Wilson v. City of Des Moines, Iowa, 01-2906SI.

• Decision Date: 07 June 2002
• Docket Number: No. 01-2906SI.,01-2906SI.
• Citation: 293 F.3d 447
• Parties: Joyce WILSON, as Administrator of the Estate of Jerome Leroy Mozee; and Val Wilson, Jr., as Co-Administrator of the Estate of Jerome Leroy Mozee, Appellees, v. CITY OF DES MOINES, IOWA, a municipal corporation; Joseph Morgan, individually and in his official capacity as a Des Moines Police Officer; and Terry Mitchell, individually and in his official capacity as a Des Moines Police Officer, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

293 F.3d 447

Joyce WILSON, as Administrator of the Estate of Jerome Leroy Mozee; and Val Wilson, Jr., as Co-Administrator of the Estate of Jerome Leroy Mozee, Appellees, v. CITY OF DES MOINES, IOWA, a municipal corporation; Joseph Morgan, individually and in his official capacity as a Des Moines Police Officer; and Terry Mitchell, individually and in his official capacity as a Des Moines Police Officer, Appellants.

No. 01-2906SI.

United States Court of Appeals, Eighth Circuit.

Submitted: February 14, 2002.

Filed: June 7, 2002.

Alfredo Parrish, argued, Des Moines, IA, for appellee.

Harry Perkins, III, argued, Guy R. Cook, argued, Des Moines, IA (Mark Godwin, on the brief), for appellants.

Before: BYE, HEANEY, and RICHARD S. ARNOLD, Circuit Judges.

Richard S. ARNOLD, Circuit Judge.

On April 19, 1999, Jerome Mozee was shot and killed by two Des Moines police officers, Joseph Morgan and Terry Mitchell. Mr. Mozee's estate sued the City of Des Moines and the officers, alleging that the officers used excessive force while pursuing and attempting to restrain Mr. Mozee in violation of 42 U.S.C. § 1983. Both officers moved for summary judgment on the basis of qualified immunity. The District Court denied these motions. The United States Supreme Court then decided Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). After this case was decided, the officers filed a joint supplemental motion for summary judgment, again based on qualified immunity.¹ They argued that Saucier clarified the applicability of qualified immunity to excessive-force claims, and that according to that decision, the Court should determine that their actions and beliefs were reasonable under the circumstances, and that qualified immunity applied. Additionally the officers argued that any disputed factual issues no longer existed, and that the Court should grant summary judgment in their favor. The District Court denied this motion. The officers appeal.

The officers present three arguments on appeal: first, that the District Court erred by failing to hold that they were entitled to qualified immunity because their belief that Mr. Mozee was armed was reasonable, though mistaken; second, that there are no longer any material factual disputes in the record because of the testimony of a police-procedure expert, Frank Saunders; and third, that the District Court erred in failing to evaluate each of the qualified-immunity claims of the officers individually. We affirm the decision of the District Court. We do so primarily because differences in the two officers' testimony about what happened during the crucial last moments of their encounter with Mr. Mozee raise a genuine issue of material fact about the reasonableness of what the officers did.

I.

The following description of the events leading to Mr. Mozee's death is based on undisputed facts. The disputed factual issues are more fully examined later in our discussion. Around midnight on April 19, 1999, Mr. Mozee was involved in a car accident on the river bridge on Southeast 14th Street in Des Moines, Iowa. After the accident, he got out of his car and was seen attempting to assault the female passenger of the other vehicle involved in the accident. At this time, Officers Morgan and Mitchell were riding in a jail wagon near this location. Information about the accident and the altercation was broadcast over the police radio. The following information was transmitted:

Attention all officers: The subjects are now at Southeast 14th on the river bridge, Southeast 14th on the river bridge. There's a black male adult beating a female, and he's 1032 with a handgun.²

Hearing Trans. 28. The officers responded to the dispatcher's call.

When they arrived at the scene, the officers saw Mr. Mozee running north on the bridge. Both officers got out of their vehicle and began pursuit of Mr. Mozee. They both drew their weapons and chased him into an unlit field located close to the river bridge. Both officers continuously commanded Mr. Mozee to show them his hands. He did not do so. Following his pursuit in the field, Mr. Mozee stopped, turned to face the officers, and looking directly at Officer Mitchell, uttered obscenities. J.A. 60. The officers fired their weapons seven times, killing Mr. Mozee.³ He was not armed.

II.

We review the denial of a motion for summary judgment based on qualified immunity de novo. Vaughn v. Ruoff, 253 F.3d 1124, 1127 (8th Cir.2001). Our review is limited to questions of law. We will affirm the denial of summary judgment on the issue of qualified immunity if a genuine issue of material fact exists whether a reasonable officer could have believed his actions to be lawful. In the present case, the officers contend that there are no genuine issues of material fact. We disagree and affirm the District Court's decision.

The Supreme Court in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), recently clarified the manner in which a court should analyze a summary-judgment motion on the basis of qualified immunity in the context of an excessive-force claim. In Saucier, the Court stated that the first question that should be considered is whether: "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier, 533 U.S. at 201, 121 S.Ct. 2151. If there is no constitutional violation, then the grant of summary judgment based on qualified immunity is appropriate. If the court determines that a constitutional right was violated, then the Court stated that the next question that should be considered is "whether the right was clearly established." Id.

Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), established that force is "contrary to the Fourth Amendment" if that force is "excessive under objective standards of reasonableness." Saucier, 533 U.S. at 201-02, 121 S.Ct. 2151. However, in Saucier, the Court went on to state that the law must clearly put the officer on notice that his actions are unreasonable. Id. at 202, 121 S.Ct. 2151. If the law does not do so, and the officer reasonably (even if wrongly) believes that his conduct is reasonable under the circumstances, summary judgment based on qualified immunity is appropriate. Qualified immunity can apply even in the case of an officer's mistaken belief, if that belief is reasonable. Id. at 206, 121 S.Ct. 2151.

Saucier was decided after the District Court denied the officers' first motions for summary judgment. In denying those motions, the Court determined that because Officer Mitchell and Officer Morgan had given inconsistent testimony regarding the events leading to Mr. Mozee's death, material questions of fact existed with regard to the reasonableness of their actions. Therefore, summary judgment was inappropriate. The Court specifically listed eight issues in dispute:

what information was dispatched to the defendant officers about the incident involving Mozee; what information was reported to the defendant officers at the incident scene; who reported the information to them; what words were exchanged between Mozee and the defendant officers; what distances separated Mozee and each of the defendant officers while he fled and when he stopped and turned; whether Mozee comported himself as if he was concealing a weapon; whether Mozee stopped and turned towards the officers in a shooting stance; and whether either or both officers saw a firearm or believed Mozee had a firearm.

Applt. Addendum 3-4.

Later, when ruling on the officers' supplemental motion for summary judgment, the District Court had the benefit of Saucier. The Court analyzed the applicability of qualified immunity by using the two-part inquiry established in Saucier. It first determined that if all factual disputes were to be resolved in favor of the person alleging the injury, Mr. Mozee, then a constitutional right was violated, namely the constitutional guarantee of freedom from unreasonable seizures. Applt. Addendum 8. The Court then proceeded to the second part of the inquiry, whether this right was clearly established, and more specifically, whether the officers had notice that their conduct, the fatal shooting of an unarmed suspect, was unlawful under the circumstances presented in this case.

The law is clear that when a police officer is in pursuit of a suspect, force, including deadly force, may sometimes be used to apprehend that suspect. See Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).

[I]f the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning is given.

Id. at 11-12, 105 S.Ct. 1694. However, under the Fourth Amendment, this force may not be excessive. Graham, 490 U.S. at 397, 109 S.Ct. 1865. Any force used by a police officer must be "objectively reasonable in light of the facts and circumstances confronting [him] ...." Id. (internal quotations omitted). Because the reasonableness of the officers' beliefs and actions are dependent upon Mr. Mozee's actions in the unlit field, we begin our discussion by examining the facts in the record before this Court.

In denying the officers' first motions for summary judgment, the District Court noted eight issues in dispute. We do not believe that all of these issues merit a thorough discussion. We will not discuss the disputes concerning what information the officers heard broadcast over the police radio, the verbal warnings that the officers received when they arrived at the scene, and who provided these warnings. It seems likely that these discrepancies are minor and immaterial. We will focus our discussion, instead, on the actions taken by the officers and Mr. Mozee while in the unlit field,...