Michael Alvin Partlow v. Officer Joseph Stadler

WOLLMAN, Cirсuit Judge. Police officers Joseph Michael Craig, Sidney and Mann fired shots at Michael Partlow after he apart- exited his ment building holding a shotgun. Partlow filed suit § under 42 U.S.C. alleging that the officers employed excessive force in violation his Fourth Amendment .of rights. The district court held that officers were not entitled to qualified im- munity and denied their motion for sum- mary judgment. We reverse. I. September

On spent Partlow evening Jamestown, at a bar North Dakota, where he consumed eight to ten alcoholic beverages. He left the bar aunt, around 2:00 a.m. with his Lisa Part- (Lisa), low boyfriend, and her Mark Mi- chel. Michel drove them from the bar to apartment. Partlow’s During ride, the car Partlow talked about ending they his life. When reached his apartment, Partlow jumped out of the car stopped, before it building, ran to the apartment, entered his and locked the door. Lisa called and then hurried to the window of Partlow’s apart- basement ment. nephew She saw that her had a shotgun, and she tried to talk to him through the window. Partlow asked her to leave so that she would not see what going was happen. to After Partlow window, closed the Lisa went into the Bismarck, Scott K. Porsborg, argued, apartment building through the back door. (Brian Schmidt, ND brief), D. for She saw standing Officer Mann in the appellant. hallway. Partlow then Mann, arm. Mann testified that was in tears Lisa

According to shotgun, of the “acti- grabbed the bottom him. embraced She approached when she into loading a round a vated the mechanism that Partlow had told him Mann and chamber, body toward and bladed his Mann followed the suicidal. shotgun and was weapon off the at us.” squared us and apartment, Partlow’s the door of Lisa to Mann, point- According to was to Partlow. speak tried to where she that Craig at the officers. testified away from the ed step told her to gun, of his like, grabbed the stock door, “Don’t come saying something round, gun, and chambered a raised here, to see this.” you don’t want that it at him. Stadler testified Mann, nearby, request- pointed standing who into the after Partlow chambered round dispatched be additional officers ed that position shotgun, he “took shooters relayed over his radio the scene. He brought gun up to his shoulder involved and that the weapon was a there Beedy said, Trooper it at did not to aimed us.” subject had “Yоu don’t want see Lisa, a round. He hear or see Partlow chamber then heard Partlow tell this.” Mann that Partlow “turned to f-ing gun explained you calling cops, “If are the officers, us, and towards the towards quietly right, now.” Mann going right off gun at the same time.” He and he raised the away apartment from the door walked quick: testified that Partlоw’s motion was building. exited the shotgun] all the got “I don’t think he [the Craig Beedy and trooper James- State way toup his shoulder.” Craig officers Stadler and re- police town fire, call, Craig, opened and Mann arriving on the sponded to Mann’s hitting right eye, right Partlow in the fore- minutes. Mann told them scene within hands, arm, hip, and groin both left and he had heard and described Lisa’s what ground to the and right what shin. Partlow fell demeanor. As the officers discussed next, shotgun. Trooper Beedy tes- dropped them and approached to do Michel by the am- tified that he did not shoot because shotgun that he had seen a and said out of the Trooper gun time he had taken his lying munition оn Partlow’s bed. it, falling to num- holster and raised Partlow was Beedy phone wrote down Partlow’s Michel, ground. him After an ambulance was given by ber as to but before called, Beedy shotgun secured Partlow’s placed, call could be the officers heard the a live round ‍‌​​​​​​‌‌​‌‌‌‌‌‌​​​​‌‌​‌​​‌‌​‌‌​​​​​​‌‌​​​​‌​‌​‌‍in the shot- building open. crash and discovered apartmеnt door of the gun’s the door and chamber. The officers turned toward carrying saw Partlow one charged terrorizing, in Partlow was with hand, other holding with Lisa onto his Century Dakota Code violation North held Beedy arm. testified that Partlow 12.1-17-4)4. officers, police The section gun 'pointed so that the barrel was Partlow, Lisa, Beedy, and оthers testified as he exited the slightly forward or down Stadler, Craig, According at the trial. to building. Mann, they felt threatened and had no that she got a choice but to shoot. Lisa testified yelled, Officer Mann “Gun! He’s apart- yelled, “Drop the followed Partlow as he exited gun.” The other officers or, and that Partlow “was turn- building Partlow ment gun,” gun “Put the dоwn.” shotgun] down” on a ing putting [the officers and right looked to his toward the opened the officers fire. Part- surprised by presence. step their when seemed Acr to officers, testified that he heard the command cording to the Lisa fell or was low gun falling. and then remembered ground, freeing drop to the Partlow’s pushed conviсted, jury Partlow was and the clearly re- was established at the time of the special finding turned a that in the course alleged defendant’s misconduct. Saucier offense, committing Partlow did not Katz, 194, 201, v. 533 U.S. 121 S.Ct. attempt inflict or bodily injury to inflict (2001); 150 L.Ed.2d 272 see also Pearson upon person, another nor did he threaten Callahan, 223, 236, 555 U.S. 129 S.Ct. bodily injury imminent with a firеarm. (2009). 172 L.Ed.2d 565 We review lawsuit, Partlow then filed this alleging de novo the district summary court’s judg- claim, § as well as state-law tort ment regarding decision qualified immuni- battery. claims of assault and The district ty. Doe v. Flaherty, denied, court in part, the defendants’ mo (8th Cir.2010). summary

tion for judgment.1 It concluded that the officers were not entitled quali A. immunity fied because the parties disputed whether Partlow threatened the officers We first address whether we with the shotgun: “It is undisputed that jurisdiction to decide this interlocu Partlow made some motion gun. with the tory appeal. Ordinarily, jurisdic we lack dispute There is a as to whether the mo tion to consider an appeal immediate from tion was furtive or innocent.” D. Ct. Or an order denying summary judgment be 22, 2014, der of Jan. According at 4. cause such an order is not a final decision. court, district “[i]f Partlow did not threat 1291; § See 28 Goemmer, U.S.C. Krout v. en the officers with gun, ... a reason 557, 563-64 “We jury able could find that the officers did authority, however, have limited under the not probable cause to believe that collateral order doctrine to review the de posed Partlow ‍‌​​​​​​‌‌​‌‌‌‌‌‌​​​​‌‌​‌​​‌‌​‌‌​​​​​​‌‌​​​​‌​‌​‌‍a threat of physical ‘serious qualified nial of immunity summary on harm’ either to the officers or others.” Id. judgment.” Flaherty, 623 at F.3d 583-84 (quoting Garner, at 9 Tennessee v. 471 Jones, (citing 304, Johnson v. 515 U.S. 1, 11, 1694, U.S. 105 S.Ct. 85 L.Ed.2d 1 311-12, 2151, 115 S.Ct. 132 L.Ed.2d 238 (1985)). (1995)). cases, In those may we consider an appeal “to the extent that it turns on an

II. issue of law.” Forsyth, Mitchell v. 472 Qualified immunity gov shields a 511, 530, 2806, U.S. 105 S.Ct. 86 L.Ed.2d ernment liability § official from in a 1983 (1985). not, however, 411 mayWe review action unless the official’s conduct violates the denial qualified immunity of to the clearly a established constitutional or stat extent it only question “determines a of utory right of which a person reasonable iе., ‘evidence sufficiency,’ which facts a would have known. Fitzgerald, Harlow v. party not, may, may or prove be able to at 800, 818, 457 U.S. 102 S.Ct. 73 Johnson, trial.” (1982). 515 U.S. at 115 S.Ct. L.Ed.2d 396 The determination 2151; McNeese, see also Jones v. whether qualified immunity should be (8th Cir.2012) 1158, 1161 granted (1) (explaining the involves a two-step inquiry: “legal/factual by dichotomy affecting jurisdic whether the faсts shown plaintiff the make out a violation of a appeal constitutional or tion” on from an denying order (2) statutory right, and right whether that qualified immunity). alleged against

1. Partlow's suit claims capacities. granted the official The district court City against of Jamestown and summary judgment City officers Sta- as to the and as to dler, Craig, and Mann in their individual capacities. the officers in their official hand; know that offi- that he did not that we do not have one argues building; upon that were outside the because it cers appeal jurisdiction to hear gun, he hearing drop commands to of evidence suffi question presents only turning that he was comply; tried to is, gеnuine there is a whether ciency—that ground when place shotgun the offi threatened dispute that Partlow of the facts Partlow’s version he was shot. inqui shotgun. The relevant ‍‌​​​​​​‌‌​‌‌‌‌‌‌​​​​‌‌​‌​​‌‌​‌‌​​​​​​‌‌​​​​‌​‌​‌‍cers with the and what he forth what he knew sets however, not whether ry appeal, on he to do with the after intended the officers. actually threatened it. It is not determi- drop ordered to facts, Instead, when tak it is whether native, however, of what a reasonable offi- favorable to Partlow in the most en perceived. would have cer on scene by to be true district and assumed “the officers’ Nor does it answer whether court, finding that the officers support ‘objectively reasonable’ actions [were] thus appeal force. The used excessive circumstances con- light of the facts and law, an and we have turns on issue Graham, at fronting them.” U.S. jurisdiction to consider it. 109 S.Ct. 1865.

B. undisputed following The facts are analyze Partlow’s excessive- information that a rea We and set forth thе of seizures under position force claim in the context in the sonable officer Amendment, applying its rea the Fourth Mann were in would have Craig, and Connor, sonableness standard. Graham The officers arrived on the scene known. 386, 396, 109 S.Ct. night, 490 U.S. sometime after 2:00 the dark (1989). evaluate the rea They L.Ed.2d 443 We knew that Partlow had a shot а.m. of an officer’s use of force sonableness suicidal. Mann heard Part- gun and was “from of a reasonable offi perspective relayed suicide and low threaten scene, Lisa, on rather than with the cer Partlow’s comment to other officers Id. at hindsight.” vision of officers “You don’t want to see this.” The 20/20 calculus allows “for the forcefully pushed S.Ct. 1865. This Partlow as he first saw fact that officers are often forced to police apartment building door to the open the judgments circum split-second shotgun make in his hand. Mere seconds with a —in uncertain, tense, rap that are and stances from the time Partlow exited the passed аmount of force idly evolving opened the building until the time the officers —about necessary particular time, that in a situation.” During is that the officers shout fire. ed, at 109 1865. “The use of “Drop gun,” they Id. S.Ct. observed deadly reasonable where an officer shotgun way force is move the in such a to believe that a sus probable has сause that Partlow was that the officers believed physical a of serious pect poses shotgun threat of the at them. aiming the barrel harm or others.” Loch v. to the officer “tense, uncertain, and Faced with these (8th City Litchfield, 689 F.3d circumstances, the offi- rapidly evolving” Cir.2012) Garner, at (citing 471 U.S. split-second apply decision to cers made 1694). 105 S.Ct. if intended to deadly force. Even Partlow as moved the was do no harm to the officers he argues that the force used officers’ use of force was ob- shotgun, He excessive under the circumstances. way jectively They reasonable. had no accept following contends that we must to do. In knowing planned what Partlow of the that he exited the version facts: brief, that in argue in Partlow does not building holding shotgun his apartment turning to set shotgun, down the his move- threat was objectively reasonable. Ac- obviously ment attempt was so an to com- cordingly, we conclude that Craig, ply drop with officers’ commands to and Mann are entitled qualified immuni- that a reasonable officer ty- would have opening known that fire would ill. Instead,

constitute excessive force. he only testimony cites being Lisa’s that after The judgment denying the officers’ mo- drop told to Partlow “was weapon, bent tion for summary judgment reversed, is down and then he kind of turned to me” and the case is remanded to the district and “he started going down like this while court for proceedings consistent with the he turning towards me.” views set forth in opinion. this present The case is thus distinguishable BYE, Judge, Circuit dissenting. from City Bell v. Depart- Kansas Police n I disagree the officers are entitled to ment, (8th Cir.2011) (per qualified immunity for the shooting of Mi- curiam). Bell, In the officers had testified chael Instead, Partlow. I believe a jury plaintiff that the disobeyed orders to show should determine whether the officers vio- his hands and exit his vehicle. According lated Partlow’s Fourth right Amendment plaintiff, however, he had placed his to be free from excessive force. I there- park, vehicle in turned off the engine, and fore respectfully dissent from Part II.B. of raised his hands in the air when the offi- the decision reversing the district court. cers shocked him with a Taser. Under the plaintiffs facts, version of the a reasonable The argue, officers majority and the police officer on the scene would have аgrees, it undisputed per- officers known that plaintiff obviously had ceived themselves to in danger, be complied instructions, with the officers’ they thus were warranted in shooting posed little to no anyone’s threat to safety, Partlow. In determining whether there is and was not resisting attempting arrest or any genuine factual dispute, this cоurt is circumstances, to flee. In those a reason- supposed to “view all of the evidence in the able officer would known apply- [Partlow], most favorable to drawing ing a Taser shock would constitute the use all reasonable inferences his favor.” of excessive force. id. See Hall, Rohrbough addition, In prohibit- “[w]e are possible

It is that the officers were mis- ed from weighing making evidence or taken perceiving that Partlow ‍‌​​​​​​‌‌​‌‌‌‌‌‌​​​​‌‌​‌​​‌‌​‌‌​​​​​​‌‌​​​​‌​‌​‌‍was tak- credibility determinations at stage.” ing aim at Any mistake, them. such how- Sammis, (8th Nance v. 586 F.3d ever, was objectively reasonable in light of Cir.2009). the circumstances known to the officers. Loch, (“An See 689 F.3d at 966 act taken The majority fails to consider the evi- based on a belief, mistaken or perception if in dence most to favorable Part- reasonable, objectively does not violate the low and improperly credibility makes de- Amendment.”). Fourth In light of un- terminations. For example, majority facts, disputed together taken with Part- credits the testimony officers’ and an- facts, low’s version of the disputed nounces, a rea- fact, if a non-disputed as that the sonable officer would probable have had officers gun observed move the Partlow cause to believe that posed Partlow a reasonably such interpreted move- threat physical harm, of serious any ment as a evidence, threat. Partlow’s mistake in believing however, that he posed such a question raises a regard- of fact fact, determine whether a did, jury A should also move Partlow ing whether under these circumstances warning could way the officers shotgun in a which evidence prеsented feasible. Partlow has threatening. as reasonably perceived Partlow showing the officers failed to warn taken on a mistaken it true an act While meaningly and faded to presence of their belief, reason- objectively if or perception An they to shoot. warn Partlow intended able, Fourth Amend- not violate' the does to assess the situation and officer’s failure ment, perception or belief if the mistaken give any warning feasible “adds reasonable, then a consti- objectively is not an officer’s actions. unreasonableness” of Fuhr, v. Krueger occurs. tutional violation Storlie, Ngo v. (8th Cir.1993). Reason- of point frоm the ableness is determined in the situa- of a reasonable officer pro- view the officers’ actions are not Because tion, id., to I af- by qualified immunity, the facts most favorable would but tected fact firm court. question a of the district Partlow demonstrate a reasonable officer whether remains warning. without

would have shot Partlow whether it was

juryA determine should for the officers to

objectively reasonable allegedly-mistaken perception or

have the an threat posed Partlow immediate

belief i.e., it reason- safety, their whether was to America, UNITED STATES officers to believe Partlow was able for the Plaintiff-Appellee imminently shoot them. Evi- going to by Partlow indicates he presented dence BATTLE, Defendant- Delvonn officers; threatening the he was

was not Appellant. holding gun shooting position; not talking phone he wаs on the rather than No. ‍‌​​​​​​‌‌​‌‌‌‌‌‌​​​​‌‌​‌​​‌‌​‌‌​​​​​​‌‌​​​​‌​‌​‌‍13-3134. aiming gun; turning he was his back Appeals, United States Court at the time he exited the

to the officers Eighth Circuit. tactically hiding building; the officers were themselves; give failed to the officers Sept. 2014. Submitted: any meaningful warning verbal Dec. 2014. Filed: force; employing deadly before responded by turning to the officers gun ground rather than

place the experi-

firing; and the most senior and weapon.

enced officer did not fire his given holding fact

Even Partlow was

gun, genuine Partlow’s “evidence create[s] concerning

issues of material fact whether objectively

the force used was reasonable of the facts and circumstances Rohrbough,

confronting [the officers].” (internal quotation at 586 marks

omitted).

Case Details

Case Name: Michael Alvin Partlow v. Officer Joseph Stadler

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Dec 22, 2014

Citation: 774 F.3d 497

Docket Number: 14-1281

Court Abbreviation: 8th Cir.