Capps v. Olson

• Decision Date: 16 March 2015
• Docket Number: No. 14–1782.,14–1782.
• Citation: 780 F.3d 879
• Parties: Jerry CAPPS ; Jaylene Capps, in their individual capacities and as Personal Representatives of the Estate of Christopher Capps, Plaintiffs–Appellees v. David OLSON, in his individual capacity; Pennington County, a political subdivision of the State of South Dakota, Defendants–Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

780 F.3d 879

Jerry CAPPS ; Jaylene Capps, in their individual capacities and as Personal Representatives of the Estate of Christopher Capps, Plaintiffs–Appellees
v.
David OLSON, in his individual capacity; Pennington County, a political subdivision of the State of South Dakota, Defendants–Appellants.

No. 14–1782.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 12, 2014.
Filed: March 16, 2015.

780 F.3d 881

Terry G. Westergaard, argued, (Michael Martin Hickey, Terry L. Hofer, Sarah Elizabeth Baron Houy, Eric J. Pickar, on

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the brief), Rapid City, SD, for Plaintiffs–Appellees.

Jeffrey Robert Connolly, argued, (James S. Nelson, on the brief), Rapid City, SD, for Defendants–Appellants.

Before MURPHY, MELLOY, and BENTON, Circuit Judges.

Opinion

MELLOY, Circuit Judge.

Sheriff's Deputy David Olson shot and killed Christopher Capps (Capps). Capps's parents, Jerry and Jaylene Capps, sued Deputy Olson for using excessive force against their son in violation of 42 U.S.C. § 1983. Deputy Olson alleges Capps was charging towards him with a weapon at the time of the shooting. Capps's parents allege Deputy Olson shot Capps in the back when Capps was unarmed. Deputy Olson moved for summary judgment based on qualified immunity. The district court¹ denied Deputy Olson's motion, holding that outstanding questions of fact precluded a grant of qualified immunity. For the reasons stated below, we affirm.

I.

On May 2, 2010, Deputy Olson received a report from dispatch regarding a belated assault—one that is not in progress and occurred before dispatch received the report. Deputy Olson was in the area, so he responded to the call. Dispatch reported that a Native American male pushed a juvenile off of his bike and assaulted him. Dispatch also reported that the victim was having trouble breathing.

When Deputy Olson arrived at the scene, he came upon Tammy Scribner. Tammy Scribner informed Deputy Olson that her husband, David Scribner (Scribner), was in pursuit of the suspect, Capps. Deputy Olson chased Scribner and Capps over a barbed-wire fence and through a wooded area. Deputy Olson was not able to see Scribner and Capps until after he exited the wooded area and came to the top of a rise in the ground. From this location, Deputy Olson saw Scribner and Capps approximately 200 to 300 yards away. Capps was running away from Scribner and was about 60 to 70 feet ahead of Scribner. Deputy Olson heard Scribner yelling at Capps but could not understand what Scribner was saying.

The parties dispute what happened next. Deputy Olson claims that he observed Capps turn around and take three steps or so toward Scribner. As Capps was moving towards Scribner, Deputy Olson saw Capps's hand go to the ground “for an instant” but he did not see Capps pick up anything. Capps then began running toward Scribner. Deputy Olson shouted, “Sheriff's Office.” Capps then turned toward Deputy Olson and started to run in Deputy Olson's direction. Capps was about 60 feet away from Deputy Olson when Capps turned. When Capps was about 30 feet away, Deputy Olson saw what he thought was a silver or gray knife with a three to four inch blade in Capps's right hand. Deputy Olson commanded Capps to “go to the ground,” “show me your hands,” “stop where you are,” and “drop the weapon.” Capps did not follow the commands, and Deputy Olson fired his gun at Capps five times. Deputy Olson estimated he fired his first shot when Capps was about 20 to 25 feet away and the other four shots when Capps was approximately 15 to 18 feet away.

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After Capps fell to the ground, Deputy Olson placed Capps in handcuffs. Deputy Olson radioed dispatch and stated shots fired, one subject down, and weapons unknown. Deputy Olson did not search the area for a weapon after he placed Capps in handcuffs nor did Deputy Olson say anything about a weapon to the first two officers who arrived on the scene after the shooting.

While Capps was still in handcuffs and on the ground, another officer on the scene, Soucy, noticed a piece of driftwood approximately six to eight inches long to the right of Capps's head. Soucy did not see anyone move or touch the driftwood. Photographs taken of the driftwood show that it may have been overgrown by blades of grass. Deputy Olson did not see the driftwood on the ground. An inventory log noted one piece of driftwood was recovered at the scene.

Capps was pronounced dead later that night. Dr. Donald Habbe completed the autopsy report, which noted five gunshot wounds. One of the bullets entered Capps's body through his back.

An officer interviewed Deputy Olson the night of the shooting. Deputy Olson stated that he did not look for the alleged knife because he was concerned about scene security and that he assumed the next responding officer would conduct an evidentiary search. Deputy Olson did not mention a knife to anyone on the scene after the shooting. He mentioned a knife for the first time at his interview, almost two hours after the shooting. It is undisputed that a knife was not discovered at the scene. Deputy Olson asserted the phrase weapons unknown means “I have not located any weapons on anybody because I'm still occupied with two subjects.” The first two responding officers, Hislip and Schmidt, were also interviewed the night of the shooting. Officer Hislip stated weapons unknown means “we were unsure if there [were] any other weapons that were present.” And Officer Schmidt stated that the use of the phrase weapons unknown could mean it is unknown if the subject had a weapon.

An officer also interviewed Scribner the night of the shooting. In his interview, Scribner stated that he chased and taunted Capps immediately following the assault. After pursuing Capps for approximately ten minutes, Capps turned towards Scribner and “picked up a rock.” Scribner then said to Capps, “oh yeah you're a big guy huh? Got a rock you f––– punk?” But as Capps moved closer to Scribner, Scribner could see Capps “had something in his hand. Like a knife but to me it looked like a sharp stick that he had whittled down to a point.” Scribner testified that Capps yelled, “I'm going to kill you.” However, according to Scribner, Capps then turned and charged towards Deputy Olson. Scribner heard Capps yell, “I'm going to kill, I'm going to kill you ahhhh” to Deputy Olson. Deputy Olson did not hear Capps yell anything.

After the suit was filed, the attorney for Capps's estate attempted to depose Scribner. Scribner refused to answer questions and referred the attorney to the transcript of the interview from the night of the shooting. As a result, the district court refused to consider Scribner's transcript. The district court denied Deputy Olson's motion for qualified immunity. Deputy Olson timely appealed.

II.

This Court reviews the denial of summary judgment de novo, construing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in the nonmoving party's favor.

780 F.3d 884

Schoelch v. Mitchell, 625 F.3d 1041, 1045 (8th Cir.2010). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to...