Sevier v. City of Lawrence, Kan., 94-3214

• Decision Date: 21 July 1995
• Docket Number: No. 94-3214,94-3214
• Citation: 60 F.3d 695
• Parties: Willie SEVIER, Individually, as parent and heir at law of Gregory Sevier, Deceased, and as administrator of the estate of Gregory Sevier; Orene Sevier, Individually, and as parent and heir at law of Gregory Sevier, Deceased, Plaintiffs-Appellees, v. CITY OF LAWRENCE, KANSAS; Ted J. Bordman; James H. Phillips; and W. Ronald Olin, Defendants-Appellants, and George T. Wheeler, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 695

60 F.3d 695

Willie SEVIER, Individually, as parent and heir at law of Gregory Sevier, Deceased, and as administrator of the estate of Gregory Sevier; Orene Sevier, Individually, and as parent and heir at law of Gregory Sevier, Deceased Plaintiffs-Appellees, v. CITY OF LAWRENCE, KANSAS; Ted J. Bordman; James H Phillips; and W. Ronald Olin, Defendants-Appellants and George T. Wheeler, Defendant.

No. 94-3214.

United States Court of Appeals Tenth Circuit.

July 21, 1995.

Thomas E. Wright of Wright, Henson, Somers, Sebelius, Clark, & Baker, LLP, Topeka, KS (Catherine A. Walter of Wright, Henson, Somers, Sebelius, Clark, & Baker, LLP, and Lance W. Burr, Lawrence, KS, with him on the brief), for plaintiffs-appellees.

Gerald L. Cooley of Allen, Cooley & Allen, Lawrence, KS (Randall F. Larkin, of Allen, Cooley & Allen, with him on the briefs), for defendants-appellants.

Before MOORE and EBEL, Circuit Judges, and COOK, ^* District Judge.

EBEL, Circuit Judge.

Plaintiffs-Appellees, Willie and Orene Sevier (respectively "Willie" and "Orene;" collectively "the Seviers"), brought this action under 42 U.S.C. Sec. 1983 and Kansas state law against various police officers and the City of Lawrence, Kansas ¹ for the shooting death of their son Gregory Sevier ("Gregory"). Lawrence police officers Ted J. Bordman ("Bordman") and James H. Phillips ("Phillips") shot and killed Gregory when a confrontation developed in the course of their response to a 911 emergency call placed by the Seviers. The district court denied Defendants' motion for summary judgment on the Seviers' Sec. 1983 excessive force claim, finding that disputed issues of material fact precluded Defendants from obtaining summary judgment on their claim of qualified immunity. The court further denied summary judgment on the Seviers' state law claim for the tort of outrage. Defendants now appeal. We hold, pursuant to the recent Supreme Court case of Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), that we lack jurisdiction to review the district court's ruling that disputed material facts preclude summary judgment for Defendants on the Seviers' Sec. 1983 claim. We also hold that we lack jurisdiction to consider Defendants' interlocutory appeal from the denial of summary judgment on the Seviers' state law claim of outrage.

I. BACKGROUND

Between 11 p.m. and midnight on the evening of April 20, 1991, Willie and Gregory Sevier went to shoot pool at the West Coast Saloon in Lawrence. On their way to the pool hall, Gregory told his father that he was having problems with his girlfriend. The two drank a modest amount of beer at the saloon and then returned home, where Gregory went to his room with a six-pack of beer and began to play his stereo at a very high volume. Willie went to Gregory's bedroom to ask him to turn down the stereo, but the door was locked and Gregory did not respond to Willie's knocking. Willie then retrieved a plastic toothpick from the kitchen to unlock the door. When he opened the door, he saw that Gregory was sitting on the edge of his bed with a knife in his hand resting on his lap. Willie closed the door without speaking to his son and discussed the situation with his wife Orene.

The Seviers were particularly concerned because Gregory had attempted suicide on two previous occasions, and they decided to call 911 for assistance. Orene placed the call at 2:27:50 a.m. on the early morning of April 21, 1991, and engaged in the following conversation with the emergency dispatcher:

... My son is in his bedroom and he's having a real problem, and my husband seen him with a butcher knife in there and I just want someone to go in and check him out.

Okay, is your husband there now?

Yeah, he's just standing outside waiting.

. . . . .

And don't use the siren or anything. I don't want to alarm him or anything like that. I just want to come out here and--

Okay, have you been arguing tonight?

No, no, no, nothing's going on.

Okay, why does he have the knife, do you know?

I think he's having a problem with his girlfriend or something, I think they broke up or something, I don't know.

All right, I'll send someone out.

Thank you.

Sevier, 853 F.Supp. at 1364. ² Following Orene's call, Officers Bordman, Phillips, and George T. Wheeler ("Wheeler") were dispatched to the Sevier home. The dispatch stated:

... the mother advising her 22 year old son is in his bedroom. He has a butcher knife. It's unknown exactly what the problem is. She believes he may be having trouble with his girlfriend, there has been no arguing at the residence. She'd like an officer en route to talk to him.

Id. ³ Officers Bordman and Wheeler later stated that they did not believe the dispatch to be a suicide call. Nevertheless, Bordman explained that he understood that someone was upset about his girlfriend and "needed somebody to talk to." Officer Phillips stated that he could not remember whether he understood the call to involve a suicide, and highlights that he even stopped to issue a traffic citation on his way to the Seviers' home. The Seviers assert that Phillips stated that he recognized the call as involving a possible "signal 4" subject or suicide.

Bordman arrived at the Sevier home first at 2:34:57 a.m. There is some dispute as to whether Bordman stopped to talk with Willie and Orene or ignored their attempts to discuss the situation. In any event, Willie directed Bordman to Gregory's bedroom and told him that Gregory was in the room with a knife. After Bordman found the door locked and heard loud music coming from inside, Willie showed Bordman how to unlock the door with a toothpick. Bordman first requested that the police radio airwaves be cleared except for emergency traffic, and then unlocked the bedroom door and opened it approximately four to six inches. Due to the loud music, Bordman remained unable to communicate with Gregory, although Gregory stated that "I didn't do anything."

Shortly after Bordman opened the door, Phillips arrived on the scene at 2:36:33 a.m. Bordman warned Phillips that he thought the person in the bedroom had a knife, and both officers drew their weapons. Bordman then looked into the bedroom but could only see the left half of Gregory's body. Bordman ordered Gregory to show his hands, while Phillips retreated down the hallway away from Gregory's room. Gregory then emerged from his bedroom and stood in the doorway with the knife in his right hand. In response, Bordman moved backwards into the bedroom directly across from where Gregory was standing.

Bordman and Phillips both repeatedly ordered Gregory to drop the knife. Bordman also told Gregory that they were not going to hurt him. Gregory remained in his bedroom doorway, standing at a forty-five degree angle to Bordman in the bedroom across the hallway and Phillips down the hallway to the right. ⁴ Officer Wheeler then arrived on the scene and took a position behind Phillips. Orene and Willie stood behind Phillips and Wheeler further down the hallway.

Gregory then cried "I love you, Mom. I love you, Mom." Orene responded, "I love you, Gregg." According to the three officers, Gregory next turned to his left and lunged at Bordman with the knife in a raised and striking position. The Seviers dispute that Gregory lunged at an officer and maintain that he was standing with the knife at his side. Nevertheless, Bordman and Phillips both fired at Gregory, striking him six times. Gregory fell forward into the bedroom occupied by Phillips. Wheeler radioed for an ambulance, explaining that shots had been fired and that a man was down. Bordman and Phillips attended to Gregory, but, according to the later testimony of an expert, two of the shots had been instantly fatal and killed Gregory. Less than five minutes had elapsed since Bordman's arrival at the Sevier home in response to the 911 call.

Following Gregory's death, the Seviers filed suit against Bordman, Phillips, and Wheeler, as well as Chief of Police W. Ronald Olin ("Olin") and the City of Lawrence, asserting claims under 42 U.S.C. Sec. 1983 and Kansas tort law. The Seviers alleged three causes of action under Sec. 1983 on behalf of themselves and Gregory claiming individual and municipal liability based on (1) Bordman and Phillips' use of excessive force; (2) Lawrence's failure to provide adequate training to its police officers; and (3) Lawrence's differential treatment of 911 emergency calls placed by Native Americans like the Seviers. They also alleged state law causes of action for (1) wrongful death; and (2) the tort of outrage. Defendants moved for summary judgment, and the district court granted Defendants' motion as to all defendants on the Seviers' equal protection claim, Sevier v. City of Lawrence, 853 F.Supp. 1360, 1368 (D.Kan.1994), failure to train claim, id. at 1369-70, and state wrongful death claim to the extent it was premised on a negligence theory, id. at 1370. ⁵ The court also granted summary judgment for Lawrence and Chief Olin on the constitutional excessive force claim, concluding that there were no grounds to establish municipal liability. Id. at 1369. ⁶

However, the district court denied Defendants' motion for summary judgment as to Bordman and Phillips on the Seviers' Sec. 1983 excessive force claim, ruling that genuine issues of material fact precluded granting summary judgment based on the two officers' claim of qualified immunity. Id. at 1368. The court also denied summary judgment on the state tort of outrage claim. Id. at 1370. Defendants now appeal the court's partial denial of their motion for summary judgment as to those two claims.

II. DISCUSSION

A. Excessive Force Claim

Defendants' use of deadly force was justified under the Fourth Amendment if a reasonable officer in Defendants' position would have had probable cause to believe that there was a threat of serious physical harm to themselves or to others. Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865,...