Roberts v. City of Omaha

• Decision Date: 04 September 2013
• Docket Number: No. 12–3426.,12–3426.
• Citation: 723 F.3d 966
• Parties: David ROBERTS, Plaintiff–Appellee v. CITY OF OMAHA, a Political Subdivision of the State of Nebraska, Defendant–Appellant. Omaha Police Department, an Agency of the City, Defendant Josh Martinec, in his individual and official capacities; Phillip Ricker, in his individual and official capacities; Erich Jones, in his individual and official capacities; Justin Raders, in his individual and official capacities, Defendants–Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

723 F.3d 966

David ROBERTS, Plaintiff–Appellee

v. CITY OF OMAHA, a Political Subdivision of the State of Nebraska, Defendant–Appellant.Omaha Police Department, an Agency of the City, DefendantJosh Martinec, in his individual and official capacities; Phillip Ricker, in his individual and official capacities; Erich Jones, in his individual and official capacities; Justin Raders, in his individual and official capacities, Defendants–Appellants.

No. 12–3426.

United States Court of Appeals, Eighth Circuit.

Submitted: May 14, 2013.

Filed: July 31, 2013.

Rehearing and Rehearing En Banc Denied Sept. 4, 2013.

Christine A. Lustgarten, Acting Associate General Counsel, Ross Richard Pesek, Dornan & Lustgarten, Omaha, NE, for Plaintiff–Appellee.

Thomas O. Mumgaard, Michelle Peters, City of Omaha Legal Department, Omaha, NE, for Defendant–Appellant.

Before RILEY, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.

RILEY, Chief Judge.

David Roberts sued the City of Omaha (city) and four Omaha Police Department officers (officers) (collectively, defendants), alleging, among other claims, Fourth Amendment excessive force violations of 42 U.S.C. § 1983; and violations of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12132; the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. § 794; and state tort law. The district court granted in part and denied in part (1) the officers' motion for summary judgment based on qualified immunity, and (2) the city's motion for summary judgment. The defendants appeal the denial of summary judgment. Having jurisdiction under 28 U.S.C. § 1291 and the collateral order doctrine, see Lockridge v. Bd. of Trs. of Univ. of Ark., 315 F.3d 1005, 1012 (8th Cir.2003) (en banc), we affirm in part, reverse in part, and remand.

I. BACKGROUNDA. Facts¹

Roberts suffers from a diagnosed mental disability, paranoid schizophrenia. On January 11, 2010, Roberts lived in Omaha, Nebraska, with his parents and siblings. At approximately 5:13 a.m., Roberts's mother, Wanda Roberts (Mrs. Roberts), called 911 and reported that “Roberts was having a psychotic episode and had” attacked a member of the family with a knife or screwdriver and then retreated to the basement. The 911 dispatcher alerted Officers Martinec and Ricker that Roberts was schizophrenic, had attempted to assault a sibling, and potentially had a knife or screwdriver with him in the basement. Roberts admits his mother made this call, but denies the alleged attack occurred.

The officers and Roberts differ as to what happened next. In their depositions the officers testified to the following series of events: Officers Martinec and Ricker responded to the call and spoke to Roberts's parents at their residence. Roberts's parents told the officers they did not believe Roberts was armed, but in Roberts's complaint he said his parents “reported to the officers ... that [Roberts] might have a knife or screwdriver, but ... no guns.” Shortly thereafter, Officers Raders and Jones joined Officers Martinec and Ricker at the residence. The officers claimed they spoke with Roberts's parents for “a few minutes” and then Mrs. Roberts and Officer Martinec spoke from the top of the basement stairs with Roberts, who was still in the basement. Officer Martinec maintains he spoke with Roberts for “several minutes.”

When Roberts refused Officer Martinec's request to come upstairs, the officers went into the basement. Officer Martinec drew his firearm, and the other officers carried drawn tasers. When the officers entered the basement, Roberts was lying on his bed in a curtained-off section of the basement. As the officers approached the bed, Officer Martinec told Roberts to get his hands up. Officer Martinec twice told Roberts to lie down on the floor and put his arms to the side. Roberts sat up with his knees on the bed and put his hands up. Roberts did not lie down. Roberts was calm and coherent. Officer Martinec admits he and Officer Ricker were within two to four feet of Roberts when Officer Martinec gave this order, and that Roberts would have had to lie down “[o]n the open spot in between [Officer Martinec] and Officer Ricker” and would be “[w]ithin a foot” of each officer. Officer Jones did not understand whether Officer Martinec intended for Roberts to lie down on the floor or on the bed.

Officer Ricker proceeded to secure Roberts, moving to the foot of Roberts's bed and grabbing Roberts by the left arm. Officer Martinec moved to holster his weapon, preparing to help Officer Ricker secure Roberts. Pulling away from Officer Ricker, Roberts reached under a pillow and drew a silver kitchen knife, which he swung at Officer Ricker. Officer Martinec pulled his weapon and fired six rounds, hitting Roberts in multiple places.

Roberts has minimal memory of the shooting, but he contests the officers' version of events. And some of Roberts's objections to the officers' narrative are not wholly devoid of evidentiary support. Roberts highlights that a mere six minutes elapsed between the time Officers Martinec and Ricker notified dispatch they had arrived at Roberts's house and the time they called for an ambulance after the shooting. Roberts notes Mrs. Roberts and Roberts's brother Zachary stated in affidavits they did not hear the officers speak to Roberts when the officers were in the basement. Mrs. Roberts and Zachary claimed they heard gunshots within “[t]en to twenty seconds” after the officers entered the basement. Roberts stresses that Mrs. Roberts and Zachary stated “[t]he gunshots were fired in two separate groups of two or three.” The district court accepted Roberts's factual position for the purposes of summary judgment, finding some evidence suggested “Officer Martinec continued to fire shots at [Roberts] after he was subdued and no longer posed a threat,” and circumstantial evidence indicated “use of deadly force against [Roberts] may have been unreasonable.”

Roberts also contends Officer Ricker seized Roberts and threw him to the floor before Officer Martinec shot Roberts. In support of this contention, Roberts claims photographs of the crime scene display no bullet holes and little blood on Roberts's sheets. Roberts asserts his covers were out of place in the photographs, and there was blood on the floor. The district court did not find as a matter of fact whether Officer Ricker attempted to throw or did throw Roberts to the floor, and Roberts produced no expert or other testimony to substantiate his theories regarding the photographic evidence.

Roberts “vehemently disputes” the evidence that he threatened the officers with a knife. In support of his position, Roberts points to a photograph of a knife on the floor of his basement bedroom, suggesting the knife is “in the opposite direction one would expect if it were being violently swung at an officer located at the foot of the bed.” Roberts contends “the officers used knives found in [his] cluttered room to justify an unprovoked shooting.” The district court stated it could not “discern the level of threat posed by the knife described or how it was brandished, if at all.”

Roberts argues he produced evidence indicating Officer Martinec shot Roberts in the back. The district court acknowledged “[b]oth parties have submitted hospital photographs of [Roberts] in support of and opposition to that contention. Without some explanatory evidence or testimony, the court is not able to discern exactly what the photographs portray.” The district court did not rely on this allegation when discussing Roberts's claim of excessive force, which indicates the district court did not find the photographs sufficient, without some explanatory testimony, to show Roberts was shot in the back.

B. Procedural History

Roberts sued the city and the officers on April 7, 2011, alleging violations of the ADA, the Rehabilitation Act, the Fourth and Fourteenth Amendments, and state law. On March 15, 2012, the defendants moved for summary judgment, arguing Roberts had not produced sufficient evidence to create a genuine dispute of material fact as to any of his claims. SeeFed.R.Civ.P. 56(a). The defendants' motion did not expressly raise the issue of qualified immunity. Roberts responded to the Motion for Summary Judgment on May 4, 2012. On July 7, 2012, the defendants moved to amend their summary judgment motion to include the defense of qualified immunity.

The district court granted the defendants' motion to amend, and denied the motion for summary judgment in part and granted the motion in part. Specifically, the district court granted the defendants' motion for summary judgment on Roberts's claim “that the officers [sic] attempts to secure [Roberts in handcuffs] or take him into custody were improper,” reasoning “there [was] no evidence from which a reasonable jury could conclude that [Roberts] was secure and was not a threat to officers or anyone else in the home when they found him in the basement.” Without considering separate conduct of each individual officer, and without analyzing what specific alleged conduct violated the plaintiff's clearly established constitutional or statutory rights, the district court denied the motion for summary judgment as to all other claims.

The defendants appeal.

II. DISCUSSIONA. Standard of Review

The officers are entitled to qualified immunity unless Roberts produced sufficient evidence, considered in the light most favorable to Roberts, to show the officers violated Roberts's clearly established federal constitutional or statutory rights. See Livers, 700 F.3d at 350. A constitutional or statutory right is clearly established if “[t]he contours of the right [are] 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). To overcome qualified immunity, Roberts must prove “that in the light of pre-existing law the unlawfulness [of each of the...