Estate of Smart v. City of Wichita, No. 18-3242
| Decision Date | 26 February 2020 |
| Docket Number | No. 18-3242 |
| Citation | 951 F.3d 1161 |
| Parties | The ESTATE OF Marquez SMART, BY Randall SMART and Brenda Bryant as Administrators of the Estate of Marquez Smart, deceased; Randall Smart and Brenda Bryant as heirs of Marquez Smart, deceased, Plaintiffs - Appellants, v. The CITY OF WICHITA; Police Officers Lee Froese and Aaron Chaffee, in their individual and official capacities, Defendants - Appellees. American Civil Liberties Union; American Civil Liberties Union of Kansas; CATO Institute; Karen M. Blum, Scholars of the Law of Qualified Immunity; Alan K. Chen, Scholars of the Law of Qualified Immunity; Barry Friedman, Scholars of the Law of Qualified Immunity; John F. Preis, Scholars of the Law of Qualified Immunity; Alexander A. Reinert; Joanna C. Schwartz, Scholars of the Law of Qualified Immunity; Martin A. Schwartz, Scholars of the Law of Qualified Immunity; International Municipal Lawyers Association, Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Amir H. Ali, Roderick & Solange MacArthur Justice Center, Washington, D.C. (Andrew B. Protzman and Ben Stelter-Embry, Protzman Law Firm, LLC, Kansas City, Missouri; Bradley D. Kuhlman, Kuhlman & Lucas, LLC, Kansas City, Missouri; David M. Shapiro, Roderick & Solange MacArthur Justice Center, Chicago, Illinois, with him on the briefs), for Plaintiffs – Appellants.
Samuel A. Green (J. Steven Pigg with him on the brief), Fisher, Patterson, Sayler & Smith, L.L.P., Topeka, Kansas, for Defendants – Appellees.
Lauren Bonds, ACLU Foundation of Kansas, Overland Park, Kansas, and Jay R. Schweikert, CATO Institute, Washington, D.C., filed an amicus brief on behalf of The American Civil Liberties Union, American Civil Liberties Union of Kansas, and CATO Institute in support of Appellants.
Debo P. Adegbile, Jamie Stephen Dycus, Stephanie Simon, and Cassandra Mitchell, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York, filed an amicus brief on behalf of Scholars of the Law of Qualified Immunity in support of Appellants.
Christopher D. Balch, The Balch Law Group, Atlanta, Georgia, filed an amicus brief on behalf of the International Municipal Lawyers Association in support of Appellees.
Before BACHARACH, McHUGH, and EID, Circuit Judges.
In the early morning hours of March 10, 2012, as hundreds of people emptied out of bars and concert venues in Wichita’s Old Town neighborhood at closing time, Wichita Police Officers Lee Froese and Aaron Chaffee fatally shot Marquez Smart. Mr. Smart’s estate and heirs sued the City of Wichita, along with Officers Froese and Chaffee, alleging the officers used excessive force against Mr. Smart. The district court granted summary judgment in favor of Officers Froese and Chaffee on the basis of qualified immunity, reasoning that although the jury could find that the officers had violated Mr. Smart’s right to be free from excessive force, the officers had not violated clearly established law under the facts presented. The district court also granted summary judgment in favor of the City.1 We affirm in part, reverse in part, and remand to the district court for further proceedings.
We recount the facts in the light most favorable to the non-movants, the plaintiffs, as we must at the summary judgment stage. See Davis v. Clifford , 825 F.3d 1131, 1133 (10th Cir. 2016).
On the evening of March 9, 2012, Mr. Smart, who is black, attended a concert at Doc Howard’s, a large bar and concert venue in the Old Town neighborhood of Wichita, Kansas. Doc Howard’s was located on Mosley Street along with several other bars, concert venues, and a parking garage, as depicted in the map below:2
According to Latyra James, an acquaintance of Mr. Smart who attended the concert with him that night, she and Mr. Smart left Doc Howard’s with a group of people around closing time and "all started walking towards" the parking garage on Mosley Street. App. at 268. Ms. James was "a couple of feet away from" Mr. Smart and "didn’t have any trouble seeing him" when she "heard gunshots." Id. at 270. She confirmed that the "first gunshot ... wasn’t near" her group and Mr. Smart "wasn’t holding his arm out like he was shooting a gun or anything like that." Id. at 271. After the first shot, Ms. James recounted, "everybody [was] running around [like] crazy" and Mr. Smart "tried to run down the alleyway" that intersected Mosley Street next to the parking garage. Id. at 271–72, 274.
Aundras Wilson, a long-time friend of Mr. Smart who was also with him that night, similarly indicated he never saw any gun other than the officers’ guns, did not see anyone other than the officers shoot, and did not "know of [Mr. Smart] ever having a gun." Id. at 208. DeShawn Wheaton, a bystander, also testified he never saw anyone except the police shooting and never saw Mr. Smart with a gun in his hand, although Mr. Wheaton admitted he only heard, but did not see, the first few shots. Two other police officers who witnessed the shooting likewise stated they did not see a gun in Mr. Smart’s hand.
Officer Froese testified that he arrived in Old Town shortly before closing time, along with several other officers, to help with routine crowd control. As "hundreds" of people started emptying out of the bars and concert venues, Officer Froese began crossing Mosley Street to intervene in a fight involving a large group of people when he heard "one extremely loud gunshot" from another direction. Id. at 178, 175. Officer Froese turned and saw a black man "with his hand extended ... with a big black gun in his hand, and then [he] saw two more shots, and [he] saw [a] muzzle flash." Id. at 176. He testified that the shooter, whom he identified during his deposition as Mr. Smart,3 fired those two shots toward "a big crowd of people ... in the middle of [Mosley Street]." Id. at 177.
Officer Froese stated he was then "totally focused on" Mr. Smart, who was running in a crouched stance down the side of Mosley Street where the parking garage was located. Id. at 176. Officer Froese ran toward Mr. Smart and fired one shot at him. Mr. Smart kept running, though "slow[ing] slightly," and when Officer Froese was about five feet "directly behind" Mr. Smart, he "fire[d] four additional shots" in rapid succession. Id. at 184–85. Mr. Smart kept running and started "to turn west into the alleyway," then Officer Froese "hear[d] some shots to [his] right" from Officer Chaffee. Id. at 186–87. Officer Froese testified he did not recall warning Mr. Smart or ordering him to drop the gun, nor did he hear any other officer do so.
Officer Chaffee, a member of the Wichita Police Department’s gang intelligence team, had also arrived in Old Town shortly before closing time in response to another officer’s report of a gun in a parked car. But as crowds started flowing from the bars and concert venues into the street, Officer Chaffee began helping with crowd control. Officer Chaffee stood on the ledge of an elevated flower bed "to look into the crowd and make sure there wasn’t any disturbance or anything going on that needed any kind of attention." Id. at 123. He recalled:
And then, at some point while scanning—scanning the area, on the west side of the street I saw a group of people start to scatter, kind of running towards the south. That catches my eye, and so as I look over I ... see the people scatter, and I start to hear the gunshots, and I see a black male with a yellow shirt standing there with his right arm indexed out at the crowd.
Id. at 124. Officer Chaffee estimated he initially heard "four to five" shots. Id. at 126. From that time on, Officer Chaffee testified he watched Mr. Smart run north along the street and only briefly lost sight of Mr. Smart when he ran behind others in the crowd. Officer Chaffee also stated that Mr. Smart was running "exactly [like] what [Officer Chaffee] had experienced in the past" when people fled the police—running fast and crouching low. Id. at 132. As Officer Chaffee moved west across Mosley Street to intercept Mr. Smart, he saw Officer Froese and heard a second volley of "two or three more shots," but could not tell whether an officer or someone else had fired the shots. Id. at 133.
Mr. Smart "[fell] to the ground once he started running through the alley" off Mosley Street. Id. at 281. DeShawn Wheaton, a bystander, saw Mr. Smart "on the ground [with] his arms stretched out" with nothing in his hands, "looking back" at Officer Chaffee and shaking his head. Id. at 201, 202. Mr. Wheaton then saw Officer Chaffee fire "about three more shots" at Mr. Smart.4 Id. at 201. The gunshot wounds
killed Mr. Smart.
According to Adron Jones, a bystander, about five seconds elapsed from the first shot Officer Chaffee fired until his final shots. Sergeant Gulliver, another police officer who witnessed the shooting, estimated about five seconds elapsed from when he first saw Officer Chaffee chasing Mr. Smart until Officer Chaffee began firing at Mr. Smart.
Police recovered a .45 caliber handgun, with the magazine missing, about ten feet from where Mr. Smart fell. Along the path between the spot where the officers first saw Mr. Smart and the spot where Mr. Smart fell, police found a magazine for a .45 caliber handgun, two .45 caliber shell casings, and Mr. Smart’s eyeglasses. Forensic analysis specifically linked the two shell casings to the handgun found near Mr. Smart. The chief medical examiner who performed Mr. Smart’s autopsy could not verify that Mr. Smart had fired a gun that night because she found no gunshot residue on Mr. Smart’s hands. Dr. Christian Westering, an expert for the plaintiffs, tested DNA found on approximately eighteen samples from the handgun, magazine, and shell casings. Two of those samples had too many contributors to draw conclusions; six samples excluded Mr. Smart as a contributor; the remaining samples could not exclude Mr. Smart as a contributor.
Dr. Wayne K. Ross, the plaintiffs’ medical expert, stated Mr. Smart was shot...
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