Submitted October 6, 2014
Appeal from United States District Court for the District of North Dakota - Fargo.
For Michael Alvin Partlow, Plaintiff - Appellee: Tatum O'Brien Lindbo, Timothy M. O'Keeffe, KENNELLY & O'KEEFFE, Fargo, ND.
For Officer Joseph Stadler, Officer Michael Craig, Officer Sidney Mann, individually and as Jamestown Police Department Officers, Defendants - Appellants: Scott K. Porsborg, Brian D. Schmidt, SMITH & BAKKE, Bismarck, ND.
Before RILEY, Chief Judge, WOLLMAN and BYE, Circuit Judges. BYE, Circuit Judge, dissenting.
WOLLMAN, Circuit Judge.
Police officers Joseph Stadler, Michael Craig, and Sidney Mann fired shots at Michael Partlow after he exited his apartment building holding a shotgun. Partlow filed suit under 42 U.S.C. § 1983, alleging that the officers employed excessive force in violation of his Fourth Amendment rights. The district court held that the officers were not entitled to qualified immunity and denied their motion for summary judgment. We reverse.
On September 18, 2010, Partlow spent the evening at a bar in Jamestown, North Dakota, where he consumed eight to ten alcoholic beverages. He left the bar around 2:00 a.m. with his aunt, Lisa Partlow (Lisa), and her boyfriend, Mark Michel. Michel drove them from the bar to Partlow's apartment.
During the car ride, Partlow talked about ending his life. When they reached his apartment, Partlow jumped out of the car before it stopped, ran to the building, entered his apartment, and locked the door. Lisa called 911 and then hurried to the window of Partlow's basement apartment. She saw that her nephew had a shotgun, and she tried to talk to him through the window. Partlow asked her to leave so that she would not see what was going to happen. After Partlow closed the window, Lisa went into the apartment building through the back door. She saw Officer Mann standing in the hallway.
According to Mann, Lisa was in tears when she approached him. She embraced Mann and told him that Partlow had a shotgun and was suicidal. Mann followed Lisa to the door of Partlow's apartment, where she tried to speak to Partlow. Partlow told her to step away from the door, saying something like, " Don't come in here, you don't want to see this." Mann, who was standing nearby, requested that additional officers be dispatched to the scene. He relayed over his radio that there was a weapon involved and that the subject had said, " You don't want to see this." Mann then heard Partlow tell Lisa, " If you are ...