Smith v. Kilgore

• Decision Date: 11 June 2019
• Docket Number: No. 18-1040,18-1040
• Citation: 926 F.3d 479
• Parties: Tina SMITH, individually, and a Natural Mother and Lawful Heir of Raymond A. Smith, Jr., deceased, Plaintiff-Appellant v. Michael KILGORE, Member Kansas City Board of Police Commissioners; Alvin Brooks, Member Kansas City Board of Police Commissioners; Angela Wasson-Hunt, Member Kansas City Board of Police Commissioners; Michael Rader, Member Kansas City Board of Police Commissioners; Sylvester James, Member Kansas City Board of Police Commissioners; David Kenner, Member Kansas City Board of Police Commissioners; Darryl Forte, Chief of Police; Selvir Abidovic, Police Officer, # 5569; Christopher Krueger, Police Officer, # 5476; Christopher Taylor, Police Officer, # 5353; Andrew Keller, Police Officer, # 5576, Defendants-Appellees
• Court: U.S. Court of Appeals — Eighth Circuit

926 F.3d 479

Tina SMITH, individually, and a Natural Mother and LawfulHeir of Raymond A. Smith, Jr., deceased, Plaintiff-Appellant

v.Michael KILGORE, MemberKansas City Board of Police Commissioners; Alvin Brooks, MemberKansas City Board of Police Commissioners; Angela Wasson-Hunt, MemberKansas City Board of Police Commissioners; Michael Rader, MemberKansas City Board of Police Commissioners; Sylvester James, MemberKansas City Board of Police Commissioners; David Kenner, MemberKansas City Board of Police Commissioners; Darryl Forte, Chief of Police; Selvir Abidovic, Police Officer, # 5569; Christopher Krueger, Police Officer, # 5476; Christopher Taylor, Police Officer, # 5353; Andrew Keller, Police Officer, # 5576, Defendants-Appellees

No. 18-1040

United States Court of Appeals, Eighth Circuit.

Submitted: February 12, 2019

Filed: June 11, 2019

Wainsworth Anderson, ANDERSON LAW GROUP, Kansas City, MO, for Plaintiff-Appellant.

Diane Peters, Assistant Attorney General, ATTORNEY GENERAL'S OFFICE, Kansas City, MO, for Defendants-Appellees.

Before SMITH, Chief Judge, BENTON and STRAS, Circuit Judges.

BENTON, Circuit Judge.

Tina Smith, mother of Raymond A. Smith Jr., sued the Kansas City Chief of Police, the members of the Board of Police Commissioners, and officers Selvir Abidovic, Christopher Krueger, Christopher James Taylor, and Andrew E. Keller, alleging they violated her son's constitutional rights when two officers used deadly force against him.The defendants moved for summary judgment, which the district court¹ granted.Smith appeals.Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

About 4:00 P.M. on May 26, 2012, officers Abidovic and Keller were dispatched on a report of suspicious activity in a park.Officer Abidovic found two people nearly fitting the dispatcher's description, one later identified as Raymond Smith.Officer Abidovic approached the suspects, who began walking away.He yelled, "Stop, come talk to me!"Smith began running away from officer Abidovic, out of the park.Officer Abidovic chased him on foot.Officer Keller radioed dispatch about the pursuit.Officers Krueger and Taylor were dispatched to assist.

Chasing Smith into a parking lot, officer Abidovic saw a gun in his hand.He announced over dispatch radio, "He's armed!"He pointed his gun at Smith, shouting, "Drop the gun!"Smith did not drop it.As Smith was climbing over a chain-link fence, he fired a shot at officer Abidovic.Officer Abidovic then fired three shots at Smith.Officer Keller radioed dispatch, "Shots fired."From their patrol car, officers Krueger and Taylor found Smith on the other side of the fence.They saw him begin to raise his gun in their direction.Officer Krueger fired five shots at Smith.He fell to the ground.Officer Abidovic called for an ambulance.Smith died from the gunshot wounds.

Smith's mother sued, alleging excessive force; battery; assault; negligent hiring and retention; wrongful death; failure to provide adequate medical care; and related Monell claims.The district court dismissed the negligent hiring and retention claim, and granted summary judgment for the defendant on all other claims.²Smith appeals the grant of summary judgment.

II.

This court reviews a grant of summary judgment de novo.SeeTCF Nat'l Bank v. Mkt. Intelligence, Inc. , 812 F.3d 701, 707(8th Cir.2016)."Summary judgment should be granted when—viewing the facts most favorably to the nonmoving party and giving that party the benefit of all reasonable inferences—the record shows that there is no genuine issue of material fact."Schilf v. Eli Lilly & Co. , 687 F.3d 947, 948(8th Cir.2012), citingFed.R.Civ.P. 56(c) ."At summary judgment, the court's function is not to weigh the evidence and determine the truth of the matter itself, but to determine whether there is a genuine issue for trial."Id. at 949, citingAnderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986)."There is a genuine dispute when ‘the evidence is such that a reasonable jury could return a verdict for the non-moving party.’ "Dick v. Dickinson State Univ. , 826 F.3d 1054, 1061(8th Cir.2016), quotingLiberty Lobby , 477 U.S. at 248, 106 S.Ct. 2505.

Smith argues there is a genuine issue of material fact whether the decedent fired or pointed his gun at officers.The district court found as an undisputed fact that Smith fired at officer Abidovic.It based this conclusion on officer Abidovic's affidavit and the dashcam video from officers Abidovic and Keller's patrol car.Officer Abidovic states in his affidavit: "As Mr. Smith climbed over the fence, he pointed his gun at me, while I was about 20 yards away, and fired a shot at me."Smith argues this statement is contradicted by officer Keller's statement that he did not see the decedent point his gun at officer Abidovic.But officer Keller explains in his affidavit that he was not looking.When the decedent reached the fence, officer Keller reentered his patrol vehicle and began reversing the car to meet the decedent on the other side of the fence.Backing up, he heard gunshots.He reports hearing one gunshot, followed by several others that "sounded like return fire."According to his affidavit, he does not know who fired first.The dashcam audio captures the sound of a single gun shot, followed by three more.This audio is consistent with both officers' accounts.

Smith next argues that officer Abidovic's statement conflicts with the dashcam video because it does not show the decedent raising a gun toward officer Abidovic as he climbs the fence.When the shots are fired, only the decedent's legs are visible in the video.It therefore does not depict the decedent pointing his gun at officer Abidovic, nor does it negate this account.By pointing to the inconclusiveness of the video, Smith has failed to "set forth specific facts showing that there is a genuine issue for trial."TCF Nat'l Bank , 812 F.3d at 707, quotingLiberty Lobby , 477 U.S. at 256, 106 S.Ct. 2505.Smith also contends that the dashcam video creates a genuine issue of material fact because though it shows the decedent running, it does not show a gun on his person.In the video, the decedent's left arm appears pinned to his side as if clutching something, but the video is grainy and a gun is not visible.The poor video quality does not create a genuine issue for trial.SeeMann v. Yarnell , 497 F.3d 822, 827(8th Cir.2007)(rejecting argument that ambiguity in unclear video creates a genuine issue of material fact, because the video did not "demonstrably contradict[ ] material representations" by the moving party).Though the video is unclear, officers can be heard repeating the phrases "Drop the gun!" and "He has a gun!"These cries support the officers' statements that they saw a gun.Finally, a gun was recovered at the scene.The evidence does not create a genuine issue whether the decedent was armed.

The district court found as an undisputed fact that Smith started to raise his gun toward officers Krueger and Taylor.It based this conclusion on officer Krueger's affidavit: "Within a split second, before my patrol car came to a complete stop, I immediately saw Mr. Smith look at me, then start to raise his gun in my direction."Smith attacks the credibility of officer Krueger, asserting his multiple statements contradict each other and create a genuine issue for trial.In a 2012 statement, officer Krueger says he saw officer Abidovic chasing the decedent before the decedent began to raise a semiautomatic shotgun "in a threatening manner."At his 2017 deposition and in his 2017 affidavit, officer Krueger says he did not see officer Abidovic chasing the decedent.Whether he saw officer Abidovic chasing the decedent is distinct from the material inquiry: whether the decedent pointed his gun at officer Krueger.On this point, the evidence is consistent.In his 2017 deposition, officer Taylor testified that as he and officer Krueger approached the decedent, he pointed his gun at them.Officers Krueger and Taylor both say that when the decedent climbed the fence, he raised his gun in their direction.SeeSmith v. City of Brooklyn Park , 757 F.3d 765, 773–74(8th Cir.2014)(alleged inconsistencies in officers' statements do not create genuine issue of material fact when multiple officer statements support the material fact that suspect was armed).Smith "may not stave off summary judgment armed with only the hope that the jury might disbelieve witnesses' testimony."Thompson v. Hubbard , 257 F.3d 896, 899(8th Cir.2001).

Finally, Smith argues that the district court erred in discounting witness statements.The district court correctly held that witnesses' testimony that they did not see the decedent with a gun minutes before or after his confrontation with police does not create a genuine issue whether the decedent had a gun that he pointed and fired during his confrontation with police.Two eyewitnesses saw the confrontation.Florence Anderson told police she was across the street and down the block when she saw the decedent run through the parking lot, jump the fence, get shot, and fall to the ground.She did not see him with a gun, and she did not see anything in his hands.Another officer, Denny Mason, observed the shooting from a police helicopter.He saw officers Abidovic and Krueger with their guns drawn.He saw something tucked under Smith's arm that could have been a gun.

The district court discounted these statements as double hearsay because they are witness statements recorded by officers in police reports.This court"review[s] the admission of evidence for consideration at the summary judgment stage for an abuse of discretion."Gannon Int'l, Ltd. v. Blocker , 684 F.3d 785, 793(8th Cir.2012)."This deferential standard recognizes that the district court has a range of choices, and its decision will not be disturbed as long as it stays within that range, is not influenced by...