Piper Partridge, Individually as mother and next of kin to Keagan Schweikle and as Special Administratrix of the Estate of Keagan Schweikle; Dominic Schweikle, Individually as father and next of kin to Keagan Schweikle Plaintiffs - Appellants
City of Benton, Arkansas; Kyle Ellison, Individually and as Employee of City of Benton, Arkansas; Kirk Lane, Individually and as Employee of City of Benton, Arkansas; John Does, 1-20, Individually and as Employees of City of Benton, Arkansas Defendants - Appellees
Submitted: March 7, 2019
from United States District Court for the Eastern District of
Arkansas - Little Rock
BENTON, MELLOY, and SHEPHERD, Circuit Judges.
BENTON, CIRCUIT JUDGE.
police officer Kyle Ellison shot and killed 17-year-old
Keagan Schweikle. His parents, Piper Partridge and Dominic
Schweikle, sued Ellison, the Chief of Police, and the City of
Benton under 42 U.S.C. § 1983 and Arkansas law. The
district court granted qualified immunity to the officers,
and judgment on the pleadings. Partridge and Schweikle
appeal. Having jurisdiction under 28 U.S.C. § 1291, this
court reverses in part, affirms in part, and remands.
October 17, 2016, Keagan walked into the woods with a gun.
His mother called 911. She said he ingested cough syrup and
possibly marijuana, was depressed after being suspended from
school earlier that morning, and threatened to shoot himself.
She said he was not going to hurt anyone but himself. She
repeated these facts to the first officer on the scene,
explaining that Keagan was suicidal, walked into the woods
with a gun, and (she believed) was going to try to hurt
was dispatched to help with the search. Using a police dog,
he found Keagan standing 45 feet away on a riverbank. Ellison
told Keagan to show his hands. Keagan turned slightly to his
right. Ellison saw a gun in Keagan's right hand, drew his
gun, and ordered Keagan to drop the gun. Without speaking,
Keagan instead raised the gun to his right temple. Ellison
commanded Keagan to drop the gun "several times."
Keagan remained silent. As Keagan began moving the gun away
from his head, Ellison fired three shots. Two hit Keagan,
and Schweikle sued several officers in their individual
capacities for excessive force and deprivation of the right
to a familial relationship. They also made related
Monell claims against the officers in their official
capacities and the City, including failure to train and
failure to adequately investigate police misconduct. They
alleged assault and battery under state law. The district
court granted the defendants judgment on the pleadings. It
found Ellison's use of force was not constitutionally
excessive, warranting qualified immunity on the
individual-capacity claims. It dismissed the Monell
claims for lack of an underlying constitutional violation. It
declined to exercise supplemental jurisdiction over the
state-law claims. Partridge and Schweikle appeal, arguing
they sufficiently pled excessive force.
court reviews de novo a judgment on the pleadings, accepting
as true the facts in the complaint and drawing all reasonable
inferences in favor of the nonmoving party. Levitt v.
Merck & Co., 914 F.3d 1169, 1171 (8th Cir. 2019).
Judgment on the pleadings "should be granted only if the
moving party has clearly demonstrated that no material issue
of fact remains and the moving party is entitled to judgment
as a matter of law." Whatley v. Canadian Pac.
Ry., 904 F.3d 614, 617-18 (8th Cir. 2018).
§ 1983 action, qualified immunity shields government
officials from liability "when their conduct 'does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have
known.'" Morgan v. Robinson, 920 F.3d 521,
523 (8th Cir. 2019) (en banc), quoting Pearson v.
Callahan, 555 U.S. 223, 231 (2009). To overcome
qualified immunity at the pleadings stage, a plaintiff must
"plead facts showing (1) that the official violated a
statutory or constitutional right, and (2) that the right was
'clearly established' at the time of the challenged
conduct." Ashcroft v. al-Kidd, 563 U.S. 731,
735 (2011), quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982).
appeal turns on the claim that Ellison violated Keagan's
Fourth Amendment right to be free from excessive force. The
key is whether Ellison's actions "were objectively
reasonable in light of the facts and circumstances
confronting him." Rogers v. King, 885 F.3d
1118, 1121 (8th Cir. 2018). Objective reasonableness is
"judged from the perspective of a reasonable officer on
the scene," in light of "the facts and
circumstances of each particular case, including the severity
of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether
he is actively resisting arrest or attempting to evade arrest
by flight." Kisela v. Hughes, 138 S.Ct. 1148,
1152 (2018) (per curiam), quoting Graham v. Connor,
490 U.S. 386, 396 (1989). "It is reasonable for an
officer to use deadly force if he has probable cause to
believe that a suspect poses a threat of serious physical
harm to the officer or others." Rogers, 885
F.3d at 1121. "But where a ...