Tina Smith v. Michael Kilgore, 926 F.3d 479

On May 26, 2012, KCMO officers Abidovic and Keller responded to a report of suspicious persons; Abidovic encountered Raymond Smith, who fled.
Abidovic chased Smith into a parking lot, saw a gun in Smith’s hand, ordered him to drop it; Smith climbed a fence and (according to Abidovic) pointed and fired at him.
Abidovic fired three shots; officers Krueger and Taylor arrived, saw Smith on the far side of the fence, and Krueger fired five shots after seeing Smith raise his gun. Smith died. A gun was recovered at the scene.
Smith’s mother sued under § 1983 and state-law theories: excessive force, assault, battery, wrongful death, failure to provide medical care, negligent hiring/retention, and Monell claims. District court granted summary judgment for defendants and dismissed negligent hiring/retention; appeal followed.
The district court relied on officer affidavits, dashcam audio/video (single shot then three shots), and lack of admissible eyewitness testimony contradicting officers. Qualified immunity was raised in the answer but not addressed below and is not addressed on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a genuine factual dispute exists that Smith did not fire or point a gun at officers	Smith: dashcam is inconclusive and eyewitness reports say he lacked a gun	Defs: officer affidavits, dashcam audio, officers’ radio calls, and recovered gun establish he was armed and fired	No genuine dispute; summary judgment appropriate because admissible evidence supports officers’ accounts
Whether officers’ use of deadly force was excessive under the Fourth Amendment	Smith: disputed facts about who fired/pointed gun preclude reasonableness finding	Defs: officers had probable cause to believe Smith posed a serious threat after he fired and/or raised his gun	Use of deadly force was objectively reasonable; summary judgment for officers on excessive force/assault/battery/wrongful death claims
Whether officers Keller and Taylor are liable for failure to intervene	Smith: failure to intervene claim survives because factual disputes exist	Defs: no unconstitutional force occurred to require intervention	No liability; failure-to-intervene claim fails because force was reasonable
Whether officers/municipality failed to provide prompt medical care or follow EMS procedures	Smith: factual dispute about timing/who called EMS and adequacy of care	Defs: dispatch/dashcam show Abidovic called for EMS within a minute; care was timely	No constitutional violation; medical-care claim dismissed and Monell/failure-to-train claims fail as a result

TCF Nat’l Bank v. Mkt. Intelligence, Inc., 812 F.3d 701 (8th Cir. 2016) (summary judgment standard review)
Schilf v. Eli Lilly & Co., 687 F.3d 947 (8th Cir. 2012) (summary judgment burdens and inferences)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment and genuine issue standard)
Mann v. Yarnell, 497 F.3d 822 (8th Cir. 2007) (unclear video does not create factual dispute if it does not contradict material facts)
Tennessee v. Garner, 471 U.S. 1 (1985) (deadly-force Fourth Amendment standard)
Sinclair v. City of Des Moines, 268 F.3d 594 (8th Cir. 2001) (deadly force permissible when suspect has apparent loaded weapon)
Partlow v. Stadler, 774 F.3d 497 (8th Cir. 2014) (deadly force reasonable where suspect refused commands and moved shotgun suggesting aiming)
Aipperspach v. McInerney, 766 F.3d 803 (8th Cir. 2014) (deadly force reasonable where suspect pointed a gun at officer and ignored commands)
City of Los Angeles v. Heller, 475 U.S. 796 (1986) (no municipal liability under § 1983 absent underlying officer constitutional violation)