*2 WOOD, Judgе, Before DIANE P. Chief ROVNER, Judges. CUDAHY and Circuit ROVNER, Judge. Circuit began evening Julian Miller of Octo- ber wedding his mother’s re- ception, and ended it in the back police cruiser with a broken police blamed two officers from the Ke- nosha, in- police department Wisconsin tentionally breaking jawhis and sued them § violating under U.S.C. 1983 for his rights by using civil excessive force in effectuating his arrest. The district court granted officers’ motions for appeals. and Miller I. entering p.m.
Befоre his mother’s 9:00 wedding reception, Miller and a friend marijuana. reception, smoked At the Mil- place. and 44th the corner of 21st Avenue in an hour of vodka three shots ler drank station, approached gas ended at As Gonzalez reception a half. When in a corner of idling Miller’s red car p.m., or 10:30 he saw p.m. 10:00 approximately closer, got he gas station. And as he girlfriend and then off dropped drinking exit the car beer. Before saw Miller Kenosha. to a local bar headed *3 inquiry, Miller bar, more In answer to Gonzalez’s he smoked some he the entered running in the area. seeing anyone high off that denied marijuana topped and then to which asked Miller his name before Gonzalez more Heineken beers with three Miller, knowing probation, on was a.m. he was at around 1:00 leaving for another bar license, home, and had driving without a been unready go to Apparently beer, replied his car with a bar, exiting he seen one more where headed off to name, Johnson.” bought a with the fake “Julius more and then drank a few beers if he was on asked Miller heading the road before When Gonzales final Heineken for in- that he was probation, to Miller admitted planned where he gas off to a station and disor- burglary girlfriend. probation call his deed on pay phone the to use becoming was derly conduct. who gas to the driving as Miller was Just fidgety and nervous over the increasingly station, police department re- the Kenosha in exchange, placed course of the his hands stabbing a that oc- a call about ceived Gonzalez instructed pockets. his front away the two blocks from curred about his front Miller to take his hands out of Police Officer gas same station. Kenosha run. Miller switched pockets and not to surrounding the Albert Gonzalez searсhed pockets front to his his hands from his suspect for the while Officer neighborhood step took a backwards and pockets, back the witness to Stange interviewed Shane pursuit. running took off with Gonzalez witness, That who lived on stabbing. the Serendipitously, Miller headed north on stabbing where the oc- the floor below Street, curred, and east on 44th that at around 1:40 21st Avenue then Stange told of the stab- directly a knock at a side door that back toward thе scene a.m. he heard sergeant, who had been apartment. bing. After hear- Gonzalez’s upstairs led to the station, gas Stange, radioed who noises, the witness went out to the at the ing stabbing, that still at the scene of the porch front where he saw someone wear- was suspect and that pursuing run around Gonzalez was ing a dark hooded sweatshirt Stange in his they head on 44th were headed direction. the house and then west house in time to see uрstairs neighbor emerged The from the Street. witness’s 44th yard, chasing Miller east on from the front “Call the Gonzalez shouted Stange him. straight told toward As cops. I’ve been stabbed.” The victim Street witness, porch and identified Stange, who told that al- came down from officer, to himself as a Miller darted though person who stabbed was mask, chain link jumped high it the left and a chest wearing a ski he believed was yard. fence into a small boyfriend. ex-wife’s evening, As with his other сhoices sergeant charge informed Gonza- yard ill was on 44th this one was conceived. The suspect lez that fled west (the by eight wide to ten only home was six to seven feet Street street on which the located) deep. It was enclosed on the south and then headed feet for one block link by high the chest chain on Avenue. Gonzalez walked and east sides south 21st fence, by west side the side of gas until reached the station that route he by a tall on its north side garage, south—at one block west and one block yard overgrown explore wooden fence. The will more below. Gonzalez jumped light shining tall and had a with weeds into the chain link fence directly and landed nearby from source. Once he head, breaking his left fence, trapped. Miller was The wood As the officers handcuffed Miller and garage fence and blocked the north and car, walked him to the Miller continued to west of the respectively Gonzalez, resist and told “You ain’t have to approaching Stange south. my jaw.” break In response, Gonzalez and, jumped the south fence after Miller said, you “I told not to run.” drawn, gun with his ordered Miller to the way car, On the to the squad ground. response In to told Stange’s com- officers, mand, around, “I ain’t going say anything Miller turned took a few about steps away go.” from the this. Just let me lay wooden The officers *4 stоmach, placed down on his and his declined the deal arms and instead insisted that out to spread-eagle According his sides. Miller receive medical care at the hospital facts, Stange’s to version of the Miller kept where emergency surgery he had repair to body his arms under ignored his and his jaw. jaw his broken Miller’s was wired repeated place commands to his hands be- shut for about six placed weeks and he was back, hind his but because this case comes liquid on a pain diet and had that could not summary before us from a motion for be pain controlled with over-the-counter facts, judgment, we take all of the includ- medication. complains Miller now of a one, ing this in the light most favorable to persistent jaw click in opens when he Miller, and construe all reasonable infer- his mouth. ences from the evidence in his favor. against Miller filed suit Stange Officers 12-3620, Cooper, Townsend v. No. and § Gonzalez under 42 U.S.C. 678, 684-85, 2014 WL at *5 claiming that the officers violated his 2014). July Cir. rights by Fourth Amendment using exces- point, At this Miller lying was on the sive during Specifically, force his arrest. ground pointing with his head south to- alleged Miller that Gonzalez used excessive ward 44th street and close to the chain link force when he fractured Miller’s and fence, pointing his feet north toward the Stange that for failing pre- was liable to wooden and his face was on the vent injuring Gonzalez from him. east, ground turned to the toward east- Stange Gonzalez and filed a motion for ern side of the chain link fence. Seconds summary judgment arguing that no rea- lay after Miller ground down on the jury sonable could find that their actions order, response to Stange’s Gonzalez ar- objectively were unreasonable because rived. Gonzalez testified that he could not injuries Miller’s resulted from an accident see at all. dispute Miller Millеr does not acts, through rather than intentional this, and argues that he submitted compe- purposeful, if it was the force was yard tent evidence that lighted was given reasonable the circumstances that source, from a nearby any and that weeds might stabbing have been the in the did sus- not cover the entire area pect and that they such that him the fence would hide from view. evidence, asserts, to Relying might on this assist a fellow officer who have jury reasonably being Stange argued could been attacked. discredit Gonzalez’s claim against factually that he could not see that Miller Miller’s claim him spread-eagle legally and thus no and insufficient unreasonable be- longer anyone a threat to position assertion we cause he was not in a to intervene —an arrest, during his and cessive force anticipated pre- nor not have he could it. Miller Stange preventеd Miller. Fi- could have injuring
vented Gonzalez
they
argued that
that the statement of
stab-
argues
also
nally, both defendants
immunity be-
Rule
qualified
he submitted with his
bing
to
victim
were entitled
60(b)
violate a constitutional
the court
they did not
motion should have caused
cause
him
judgment against
be-
right.
to vacate
chase,
that, during the
cause he showed
granted
district court
reasonably
have
be-
could not
The court
officers.
judgment
to both
stabbing suspect.
that he was
lieved
not have time to
Stange
“did
agreed
blow, prevent
to
anything”
do
II.
theory
rejected
too “far fetched”
as
of the
begin our de novo review
jump the fence and We
could
that Gonzalez
darkened,
the motion for
overgrown yard
grant
with
in a
land
involving the
intentionally
Stange, as the facts
against
to
strike
enough precision
(R. 62,
simpler.
review
against
For that
claim
are
We
p.
light
in the
most favorable
reason,
that Miller had those facts
the court concluded
all
the non-movant and construe
any evidence of “intentional use
not shown
the evidence in
excessive.” reasonable inferences from
that could be deemed
of force
Liberty Lobby,
it found that the officers his favor. Anderson
at Because
Id.
*5
2505,
Inc.,
242, 255,
477
106 S.Ct.
91
Miller’s Fourth Amend-
U.S.
had not violated
Townsend,
202, (1986);
the
759 F.3d
the court did not reach
L.Ed.2d
rights,
ment
3511751,
680-81,
at *1.
immunity.
at
2014 WL
qualified
issue of
judg-
the district court entered
After
for
A
officer can be liable
ment,
for relief under Feder-
Miller moved
only if
excessive force
another officer’s
60(b),
Procedure
based on
al Rule of Civil
opportunity
had a realistic
that officer
written statement of
newly
a
discovered
first officer’s ac
stop
intervene and
the
statement,
In the
stabbing
victim.
City Chicago,
v.
700
tions. See Sanchez
of
“appeared
assailant
reports
victim
that his
(7th Cir.2012);
919,
Miller v.
925-926
argued
male. Miller
that
to be” a white
(7th
Smith,
Cir.2000);
491, 495
220 F.3d
grant
undercuts the
of sum-
this evidеnce
(7th
Hardin,
282,
Yang v.
37 F.3d
285
light-
mary judgment because he is
Cir.1994).
opportunity”
A “realistic
means
thereby vitiat-
skinned African American
using exces
a chance to warn the officer
suspi-
of
ing the reasonableness Gonzalez’s
City
Abdullahi v.
stop.
sive force to
See
committed a serious
cion that he had
(7th
763,
Madison,
774
Cir.
423 F.3d
of
pointed out that
crime. Miller also
had no reason to think
Stange
But
made no mention of a red
police reports
strike Miller when he
Gonzаlez would
motion,
The court denied the
vehicle.
no time to
yard,
into the
and thus
change
not
stating that the evidence would
to the
act until after the one blow
of the case. We have consoli-
the outcome
Stange thought
Even if
over.
Miller’s separate appeals from his
dated
force,
not
he could
using
excessive
of
underlying judgment and the denial
have known it until the moment
Gon
60(b)
Rule
motion.
by then it
jaw,
on Miller’s
zalez landed
Miller claims thаt he
was too late. Even
appeal
argues
that we should
On
until the officer was
summary
did not see Gonzalez
grants
judgment.
vacate the
(R. 53,
2;p.
R.
“flying over the fence.”
jury
that a
could
He contends
reasonable
51.).
45-2,
at
of Julian Miller
intentionally
Deposition
used ex-
find that Gonzalez
827
argues
jury
reasonably
that a
could
inferences
to draw from the
facts.
Stange
Iroquois
find that
had reason to believe that McCann v.
Hosp.,
Mem’l
(7th
745,
Cir.2010);
jump
Gonzalez would
оver the fence into F.3d
Payne, 337
so,
and,
F.3d at 770.
doing
strike Miller.
speculation,
But Miller’s
hunches and intu
Sometimes the heftiness of the
summary judgment.
ition cannot defeat
side,
evidence on one
or
credulity
of a
Payne
Pauley,
337 F.3d
particular litigant makes our task of sus
Cir.2003). Nor can Miller thwart sum pending
credibility
factual and
determina
mary judgment by speculating as to
difficult,
tions
but whatever the difficulty,
Stange’s state of mind.
Id. Miller admits we must stick to
the task on
Stange
plan
and Gonzalez did not
judgment. Payne,
dropped his
jaw. The district cоurt’s
Miller’s
though Mil-
strike
jaw, even
weight onto
ultimately
proposition
rests on the
decision
resisting arrest.
longer
no
ler was
cannot be
use of force
that an accidental
to have been
appears
court
The district
Amendment.
the Fourth
excessive under
facts
version of the
crediting Gonzalez’s
of force was
Gonzalez’s use
But whether
that
court concluded
The district
instead.
ques-
disputed
precisely
accidental is
pursuit
on foоt
“Officer Gonzalez
resolved
question that cannot be
tion—a
and another offi-
plaintiff
and followed
competing
ver-
given
on this record
In
yard.
into a
the fence and
cer over
Pauley, 337 F.3d
sions of the event. See
knee
so,
and fell and his
he stumbled
doing
(“Where
vastly
present two
parties
(R.
8).
jaw.”
p.
plaintiffs
landed on the
...
it is almost certain
different stories
account of events
But this was Gonzalez’s
issues of material
genuine
that there are
affidavit, Miller’s.
not
from his
dispute.”).
fact
the ex
also infer from
juryA
could
that the dis-
Finally Miller also asserts
that Gonza
immediately thereafter
change
police report
crepancy between Gonzalez’s
injure
Mil
intend to
Miller.
lez did indeed
provides further evidence
and his affidavit
exclaimed,
my
“You ain’t have to break
ler
jury might
use to conclude
replied
you
“I told
not
jaw!” and Gonzalez
facts to cover
manipulating
interpretation
оne
run.” Of course
to
In
use of force.
up his intentional
merely stating the unre
that Gonzalez was
that he
police report Gonzalez states
had ordered
[he]
markable truism
grass
on the wet
“jumped
slipped
the fence
But Mil
disobeyed.
halt and he
Miller to
Stange.
I
help [police
and dove to
officer]
interpretation
Gonza
ler’s alternate
—that
suspect
and heard
then landed
retaliating
that he was
implying
lez was
(R.
jaw.”
you
my
on
yell out Man
landed
his decision to run —is
against Miller for
1).
52-10,
p.
In his affidavit he states
Richman
inherently implausible.
not
Cf.
and land-
he “fell forward off of the fence”
Sheahan,
Cir.
(R. 49, p.
Perhaps,
as
ed Miller.
2008)
ar
(noting that bad blood between
out,
merely
this is
point
the defendants
and arrestee could allow
resting officers
wording rather
slightly
result of
different
infer,
just barely,”
“if
that officers
jury to
discrepancy,
than an actual material
just
and not
attempting
punish,
were
to
for a fact-
such a determination is one
him).
Deciding which inference
arrest
finding jury.
of a
the conversation is the task
draw from
*7
Miller,
if be-
Having concluded that
Anderson,
255,
477 U.S. at
fact finder.
lieved,
from which
presented
has
evidence
2505;
Payne,
This force against suspect, subdued Jоhnson was against suspect applies a subdued yet notwith- not known to be subdued when his for Officer judgment I would affirm Id. at 660. force. applied
pursuers as well. Gonzalez that the officer in critical fact Johnson going to Johnson was how “had no idea Id. at 660. cornered.” once he was
behave Johnson, by- arresting officer
Unlike account, could see
Miller’s gunpoint. subdued prone and
he was this, objectively rea- not be would
Given jaw to effectuate
sonable to break officers), (or notwith- protect arrest MARINE AND GENERAL NEW YORK flee. And attempt to standing previous COMPANY; In Starr INSURANCE demonstrate, this cited above as the cases demnity Liability Company Plain & of Mil- at the time clearly established tiffs-Appellees ler’s arrest. 60(b) motion, Rule As for Miller’s COMPANY, CEMENT CONTINENTAL newly discovered evidence argued that the Materials, LLC; LLC Summit through sought to introduce that Miller Defendants-Appellants change the outcome on motion would precluded because it Materials, LLC; Continental Summit finding that Gonzalez the district court’s Company, LLC Counter Cement Because are vacat- reasonably. we acted Claimаnts-Appellants summary grant of remanding the ing and 60(b) Gonzalez, Miller’s Rule judgment for Insur New York Marine and General at issue. longer motion is no Indemnity Company; & Li ance Starr reasons, we For all of these VACATE ability Company Defendants- Counter judgment in favor of of grant Appellees. proceed- and remand for further No. 13-2313. opinion. In all ings consistent with this AF- judgment respects, other Appeals, United States Court FIRMED. Eighth Circuit. March 2014. Submitted: CUDAHY, dissenting in Judge, Circuit part. July Filed: judgment
I Officer agree But, I am affirmed. also
Stange must be there is insufficient evi-
convinced that Mr. Miller’s claim supporting
dence over the
somehow Officer Gonzalez deliberately in an obscure area and
fence lying he was
broke Mr. Miller’s while The evidence Mr. Miller
on his stomach. not create a simply does presented
has viewing skimpy story, even
plausible favor as we must
evidence Miller’s Accordingly,
summary judgment review.