Wallace v. City of Alexander

• Decision Date: 09 December 2016
• Docket Number: No. 15-3279,15-3279
• Citation: 843 F.3d 763
• Parties: Jacquelyn Wallace, Individually and as Administratrix and Personal Representative for the Estate of Carleton J. Wallace, Plaintiff–Appellee v. City of Alexander, Arkansas; Horace Walters, Defendants Nancy Cummings, In her official and individual capacity, Defendant–Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

843 F.3d 763

Jacquelyn Wallace, Individually and as Administratrix and Personal Representative for the Estate of Carleton J. Wallace, Plaintiff–Appellee

v.City of Alexander, Arkansas; Horace Walters, Defendants

Nancy Cummings, In her official and individual capacity, Defendant–Appellant

No. 15-3279

United States Court of Appeals, Eighth Circuit.

Submitted: September 22, 2016

Filed: December 9, 2016

Counsel who presented argument on behalf of the appellant was John Lennon Wilkerson, of North Little Rock, AR.

Counsel who presented argument on behalf of the appellee was Terrence Cain, of Little Rock, AR. The following attorney also appeared on the appellee brief; Jimmy Morris, Jr., of Little Rock, AR.

Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.

MURPHY, Circuit Judge.

Carleton J. Wallace was fatally shot by a police officer in Alexander, Arkansas. Wallace's estate brought this action under 42 U.S.C. § 1983 against that officer, the chief of police, and the city, alleging excessive force in violation of the Fourth Amendment. The district court¹ denied the officer summary judgment on the basis of qualified immunity, but granted summary judgment to the chief of police and the city. The officer appeals, and we affirm.

I.

In September 2012 officer Nancy Cummings observed Carleton Wallace obstructing traffic as he walked down the street in Alexander, Arkansas. Cummings was on patrol by herself, but her 25 year old daughter, Angel Johnson, was also in the patrol car on an approved ride along. Cummings stopped to investigate, got out of her patrol car, and told Wallace to take his hands out of his pockets. As Wallace did so, he also removed a gun from his waistband. Cummings pulled out her own firearm and told Wallace to drop his. Wallace tossed his gun out of reach into the woods at the side of the road.

Cummings subsequently attempted to seize and handcuff Wallace. She told Wallace to get on the ground and he failed to respond, although he did not move toward his gun or act in a threatening manner. With her gun drawn, Cummings approached Wallace, grabbed his arm, and took him to her patrol car where he put his hands on the car hood. According to Cummings she continued to hold her gun with one hand, but two eyewitnesses reported that she had either placed her gun on the car hood or in its holster. The parties agree that after Cummings grabbed Wallace's arm to handcuff him, her gun discharged as he attempted to break free of her grip. Wallace was shot in the back as he moved away from Cummings and her patrol car.

According to Cummings, her gun had fired when Wallace pushed her off balance. Two eyewitnesses reported, however, that she had grabbed her gun with both hands and shot Wallace in the back after he turned away from the patrol car. Wallace continued to move away from Cummings after he was shot, taking a few steps and then falling down. From there he crawled to the side of the road where he died. Investigators concluded that his first blood drop had fallen on the ground three feet eight inches in front of Cummings' patrol car. The medical examiner found stippling, or gunpowder particles, surrounding the hole where the bullet entered Wallace's body. According to the examiner, the stippling pattern was consistent with a close range gunshot wound

. The medical examiner also found amphetamines, benzodiazepines, and cannabinoids in Wallace's system.

Wallace's estate brought this § 1983 action against Cummings, police chief Horace Walters, and the city of Alexander. The estate alleged that the defendants violated Wallace's Fourth and Fourteenth Amendment rights to be free from excessive force. The estate also alleged violations of Arkansas law. The defendants moved for summary judgment, and Cummings argued that she was entitled to qualified immunity because she had shot Wallace unintentionally. In support of her argument she provided an expert report concluding that her gun had discharged three to four inches from Wallace's back. The district court granted summary judgment to Walters and the city of Alexander, but not to Cummings because "a material fact remain[ed] in dispute as to whether [she] intended to shoot Mr. Wallace." Cummings appeals.

II.

The estate argues that our court lacks jurisdiction over this interlocutory appeal. Appellate courts have limited jurisdiction over interlocutory appeals brought by public officials asserting qualified immunity. Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Orders denying a public official qualified immunity may be appealed under the collateral order doctrine, but only "to the extent that [the appeal] turns on an issue of law." Thompson v. Murray, 800 F.3d 979, 982 (8th Cir. 2015) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ); see also28 U.S.C. § 1291. Therefore, issues such as "the existence, or nonexistence, of a triable issue of fact" are not reviewable. Johnson, 515 U.S. at 316, 115 S.Ct. 2151.

Cummings raises both legal and factual issues on appeal. We have jurisdiction to review her purely legal arguments, such as whether the undisputed or assumed facts would establish a constitutional violation and whether the right at issue was clearly established. SeeNgo v. Storlie, 495 F.3d 597, 601 (8th Cir. 2007). Cummings also challenges the district court's determination that the record presents a genuine dispute as to whether she intentionally shot Wallace. Like most questions of intent, Cummings' argument that there was insufficient evidence that she intended to shoot Wallace is a factual one that we lack jurisdiction to review on interlocutory appeal. Johnson, 515 U.S. at 316, 115 S.Ct. 2151. There is one exception to such a jurisdictional limitation on our review: we may reject the district court's factual findings to the extent that they are "blatantly contradicted by the record." Walton v. Dawson, 752 F.3d 1109, 1116 (8th Cir. 2014) (quoting Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ). This exception is to be narrowly construed to prevent interlocutory appeals in constitutional tort actions from creating "additional, and unnecessary, appellate court work." SeeJohnson, 515 U.S. at 309, 315–16, 115 S.Ct. 2151.

The evidence Cummings has cited does not rise to the level of "blatantly contradict[ing]" the district court's determination that there is a material dispute as to whether she intentionally shot Wallace. Cummings relies on two pieces of physical evidence to bolster her argument that she unintentionally shot Wallace: the location of his first blood drop and the stippling pattern on his back.² Neither piece of physical evidence is "entirely inconsistent with" the estate's theory of the case, however. SeeBorn v Osendorf, 329 F.2d 669, 672 (8th Cir. 1964). The physical evidence supports Cummings' argument that she shot Wallace at close range, but it is plausible that this occurred only after he had turned around and begun to move away. Wallace may also have been moving slowly because of the amphetamines

, benzodiazepines, and cannabinoids found in his system by the medical examiner.

Cummings also concedes that she was holding her gun when it discharged, that it contained a safety mechanism, and that it had not malfunctioned. These concessions may suggest that she intentionally applied force to the gun's trigger mechanism, and she thus has not met her heavy burden of establishing that the record blatantly contradicts the district court's factual findings. SeeThompson, 800 F.3d at 983 (relying on "common sense" when reviewing the district court's factual findings). At this stage we accept those "findings as true and decide whether those facts, as a ‘purely legal issue,’ involve a clearly established violation of federal law."³ Walton, 752 F.3d at 1116 (quoting Johnson, 515 U.S. at 313, 115 S.Ct. 2151 ).

III.

Cummings argues that even if she intentionally shot Wallace, her conduct did not violate Wallace's Fourth Amendment right to be free from unreasonable seizures. We review the district court's denial of summary judgment on the basis of qualified immunity de novo, "viewing the facts in the light most favorable to [the estate] and drawing all reasonable inferences in [the estate's] favor." Nance v. Sammis, 586 F.3d 604, 609 (8th Cir. 2009). A government official is entitled to qualified immunity unless (1) the official violated a plaintiff's constitutional right and (2) that right was clearly established at the time of the violation. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). We address each question in turn.

A.

The estate argues that Cummings seized Wallace with excessive deadly force in violation of both the Fourth and Fourteenth Amendments. Claims that an officer seized a person with excessive force "are properly analyzed under the Fourth Amendment's objective reasonableness standard." Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal quotation marks omitted). Whether the use of deadly force is reasonable turns on "the totality of the circumstances, including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officer or others, and [3] whether the suspect is actively fleeing or resisting arrest." Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012) ; seeTennessee v. Garner, 471 U.S. 1, 11–12, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Our review of the reasonableness of Cummings' use of deadly force is "constrained by the version of the facts that the district court assumed or likely assumed in reaching its decision." Thompson, 800 F.3d at 983. Here, the district court did not specify which factors were adequately supported by the record, if any. In these circumstances "we must determine which facts [the district court] likely assumed by viewing the record in the light most favorable" to the estate. Id. Based on the record...