Anna M. Wealot, individually and as Natural Mother and Lawful Heir of Waylen Wealot, deceased Plaintiff- Appellant
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
from United States District Court for the Western District of
Missouri - Kansas City
RILEY,  Chief Judge, WOLLMAN and KELLY,
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.
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.
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
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.
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. 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
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. 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.
Standard of Review
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.
Section 1983 Claims
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).
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).
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.
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.").
to our purpose are the district court's following
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 ...