Torres v. City of St. Louis

• Decision Date: 01 July 2022
• Docket Number: 21-1761, No. 21-1918
• Parties: Gina TORRES ; Dennis Torres, Plaintiffs - Appellees v. CITY OF ST. LOUIS, Defendant Lance Coats; Glennon P. Frigerio; Joshua D. Becherer; Nicholas Manasco; Ronald Allen, Jr.; John C. Jones; Mark S. Seper; Jon B. Long; Tim Boyce ; Benjamin R. Lacy, Defendants - Appellants Gina Torres ; Dennis Torres, Plaintiffs - Appellees v. City of St. Louis, Defendant - Appellant Lance Coats; Glennon P. Frigerio; Joshua D. Becherer; Nicholas Manasco; Ronald Allen, Jr.; John C. Jones; Mark S. Seper; Jon B. Long; Tim Boyce ; Benjamin R. Lacy, Defendants
• Court: U.S. Court of Appeals — Eighth Circuit

39 F.4th 494

Gina TORRES ; Dennis Torres, Plaintiffs - Appellees

v.CITY OF ST. LOUIS, Defendant

Lance Coats; Glennon P. Frigerio; Joshua D. Becherer; Nicholas Manasco; Ronald Allen, Jr.; John C. Jones; Mark S. Seper; Jon B. Long; Tim Boyce ; Benjamin R. Lacy, Defendants - Appellants

Gina Torres ; Dennis Torres, Plaintiffs - Appellees

v.City of St. Louis, Defendant - Appellant

Lance Coats; Glennon P. Frigerio; Joshua D. Becherer; Nicholas Manasco; Ronald Allen, Jr.; John C. Jones; Mark S. Seper; Jon B. Long; Tim Boyce ; Benjamin R. Lacy, Defendants

No. 21-1761

No. 21-1918

United States Court of Appeals, Eighth Circuit.

Submitted: January 13, 2022

Filed: July 1, 2022

Rachel Dowd, Richard K. Dowd, Alex R. Lumaghi, Dowd & Dowd, Saint Louis, MO, for Plaintiffs-Appellees.

Brandon David Laird, Erin K. McGowan, Assistant City Counselor, Andrew D. Wheaton, City Counselor's Office, Saint Louis, MO, for Docket No. 21-1761 Defendants-Appellants Lance Coats, Glennon P. Frigerio, Joshua D. Becherer, Nicholas Manasco, Ronald Allen, Jr., John C. Jones, Mark S. Seper, Jon B. Long, Tim Boyce.

Erin K. McGowan, Assistant City Counselor, Andrew D. Wheaton, City Counselor's Office, Saint Louis, MO, for Docket No. 21-1761 Defendant-Appellant Benjamin R. Lacy.

Brandon David Laird, Erin K. McGowan, Assistant City Counselor, Andrew D. Wheaton, City Counselor's Office, Saint Louis, MO, for Docket No. 21-1918 Defendant-Appellant.

Before BENTON, SHEPHERD, and STRAS, Circuit Judges.

SHEPHERD, Circuit Judge.

Isaiah Hammett was killed during the St. Louis Metropolitan Police Department's (SLMPD) execution of a search warrant at his grandfather's home. As relevant to this appeal, appellees Gina Torres (Gina) and Dennis Torres (Dennis),¹ Hammett's surviving mother and grandfather, respectively, brought Fourth Amendment excessive force and unlawful seizure claims under 42 U.S.C. § 1983, conspiracy claims under 42 U.S.C. §§ 1983 and 1985, and state law wrongful death and infliction of emotional distress claims against the City of St. Louis and SLMPD Officers Lance Coats, Glennon P. Frigerio, Joshua D. Becherer, Nicholas Manasco, Ronald Allen, Jr., John C. Jones, Mark S. Seper, Jon B. Long, Tim Boyce, and Benjamin R. Lacy (collectively, the defendant officers). The district court denied the City and defendant officers’ (together, appellants) motion for summary judgment on these claims, and appellants filed the present appeal. To the extent that appellants assert arguments beyond the scope of our jurisdiction, we dismiss their appeal. On the few arguments that remain, having jurisdiction under 28 U.S.C. § 1291 and the collateral order doctrine, we reverse and remand.

I.

On June 7, 2017, an SLMPD SWAT team executed a search warrant for Dennis's home, which authorized officers to seize "Marijuana, Heroin, or any other Illegal Narcotic, U.S. Currency, Drug Transaction Records, Firearms, and any other instrument of the crime." At the time the SLMPD officers executed the search warrant, Dennis and Hammett were the only two individuals inside the home. Officer Boyce used a "battering ram" to breach the front door of the home, and officers detonated a noise diversion device commonly known as a "flash bang." SLMPD officers then entered the home and discharged their weapons a collective 93 times, shooting Hammett 24 times and killing him. At some point during the incident, Dennis called 911 and stated that someone was shooting into his home and that he did not see anyone. Police photographs taken after the incident show an AK-47 type assault rifle next to Hammett's body.

The parties presented vastly different accounts of the remaining details of this incident to the district court. Appellants alleged that, as officers entered Dennis's home, gunfire came through the bedroom door and wall in the officers’ direction and Officers Long, Manasco, Coats, Frigerio, Allen, and Jones returned fire into the bedroom door and wall. They claim that Hammett then entered the dining room armed with an AK-47 pointed in the officers’ direction and, fearing for their lives, Officers Long, Manasco, Coats, Becherer, and Seper fired at Hammett. Appellants note that nine 7.62x39mm cartridge cases were seized after the incident, which laboratory tests confirmed were fired from the AK-47 found next to Hammett's body.

Appellees claimed that ballistic evidence, audio recordings, and eyewitness and expert testimony directly contradict appellants’ claims that Hammett fired the AK-47 and was carrying it when he was shot.² They rely on Dennis's deposition testimony, in which he stated that he was asleep in his bedroom when he was awakened by the sound of gunfire. Dennis testified that Hammett came into his bedroom, picked him up, and placed him on the floor before going into the dining room. He claimed that Hammett did not have anything in his hands when he went into the dining room and that he did not see a gun next to Hammett's body when he later crawled into his wheelchair and went into the dining room. Dennis further testified that he did not hear an AK-47 fire during the incident and would have noticed the sound because he had heard it "thousands" of times during his military service in Vietnam. In addition to Dennis's deposition testimony, appellees relied on the affidavit and expert deposition testimony of L. Samuel Andrews, who, as noted by the district court,

trained the [SLMPD] SWAT team on numerous occasions, conducted an extensive inspection of the ballistic evidence at the premises and found no bullet hole in the home that match[ed] a 7.62 caliber gun and did not find any evidence of damage to the front living room wall which would have been there if the AK-47 rounds were fired through the bedroom wall and door as claimed by the officers.

R. Doc. 175, at 16.

Further, in response to appellants’ claim that the defendant officers did not use force against Dennis, appellees directed the district court to Dennis's deposition testimony claiming that officers "opened fire" on him when he called out Hammett's name. Specifically, Dennis stated that while he was on the floor in his bedroom and after he "heard a thump" and saw that Hammett had fallen to the floor in the dining room, he called out Hammett's name and two shots went off right by his head, which would have hit him had he gotten up. Once the shooting stopped, Dennis crawled into his wheelchair and went into the dining room, where he saw Hammett's body. Dennis stated that he then complied with the officers’ command to come out with his hands up.

Based on their version of the foregoing facts, appellees asserted eight claims against the City and defendant officers, bringing Counts 1-4 of their amended complaint in Gina's name and Counts 5-8 in Dennis's name. Count 1 asserts a § 1983 claim for use of excessive force in violation of the Fourth Amendment against the defendant officers, and Count 5 asserts the same in addition to a § 1983 claim for unreasonable seizure in violation of the Fourth Amendment against the defendant officers. Counts 2 and 6 assert §§ 1983 and 1985 conspiracy claims against the defendant officers. Counts 3 and 7 assert Monell ³ claims against the City. Finally, Counts 4 and 8 assert state law wrongful death and infliction of emotional distress claims against the defendant officers and the City. Appellants filed a motion for summary judgment, claiming that the defendant officers were entitled to qualified immunity on Counts 1, 2, 5, and 6 and that the City and defendant officers were entitled to sovereign immunity and official immunity, respectively, on Counts 4 and 8. As to Counts 3 and 7, appellants argued that the City was entitled to summary judgment because there was no genuine dispute of material fact as to whether the City had a policy, practice, or custom that caused a constitutional violation. Subsequently, appellants filed a Daubert ⁴ motion, requesting that the district court strike Andrews’ affidavit and bar him from testifying at trial, and appellees filed a motion to defer or deny appellants’ Daubert motion without prejudice until the close of expert discovery (collectively, the Andrews motions).

As relevant here, the district court considered appellants’ motion for summary judgment and the Andrews motions in its March 25, 2021, order. The district court denied in part and granted in part appellants’ motion for summary judgment. As to the defendant officers, the district court denied the motion, holding that the defendant officers were not entitled to qualified immunity on the constitutional claims asserted in Counts 1, 2, 5, and 6 or official immunity on the state law claims asserted in Counts 4 and 8. As to the City, the district court granted the motion as to appellees’ Monell claims asserted in Counts 3 and 7, but it denied the motion as to the state law claims asserted in Counts 4 and 8, holding that the City was not entitled to sovereign immunity. The district court considered Andrews’ affidavit and deposition testimony in ruling on appellants’ motion for summary judgment, but did not rule on the Andrews motions, instead setting a hearing to review the matter. Following appellants’ interlocutory appeal to this Court, the district court denied appellees’ motion to defer or deny appellants’ motion to exclude Andrews’ testimony, with directions to refile following this Court's ruling. Before briefing before this Court commenced, appellees filed a motion to dismiss appellants’ interlocutory appeal for lack of jurisdiction because the district court's order denying summary judgment was based on disputed questions of fact.

II.

We begin by addressing our jurisdiction to review the district court's order denying appellants qualified immunity, official immunity, and sovereign immunity. See Murray, 800 F.3d at 982 ("The ‘first and fundamental question’ in an appeal from a denial of qualified immunity is that of jurisdiction." (citation omitted)). First, as to review of a qualified immunity determination on an...