Doris THOMPSON; Thomas Thompson, Jr.; Ashley Thompson, By and Through Her Mother and Next Friend, Grace Jackson, Appellants, v. Bryan HUBBARD; Michael Washington; City of Pine Lawn, Appellees.
No. 00-2505.
United States Court of Appeals, Eighth Circuit.
July 30, 2001.
Rehearing Denied: Sept. 27, 2001.
Submitted: May 17, 2001.
The district сourt‘s conclusion that Clearly Canadian had priority over the Bank as a matter of law with respect to the Amended Agreement Collateral is without support in the summаry judgment record. Neither the bankruptcy court‘s order nor the Bank‘s Waiver of Interest supports such conclusion. There is no other basis from which to conclude that Clearly Canadian had such a sweeping priority. Therefore, to the extent the district court concluded as a matter of law that Clearly Canadian had priority over the Bank with respect to equipment not purchased with Clearly Canadian loan proceeds, said judgment is reversed. Because the district court‘s summary judgment order grаnting Clearly Canadian a priority security interest with respect to the Amended Agreement Collateral is reversed, we need not consider the Bank‘s procedural complaint regarding the summary judgment order.
III. CONCLUSION
The district court‘s Final Judgment and Order of Replevin is affirmed in all respects with the exception of its conclusion regarding the seсurity interests of the Bank via-á-vis Clearly Canadian. Accordingly, the district court‘s grant of summary judgment in favor of Clearly Canadian with respect to its priority in the Amended Agreement Collаteral is reversed and the case remanded for further proceedings consistent with this opinion.
Mark Zoole, argued, St. Louis, MO, for appellee.
Before WOLLMAN, Chief Judge, HANSEN, Circuit Judge, and BARNES,1 District Judge.
WOLLMAN, Chief Judge.
After Ravone Thompson was shot and killеd by police officer Bryan Hubbard, his parents and his daughter brought an action for damages under
I.
Responding to a report of shots fired and two suspects fleeing on foot from thе scene of an armed robbery in Pine Lawn, Missouri, Hubbard approached Thompson as he was getting into his car. Thompson fit the description of one of the robbеry suspects, a black man wearing a blue and gold jacket, and was in an area where, based on the direction of their flight, Hubbard believed the suspects might be. Thompson initially appeared to surrender, but then turned to flee. Hubbard attempted to grab him, but succeeded only in pulling off his jacket.
A foot chase ensued, ending when Thompson ran into the space between two buildings and climbed over a short fence. According to Hubbard, Thompson got up from the ground, looked over his shoulder at Hubbard, and moved his arms as though reaching for a weapon at waist level. Thompson‘s back remained turned toward Hubbard and obscured his hands from Hubbard‘s view. Hubbard yelled, “stop,” and when Thompson‘s arms continued to move, he fired a single shot into Thompson‘s back just below his right shoulder blade. Thompson died from the wound. No weapon was found on his body. Officer Mаrvin Berry, who had followed most of the foot chase in a patrol car, stated that he attempted to look down the space between the two buildings where hе had seen Thompson and Hubbard run, but that he neither saw nor heard the shooting, leaving Hubbard as the lone surviving witness to the shooting.
We review the district court‘s grant of summary judgment de novo, applying the same standard as that court applied, and viewing the evidence in the light most favorable to the plaintiffs. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir.1995). Summary judgment is appropriate where thеre is no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. Id. at 469-70. “In essence, we must inquire ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.‘” Id. at 470 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986)).
The
Thus, to defeat the motion for summary judgment, the plaintiffs needed to present enough evidence to permit a reasonable jury to conclude that Hubbard‘s use of deadly force was objectively unreasonable. See Gardner v. Buerger, 82 F.3d 248, 252 (8th Cir.1996). We conclude that summary judgment was appropriate in this cаse because Hubbard‘s use of force, as he describes it, was within the bounds of the Fourth Amendment, and all of the evidence presented to the district court is consistent with thаt account. Compare Krueger, 991 F.2d at 439 (summary judgment against plaintiffs appropriate despite the fact that the suspect was shot in the back where such a shot was consistent with the reasonable use of force described by the officer) with Gardner, 82 F.3d at 253 (summary judgment inappropriate where officer‘s own account of shooting raised genuinе issue as to its reasonableness). The plaintiffs may not stave off summary judgment “armed with only the hope that the jury might disbelieve witnesses’ testimony.” Gardner, 82 F.3d at 252.
We disagree with the plaintiffs’ contention that if, as Hubbard maintains, Thompson turned and looked at him while the two were in close proximity and moved as though reaching for a weapon, a jury could conclude that Hubbard‘s use of deadly force was objectively unreasonable because Hubbard should have considered the fact that the waistband of Thompson‘s sweаt pants may not have been strong enough to hold a gun. An officer is not constitutionally required to wait until he sets eyes upon the weapon before employing deаdly force to protect himself against a fleeing suspect who turns and moves as though to draw a gun. See Ryder v. City of Topeka, 814 F.2d 1412, 1419 n. 16 (10th Cir.1987) (concluding that, because a requirement that a suspeсt actually have a weapon would place police in “a dangerous and unreasonable situation . . . whether a particular seizure is reasonable is dependent on the ‘totality of the circumstances,’ and not simply on whether the suspect was actually armed“). “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, аnd rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97. Moreover, neither the plaintiffs’ attacks on Officer Berry‘s credibility nor
The judgment is affirmed.