Ellis v. Wynalda

• Decision Date: 15 July 1993
• Docket Number: No. 92-3035,92-3035
• Citation: 999 F.2d 243
• Parties: Steven Lee ELLIS, Plaintiff-Appellant, v. Peter A. WYNALDA, in his individual capacity as a police officer for the City of Indianapolis, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 243

999 F.2d 243

Steven Lee ELLIS, Plaintiff-Appellant, v. Peter A. WYNALDA, in his individual capacity as a police

officer for the City of Indianapolis, Defendant-Appellee.

No. 92-3035.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 26, 1993.

Decided July 15, 1993.

Richard A. Waples, Indianapolis, IN (argued), for Steven Lee Ellis.

MaryAnn G. Oldham, City-County Legal Div., Indianapolis, IN (argued), for Peter A. Wynalda.

Before BAUER, Chief Judge, and FLAUM and MANION, Circuit Judges.

FLAUM, Circuit Judge.

On September 7, 1986, Steven Ellis broke into an unoccupied pharmacy in Indianapolis and stole drugs and money. Officer Wynalda, called to the scene after Ellis tripped the burglar alarm, approached Ellis in the building's courtyard and ordered him to stop. When Ellis tossed the bag holding the drugs at the officer and ran, Wynalda shot Ellis in the back. The district court granted Wynalda qualified immunity from Ellis' excessive force claim, 800 F.Supp. 733, and Ellis appeals. We reverse.

I.

At this stage, we accept Ellis' version of the facts and make all inferences favorable to him. ¹ Ellis burglarized the Gee Pharmacy at approximately 7:00 a.m. He entered the vacant building beside the pharmacy and used a sledgehammer to break through the adjoining wall. Then he returned the sledgehammer to his car and went back to the drugstore. Inside, he routed through drawers and cabinets, inadvertently triggering the burglar alarm. Ellis took plastic vials and containers of drugs and a cigar box holding $130 in paper currency. After stuffing his loot into a mesh produce bag, Ellis crawled out the hole, exiting the way he entered.

Meanwhile, Officer Wynalda answered a call for a possible burglary at the pharmacy. A store employee arrived shortly and let the police officer in through the back door. Seeing the considerable disarray, Wynalda drew his weapon, keeping it pointed at the ground, and searched for an intruder or signs of a break-in. He discovered the hole in the wall, knelt down, and observed a pair of legs walking out the back door of the adjoining store. Officer Wynalda ran out the back door of the pharmacy and through the parking lot. He observed Ellis walking away from the next building. Ellis was wearing pants and a sleeveless shirt and was carrying a jacket in one hand and the mesh bag in the other.

Wynalda approached and ordered Ellis to stop. Instead, Ellis kept walking and the two men met at the corner of the courtyard. Wynalda again told Ellis to stop and Ellis turned to face him. Unexpectedly, he lofted his jacket and the mesh bag filled with plastic vials toward the officer and ran away. The lightweight bag struck Wynalda's shoulder. He shouted for Ellis to stop and then shot him once in the lower back. Ellis fell to the ground and was apprehended.

II.

We review the decision to grant summary judgment de novo. Doe v. Allied Signal Corp., 925 F.2d 1007, 1008 (7th Cir.1991). Under the doctrine of qualified immunity, police officers are "shield[ed] ... from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). The appropriateness of qualified immunity in a particular case should be decided as early as possible, in order to fulfill the policy objective of protecting police officers from the burdens of litigation as well as civil damages. Hunter v. Bryant, --- U.S. ----, ----, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991). Following Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), we analyze all excessive force claims stemming from an arrest or other seizure by the police under a Fourth Amendment "objective reasonableness" standard. We must determine "whether, at the time of the alleged seizure, a reasonable officer could have believed that [the defendant officer's] conduct was constitutional 'in light of the clearly established law and the information [the officer] possessed' at the time the incident occurred." McDonald v. Haskins, 966 F.2d 292, 293 (7th Cir.1992) (citations omitted).

The law against using excessive force to effect an arrest was well established in 1986 when the incident took place. The issue is whether the effect of that law was clear in relation to the specific facts confronting Wynalda when he shot the plaintiff. The Supreme Court, in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), restricted the use of deadly force to seizures of fleeing felons who present a danger to the officer or others or who have committed a violent crime. This restriction marks the appropriate balance between the intrusion on the suspect's Fourth Amendment rights and the importance of "the countervailing governmental interests at stake." Graham, 490 U.S. at 396, 109 S.Ct. at 1871.

III.

We must determine whether the district court correctly found qualified immunity to be appropriate in this case. ² At the time Wynalda fired his gun, a reasonable officer in Wynalda's place would believe that Ellis had committed a felony and that he might evade arrest. ³ Qualified immunity should be granted if a reasonable officer, facing the same situation, could have believed that deadly force was necessary to protect himself or others from death or serious physical harm. Graham, 490 U.S. at 396, 109 S.Ct. at 1871; Garner, 471 U.S. at 11, 105 S.Ct. at 1701. The district court found that Wynalda could have reasonably believed that Ellis posed a threat of serious harm to others based on his willingness to toss an object at a uniformed police officer whose gun is drawn and his apparent ability to knock a large hole in a cement wall.

Unlike the district court, we are unable to conclude that these perceptions of Ellis justify the grant of qualified immunity. Wynalda observed Ellis in clear morning light while he approached Ellis in the courtyard. Although he did not have the opportunity to frisk Ellis for weapons, Ellis' clothing would make it difficult to conceal a weapon, especially one of the size necessary to knock a hole in a cement wall. While it was possible that Ellis carried a concealed weapon, as much as it is possible that every felon might be carrying a weapon, Wynalda had no particular reason to believe that Ellis was armed.

Furthermore, according to Ellis, he tossed a mesh bag weighing four or five pounds toward Wynalda in an arc, to distract the officer while he ran. That conduct, while risky and startling, is not the equivalent of menacing an officer with a weapon. If Wynalda feared that the bag might be heavy and might knock the gun from his hand or provide an opportunity for Ellis to draw a concealed weapon, he would have been justified in firing at that moment, but not after the lightweight bag fell to the ground without injuring him and Ellis had turned and run. In other words, if Wynalda had shot Ellis while Ellis was throwing the bag at him, that would have been permissible as the action of a reasonable officer facing a dangerous felon. Even if he shot Ellis after the bag had hit him but while he was still disoriented and off-balance, his action could be reasonable, because he would not know, for example, if Ellis was going to attack him or was reaching for a weapon. In this case, however, Wynalda was struck by the lightweight bag and then observed Ellis back away, turn and run. He could see and understand the situation; he bore no injury; Ellis presented no immediate threat and was not apparently armed. Even the bag he may have used as a weapon had been abandoned at the officer's feet.

When an officer faces a situation in which he could justifiably shoot, he does not retain the right...