Horton v. Pobjecky, 17-1757

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Citation: 883 F.3d 941
• Docket Number: No. 17-1757,17-1757
• Parties: James HORTON, as the Independent Administrator of the Estate of Michael DeAngelo Sago, Jr., Plaintiff-Appellant, v. Frank POBJECKY, Gary Caruana, and Winnebago County, Defendants-Appellees.
• Decision Date: 27 February 2018

883 F.3d 941

James HORTON, as the Independent Administrator of the Estate of Michael DeAngelo Sago, Jr., Plaintiff-Appellant,
v.
Frank POBJECKY, Gary Caruana, and Winnebago County, Defendants-Appellees.

No. 17-1757

United States Court of Appeals, Seventh Circuit.

Argued November 1, 2017
Decided February 27, 2018

Basileios J. Foutris, Attorney, Foutris Law Office, Chicago, IL, for Plaintiff–Appellant.

Michael J. Meyer, Attorney, William Bradley Oberts, Attorney, Tribler Orpett & Meyer, P.C., Chicago, IL, William Don Emmert, Attorney, Office of the State's Attorney of Winnebago County, Rockford, IL, William W. Kurnik, Attorney, Knight, Hoppe, Kurnik & Knight, LTD., Rosemont, IL, for Defendants-Appellees.

Before Manion, Kanne, and Rovner, Circuit Judges.

Manion, Circuit Judge.

883 F.3d 944

Sixteen-year-old Michael DeAngelo Sago, Jr., and three other young men attempted to rob a pizzeria at gunpoint. Frank Pobjecky, an off-duty police officer waiting for a pizza, shot and killed Michael.¹ James Horton, as administrator of Michael's estate, brought various federal and state claims against Pobjecky and others. The district court granted summary judgment for Defendants on all claims, concluding Pobjecky's use of deadly force was reasonable and justified, and did not violate the Fourth Amendment. We affirm.

I. Facts

A. Surveillance Videos

On review of summary judgment, we view the facts in the light most favorable to the nonmovant and draw reasonable inferences in his favor. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Yahnke v. Kane County, Ill. , 823 F.3d 1066, 1070 (7th Cir. 2016). The parties agree about some facts, but they vigorously contest others.

Four cameras captured surveillance videos of portions of the events. According to the videos, the encounter lasted less than a minute. The first video shows the parking lot and sidewalk outside the front door of Marie's Pizza in Rockford, Illinois. The second video shows the same area from a different angle. The third video shows the kitchen. The fourth video shows the front door, entrance area, counter, and cash register from inside the pizzeria. Although on summary judgment we generally view the facts in the light most favorable to the nonmovant, in rare circumstances when video footage clearly contradicts the nonmovant's claims, we may consider that video footage without favoring the nonmovant. Scott v. Harris , 550 U.S. 372, 378–81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ("The Court of Appeals ... should have viewed the facts in the light depicted by the videotape."). This is because on summary judgment we view the facts in the light most favorable to the nonmovant only if there is a genuine dispute about those facts. Id. at 380, 127 S.Ct. 1769. When video footage firmly settles a factual issue, there is no genuine dispute about it, and we will not indulge stories clearly contradicted by the footage. Of course, videos are sometimes unclear, incomplete, and fairly open to varying interpretations. The story here is very short and violent.

B. Armed Robbery

Late Saturday evening, October 1, 2011, Frank Pobjecky, an unarmed off-duty police

883 F.3d 945

officer, waited for the pizza he ordered at Marie's Pizza. He was the only customer inside. He was in the break area with Vincenzo Tarara (the restaurant manager) and David Weidner (the delivery driver). Andres Briseno (the cook) was in the kitchen.

The break area was separated by a cooler from the public entrance area depicted by the fourth video. No video captured the break area or the cooler. Tarara carried a concealed semi-automatic handgun on his hip. Pobjecky knew about it.

Suddenly four young men entered the front door of the pizzeria. The videos show the first of these men entering at timestamp 22:26:32. One of these men, Lamar Coates, held a revolver. He and Brandon Sago barged into the break area separated from the entrance by the cooler. Desmond Bellmon skirted the counter and attacked the cash register. Michael arrived at the front door last, and stood in the entrance, holding the door open. He was the lookout.² All four assailants wore sweatshirts with hoods up. Michael wore a light color, while the others wore a dark color.

Tarara heard the door chime when the assailants entered. He approached the front area and encountered Coates, Brandon, and Bellmon. Tarara did not surrender. Instead he yelled, "get the hell out of here, you're not getting any of my f'ing money." Pobjecky and Tarara testified that Coates pointed his gun at each of them and demanded money. In response to Pobjecky's Local Rule 56.1 statement of facts, Horton denied that Coates threatened Pobjecky or Tarara, demanded money, or said anything before the struggle for Coates's weapon began. But in Horton's answer to Pobjecky's request to admit facts, Horton had already admitted Coates threatened Pobjecky or Tarara, and maybe both, with a gun.

According to Horton, Tarara reached for his own weapon, reconsidered, slammed Coates against the cooler, and struggled for Coates's revolver. For several terrifying seconds Tarara and Coates both had their hands on Coates's gun. Tarara testified Coates tried to shoot him. Tarara fought for his life. He testified he could see a round down the barrel, and he could feel Coates trying to pull the trigger. Horton disputed below whether Coates tried to pull the trigger during the struggle, but the district court found this issue immaterial.

There is ultimately no dispute that Coates approached Tarara and Pobjecky with a gun and threatened at least one of them with it, and that Tarara grabbed Coates's gun and struggled for possession of it. According to Horton, the struggle for Coates's gun only involved Coates and Tarara. Pobjecky tried to grab Tarara's gun from his hip. Brandon and Bellmon joined the melee. No cameras captured the skirmish for the guns.

Michael did not join the struggle. He never grabbed for a gun. The fourth video shows Michael and Bellmon turn their heads toward the struggle at timestamp 22:26:46, apparently as soon as they heard the struggle begin. Bellmon left the counter at about 22:26:47 and entered the break area. But the video shows Michael remained at the front door for a few seconds. Then at about 22:26:51 he left the front door and approached the area of the struggle, off camera.

The parties dispute what Michael did during the struggle for control of the guns.

883 F.3d 946

Horton claims Michael was not involved in the struggle, never grabbed for a gun, and just stood near the area with his arms down by his side doing nothing during the struggle. Horton points to the testimony of Pobjecky that Michael's arms were down by his side. Horton insists the record shows Michael never grabbed for a gun or scuffled for a gun, never tussled with anyone, never touched a gun, and did nothing during the struggle. Defendants, however, characterize Michael as inserting himself into the situation by entering the pizzeria and quickly approaching the struggle. At this stage, we accept Horton's view of the facts. With the possible exception of partial, fleeting shapes in the bottom left-hand corner of the fourth video, the struggle for control of the guns occurred entirely off camera. Pobjecky gained possession of Tarara's gun, and Tarara won the struggle for Coates's gun.

Horton claims that once Coates lost the struggle for his gun, he turned, headed for the exit, and saw Pobjecky two feet away pointing a gun at him as Tarara held the other gun. Pobjecky then shot Coates in the back without warning, holding the gun over Tarara's right shoulder. Bellmon ducked for cover behind the counter, and Brandon headed for the exit.

According to Appellees, Pobjecky fired the first shot at timestamp 22:26:56, about 10 seconds after Michael and Bellmon first turned toward the struggle when it apparently began. Horton does not dispute this account, and the videos seem to support it. Pobjecky did not announce he was a police officer or order anyone to stop. Pobjecky claims he did not have enough time to do that. With Tarara's gun, Pobjecky engaged each criminal suspect as they moved around the pizzeria. He shot Coates, Brandon, and Bellmon. According to Horton (citing Coates's testimony) Pobjecky had a look of anger, not fear, on his face when he shot Coates. Pobjecky did not give verbal warnings or commands to the assailants before shooting them.

Pobjecky shot Brandon as he headed for the door. Pobjecky and Tarara both pointed guns when Brandon exited, but only Pobjecky fired. During a break in the shooting, Bellmon headed for the door. Pobjecky shot at him but missed, although earlier in the incident Pobjecky shot him in the buttocks.

Pobjecky then shot Michael three times in the lower back. The parties dispute the circumstances immediately surrounding Pobjecky's shooting of Michael. Horton claims Pobjecky shot Michael three times as Michael crawled away from Pobjecky and toward the door. Horton claims Pobjecky did not consider Michael a threat because Pobjecky...