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Wealot v. Brooks

United States Court of Appeals, Eighth Circuit

August 4, 2017

Anna M. Wealot, individually and as Natural Mother and Lawful Heir of Waylen Wealot, deceased Plaintiff- Appellant
v.
Alvin Brooks, Member, Kansas City Board of Police Commissioners; Chief Darryl Forte; Michael Kilgore, Member, Kansas City Board of Police Commissioners; Angela Wasson-Hunt, Member, Kansas City Board of Police Commissioners; Michael Rader, Member, Kansas City Board of Police Commissioners; Mayor Sly James, Member, Kansas City Board of Police Commissioners; David Kenner, Member, Kansas City Board of Police Commissioners; Officer Megan Gates; Officer Kevin Colhour Defendants - Appellees

          Submitted: November 15, 2016

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before RILEY, [1] Chief Judge, WOLLMAN and KELLY, Circuit Judges.

          RILEY, Chief Judge.

         Waylen Wealot was shot approximately ten times and killed by two Kansas City, Missouri, police officers. Waylen's mother, Anna Wealot, brought this action against the two officers, the chief of police, and members of the board of police commissioners, alleging excessive force in violation of the Fourth Amendment and wrongful death under state law. The district court granted summary judgment to the defendants. Having jurisdiction under 28 U.S.C. § 1291, we affirm in part and reverse in part.

         I. BACKGROUND

         The following facts are recited in the light most favorable to the non-moving party. See Stoner v. Watlingten, 735 F.3d 799, 802 (8th Cir. 2013). On March 29, 2013, Kansas City police officers Megan Gates and Kevin Colhour responded to a call from the police dispatch requesting service relating to a disturbance at Waylen Wealot's residence, located at 4014 East 11th Street.[2]

         When the officers arrived at Waylen's residence, Kelsie Rosewicz, Waylen's girlfriend (who lived at the house with Waylen), and Fred Wealot, Waylen's older brother, were standing outside. Rosewicz and Fred told the officers no one there had called the police, and they suggested the caller was probably one of the Lees, their neighbors up the block. Fred and Levi Lee had been fighting over a girlfriend, Mary Holmes, and the fight had escalated into a feud between the families. During this conversation, Waylen emerged from inside the house and began yelling at the officers. Rosewicz told Waylen to go back inside, which he did. Officers Gates and Colhour got into their patrol car and drove around the corner to the Lee residence at 1022 Myrtle Street. The Lee residence is located three lots north of the intersection at 11th and Myrtle Street and sits on the west side of the street. It is approximately 300 feet away from the Wealot residence.

         Meanwhile, Levi Lee, driving a gold minivan carrying a group of people, pulled up near Waylen's residence, stopping at the intersection of 11th and Myrtle. Levi and Holmes, Fred's ex-girlfriend, exited the minivan and began shouting at Waylen, Fred, and Rosewicz, who again were standing outside of Waylen's house. Levi got back inside the minivan and drove it toward Rosewicz, jumping the curb. Waylen went inside his house to get a gun. When Waylen came back outside, he fired multiple shots in the direction of the minivan before taking off running toward his backyard. Waylen threw his gun along the west side of his house as he ran.

         The officers were talking with a neighbor of 1022 Myrtle when they heard gunshots and observed Waylen fire two or three rounds at the gold minivan. With her firearm drawn, Officer Gates began to pursue Waylen on foot, crossing Myrtle Street to cut through the empty lot on the corner, directly west of Waylen's house. Running ahead of Officer Colhour, who was following behind, Officer Gates cut through the empty lot to catch Waylen as he ran north along the west side of his house toward the backyard. Officer Gates was about four to six feet behind Waylen when, as Waylen turned, she began to shoot.[3] Officer Gates shot Waylen eight times, continuing to shoot as Waylen collapsed to the ground. Officer Gates stood only three to four feet away from Waylen's body as she fired her last shot. Officer Colhour, standing a few feet behind Gates, shot twice. Waylen's gun was recovered five to seven feet away from his body.

         Anna Wealot (Wealot), mother and heir of Waylen, brought these claims alleging excessive force in violation of the Fourth Amendment and wrongful death under state law. See 42 U.S.C. § 1983; Mo. Rev. Stat. § 537.080. The defendants moved for summary judgment. See Fed.R.Civ.P. 56(a). The district court held the officers were entitled to qualified immunity because no reasonable jury could find the officers' use of force against Waylen was objectively unreasonable.[4] Because Waylen had not suffered a constitutional deprivation, the district court granted summary judgment to the other defendants on the excessive force claims. Finding official immunity barred Wealot's state wrongful death claims, the district court also granted summary judgment on those claims. Wealot appeals.

         II. DISCUSSION

         A. Standard of Review

         Summary judgment shall be granted if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). We review de novo the district court's grant of summary judgment, viewing the evidence in the light most favorable to the non-moving party. See Stoner, 735 F.3d at 802.

         B. Section 1983 Claims

         Qualified immunity protects government officials from incurring civil liability as long as "'their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To overcome the shield of qualified immunity, a plaintiff's claim must state a violation of a clearly established federal right, and that right must have been clearly established at the time of the violation. See Nord v. Walsh County, 757 F.3d 734, 738 (8th Cir. 2014). Under either prong of the inquiry, the district court "may not resolve genuine disputes of fact" relevant to the issue of qualified immunity. Tolan v. Cotton, ___ 572 U.S. ___, ___, 134 S.Ct. 1861, 1866 (2014) (per curiam); see also Rohrbough v. Hall, 586 F.3d 582, 587 (8th Cir. 2009).

         The Fourth Amendment protects individuals against law enforcement's use of unreasonable force during seizure. See Graham v. Connor, 490 U.S. 386, 394 (1989). Wealot has alleged that when the officers forcefully seized, shot, and killed Waylen, they violated his right to be free from excessive force. The defendants agree Waylen was seized, but contend the officers' infliction of deadly force was reasonable under the circumstances. Deciding whether the inflicted force was reasonable requires balancing "the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether [the suspect] [was] actively resisting arrest or attempting to evade arrest by flight." Id. at 396. "'Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.'" Brosseau v. Haugen, 543 U.S. 194, 203 (2004) (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)). Under such circumstances, "deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given." Garner, 471 U.S. at 11-12; see also Capps v. Olson, 780 F.3d 879, 886 (8th Cir. 2015). "At least since Garner was decided . . ., officers have been on notice that they may not use deadly force unless the suspect poses a significant threat of death or serious physical injury to the officer or others." Craighead v. Lee, 399 F.3d 954, 962 (8th Cir. 2005).

         In this case, the district court determined no rational jury could find the officers' actions unreasonable based on the "rapidly-evolving circumstances with which [the officers] were presented." Having reviewed the record in the light most favorable to Wealot, we hold summary judgment was granted in error.

         Before the reasonableness of the officers' conduct can be assessed, two genuine disputes of material fact must be resolved: (1) whether the officers saw Waylen throw his gun and therefore knew he was unarmed, and (2) whether Waylen was turning around to the officers with his hands raised to surrender. See Tolan, 572 U.S. at ___, 134 S.Ct. at 1868 ("[G]enuine disputes are generally resolved by juries in our adversarial system."); Ribbey v. Cox, 222 F.3d 1040, 1043 (8th Cir. 2000) ("The question that we must answer, then, is whether a genuine question of material fact exists regarding whether [the officer's] actions-as defined by the plaintiff's version of the events-were objectively reasonable."); Gainor v. Rogers, 973 F.2d 1379, 1385 (8th Cir. 1992) ("Once a genuine issue of material fact is found to exist, the defense of qualified immunity shielding the defendant from trial must be denied.").

         Relevant to our purpose are the district court's following findings:

The officers saw Waylen fire a gun two or three times at [Levi's] van as well as in the general direction of the officers. The officers ran towards the Wealot residence. The officers saw Waylen running with a gun. Neither officer saw Waylen drop the gun. Waylen turned toward the officers with his hands bent at ...

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