489 F.Supp.3d 1209
D. Kan.2020Background
- On Sept. 28, 2017, Topeka police Officers Michael Cruse and Justin Mackey responded to a report of gunshots near Ripley Park and encountered Dominique T. White walking away from the park.
- Mackey observed a bulge and a black semi‑automatic handgun in White’s left front pocket; officers ordered White to lie down and keep his hands out.
- When officers attempted to secure the gun, White resisted, broke free from their grip, and ran.
- Immediately after he broke free and while he was running (left hand near his left hip but never drawing the gun), Cruse and Mackey fired multiple shots; White died from the gunshot wounds.
- Plaintiffs (co‑administrators of White’s estate) sued under 42 U.S.C. § 1983 for excessive force and brought a Monell claim; officers moved for summary judgment arguing, among other grounds, qualified immunity.
- The court (viewing disputed facts in plaintiffs’ favor) found triable issues on whether the use of deadly force was reasonable, but held the officers were entitled to qualified immunity because the right was not clearly established under controlling precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing/capacity to sue | Kelly White may bring §1983 claims individually and on behalf of decedent’s minor children | Only the estate’s personal representatives may bring decedent’s §1983 survival claims | Dismiss individual/next‑friend claims; estate co‑administrators may proceed as real parties in interest |
| Fourteenth Amendment theory | Excessive force claim also alleged under Fourteenth Amendment | Excessive force claim arises under Fourth Amendment, not Fourteenth | Fourteenth Amendment claim dismissed; Fourth Amendment governs |
| Failure to provide medical care | Officers failed to render timely/adequate medical aid | Officers promptly summoned EMS and Cruse provided first aid and removed the gun | No triable §1983 medical‑care claim; summary judgment for officers on that theory |
| Excessive force / qualified immunity | Use of deadly force was unreasonable under the totality of circumstances; triable issues preclude immunity | Even if force arguably excessive, no clearly established Supreme Court/Tenth Circuit precedent put officers on notice that shooting was unlawful | Court finds triable issues on constitutional violation but grants qualified immunity because the right was not clearly established at the time |
Key Cases Cited
- Mullenix v. Luna, 136 S. Ct. 305 (2015) (qualified immunity protects all but plainly incompetent or knowing violators)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (discussion of limits of qualified immunity jurisprudence)
- Malley v. Briggs, 475 U.S. 335 (1986) (qualified immunity quotation)
- Pearson v. Callahan, 555 U.S. 223 (2009) (two‑prong qualified immunity framework; court discretion on prongs)
- Scott v. Harris, 550 U.S. 372 (2007) (summary‑judgment facts must be viewed in light most favorable to nonmoving party)
- Graham v. Connor, 490 U.S. 386 (1989) (Fourth Amendment reasonableness standard for use of force)
- Tennessee v. Garner, 471 U.S. 1 (1985) (deadly force on fleeing suspect unreasonable absent immediate threat)
- Pauly v. White, 874 F.3d 1197 (10th Cir. 2017) (framework for assessing officer perspective and totality of circumstances)
- Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255 (10th Cir. 2008) (four‑factor test for threat assessment in deadly‑force cases)
- Tenorio v. Pitzer, 802 F.3d 1160 (10th Cir. 2015) (qualified immunity denied where facts left triable issues about threat and warnings)
- Walker v. City of Orem, 451 F.3d 1139 (10th Cir. 2006) (officer not entitled to immunity where suspect held knife and made no threatening motions)
- Kisela v. Hughes, 138 S. Ct. 1148 (2018) (emphasizes need to particularize clearly established law to the situation confronted)
- Reavis ex rel. Coale v. Frost, 967 F.3d 978 (10th Cir. 2020) (recent application of qualified immunity in deadly‑force context)