and when apprehended, Billingsley was found to be unarmed.

The holding in Garner has been applied by this circuit as well as other circuits in circumstances similar to the one presented. In Thompson v. Hubbard, 257 F.3d 896 (8th Cir. 2001), the heirs of a suspected armed robber brought a § 1983 claim against a police officer for his wrongful death. In responding to an armed robbery, Thompson was chased by a police officer. Id. at 898. The chase ended when Thompson ran between two buildings and climbed over a short fence. Id. The police officer testified that "Thompson got up from the ground, looked over his shoulder . . . and moved his arms as though reaching for a weapon at waist level." Id. The police officer fired a single shot, which killed the alleged robber. Id. No weapon was found on the victim's person. Id. In addressing the fact that the alleged robber was unarmed, the court noted "[a]n officer is not constitutionally required to wait until he sets eyes upon the weapon before employing deadly force to protect himself against a fleeing suspect who turns and moves as though to draw a gun." Id. at 899. Moreover, the court held if "Thompson turned and looked at him while the two were in close proximity and moved as though reaching for a weapon . . ." a jury could not conclude that the officer's use of deadly force was objectively unreasonable. Id. Thus, the appellate court upheld the district court's grant of summary judgment.

Other circuits have come to the same conclusion in similar situations. In Ryder v. City of Topeka, 814 F.2d 1412 (10th Cir. 1987), the plaintiff, Ryder, appealed a denial of a motion for judgment as a matter of law. The defendant police officer had received information that armed burglars were to rob a business. Id. at 1414. The officers staked out the business and attempted to apprehend the burglars as they entered. Id. at 1415. Ryder fled down a darkened alley with her hands in her pocket, the officer was in pursuit. Id. at 1416. The officer shot Ryder, whom he later learned to be an unarmed fourteen-year-old girl. Id. The Tenth Circuit affirmed the district court's denial of judgment as a matter of law, holding that, due in part to the officer's inability to see Ryder's hands, "a jury could infer that [the police officer] had probable cause to believe that the suspect he was chasing down the darkened alley was both armed and prone to violence." Id. at 1421.

In Reese v. Anderson, 926 F.2d 494 (5th Cir. 1991), the district court denied Officer Anderson's request for...

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