Opinion
Case No. 8:00CV324
January 25, 2002
MEMORANDUM AND ORDER
This matter is before the Court on the Defendant Puht Dek's Motion for Summary Judgment. (Filing No. 10.) Defendant Puht Dek ("Dek") seeks the protection of qualified immunity from the action commenced under 42 U.S.C. § 1983 by Plaintiff Sean Johnston ("Johnston"). Briefs have been received, and both Dek and Johnston have filed evidence in support of their positions. (Filing No. 11(A)-(C) and Filing No. 15 respectively.)
FACTUAL BACKGROUND
The following facts are not in dispute. On May 31, 1999, Dek and his partner, Steve Martinez ("Martinez"), who were at the time Omaha police officers, made a traffic stop of a truck in which Plaintiff Johnston and two other individuals were riding. Dek approached the truck on the driver's side, and Martinez approached on the passenger side. Johnston was seated in the front passenger seat. Upon recognizing Johnston from a previous arrest, Dek asked Johnston if he recalled the arrest. Johnston states that he did not respond to Dek, but Dek states that Johnston gave a muffled response to him. This gave rise to Dek's suspicion that Johnston was hiding contraband in his mouth. Both parties agree that Dek then asked Johnston to open his mouth, and Johnston complied. Because Dek was unable to see into Johnston's mouth from his vantage point, Dek asked Johnston to open his mouth for Martinez. According to Johnston, Martinez grabbed Johnson's neck with one hand and pulled him from the truck. As Dek was coming around the rear of the truck to the passenger side, Dek heard Martinez order Johnston to "spit it out, spit it out," and Dek then observed Johnston making a swallowing gesture.
Before Dek made his way to Johnston, Johnston states that he "yanked" his arm away from Martinez and began to run toward the front of the vehicle. Johnston Aff. at ¶ 12. Dek states that Johnston "pushed Officer Martinez and ran away from us." Dek Aff. at ¶ 13. Martinez pursued Johnston on foot, and Dek followed in a squad car. During Martinez's foot pursuit of Johnson, Johnston and Martinez physically collided, although the evidence is not clear whether the collision was an accident or as a result of a struggle between them. Johnston Aff. at ¶ 7, 8. Dek Aff. at ¶ 17; Duncan Aff. at ¶ 6. The collision rendered Martinez unable to continue the pursuit, so Dek pursued Johnston from Dek's patrol car. Soon the patrol car became high-centered, and Dek abandoned the car and continued the pursuit on foot.
It was at this time that Dek first noticed Johnston had both hands inside the front of his pants, which prompted Dek to suspect that Johnston had a weapon in his pants. Dek Aff. at ¶ 23. As the pursuit ensued, Dek continued to suspect that Johnston had a weapon. Dek then observed Johnston stop for a split second and dig deep in his pants. Id. at ¶ 25. Dek believed Johnston was retrieving a weapon, and that prompted Dek to pull his own weapon. Id. Dek then observed what he believed to be a handgun in Johnston's right hand. Id.
Johnston admits that he had a pistol in the front of his pants, and that, during the pursuit, he withdrew the pistol from his pants. Johnston Aff. at ¶ 9. Johnston also admits that he carried the pistol in his hand for a brief time before he found a place to "ditch" the pistol. Id. Johnston states that he eventually threw the pistol under a parked car, but it bounced back out onto the pavement. Id. at ¶¶ 9, 10. Johnston states that after he allegedly discarded the pistol, he heard Dek order him to stop; he stopped; he put his hands in the air; and then he was shot. Id. at ¶ 10.
Dek states that he observed Johnston turn toward him and apparently point his right hand and gun in Dek's direction. Dek Aff. at ¶ 25. Dek yelled "stop or I"ll shoot," but Johnston did not stop and the men continued running. Id. Dek states he continued yelling, "Stop or I'll shoot." When it appeared to Dek that Johnston turned and pointed his right hand and the gun at Dek a second time, Dek shot Johnston. Id. at ¶¶ 26, 27. According to Dek, the gun left Johnston's hand only after Dek fired. Id. at ¶ 28.
An independent witness, Gerald Duncan ("Duncan"), provided his account by affidavit (Filing 11, Exhibit 3). Duncan observed the pursuit and shooting from inside a bus. Duncan states that he observed Dek yelling while he pursued Johnston; Johnston had something in his hand that appeared to be a handgun; as Johnston ran from Dek, Johnston twisted his body and pointed the hand that was holding what appeared to be a handgun in Dek's direction; and then Dek shot Johnston. Duncan Aff. at ¶¶ 3-8.
Qualified Immunity
The United States Supreme Court has recently considered the application of qualified immunity to a case involving a claim of the use of excessive force in violation of the Fourth Amendment. Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2001). The Saucier Court began its analysis by recognizing that the qualified immunity analysis is, and must remain, separate from the analysis of the substantive constitutional violation. Id. at ___, 121 S.Ct. at 2156. The Court provided a two-step process for analyzing a defendant's right to protection from suit under qualified immunity. As a "threshold" question, the court must consider whether the facts alleged, taken in the light most favorable to the party asserting the injury, show that the defendant's conduct violated a constitutional right. Id. If the court finds that no constitutional right would have been violated were the allegations established, then there is no need for further inquiries concerning qualified immunity. "On the other hand, if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. This inquiry . . . must be undertaken in light of the specific context of the case. . . ." Id.
The Saucier Court acknowledged that some analysis undertaken to answer the threshold inquiry may also be material to the second inquiry. The Court stated "[in] the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law's elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry." Id.
Johnston claims that Dek violated Johnston's constitutional right to be free from unreasonable seizure under the Fourth Amendment. "[A]ll claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure' of a free citizen, should be analyzed under the Fourth Amendment and its `reasonableness' standard." Graham v. Connor, 490 U.S. 386, 395 (1989). See also Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 2001). In this case, there is no question that a seizure occurred, only whether seizure by deadly force was objectively reasonable under the Fourth Amendment. Graham sets forth a list of factors relevant to determining whether the force exerted was excessive and in violation of the Fourth Amendment. The analysis "requires careful attention to 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." Graham, 490 U.S. at 396. The proper perspective in judging an excessive force claim is that of "a reasonable officer on the scene" and "at the moment" force was employed. Id. From Graham is this often-quoted statement:
The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving. . . .Id. at 396-97. See also Saucier, at ___, 121 S.Ct. at 2160.
Mindful of this guidance, this Court must consider the evidence submitted in the light most favorable to Johnston. It is undisputed that Dek suspected Johnston of concealing contraband in his mouth; that Johnston pushed Martinez to get away and began running from the officers; that Johnston had a weapon concealed on his person; that Johnston eventually withdrew a pistol from his pants; that for some amount of time Johnston continued running from Dek with the pistol in Johnston's hand; and that Johnston was fleeing to avoid arrest. If the inquiry stopped there, then there is no doubt that Dek's use of deadly force would be considered reasonable under the circumstances, and there would be no Fourth Amendment violation. Tennessee v. Garner, 471 U.S. 1, 3 (1985). See also Sinclair v. City of Des Moines, 268 F.3d 594, 596 (8th Cir. 2001) (holding that a police officer`s use of deadly force violates no constitutional right when the officer has probable cause to believe that the suspect poses a significant threat of death or serious bodily injury to the officer or others.)
However, the Court's inquiry cannot stop there. The Court must consider all the evidence in the light most favorable to Johnston. Thus, in addition to the undisputed facts provided above, the Court must also consider Johnston's sworn statement that he dropped his gun, stopped when ordered by Dek, and that Johnston was shot while his empty hands were in the air. If a trier-of-fact accepted these allegations as true, then it might be found that there was a violation of Johnston's Fourth Amendment right to be free from the use of excessive force. "The Supreme Court established in Garner, `absent probable cause of an immediate threat of death or serious bodily injury, use of deadly force is not objectively reasonable.'" Billingsley v. City of Omaha, 2002 WL 59266, *2 (8th Cir. (Neb.)) citing Garner, 471 U.S. at 9. An unarmed suspect who has stopped fleeing and raises his empty hands in the air no longer poses an immediate threat of death or serious bodily harm to an officer or others.
Dek and Duncan dispute these facts in sworn statements as recited in the factual background section of this memorandum.
The Saucier two-step analysis for qualified immunity claims does not assist in the resolution of this particular claim, because there are material facts remaining in dispute that must be decided by the trier of fact.
Despite the Supreme Court's enthusiasm for ruling on the issue of qualified immunity early in the proceedings, Saucier, supra, at 2156, the Plaintiff's submission in opposition to the Defendant's Motion for Summary Judgment makes that impossible. Like the circumstances contemplated in Justice Ginsburg's concurring opinion in Saucier, this case "turns on which of two conflicting stories best captures what happened on the street." Id. at ___, 121 S.Ct. at 2164.
At that crucial moment when Dek decided to shoot Johnston, the parties' sworn statements of what happened are diametrically opposed. Johnston states that he had stopped; his empty hands were in the air; and then Dek shot him. Dek and a witness state that Johnston never stopped his flight from Dek even after being ordered to stop; Johnston held a gun in his right hand; the gun was pointed in Dek's general direction; and the gun remained in Johnston's hand until Dek shot Johnston. These disputed facts are material facts because they are outcome-determinative. Moreover, the issues relating to the material facts are genuine. This Court cannot say that no reasonable jury could return a verdict in favor of Johnston. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (the function of the Court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial").
For all the reasons provided in this memorandum, the Defendant's Motion for Summary Judgment must be denied.
IT IS ORDERED:
Defendant's Motion for Summary Judgment (Filing No. 10) is denied.