Case Information
*1 Before M ANION K ANNE , R OVNER , Circuit Judges . M ANION Circuit Judge
. Sixteen year ‐ old DeAngelo Sago, Jr., three other young men attempted rob pizzeria gunpoint. Frank Pobjecky, off duty *2 2 17 1757 waiting pizza, and killed Michael. James Horton, administrator Michael’s estate, brought various federal state against and others. The granted summary judgment Defendants all claims, concluding use deadly force reasonable justified, violate Fourth Amendment. We affirm.
I. F ACTS
A. Surveillance Videos
On review summary judgment, we view facts in light most favorable nonmovant draw inferences favor. Anderson v. Liberty Lobby, Inc. U.S. (1986); Yahnke Kane County, Ill. 1066, (7th Cir. 2016). The parties agree about some facts, they vigorously contest others.
Four cameras captured surveillance videos portions events. According videos, encounter lasted less than minute. The first video shows parking lot sidewalk outside front door Marie’s Pizza Rockford, Illinois. The second video shows same area from different angle. third video shows kitchen. The fourth video shows front door, entrance area, counter, cash register inside pizzeria. Although summary judgment we generally view facts light most favorable nonmovant, rare circumstances video footage clearly contradicts nonmovant’s claims, we may consider video footage without favoring ‐ nonmovant. Scott Harris U.S. 372, 378–81 (2007) (“The Court Appeals … should have viewed the facts in the light depicted by the videotape.”). This is because summary judgment we view the facts the light most favorable the nonmovant only if there is genuine dispute about those facts. Id. at When video footage firmly settles factual issue, there genuine dispute about it, we will indulge stories clearly contradicted by the footage. Of course, videos are sometimes unclear, incomplete, fairly open varying interpretations. The story here very short violent.
B. Armed Robbery
Late Saturday evening, October 2011, Frank Pobjecky, unarmed off duty officer, waited pizza ordered Marie’s Pizza. He was customer inside. He was break area Vincenzo Tarara (the restaurant manager) David Weidner (the delivery driver). Andres Briseno (the cook) kitchen.
The break area separated by cooler from public entrance area depicted by fourth video. No video captured break area cooler. Tarara carried concealed semi automatic handgun hip. knew about it.
Suddenly four young men entered front door pizzeria. videos show first these men entering timestamp 22:26:32. One these men, Lamar Coates, held revolver. Brandon Sago barged into break area separated entrance cooler. Desmond Bellmon skirted counter attacked cash register. arrived front door last, stood entrance, holding door open. He was lookout. All four assailants wore sweatshirts with hoods up. wore light color, while others wore dark color.
Tarara heard door chime entered. He approached front area and encountered Coates, Brandon, and Bellmon. Tarara surrender. Instead he yelled, “get hell out here, you’re getting any my f’ing money.” and Tarara testified Coates pointed his gun each them demanded money. In response Pobjecky’s Local Rule 56.1 statement facts, Horton denied Coates threatened or Tarara, demanded money, said anything before struggle for Coates’s weapon began. But Horton’s answer Pobjecky’s request admit facts, Horton had already admitted Coates threatened Tarara, maybe both, with gun.
According Horton, Tarara reached for his own weapon, reconsidered, slammed Coates against cooler, struggled for Coates’s revolver. For several terrifying seconds Tarara Coates both their hands Coates’s gun. Tarara testified Coates tried shoot him. Tarara fought life. testified could see round down barrel, feel Coates trying pull trigger. Horton disputed below whether Coates tried pull trigger during struggle, found issue immaterial.
There ultimately dispute Coates approached Tarara gun threatened least one them with it, and Tarara grabbed Coates’s gun and struggled for possession of it. According Horton, the struggle for Coates’s gun involved Coates and Tarara. tried grab Tarara’s gun his hip. Brandon and Bellmon joined the melee. No cameras captured the skirmish for the guns.
Michael did join the struggle. never grabbed for a gun. The fourth video shows Michael Bellmon turn their heads toward the struggle at timestamp 22:26:46, apparently as soon as they heard the struggle begin. Bellmon left the counter about 22:26:47 entered the break area. the video shows Michael remained the front door for few seconds. Then about 22:26:51 left the front door approached the area of the struggle, off camera. parties dispute what Michael did during struggle
for control guns. Horton involved struggle, never grabbed for gun, just stood near area with arms down by his side doing nothing during struggle. points testimony Michael’s arms down by side. insists record shows never grabbed for gun scuffled for gun, never tussled anyone, never touched gun, nothing during struggle. Defendants, however, characterize inserting himself into situation entering pizzeria quickly approaching struggle. At stage, we accept Horton’s view facts. With possible exception partial, fleeting shapes bottom left hand corner fourth video, struggle control guns occurred entirely off camera. gained possession Tarara’s gun, Tarara won struggle Coates’s gun.
Horton claims once Coates lost the struggle for his gun, he turned, headed for the exit, saw Pobjecky two feet away pointing gun him as Tarara held other gun. Pobjecky then shot Coates in back without warning, holding gun over Tarara’s right shoulder. Bellmon ducked for cover behind counter, Brandon headed for exit.
According Appellees, Pobjecky fired first shot timestamp 22:26:56, about seconds after Michael Bellmon first turned toward struggle when it apparently began. Horton does not dispute account, videos seem support it. Pobjecky did not announce he order anyone stop. Pobjecky claims he did not have enough time do that. With Tarara’s gun, Pobjecky engaged each criminal suspect as they moved around pizzeria. shot Coates, Brandon, Bellmon. According Horton (citing Coates’s testimony) Pobjecky look anger, fear, face when shot Coates. Pobjecky did give verbal warnings commands before shooting them.
Pobjecky shot Brandon as headed door. Pobjecky Tarara both pointed guns Brandon exited, but Pobjecky fired. During break shooting, Bellmon headed door. Pobjecky shot him missed, although earlier incident shot him buttocks. then shot Michael three times lower back. parties dispute circumstances immediately surrounding shooting Michael. claims three times crawled away toward door. consider threat because turned ‐ back on Michael before shooting him despite being trained never to turn his back on threat. Pobjecky claims Michael bolted toward him from
behind, coming within one two feet him, and startling him. Pobjecky he shot Michael as Michael advanced toward Pobjecky. Responding to argument that turning back Michael showed he did consider Michael ‐ then shot Michael two more times from behind as Michael attempted crawl out the pizzeria. gunshot wounds showing the three bullets entered Michael’s back also contradict Pobjecky’s claim that he shot Michael as he advanced toward Pobjecky.
In the light most favorable Horton, the video gunshot wounds support account that Pobjecky shot Michael from behind three times as Michael crawled away from toward the door, Pobjecky did shoot Michael as he advanced toward Pobjecky. the video also demonstrates close quarters multiple, moving, potentially armed assailants, who forced him make split second, life ‐ ‐ death decisions. And the video also shows approached area generally from behind split second before turned shot him.
According videos, the entire encounter lasted about seconds moment first assailant entered front door about 22:26:31 moment third time as he crawled out front door about 22:27:07.
At about 22:27:16, locked front door. prostrate on sidewalk just outside door. did exit pizzeria until arrived, because he feared his life and lives others. had no more bullets. He claims he did know who had Coates’s gun he did not know whether anyone had another gun. But Horton claims Pobjecky knew (or must have known) Tarara had Coates’s gun because Pobjecky stood close Tarara who was openly holding Coates’s gun during a portion encounter. At this stage, we accept Horton’s view.
Pobjecky told Tarara call 911. Tarara tried had trouble, so Weidner called Winnebago County Center received a call 10:34 p.m. dispatched police paramedics. Pobjecky also placed call a direct line had dispatcher. Briseno hit panic button alerting authorities during incident, 22:26:52. Paramedics arrived about minutes after Pobjecky shot Michael. claims did see prostrate
sidewalk outside pizzeria’s front door until after arrived. But Horton claims it infer knew Michael’s location, we accept stage.
There no dispute shot three times lower back. An autopsy showed bullets travelled upward through Michael’s body, fracturing ribs, damaging multiple organs including heart, killing him. claims have survived wounds without treatment five forty minutes. Weidner called seven minutes after Michael, paramedics arrived four minutes later. Marie’s Pizza very close hospital.
Coates only assailant bring gun into pizzeria night. know that, way know that. fired shots *10 10 17 ‐ 1757 pizzeria night. He all four assailants, and back parts their bodies. never identified office gave any verbal warnings commands before shooting. Tarara had Coates’s gun during much incident, never fired it.
All three surviving convicted felony murder.
II. Procedural Posture
Horton, as administrator Michael’s estate, sued Winnebago County Sheriff’s Deputy Pobjecky; Winnebago County, Illinois; Winnebago County Sheriff Gary Caruana. Count I brought claim under U.S.C. § 1983 against Sheriff for excessive force. Count II brought claim under § against failure provide medical care. Counts III, IV, V brought state law claims against Sheriff. Count VI brought state law indemnification against County Sheriff. granted summary judgment
Defendants all claims.
III. Discussion
We review grant summary judgment de novo, construing facts making inferences favor nonmovant. W. Side Salvage, Inc. v. RSUI Indem. Co. F.3d 219, (7th Cir. 2017). We may affirm any ground supported record, long as ground adequately addressed below nonmovant opportunity contest issue. Cardoso Robert Bosch Corp. (7th Cir. 2005). *11 11 17 1757
Summary judgment is appropriate “if movant shows that there is genuine dispute as any material fact movant is entitled judgment a matter of law.” F ED . R. C IV . P. 56(a). The parties must support their assertions that a fact cannot be or is genuinely disputed by citing “particular parts of materials record, including depositions, documents, electronically stored information, affidavits declarations, stipulations (including those made for purposes motion only), admissions, interrogatory answers, other materials … .” F ED . R. C IV . P. 56(c)(1); see Celotex Corp. v. Catrett , 477 U.S. 317, 322–23 (1986). We view facts light most favorable draw reasonable inferences favor. Anderson , 477 U.S. 255; Yahnke , 823 F.3d
As below, argues appeal that genuine issues material fact preclude summary judgment. The recognized parties presented different versions facts, agreed Defendants factual disputes immaterial. A. Excessive Force
Sometimes police officer’s use deadly force reasonable therefore constitutional. A officer’s use deadly force suspect seizure within meaning Fourth Amendment, so force must be be constitutional. Scott v. Edinburg , 346 752, 755 (7th Cir. 2003). Supreme Court set out fundamental framework analyzing excessive force Tennessee v. Garner U.S. (1985), Graham v. Connor , U.S. (1989). See County Los Angeles, Calif. Mendez S. Ct. (2017). Graham Garner stand proposition suspect has constitutional right be *12 12 17 1757 officer unless “reasonably believes that [the suspect] poses a threat to officer or someone else.” Weinmann v. McClone , F.3d 444, 450 (7th Cir. 2015).
Thus, a police officer may constitutionally use deadly force to defend himself others in certain situations. “It is clear that, when an individual threatens a police officer with a deadly weapon, officer is permitted to use deadly force self defense if use is consistent with principles set forth Tennessee v. Garner .” Scott , F.3d When an officer reasonably believes assailant’s actions place “him, partner, or those immediate vicinity imminent danger death or serious bodily injury, officer can reasonably exercise use deadly force.” Sherrod v. Berry F.2d 802, (7th Cir. 1988) (emphasis omitted). An officer does violate Fourth Amendment by firing a suspect officer “reasonably believed suspect committed a felony involving threat deadly force, armed with deadly weapon, likely pose a danger serious harm others if immediately apprehended.” Ford Childers (7th Cir. 1988).
As form defense others, officer also may sometimes constitutionally use deadly force prevent escape.
Where officer has probable cause believe suspect poses threat serious physical harm, either officer others, it constitutionally unreasonable prevent escape using deadly force. Thus, if suspect threatens weapon there probable cause believe has *13 13 17 1757 committed crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary prevent escape, if, where feasible, some warning has been given.
Tennessee v. Garner , 471 U.S. 1, 11–12 (1985).
Determining whether the force reasonable under the Fourth Amendment requires “a careful balancing of the nature quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham v. Connor , 490 U.S. 386, 396 (1989) (internal quotation marks omitted). This reasonableness test “requires careful attention the facts circumstances of each particular case, including severity of crime at issue, whether suspect poses immediate threat safety officers or others, whether is actively resisting arrest attempting evade arrest flight.” Id. “The operative question excessive force cases is ‘whether totality circumstances justifie[s] particular sort search seizure.’” Mendez , S. Ct. at 1546 (quoting Garner , U.S. at 8–9). test is objective reasonableness. Graham , U.S. at A plaintiff must show officer’s use force
objectively excessive perspective scene under totality circumstances. Id. 396–97; Bell Irwin (7th Cir. 2003).
We evaluate excessive force objective reasonableness based information officers time. Mendez S. Ct. 1546–47. “What important amount quality information known *14 14 17 ‐ 1757 officer at time fired weapon determining whether officer used an appropriate level of force.” Muhammed City of Chi. , F.3d (7th Cir. 2002) (citation omitted). actual officer’s subjective beliefs motivations are
irrelevant. Scott , F.3d at 756. “An officer’s evil intentions will make Fourth Amendment violation out of an objectively use of force; nor will an officer’s good intentions make an objectively unreasonable use force constitutional.” Graham , U.S. at 397.
Also, we must refuse view events through hindsight’s distorting lens. Id. 396. We must consider totality circumstances, including pressures time duress, need make split ‐ second decisions under intense, dangerous, uncertain, rapidly changing circumstances. See Ford We must recognize that such circumstances, officers often lack judge’s luxury calm, deliberate reflection. “The calculus reasonableness must embody allowance fact that police officers are often forced make split ‐ second judgments—in circumstances that are tense, uncertain, rapidly evolving—about amount force necessary particular situation.” Graham 396–97.
Judges view facts afar, long after gunsmoke cleared, might take months longer decide cases forced officers make split second decisions life ‐ ‐ death situations limited information. “We judges have minutes, hours, days, weeks, even months analyze, scrutinize ponder whether an officer’s actions ‘reasonable,’ whereas line duty all too frequently has split second make crucial *15 15 17 1757 decision.” Ford , F.2d 1276 n.8. The events here unfolded heart pounding real time, with lives the line. lacked our luxury of pausing, rewinding, playing videos over over.
Of course, fluid nature these situations also highlights limited scope constitutional permission use deadly force. Even though an officer may one moment confront circumstances which he could constitutionally use deadly force, does not necessarily mean he may still constitutionally use deadly force next moment. The circumstances might materially change. “When an faces situation which justifiably shoot, does retain right shoot any time thereafter impunity.” Ellis v. Wynalda F.2d 243, (7th Cir. 1993).
Finally, it bears noting availability less severe alternatives does necessarily render use deadly force unconstitutional. The Fourth Amendment does require “the use least even less deadly alternative so long use deadly force under Tennessee Garner Graham v. Connor … .” Plakas v. Drinski (7th Cir. 1994).
The relevant question whether reasonably believed posed threat death serious bodily injury based information had during robbery. The accurately summarized salient facts. incident lasted about seconds moment first assailant entered pizzeria moment locked door. had limited time react four attempting commit armed robbery. react struggle over loaded gun. After ‐ Coates made threats with a gun, reasonably assumed the three other assailants, including Michael, might be armed. As the district court correctly observed, we may not consider the fact that it turned out was unarmed because did not know that, had no reasonable way know that, at the time. “Knowledge of facts circumstances gained after the fact (that the suspect was unarmed) has no place in the trial court’s jury’s proper post hoc analysis of the reasonableness of the actor’s judgment.” Sherrod , F.2d 805. As long moving inside pizzeria, they posed a threat. Considering facts light most favorable Horton, no jury find belief might be armed was unreasonable. participated armed robbery while wearing a sweatshirt allowing easy concealment a gun.
The district court compared case Ford where we examined totality circumstances known officer time found Fourth Amendment violation officer fired a suspect because officer “reasonably believed suspect committed a felony involving threat deadly force, was armed with deadly weapon, was likely pose danger serious harm others if immediately apprehended.” Ford reasoned here case favor officer even stronger than it was Ford because there see weapon present during felony, here witnessed commission dangerous felony, saw Coates make threats gun, out numbered assailants, all whom reasonably thought might be armed.
Horton attempts distinguish Michael other three assailants. Michael’s hoodie was a different color. He wore no mask. He entered last. He had no gun, never fought over a gun, never said anything threatening. Horton goes so far as characterize Michael as a mere “observer.” But these distinctions ultimately make no difference. There no dispute Michael participated armed robbery. was an off duty, initially unarmed under immense pressure, facing multiple moving over a short period time. had no reason think color Michael’s hoodie or lack mask distinguished him as harmless. had no way know Michael entered pizzeria last, such knowledge irrelevant anyway. way know Michael unarmed. Michael participated an armed robbery wore clothing conceal gun or other weapon. reasonably assumed posed an imminent threat death or serious injury, even though fight over gun or say anything threatening.
Horton argued below, on appeal, surrendered before while him. points footage frame showing Michael’s arm elevated near door points gun him. correctly noted takes frame out context. In context, video shows elevated arm quickly open door while moved toward it. In any event, “[n]ot all surrenders, however, are genuine, are entitled err side caution when faced uncertain threatening situation.” Johnson Scott (7th Cir. 2009). No jury would conclude shooting unreasonable basis footage frame viewed context.
Horton also argued below, and on appeal, Pobjecky never gave any warnings before shooting. But correctly observed Garner requires an officer to warn “where feasible” does not require an officer warn under all circumstances. Garner U.S. 11–12. Given desperate circumstances Pobjecky faced, limited time he had, reasonable juror could conclude he should have stopped identify office warn before shooting them defend himself others. argues we cannot justify shooting based
goal preventing escape because testified did not think Michael was fleeing. even if subjectively did intend prevent Michael from escaping shooting him, does mean it objectively unreasonable shoot Michael prevent him escaping. video shows Michael moving toward exit as shoots him. Even if Michael already crawled past Pobjecky, it still reasonable shoot him in back prevent escape. Moreover, goals self ‐ defense defense others remained valid even after Michael crawled past because all reasonable have known could have turned produced gun flash given all facts circumstances. In sum, even if back crawled away, this shooting would still have constituted reasonable prevention escape, despite testimony, shooting would still have constituted act defense self others. argues we cannot justify shooting based goals self defense defense others because evidence viewed favor shows pose imminent threat of death or serious physical injury to anyone. Horton argues that if Michael were inclined to harm anyone, capable doing so, he would have done so before he was shot. Horton also argues Pobjecky perceive Michael be threat because he was “so unconcerned” about Michael he turned his back Michael, who was few feet away, before shooting him. We disagree. What matters is whether reasonable officer scene would have perceived Michael posing an imminent threat death serious physical injury. Even light most favorable Horton, answer yes. There is no reason think Pobjecky should have assumed Michael was harmless because if had gun, he would have used it sooner. A need risk his life lives others such speculation. And there no reason think knew where Michael was all times. Besides, given varied changing positions assailants after got hold Tarara’s gun, could give full attention all once. Turning toward one required turning away from another. recognizes perhaps have
constitutionally shot Michael some earlier stage encounter. But insists shooting was longer permissible after struggle guns was over, Coates neutralized, Bellmon Brandon left, crawling away from Pobjecky, who never identified office told stop. ignores totality circumstances. As shown video, during armed robbery approached generally behind, close quarters, turned confront threat immediately Michael. When shot Michael, Pobjecky did not know total number assailants, and reasonably assumed all might be armed and dangerous.
Viewing facts and drawing inferences in Horton’s favor, and considering totality circumstances, we agree that four assailants placed lives Pobjecky others objectively grave danger, response with deadly force reasonable. Michael participated an armed robbery. After approaching (although directly participating in) struggle loaded gun, Michael advanced toward Pobjecky generally behind, close quarters, other occupied various positions. immediately shot him. objectively had reason think
armed dangerous, posed imminent threat death serious bodily harm community. Under immense pressure, with limited time, responded armed siege with reasonable, appropriate, justified force, compliance with Fourth Amendment. No jury find otherwise. Michael’s death deeply regrettable. It tragic. tragic flaw rests assailants, with Pobjecky.
B. Failure Provide Medical Care lived briefly after shooting. Horton might have survived had received medical care sooner. Horton argues Michael’s wounds might have been survivable without treatment five forty minutes. *21 21 17 1757 Michael, the paramedics have arrived early enough save Michael’s life, least alleviate his excruciating pain. As it happened, the paramedics arrived eleven minutes after Michael, which too late save him.
The Fourth Amendment’s objective reasonableness standard applies here, too. Sallenger v. City of Springfield, Ill. , F.3d 499, 503 (7th Cir. 2010). had show Pobjecky’s response Michael’s medical needs objectively unreasonable, response caused harm. Ortiz v. City Chi. , F.3d 523, (7th Cir. 2011). district court considered four factor
reasonableness test articulated Ortiz , found constitutional violation, granted summary judgment Defendants. Ortiz provides four factors determine whether officer’s actions regarding medical care objectively unreasonable: (1) whether had notice medical needs; (2) seriousness medical needs; (3) scope requested treatment; (4) interests might inhibit providing treatment. Ortiz F.3d “[T]he Fourth Amendment’s reasonableness analysis operates sliding scale, balancing seriousness medical need third factor—the scope requested treatment.” Williams Rodriguez (7th Cir. 2007).
As recognized, light most favorable Horton, knew serious medical needs. third fourth factors outweigh first second. reasonably feared life lives others. After exhausting ammunition neutralizing least temporarily, locked front door. know whether some assailants regrouping summoning reinforcements. then did what a reasonable situation would do: instructed Tarara call 911. Tarara trouble getting through, so Weidner called. Pobjecky also called dispatcher on direct line. The record shows received call at 10:34 p.m. reporting an armed robbery injuries gunshots, first responders arrived scene 10:38 p.m.
The law does not require, cannot expect, do anything more. It objectively reasonable stay inside locked pizzeria awaiting help. It objectively unreasonable demand him venture into night empty gun, risking further onslaught, braving hazards other created, administer treatment Michael. The district court properly concluded jury not find should have unlocked door, exited, provided medical care. did violate Constitution.
C. Monell Claim also brought Monell claim against Sheriff,
claiming deficiencies policies, procedures, customs, practices Sheriff caused shooting Michael. The district court properly granted summary judgment Sheriff regarding Monell claim predicated excessive force because did use excessive force. also noted any Monell claim predicated failure provide medical care would also fail because violate Constitution regard either. “[A] municipality cannot be liable under Monell there underlying constitutional violation municipal employee.” Sallenger ‐
As we affirm district court’s grant summary judgment regarding claims for excessive force and failure provide medical care, we also affirm district court’s grant summary judgment regarding Monell claim.
D. State ‐ Law Claims also brought one claim under Illinois Wrongful Death Act two claims under Illinois Survival Act against Sheriff. After granting Defendants summary judgment regarding federal claims, district court chose relinquish supplemental jurisdiction over state ‐ law claims. Sheriff claimed immunity against state ‐ law claims pursuant Illinois Local Government Governmental Employees Tort Immunity Act, which grants public employees immunity liability any “act omission execution or enforcement any law unless such act omission constitutes willful wanton conduct.” ILCS 10/2 ‐ district correctly concluded since actions were objectively reasonable, they cannot be willful wanton, so Defendants entitled immunity, state law failed.
IV. Conclusion
Even light most favorable Horton, Officer acted reasonably confronted perilous, life threatening situation. violate Constitution. We affirm court.
A FFIRMED .
[1] We refer Decedent Sago Brandon Sago, another assailant, their first names because they share surname.
[2] In response Local Rule 56.1 statement facts, denied lookout. during oral arguments before us, counsel acknowledged lookout.
threat, Pobjecky notes that argument wrongfully assumes he knew where Michael was before shooting him, and overlooks fact that Pobjecky was outnumbered multiple who scattered to various directions. The generally characterized Michael as “crawling” while Pobjecky shot him. The video supports that view. And Pobjecky acknowledged during testimony that when he shot Michael, Michael’s hands feet ground. Pobjecky also testified he shoot Michael stop him from escaping. The fourth video does definitively resolve all these issues. It shows Michael leave screen at about 22:26:52. He re enters screen at about 22:27:05. appears crawl past Pobjecky toward door, Pobjecky appears turn face Michael. Pobjecky appears fire first shot into about 22:27:05 after Michael already passed Pobjecky. fired three shots into Michael, all from behind. video seems contradict claim “Decedent advancing towards was shot” (Appellees’ Br. 23) “he shot approached from behind fled door” ( Id. 26). Rather, video seems show first time split second after crawled past away him toward door.
[3] At oral argument, counsel Horton claimed timestamps video footage are wrong, events actually lasted least twice long as timestamps indicate. disputed accuracy timestamps below, found failed provide any supporting evidence, therefore concluded it properly rely timestamps. raise issue appellate brief, so waived it.
notes paramedics arrived four minutes after Weidner’s call, Weidner make call until seven minutes after Michael. argues called within minute after shooting