Mary Elaine SINCLAIR, As Administrator of the Estate of Adam Lawrence Clark v. CITY OF DES MOINES, IOWA; Michael McBride, Individually and in the official capacity as a Des Moines Police Officer; Timothy Peak, Individually and in the official capacity as a Des Moines Police Officer
No. 01-1050
United States Court of Appeals, Eighth Circuit
Submitted: Sept. 11, 2001. Filed: Oct. 11, 2001.
268 F.3d 594
I respectfully suggest that the court has incorrectly described Mr. Rozman‘s substantive due process claim. Mr. Rozman claimed that his substantive due process rights were violated when the City revoked his license for refusing to allow the City to enter his tenants’ units to inspect them. On summary judgment, the district court found that the City revoked Mr. Rozman‘s license because he failed to notify his tenants of an upcoming inspection, and a panel of our court approved that holding. See Rozman v. City of Columbia Heights, 220 F.3d 864 (8th Cir. 2000).
In the first place, the City directs our attention to no provision of the housing code that requires landlords to notify tenants of inspections. But the main difficulty that I see here is that the City itself stated that it revoked Mr. Rozman‘s license for a “failure to allow annual inspection,” which clearly implies that the City believed that Mr. Rozman had some affirmative duty to give inspectors access to his tenants’ apartments. As Mr. Rozman correctly points out, this requires him to do something that he cannot legally do because he has no right to possession of the relevant units. That right belongs to the tenants because they own a leasehold in those premises.
In my opinion, therefore, Mr. Rozman has at the very least produced enough evidence to survive summary judgment on the question of what the City‘s motive was for revoking his license. Furthermore, if the City‘s motive for revoking the license was what Mr. Rozman says it was, I think that his substantive due process rights were violated because the City has conditioned a license on a landlord‘s commission of a tort or a crime (trespassing on a tenant‘s property) or on the commission of an impossible act (giving a permission that the landlord has no power to give). It would be difficult to think of something more arbitrary than requiring a person to do the impossible; such a requirement is a quintessential example of the use of governmental power “as an instrument of oppression.” Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986).
I therefore respectfully dissent.
PER CURIAM.
Mary Elaine (Kirsch) Sinclair, as administrator of the estate of Adam Lawrence Clark, brought a
The undisputed facts show that a possible altercation or fight occurred at a specified residence in Des Moines in the early morning hours of March 28, 1998. Officers Peak and McBride were dispatched to the residence. Upon arrival, they encountered a young woman who appeared to be injured. She told them that the two males who assaulted her had fled to the apartment on the top floor of the building. After proceeding to the apartment, the officers claim they announced their presence and, for their safety, covered the peephole so the occupants of the apart
The district court1 granted the individual officers’ motions for summary judgment because Sinclair failed to demonstrate that the officers clearly violated any of Clark‘s established rights; therefore, the officers were entitled to qualified immunity. The court also dismissed Sinclair‘s claims based on negligence, negligence per se, and assault and battery on the merits. Summary judgment was granted to the City because summary judgment had been granted to the officers.
The district court properly granted summary judgment to the officers after considering the qualified immunity question: Taken in the light most favor-able to the party asserting the injury, do the facts alleged show the officer‘s conduct violated a constitutional right? See Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001) (holding that in excessive force cases, the question of qualified immunity must be the initial inquiry and, in resolving this question, the district court must specifically consider the facts alleged). Here the district court properly concluded that no constitutional or statutory right exists that would prohibit a police officer from using deadly force when faced with an apparently loaded weapon. As the Supreme Court has explicitly said, use of deadly force is permissible when the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Tennessee v. Garner, 471 U.S. 1, 3, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Accordingly, the district court did not err.
Because the police officers are absolved of liability, the City cannot be held liable for their actions. See Veneklase v. City of Fargo, 248 F.3d 738, 748 (8th Cir. 2001) (en banc). See also Olinger v. Larson, 134 F.3d 1362, 1367 (8th Cir. 1998) (“The City cannot be liable... whether on a failure to train theory or a municipal custom or policy theory, unless [an officer] is found liable on the underlying substantive claim.” (quoting Abbott v. City of Crocker, 30 F.3d 994, 998 (8th Cir. 1994))). The district court did not err in granting summary judgment for the City.
We further conclude that the district court did not err in dismissing Sinclair‘s negligence, negligence per se, and assault claims against the officers on the merits. There is nothing in the record to support the contention that Officer McBride caused Clark‘s death. Officer McBride did not fire the gun, nor did any of his actions lead to Clark‘s death. With regard to Officer Peak, the record indicates that reasonable jurors would necessarily conclude that Officer Peak acted as a reasonable, prudent officer under the circumstances that faced him as Clark opened the door to the apartment with a weapon in his hands. See Ribbey v. Cox, 222 F.3d 1040, 1043 (8th Cir. 2000) (citing Tennessee v. Garner, 471 U.S. at 3, 105 S.Ct. 1694).
For the foregoing reasons, we affirm the district court‘s grant of summary judg