Hernandez v. Jarman, 02-3519.

• Decision Date: 21 August 2003
• Docket Number: No. 02-3519.,No. 02-3520.,02-3519.,02-3520.
• Citation: 340 F.3d 617
• Parties: Sybil HERNANDEZ, Mother and Administrator of the Estate of Albert James Six Feathers, Plaintiff-Appellee, v. Brett JARMAN, Individually, Defendant-Appellant, State of South Dakota; Edgemont Police Department; Mary Kellogg, Individually and in her Official Capacity as a City Council Commissioner; Roger Le Vasseur, Individually and in his Official Capacity as a City Council Commissioner; William Clark, Individually and in his Official Capacity as a City Council Commissioner; Alex Asbridge, Individually and in his Official Capacity as a City Council Commissioner; L. George West, Individually and in his Official Capacity as a City Council Commissioner; Ted W. Hinesley, Individually and in his Official Capacity as Edgemont City Attorney; City of Edgemont; Jeffrey D. Tarrell, Individually; Martha Jarman, Individually and in her Official Capacity as a Deputy with the Fall River County Sheriff's Department; Fall River County Sheriff's Department; Fall River County, South Dakota; Robert Fazendin, Individually and in his Official Capacity as a Law Enforcement Officer with the Newcastle Police Department; Newcastle Police Department; City of Newcastle, Wyoming; John Does 1 through 5, Defendants. Sybil Hernandez, Mother and Administrator of the Estate of Albert James Six Feathers, Plaintiff-Appellee, v. Brett Jarman, Individually; State of South Dakota; Edgemont Police Department; Mary Kellogg, Individually and in her Official Capacity as a City Council Commissioner; Roger Le Vasseur, Individually and in his Official Capacity as a City Council Commissioner; William Clark, Individually and in his Official Capacity as a City Council Commissioner; Alex Asbridge, Individually and in his Official Capacity as a City Council Commissioner; L. George West, Individually and in his Official Capacity as a City Council Commissioner; Ted W. Hinesley, Individually and in his Official Capacity as Edgemont City Attorney; City of Edgemont, Defendants, Jeffrey D. Tarrell, Individually, Defendant-Appellant, Martha Jarman, Individually and in her Official Capacity as a Deputy with the Fall River County Sheriff's Department; Fall River County Sheriff's Department; Fall River County, South Dakota; Robert Fazendin, Individually and in his Official Capacity as a Law Enforcement Officer with the Newcastle Police Department; Newcastle Police Department; City of Newcastle, Wyoming; John Does 1 through 5, Defendants.
• Court: U.S. Court of Appeals — Eighth Circuit

340 F.3d 617

Sybil HERNANDEZ, Mother and Administrator of the Estate of Albert James Six Feathers, Plaintiff-Appellee, v. Brett JARMAN, Individually, Defendant-Appellant State of South Dakota; Edgemont Police Department; Mary Kellogg, Individually and in her Official Capacity as a City Council Commissioner; Roger Le Vasseur, Individually and in his Official Capacity as a City Council Commissioner; William Clark, Individually and in his Official Capacity as a City Council Commissioner; Alex Asbridge, Individually and in his Official Capacity as a City Council Commissioner; L. George West, Individually and in his Official Capacity as a City Council Commissioner; Ted W. Hinesley, Individually and in his Official Capacity as Edgemont City Attorney; City of Edgemont; Jeffrey D. Tarrell, Individually; Martha Jarman, Individually and in her Official Capacity as a Deputy with the Fall River County Sheriff's Department; Fall River County Sheriff's Department; Fall River County, South Dakota; Robert Fazendin, Individually and in his Official Capacity as a Law Enforcement Officer with the Newcastle Police Department; Newcastle Police Department; City of Newcastle, Wyoming; John Does 1 through 5, Defendants.

Sybil Hernandez, Mother and Administrator of the Estate of Albert James Six Feathers, Plaintiff-Appellee, v. Brett Jarman, Individually; State of South Dakota; Edgemont Police Department; Mary Kellogg, Individually and in her Official Capacity as a City Council Commissioner; Roger Le Vasseur, Individually and in his Official Capacity as a City Council Commissioner; William Clark, Individually and in his Official Capacity as a City Council Commissioner; Alex Asbridge, Individually and in his Official Capacity as a City Council Commissioner; L. George West, Individually and in his Official Capacity as a City Council Commissioner; Ted W. Hinesley, Individually and in his Official Capacity as Edgemont City Attorney; City of Edgemont, Defendants Jeffrey D. Tarrell, Individually, Defendant-Appellant Martha Jarman, Individually and in her Official Capacity as a Deputy with the Fall River County Sheriff's Department; Fall River County Sheriff's Department; Fall River County, South Dakota; Robert Fazendin, Individually and in his Official Capacity as a Law Enforcement Officer with the Newcastle Police Department; Newcastle Police Department; City of Newcastle, Wyoming; John Does 1 through 5, Defendants.

No. 02-3519.

No. 02-3520.

United States Court of Appeals, Eighth Circuit.

Submitted: May 15, 2003.

Filed: August 21, 2003.

Order Denying Petition for Rehearing and for Rehearing En Banc September 24, 2003.

COPYRIGHT MATERIAL OMITTED

The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied.

Donald P. Knudsen, argued, Rapid City, SD (James S. Nelson, on the brief), for appellant Jarman.

Edward C. Carpenter, Rapid City, SD, argued, for appellant Tarrell.

Robin L. Zephier, argued, Rapid City, SD (Charles Abourezk, on the brief), for appellee.

Before BOWMAN and BYE, Circuit Judges, and ERICKSEN,¹ District Judge.

BOWMAN, Circuit Judge.

Jeffrey D. Tarrell, Sheriff of Fall River County, South Dakota, and Brett Jarman, Chief of Police of Edgemont, South Dakota (collectively "the officers"), appeal the District Court's denial of their motions for summary judgment on the basis of qualified immunity² in a 42 U.S.C. § 1983 (2000) suit for damages filed against them by Sybil Hernandez, the administrator of the estate of her son, Albert James Six Feathers. We reverse.

I.

This suit arose out of a high-speed police chase through parts of Wyoming and South Dakota that ended with the fatal shooting of Six Feathers by Brett Jarman. At around 3:00 a.m. on December 10, 1999, in New Castle, Wyoming, Six Feathers was observed driving erratically by Robert Fazendin, a New Castle police officer. Because Fazendin suspected Six Feathers was intoxicated, he attempted to stop Six Feathers by turning on his overhead lights. In response, Six Feathers sped up and fled south on Highway 85. Fazendin pursued Six Feathers for forty-five miles at speeds reaching one hundred miles per hour. When it became apparent that Six Feathers was heading to South Dakota, Fazendin told his dispatcher to contact South Dakota law enforcement officials to notify them of the pursuit, and to request that a set of road spikes be deployed to stop Six Feathers's vehicle. This message was relayed to Tarrell, Brett Jarman, and Martha Jarman, a deputy with the Fall River County Sheriff's Department. Brett Jarman and Martha Jarman, each in his and her respective patrol car, joined the pursuit near Edgemont. Shortly thereafter, Tarrell joined the chase. A South Dakota Highway Patrol airplane flown by Glen Miller monitored the pursuit.

Around Edgemont, Six Feathers successfully evaded several roadblocks, including a rolling roadblock in which the officers attempted to box Six Feathers's car in on three sides. During this attempted stop of Six Feathers, Brett Jarman's car apparently became disabled, and he ended up riding with Tarrell. At approximately this same time, Fazendin, who was now out of his jurisdiction, stopped his pursuit, but he continued to follow the chase until he could determine his location. Martha Jarman also fell behind when her car spun out after it collided with Six Feathers's vehicle. Tarrell and Brett Jarman continued the high-speed chase with Martha Jarman and Fazendin following some distance behind.

Near Ardmore, South Dakota, Six Feathers turned his car at a section line road and then off the road and down a hill into a pasture. Due to the rough nature of the terrain and warnings from Miller, Tarrell slowed down. Six Feathers continued ahead for a short distance but then turned his vehicle around and came back on the same path in the opposite direction. After seeing Six Feathers turn his car around, Brett Jarman told Tarrell to stop his car. As Tarrell slowed down, Brett Jarman grabbed Tarrell's shotgun and jumped out of the patrol car. Within seconds after Brett Jarman's exit, Six Feathers ran head-on into Tarrell's vehicle. Brett Jarman fired four shots at Six Feathers, but, as the District Court noted, it is unclear whether the shots were fired "before, during, or after the collision." Mem. Op. and Order at 5 (July 31, 2002). Six Feathers died at the scene.

The District Court denied the summary judgment motions of Brett Jarman and Tarrell.³ Subsequently, based on the motions of Tarrell and Brett Jarman, the District Court issued an order of clarification because it believed its prior order did not adequately discuss the reasons for denying Tarrell and Jarman qualified immunity. See Mem. of Clarification at 2 (Oct. 7, 2002).

II.

We review a district court's denial of summary judgment on the basis of qualified immunity de novo. McCaslin v. Wilkins, 183 F.3d 775, 778 (8th Cir.1999). In so doing, we consider whether, viewed in the light most favorable to the nonmoving party, the facts alleged show a violation of a clearly established constitutional right. Seiner v. Drenon, 304 F.3d 810, 812 (8th Cir.2002).

In this case, if Hernandez's allegations fail to establish a violation of a clearly established constitutional right, Jarman and Tarrell will be entitled to qualified immunity for their actions. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (holding that in excessive force cases, the threshold question for the court is whether the officer's conduct violated a clearly established constitutional right). We analyze Hernandez's claims that the officers used excessive force during their seizure of Six Feathers "under the Fourth Amendment and its `objective reasonableness' standard." Seiner, 304 F.3d at 812; Cole v. Bone, 993 F.2d 1328, 1332-33 (8th Cir. 1993) (holding a Fourth Amendment seizure occurs when an officer fatally shoots a fleeing suspect). In determining whether this use of force in seizing Six Feathers was objectively reasonable, we consider the facts and circumstances of the case, including the crime's severity, whether Six Feathers posed an immediate threat to the safety of the officers or others, and whether he actively resisted arrest or fled. See Seiner, 304 F.3d at 812. Moreover, in making this determination, we consider only whether the seizure itself, not preseizure conduct, was unreasonable. Id.

An officer may use deadly force if "the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Id. (quoting Tennessee v. Garner, 471 U.S. 1, 3, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)); see also Sinclair v. City of Des Moines, Iowa, 268 F.3d 594, 596 (8th Cir.2001). "The `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396, 109 S.Ct. 1865. This "`reasonableness' inquiry concerns only whether `the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force...." Id. at 397 (internal citation omitted).

As we have repeatedly held, in opposing a motion for summary judgment, a nonmoving party may not rely on mere denials or allegations in its pleadings, but must designate specific facts showing that there is a genuine issue for trial. See, e.g., Brandt v. Davis, 191 F.3d 887, 891 (8th Cir.1999) (affirming grant of summary judgment in favor of defendants in an excessive force case because plaintiff failed to submit any evidence contradicting defendants' version of the incident). While we are mindful that this case is somewhat unusual in that Tarrell and Jarman are the only surviving witnesses, that does not relieve...