Partridge v. City of Benton

• Decision Date: 03 July 2019
• Docket Number: No. 18-1803,18-1803
• Parties: Piper PARTRIDGE, Individually as mother and next of kin to Keagan Schweikle and as Special Administratrix of the Estate of Keagan Schweikle; Dominic Schweikle, Individually as father and next of kin to Keagan Schweikle, Plaintiffs - Appellants v. CITY OF BENTON, ARKANSAS ; Kyle Ellison, Individually and as Employee of City of Benton, Arkansas; Kirk Lane, Individually and as Employee of City of Benton, Arkansas; John Does, 1-20, Individually and as Employees of City of Benton, Arkansas, Defendants - Appellees
• Court: U.S. Court of Appeals — Eighth Circuit

929 F.3d 562

Piper PARTRIDGE, Individually as mother and next of kin to Keagan Schweikle and as Special Administratrix of the Estate of Keagan Schweikle; Dominic Schweikle, Individually as father and next of kin to Keagan Schweikle, Plaintiffs - Appellants

v.CITY OF BENTON, ARKANSAS ; Kyle Ellison, Individually and as Employee of City of Benton, Arkansas; Kirk Lane, Individually and as Employee of City of Benton, Arkansas; John Does, 1-20, Individually and as Employees of City of Benton, Arkansas, Defendants - Appellees

No. 18-1803

United States Court of Appeals, Eighth Circuit.

Submitted: March 7, 2019

Filed: July 3, 2019

Counsel who presented argument on behalf of the appellant was Mark John Geragos, of Los Angeles, CA. The following attorney(s) appeared on the appellant brief; David West Gammill, of Manhattan Beach, CA., Richard E. Holiman. of Little Rock, AR.

Counsel who presented argument on behalf of the appellee was Jenna Allison Adams, of North Little Rock, AR. The following attorney(s) appeared on the appellee brief; Michael Mosley, of North Little Rock, AR., Jenna Allison Adams, of North Little Rock, AR.

Before BENTON, MELLOY, and SHEPHERD, Circuit Judges.

BENTON, Circuit Judge.

Benton police officer Kyle Ellison shot and killed 17-year-old Keagan Schweikle. His parents, Piper Partridge and Dominic Schweikle, sued Ellison, the Chief of Police, and the City of Benton under 42 U.S.C. § 1983 and Arkansas law. The district court granted qualified immunity to the officers, and judgment on the pleadings. Partridge and Schweikle appeal. Having jurisdiction under 28 U.S.C. § 1291, this court reverses in part, affirms in part, and remands.

I.

On October 17, 2016, Keagan walked into the woods with a gun. His mother called 911. She said he ingested cough syrup and possibly marijuana, was depressed after being suspended from school earlier that morning, and threatened to shoot himself. She said he was not going to hurt anyone but himself. She repeated these facts to the first officer on the scene, explaining that Keagan was suicidal, walked into the woods with a gun, and (she believed) was going to try to hurt himself.

Ellison was dispatched to help with the search. Using a police dog, he found Keagan standing 45 feet away on a riverbank. Ellison told Keagan to show his hands. Keagan turned slightly to his right. Ellison saw a gun in Keagan’s right hand, drew his gun, and ordered Keagan to drop the gun. Without speaking, Keagan instead raised the gun to his right temple. Ellison commanded Keagan to drop the gun "several times." Keagan remained silent. As Keagan began moving the gun away from his head, Ellison fired three shots. Two hit Keagan, killing him.

Partridge and Schweikle sued several officers in their individual capacities for excessive force and deprivation of the right to a familial relationship. They also made related Monell claims against the officers in their official capacities and the City, including failure to train and failure to adequately investigate police misconduct. They alleged assault and battery under state law. The district court granted the defendants judgment on the pleadings. It found Ellison’s use of force was not constitutionally excessive, warranting qualified immunity on the individual-capacity claims. It dismissed the Monell claims for lack of an underlying constitutional violation. It declined to exercise supplemental jurisdiction over the state-law claims. Partridge and Schweikle appeal, arguing they sufficiently pled excessive force.

II.

This court reviews de novo a judgment on the pleadings, accepting as true the facts in the complaint and drawing all reasonable inferences in favor of the nonmoving party. Levitt v. Merck & Co. , 914 F.3d 1169, 1171 (8th Cir. 2019). Judgment on the pleadings "should be granted only if the moving party has clearly demonstrated that no material issue of fact remains and the moving party is entitled to judgment as a matter of law." Whatley v. Canadian Pac. Ry. , 904 F.3d 614, 617–18 (8th Cir. 2018).

In a § 1983 action, qualified immunity shields government officials from liability "when their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Morgan v. Robinson , 920 F.3d 521, 523 (8th Cir. 2019) (en banc), quoting Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). To overcome qualified immunity at the pleadings stage, a plaintiff must "plead[ ] facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct." Ashcroft v. al-Kidd , 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011), quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

A.

This appeal turns on the claim that Ellison violated Keagan’s Fourth Amendment right to be free from excessive force. The key is whether Ellison’s actions "were objectively reasonable in light of the facts and circumstances confronting him." Rogers v. King , 885 F.3d 1118, 1121 (8th Cir. 2018). Objective reasonableness is "judged from the perspective of a reasonable officer on the scene," in light of "the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Kisela v. Hughes , ––– U.S. ––––, 138 S. Ct. 1148, 1152, 200 L.Ed.2d 449 (2018) (per curiam), quoting Graham v. Connor , 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). "It is reasonable for an officer to use deadly force if he has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or others." Rogers , 885 F.3d at 1121. "But where a person ‘poses no immediate threat to the officer and no threat to others,’ deadly force is not justified." Ellison v. Lesher , 796 F.3d 910, 916 (8th Cir. 2015), quoting Tennessee v. Garner , 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).

Keagan was not suspected of a crime. He was not actively resisting arrest or attempting to flee. He was, however, armed, suicidal, and under the influence of cough syrup and possibly marijuana. Whether a reasonable officer could conclude he posed an immediate threat depends on the circumstances at the time of the shooting. Taking the facts in the complaint as true, "Keagan simply began to move the gun away from his head," "was shot as he began to move the gun away from his head, per Ellison’s orders to ‘drop the gun,’ " and "never pointed the gun at the officers." On these facts, no reasonable officer could conclude that a compliant individual posed an immediate threat. See Henderson v. City of Woodbury , 909 F.3d 933, 939–40 (8th Cir. 2018) (reversing grant of qualified immunity where testimony supported a finding that suspect was shot after surrendering to police); Division of Emp’t Sec. v. Board of Police Comm’rs , 864 F.3d 974, 979 (8th Cir. 2017) (holding burglary suspects’ compliance with officers’ commands meant they did not pose an immediate threat to the officers).

The district court concluded it would have "been nearly impossible for Ellison to tell whether Keagan was moving the gun away from his head to comply with Ellison’s order or if he was repositioning the gun to aim it at the officers." See Hernandez v. Jarman , 340 F.3d 617, 624 (8th Cir. 2003) ("The reasonableness of [an officer’s] use of deadly force is judged from the perspective of a reasonable officer on the scene, and not from the unknowable intentions of the victim." (internal citation omitted)). This conclusion does not accept the facts in the complaint as true and draw all reasonable inferences in favor of the nonmoving party.

Keagan had to move the gun to comply with Ellison’s commands. The complaint does not tell the direction or speed Keagan moved the gun, how far he moved it before Ellison shot him, or the timing of the facts. The complaint does not give Ellison’s views. See Dooley v. Tharp , 856 F.3d 1177, 1183 (8th Cir. 2017) (collecting cases concluding, on summary judgment, officers’ beliefs that suspects posed serious threats justifying deadly force were reasonable, even if mistaken, based on perceptions that suspects pointed a gun in their direction or took other menacing action); Rogers , 885 F.3d at 1121–22 (granting qualified immunity where reasonable officer had probable cause to believe suicidal defendant posed threat of serious physical harm when "she raised the gun to [the officer’s] shin level"); Thompson v. Hubbard , 257 F.3d 896, 899 (8th Cir. 2001) (concluding, on summary judgment, officer’s use of deadly force was objectively reasonable where the officer said a fleeing armed-robbery suspect "turned and looked at him while the two were in close proximity and moved as though reaching for a weapon"). Based on the complaint, Keagan may have slowly lowered the gun while pointing it in the opposite direction of Ellison. This would be "so obviously an attempt to comply with [Ellison’s] commands to drop the [gun] that a reasonable officer would have known that opening fire would constitute excessive force." Partlow v. Stadler , 774 F.3d 497, 503 (8th Cir. 2014). See Neal v. Ficcadenti , 895 F.3d 576, 581 (8th Cir. 2018) (denying qualified immunity where, although suspect initially failed to follow commands, he was in full compliance at the time force was used); Bell v. Kansas City Police Dep’t , 635 F.3d 346, 347 (8th Cir. 2011) (denying qualified immunity where, under the plaintiff’s version of the facts, a reasonable officer would have known he was complying with the officers’ orders just before being tasered). Based on all reasonable inferences, this court cannot conclude Ellison’s actions were objectively reasonable. See Wilson v. City of Des Moines , 293 F.3d 447, 452–53 (8th...