Ellison v. Lesher

• Decision Date: 06 August 2015
• Docket Number: No. 13–3371.,13–3371.
• Citation: 796 F.3d 910
• Parties: Troy ELLISON, as Personal Representative of the Estate of Eugene Ellison, deceased, Plaintiff–Appellee, v. Donna LESHER, individually and in her official capacity; Tabitha McCrillis, individually and in her official capacity, Defendants–Appellants, Stuart Thomas, individually and in his official capacity; City of Little Rock, a municipality; Big Country Chateau Apartments, a corporation, doing business as Big Country Chateau, LLC; Carl Schultz, Defendants.
• Court: U.S. Court of Appeals — Eighth Circuit

796 F.3d 910

Troy ELLISON, as Personal Representative of the Estate of Eugene Ellison, deceased, Plaintiff–Appellee

v. Donna LESHER, individually and in her official capacity; Tabitha McCrillis, individually and in her official capacity, Defendants–AppellantsStuart Thomas, individually and in his official capacity; City of Little Rock, a municipality; Big Country Chateau Apartments, a corporation, doing business as Big Country Chateau, LLC; Carl Schultz, Defendants.

No. 13–3371.

United States Court of Appeals, Eighth Circuit.

Submitted: Dec. 11, 2014.

Filed: Aug. 6, 2015.

Rehearing and Rehearing En Banc Denied Sept. 16, 2015.

Thomas Milton Carpenter, argued, William Clark Mann, III, on the brief, Little Rock, AR, for Plaintiff–Appellee.

Michael J. Laux, argued, San Francisco, CA, (G. Fling Taylor, Ben H. Elson, Michael E. Deutsch of Chicago, IL, on the brief), for Defendants–Appellants.

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.

Opinion

COLLOTON, Circuit Judge.

On December 9, 2010, Officer Donna Lesher and Detective Tabitha McCrillis of the Little Rock Police Department, while working off duty, were patrolling the Big Country Chateau apartments in Little Rock. As events unfolded, Lesher shot and killed a 67–year–old resident named Eugene Ellison in his apartment. Troy Ellison, Eugene's son, brought this action under 42 U.S.C. § 1983 on behalf of his father's estate. The lawsuit alleges that Lesher and McCrillis violated Eugene Ellison's Fourth Amendment rights by unlawfully entering his home and subjecting him to an excessive use of force. Count I alleges unlawful entry, and Count II alleges excessive use of force.

Lesher and McCrillis moved for summary judgment based on qualified immunity, and the district court denied their motion. We conclude, based on the facts assumed by the district court, that the motion was properly denied as to Count I against both defendants and as to Count II against Lesher on the claim alleging unreasonable use of deadly force, because the assumed facts would show a violation of clearly established rights under the Fourth Amendment. The officers, however, are entitled to qualified immunity on Count II for the claim concerning their use of nonlethal force. We therefore affirm in part and reverse in part.

I.

In an interlocutory appeal from an order denying qualified immunity, we have authority to decide the purely legal issue whether the facts alleged by the plaintiff support a claim of violation of clearly established law. Mitchell v. Forsyth, 472 U.S. 511, 528 n. 9, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We do not, by contrast, have jurisdiction to review which facts a party may, or may not, be able to prove at trial. Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). In considering the appeal by the officers, therefore, we are constrained by the facts that the district court assumed in reaching its decision. We now set forth those facts.

As of 2010, pursuant to an agreement with the Big Country Chateau apartment complex, off-duty Little Rock police officers patrolled the apartments as secondary employment. On the evening in question, Lesher and McCrillis were patrolling the apartments when they noticed that the door to Ellison's apartment was open.

From outside, Lesher and McCrillis could see Ellison sitting on his couch inside the apartment. Ellison appeared relaxed, and was leaning on his cane. After Lesher and McCrillis started a conversation with Ellison, he responded that he did not want their help or attention and told the officers to leave him alone.

McCrillis thought Ellison was being mouthy with her and wanted to keep him from shutting the door on the officers. McCrillis stepped inside the apartment, followed by Lesher, and asked Ellison what was his problem. Ellison got up from the couch and approached the officers standing at the door. McCrillis shoved Ellison, Ellison pushed back, and a physical altercation ensued. During the course of the struggle, McCrillis and Lesher repeatedly struck Ellison and knocked off his glasses. Ellison repeatedly told the officers to get out of his apartment and to leave him alone.

At some point during the encounter, McCrillis requested help from back-up units at the Little Rock Police Department. Officers Vincent Lucio and Brad Boyce arrived on the scene shortly thereafter. The physical altercation was over when Lucio and Boyce arrived, but Lesher was still inside the apartment, and Lucio reached inside to pull Lesher out.

The officers then instructed Ellison to lie down, and he refused. Lesher next told McCrillis that Ellison was getting his cane, and that she was going to shoot Ellison. She then fired two shots into the apartment, killing Ellison. After reviewing the record, the district court concluded that it is not clear whether Ellison was holding his cane when he was shot.

Ellison's son Troy, as personal representative of Ellison's estate, sued Lesher and McCrillis. The complaint alleged two violations of the Fourth Amendment, one premised on an alleged unlawful entry, the other based on alleged excessive use of force. Lesher and McCrillis moved for summary judgment, arguing that qualified immunity barred Ellison's suit. The district court denied the motion, and the officers appeal.

II.

Qualified immunity shields police officers from suit in a § 1983 action unless their conduct violated a clearly established right of which a reasonable official would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). A plaintiff need not show that the “very action in question has previously been held unlawful,” id., but he must establish that the unlawfulness was apparent in light of preexisting law. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). “The salient question is whether the state of the law at the time of an incident provided fair warning to the defendants that their alleged conduct was unconstitutional.” Tolan v. Cotton, –––U.S. ––––, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (quotations and alterations omitted). “When properly applied, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.” Taylor v. Barkes, ––– U.S. ––––, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015) (brackets and internal quotation omitted).

A.

On the claim that the officers unlawfully entered Ellison's apartment, the district court reasoned as follows: “Viewing the facts in the light most favorable to Ellison, it cannot be concluded as a matter of law that an objectively reasonable basis existed for the officers to believe that they needed to enter the apartment because Ellison or someone else within the apartment needed immediate aid.” The district court also said “[i]t is clear that entering a home without a warrant, absent consent or exigent circumstances, violates a clearly established right.”

The officers argue that they lawfully entered Ellison's apartment without a warrant under their authority to act as community caretakers who may assist a person who is seriously injured or threatened with such injury. The rule that they invoke, whether denoted as an exception to the warrant requirement for “community caretaking” or “emergency aid,” see Burke v. Sullivan, 677 F.3d 367, 371 & n. 5 (8th Cir.2012), is this: “A police officer may enter a residence without a warrant ... where the officer has a reasonable belief that an emergency exists requiring his or her attention.” United States v. Quezada, 448 F.3d 1005, 1007 (8th Cir.2006) ; see Ryburn v. Huff, –––U.S. ––––, 132 S.Ct. 987, 990, 181 L.Ed.2d 966 (2012) ; Mincey v. Arizona, 437 U.S. 385, 392–93, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).

According to Lesher and McCrillis, the scene they confronted at Ellison's apartment justified their entry. The officers submit that they observed an open apartment door in a high crime area on a cold December night, saw Ellison sitting behind a broken glass table in a disheveled apartment, and received an oblique response from Ellison—“what does it look like”—when they asked whether he was okay. Under this set of facts, the officers urge, it was reasonable for them to enter and investigate whether someone needed assistance. At a minimum, they say, a reasonable officer could have believed that it was reasonable to do so, such that qualified immunity applies.

We cannot accept the contention of the officers, because it would require us to examine a matter over which we lack jurisdiction—“which facts a party may, or may not, be able to prove at trial.” Johnson, 515 U.S. at 313, 115 S.Ct. 2151. The facts assumed by the district court did not include salient points urged by the officers: a broken glass table visible to the officers, a disheveled apartment suggesting a disruption, and an ambiguous response by Ellison. The district court's order assumed instead that Ellison appeared relaxed while sitting on his couch, that Ellison told the officers that he did not want their help or attention, and that Ellison told the officers to leave him alone. In an interlocutory appeal from a denial of qualified immunity, we may address only abstract issues of law, and we are constrained by the facts that were assumed in the district court's order.

Under the facts outlined by the district court, the officers are not entitled to qualified immunity. The district court assumed that the officers entered the apartment after “McCrillis thought Ellison was being mouthy with her and wanted to keep him from shutting the door on them.” R. Doc. 170, at 2. The Fourth Amendment generally requires a warrant before police may enter a residence, Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and while there are exceptions to the warrant...