Martha V. DELUNA, individually and as Administrator for the Estate of Luis Roberto DeLuna, deceased, and as next friend of her minor children Martha Virydiana, Alejandra and Luis Roberto, Plaintiff-Appellant, v. CITY OF ROCKFORD, Illinois, Randall Peraza, Lieutenant Salmone, et al., Defendants-Appellees.
No. 05-1337
United States Court of Appeals, Seventh Circuit
Argued January 17, 2006. Decided May 18, 2006.
447 F.3d 1008
Kerry F. Partridge (argued), City of Rockford Law Department, Rockford, IL, for Defendants-Apрellees.
Before BAUER, ROVNER, and SYKES, Circuit Judges.
ROVNER, Circuit Judge.
On March 21, 1998, officer Randall Peraza responded to a report of a domestic disturbance, and his subsequent encounter with Luis Roberto DeLuna culminated in the fatal shooting of DeLuna by Peraza. DeLuna‘s widow, on behalf of herself and her minor children, filed this action pursuant to
The district court granted summary judgment in favor of the defendants, and Lopez appeals. Therefore, we must consider the facts including reasonable inferences therefrom, in the light most favorable to Lopez. Fisher v. Lovejoy, 414 F.3d 659, 661 (7th Cir. 2005).
The facts undisputed by Lopez are themselves sufficient to establish imminent danger to Pеraza so as to render deadly force reasonable. At approximately 4:14 on the morning of March 29, 1998, Peraza received a dispatch regarding a domestic disturbance at Lopez‘s residence. This was not Peraza‘s first call to that home. In fact, eight days earlier, Peraza had responded to a similar call from that residence. On that occasion, Peraza perceived that DeLuna was intoxicated and was yelling at Lopez. Lopez informed Peraza that DeLuna was known to be very violent. He was also aware from that experience that Lopez had a daughter who was a minor. DeLuna was arrested at that time and placed in a holding cell. Peraza was subsequently told by other officers that in the holding cell, DeLuna became very violеnt, punching and slamming his head against the cement walls.1 At the time of this incident, Peraza observed that DeLuna had an extensive arrest history, and Lopez told him that DeLuna was known to carry weapons. That was consistent with an earlier experience in which Peraza recorded a written statement from a person who stated that he had purchased guns from DeLuna.
With the knowledge gained from that earlier exposure to DeLuna and Lopez, Peraza responded to the 911 call in the early morning hours of March 29, arriving at the house approximately a minute after receiving the dispatch and advising dispatch that he was at the scene. From inside the squad car, he could not see the suspect, DeLuna. His main concern as he arrived was whether DeLuna was in the house. He wаs aware that children had been present in the house the week prior, and that Lopez had told him that she had been battered badly before. Peraza exited his vehicle and walked toward the front of it. Lopez saw Peraza from the kitchen window, and she continued to yell to him outside the entire time after Peraza left his squad car. As Peraza was proceeding to the front of his vehicle, something caught his attention from the right side. He saw movement in the dark, and then recognized DeLuna standing at the northwest corner of the house. DeLuna had no shirt on even though it was 4:14 a.m. on that Spring day, and he did not appear to be cold. Peraza said “Hey Concepcion, Concepcion” a couple of times to get DeLuna‘s attention, asking “What‘s going on?”2
DeLuna responded: “I‘ve gоt something for you. You are going to have to kill me.” Peraza had his gun drawn, and told DeLuna to raise his hands. DeLuna did not raise his hands, but began walking towards
Because Peraza was walking backward and looking at DeLuna the entire time, he did not know what wаs behind him. He told DeLuna to “stop,” but DeLuna disregarded him and continued walking toward him. There was a dirt hole in the driveway and a black plastic pipe in the dirt that was hooked up to a downspout from the roof. Peraza stumbled at that point and struggled to maintain his balance. In the meantime, Lopez‘s houseguest was pulling Lopez into the kitchen away from the door, and pulled her to the floor. When Lopez hit the floor, she heard a shot fired. Before she heard that shot, 2-3 seconds had passed when she was unable to see what was happening outside.
All of that is conceded by Lopez. In addition to that, Peraza stated that DeLuna lunged toward him as he stumbled, and that he feared DeLuna was either reaching for a weapon behind his back or attempting to reach Peraza‘s weapon. At that time, he fired the shot. Lopez disputes that statement, arguing that Peraza should not be believed because he provided differing explanations as to what he feared. What is uncontested, however, is that DeLuna was disregarding Peraza‘s order to stop and to raise his hands, and that Peraza continued to back up before and after killing DeLuna, with his momentum carrying him out of the mud hole. Also undisputed is that Peraza was only on the scene for 1 minute, 25 seconds before shooting DeLuna, and backed up 40-50 feet over that period of time. Finally, Lopez acknowledges the expert testimony presented by Peraza, that to a reasonable degree of medical, forensic, and scientific certainty, at the time of the bullet entry, DeLuna had a flexed forward torso, which is one in which the person is leaning forward at the waist. The expert further attested that the bullet angle would be consistent with the suspect making a lunging motion towards the officer. The expert opinion was premised upon the hypothetical that: Peraza fired one shot which struck DeLuna; Peraza fired his weapon using his left hand while moving backward in a slightly crouching position; Peraza and DeLuna wеre anywhere from 5-15 feet apart when the shot was fired; the height difference between Peraza and DeLuna was within 1-2“; DeLuna was on his feet when struck by the bullet; and Peraza and DeLuna were on level terrain within plus or minus 5 inches of elevation. Lopez did not provide any evidence disputing the premise of the hypothetical.
The undisputed facts in the record demonstrate that Peraza аcted reasonably in firing the shot. At the time of the shooting, Peraza was presented with a suspect who had a history of violence, and who was known to both carry and sell weapons. Peraza could not know whether DeLuna possessed a weapon in the back of his waistband. DeLuna was acting in an irrational manner, appearing shirtless and disregarding repeated instructions to raise his hands and
This case is similar to a situation addressed recеntly by the Tenth Circuit in Blossom v. Yarbrough, 429 F.3d 963 (10th Cir. 2005), in which the court concluded that the use of deadly force was reasonable. In Blossom, the court was presented with similar facts of a confrontational person advancing on an officer, with the suspect eventually shot by that officer. Contrary to our case, the officer in Blossom had actually pursued the suspect, who had been accused of refusing to leave someone‘s car but had attempted to walk away from the confrontation once the officer arrived. Id. at 965-66. Ultimately, however, the suspect became confrontational, continuing his approach towards the officer who attempted to maintain distance from him by walking backward, and disregarding the officer‘s instructions to get on the ground. Id. The evidence was in dispute as to whether the suspect in Blossom lunged towards the officer before being shot, but it was clеar that the suspect was advancing on the officer in what reasonably appeared to be an effort to get his weapon, and that was sufficient for the court to determine that deadly force was reasonable to address the immediate threat to the officer‘s safety. DeLuna‘s conduct in this case similarly presented an immediate threat to the officer‘s safety, and the district court properly granted summary judgment to the defendants on this ground.
Lopez asserts, however, that even if the
Lopez also asserts a Fourth Amendment claim on behalf of herself and her 13-year-old daughter, based on the conduct of the police following the shooting. Shortly after the shooting, the police transported Lopez and her daughter, Martha DeLuna, to the police station to take their statements regarding the events that had transpired. Lopez claims that the police questioning of her and her daughter following the shooting constituted an unreasonable seizure under the Fourth Amendment.
A person is “seized” for Fourth Amendment purposes “only if, in view of all of the circumstances surrounding the incident, a reasonable person [in the subject‘s position] would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). We have described the type of circumstances in which a reasonable person might believe that he was not free to leave. For instance,
[t]he Supreme Court has noted that a reasonable person might not believe he was free to leave when faced with “the threatening presence of several officers, the display оf a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer‘s request might be compelled.” Mendenhall, 446 U.S. at 554, 100 S. Ct. 1870. Furthermore, this court has noted some other factors that might influence a reasonable individual to believe that he was not free to leave: “whether the encounter occurred in a public or private place; whether the suspect was informed that he was ... free to leave; ... whether there was physical touching, display of weapons, or other threatening conduct; and whether the suspect eventually departed the area without hindrance.” United States v. Scheets, 188 F.3d 829, 836-37 (7th Cir. 1999), cert. denied, 528 U.S. 1096, 120 S. Ct. 837, 145 L. Ed. 2d 703 (2000).
Leaf v. Shelnutt, 400 F.3d 1070, 1089-90 (7th Cir. 2005). Lopez has failed to present any evidence of coercion or conduct that would lead a reasonable person to believe that she was not free to leave. In fact, the record belies any such belief. One of the undisputed statements of fact is that Martha DeLuna “agreed” to go to the police station to provide a statement. In the statement of undisputed facts, the plaintiff further acknowledges that the officers had a legitimate interest in interviewing them shortly after the incident, that it was reasonable for them to be interviewed separately, and that Lopez was never searched or handcuffed, and no one grabbed her arms or hands to lead her along when she walked to the police car. Significantly, in her deposition when describing her time at the police station, Lopez acknowledged “I could probаbly have left or tried to get out,” but stated that she did not do so because she trusted that the police would take her to the hospital as soon as possible to see her husband. That is inconsistent with a belief that she was not free to leave. The plaintiff did not present any evidence of police conduct that was coercive or threatening, or otherwise establishing that they werе not in fact free to leave. The closest that Lopez comes is a statement that the police brought her to a room and told her to stay there, but she later characterized the statement as simply telling her to wait there. That is inadequate to establish a reasonable belief that she was not free to leave. Nor does Lopez‘s own conduct indicate that she was intimidated by the police authority. Although it took hours for the police to finish preparing her statement, much of that delay was because the police provided an interpreter for Lopez, and because the statement was redone three times when Lopez told the officers that information was missing from the statement, and requested that it be retyped to include that informatiоn. At most, Lopez has demonstrated that the officers wanted to interview them after the shooting, and that the officers facilitated that interview by providing transportation to the police station and promising to transport them to the hospital when the statements were completed. The officers mere desire to interview them promptly does not equate with coercion, and Lоpez has provided nothing more in this record. Accordingly, the district court properly granted summary judgment on this claim as well. The decision of the district court is AFFIRMED.