Thompson v. Murray

• Citation: 800 F.3d 979
• Decision Date: 02 September 2015
• Docket Number: No. 14–2250.,14–2250.
• Parties: Robin THOMPSON, as Personal Representative of the Estate of Jermell Thompson, deceased, Plaintiff–Appellee v. James “Clint” MURRAY, individually and in his official capacity, Defendant–Appellant. Dustin Caudell, individually and in his official capacity; City of Morrilton, Arkansas, a municipality, Defendants. Norbert Gunderman, Jr., individually and in his official capacity, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

800 F.3d 979

Robin THOMPSON, as Personal Representative of the Estate of Jermell Thompson, deceased, Plaintiff–Appellee

v.James “Clint” MURRAY, individually and in his official capacity, Defendant–Appellant.

Dustin Caudell, individually and in his official capacity; City of Morrilton, Arkansas, a municipality, Defendants.

Norbert Gunderman, Jr., individually and in his official capacity, Defendant–Appellant.

No. 14–2250.

United States Court of Appeals, Eighth Circuit.

Submitted: April 17, 2015.

Filed: Sept. 2, 2015.

John L. Wilkerson, argued, North Little Rock, AR, for Defendant–Appellant.

Morris W. Thompson, argued, Little Rock, AR, Brett D. Watson, on the brief, Searcy, AR, for Plaintiff–Appellee.

Before WOLLMAN and GRUENDER, Circuit Judges, and GRITZNER, District Judge.¹

Opinion

WOLLMAN, Circuit Judge.

Following a police pursuit, Officer James “Clint” Murray shot Jermell Thompson (Jermell) through the windshield and side window of Jermell's vehicle. Jermell died from the gunshot wounds

. Robin Thompson (Thompson), Jermell's mother and the personal representative of his estate, brought suit against Murray, Officer Dustin Caudell, Chief of Police Norbert Gunderman, Jr., and the City of Morrilton (the city) (collectively, Defendants). Thompson alleged claims of excessive force, supervisory liability, and municipal liability under the federal Civil Rights Act, 42 U.S.C. § 1983, and claims under Arkansas law. Murray, Caudell, Gunderman, and the city moved for summary judgment. The district court² granted Caudell's motion, denied the city's motion, granted Defendants' motion as it pertained to Thompson's duplicative official-capacity claims against Murray and Gunderman, and denied Murray's motion for summary judgment based on qualified immunity. Murray and Gunderman bring this interlocutory appeal. We dismiss Murray's appeal for lack of jurisdiction, and because the district court did not address or rule on Thompson's claims against Gunderman in his individual capacity, we dismiss Gunderman's appeal for want of a reviewable order.

I.

On the afternoon of November 29, 2008, an employee of the Number 9 liquor store in Morrilton, Arkansas, called 911 to report the theft of a half gallon of Crown Royal whiskey. The caller described the suspect as a black man, reported that he might be intoxicated, stated that the man had left driving a maroon car, and gave the license plate number. Murray and Caudell of the Morrilton Police Department responded in separate police cruisers. Caudell located the vehicle—a 1992 Chevy Corsica—first and began following it, activating his blue lights and siren. Murray quickly caught up and followed behind Caudell's police cruiser. Jermell, who was driving the Corsica, continued on his course in a manner that did not respond to the blue lights and sirens. Both Caudell's and Murray's dashboard cameras recorded the incident. The footage shows that Jermell stayed in his lane throughout the pursuit and was not driving erratically.

When Jermell reached a red light, he stopped or slowed his vehicle and did not proceed through the intersection. The dashboard cameras show that other cars at the intersection had also come to a stop or were slowing to a stop. To Jermell's left was a left-turn lane. Caudell and Murray attempted to “box in” Jermell's vehicle. Caudell pulled to the shoulder, stopping to the right of Jermell's car, and Murray drove around to the left of Jermell's vehicle and stopped just in front of Jermell's vehicle at an angle that blocked Jermell's path. The footage from Caudell's dashboard camera shows that the other vehicles at the intersection were stopped or slowing to a stop and that Jermell began backing up his vehicle until it was out of view of the camera.

The subsequent events occurred within a few seconds. The parties agree that Murray exited his vehicle and positioned himself near the rear of his cruiser. Defendants suggest that Murray positioned himself near the back right quarter panel of his vehicle, while Thompson contends that Murray was positioned near the back left of his vehicle. An expert opinion and the timing of events offer some support for Thompson's theory. The parties agree that Jermell stopped backing up and began moving forward, but Thompson argues that Jermell was moving forward at a speed as low as two miles per hour, while Defendants claim that Jermell's vehicle began accelerating forward, rapidly reaching a speed of approximately twenty miles per hour or more. The parties also dispute in which direction Jermell's car moved forward. Thompson claims that Jermell was moving forward and to the left, into the left turn lane and around Murray and Murray's police cruiser. Thompson's theory has support in the fact that Jermell's vehicle ultimately did circumvent Murray's police car, going around Murray's car on the left.³ Defendants contend that Jermell was moving in Murray's direction and appeared to be attempting to run over Murray. Several witnesses also stated that it appeared that Jermell was attempting to run over Murray or that Jermell's vehicle would hit Murray.

When Jermell's vehicle began moving forward, Murray began firing at it. Murray moved to his right, claiming that he did so to avoid being hit by Jermell's car. Thompson suggested below, however, that Murray's movement to the right actually placed him in the path of Jermell's car. Caudell fired several shots at Jermell's tires. Murray's shots went through the front windshield and driver's side window of the vehicle; Caudell's shots missed their target. Jermell's vehicle went left of and around Murray's cruiser, then veered to the right, across the intersection, and into a ditch. Jermell died from gunshots to his face and chest.

The district court noted that Murray's entitlement to qualified immunity depended on whether it was reasonable for Murray to believe that Jermell posed a threat of serious physical harm to Murray or to others at the time of the shooting. The district court determined that the answer to that inquiry depended on a number of disputed issues, including: (1) where Murray was standing when Jermell's vehicle began moving forward, (2) how far away Jermell's vehicle was from Murray, (3) which direction Jermell's vehicle was moving, (4) how fast Jermell's vehicle was moving, (5) where Murray was standing when he began firing at Jermell, (6) how many shots Murray fired, (7) where Murray was standing when he fired shots through the side window, and (8) whether it was reasonable for Murray to believe that Jermell still posed a threat when he fired shots through the side window.

II.

The “first and fundamental question” in an appeal from a denial of qualified immunity is that of jurisdiction. Walton v. Dawson, 752 F.3d 1109, 1115 (8th Cir.2014) (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ). An order denying qualified immunity is immediately appealable “to the extent that it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). In an interlocutory appeal from such an order, our jurisdiction is limited to resolving abstract questions of law related to the qualified-immunity determination—typically, whether the allegedly infringed federal right was clearly established. Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). We lack jurisdiction to review the district court's determination regarding evidence sufficiency—i.e., what facts a party may or may not be able to prove at trial. Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). We do not have jurisdiction to review whether a factual dispute is “genuine,” but we do have jurisdiction to review the purely legal question whether a dispute identified by the district court is material. See, e.g., Kovacic v. Villarreal, 628 F.3d 209, 211 n. 1 (5th Cir.2010).

Because our jurisdiction is limited in an interlocutory appeal from an order denying qualified immunity, we are constrained by the version of the facts that the district court assumed or likely assumed in reaching its decision, see Ellison v. Lesher, No. 13–3371, 796 F.3d 910, 913–14, 2015 WL 4645667, at *1 (8th Cir. ...