Moore v. Indehar

MOORE, Appellant, Adam INDEHAR, in individual

Kurt

capacity, Appellee.

No. 06-4047. Appeals, Court of

United States

Eighth Circuit. June 2007.

Submitted: Feb.

Filed: Shulman, argued, Minneapolis, L.

Dаvid MN, appellant. for Heffern, Fundings- Lynne C. Jeff M. Norton, Min- land, argued, H. Stephen and appellees. neapolis, BEAM, MURPHY, and Before SHEPHERD, Judges. Circuit SHEPHERD, Judge. Circuit the district appeals Adam Kurt Inde- grant court’s decision summary judgment based har’s motion immunity. reverse the We qualified on summary judgment and remand grant for further the district court matter consideration.

I. appeal that argues on the facts of failed to construe district court him, light case bringing non-moving party. When motion, moving summary judgment plead “the required present party is materi and discovery disclosure ings, file, show any [which] als on affidavits any as to issue genuine is no that there movant is enti fact and that the material a matter of law.” judgment tled to a 56(c). party adverse The Fed.R.Civ.P. allegations or merely on “may rely rather pleading,” own denials in its must “set adverse, non-moving, party or showing genuine Loyd stepped street, facts issue out specific out into the 56(e)(2). Initially pulled pistol, Fed.R.Civ.P. and fired two for trial.” or three shots obligated fleeing the courts are towards the car. Moore appeal, and on was not armed at that time. construe the “record most fa non-moving party ... and vorable to the time, At that same Officers Peter Hafs- ... him all reasonable inferences afford traveling tad and Kurt Indehar were in a be drawn from that record.” Davis v. Minneapolis marked Department Police (8th Cir.2004). Hall, 703, 711 “In patrol car Lyndale northbound on Avenue cases, qualified immunity usually this an they answer unrelated call. When plaintiffs ... the adopting means version fired, being they heard the shots turned , — v. of the facts.” Scott U.S. Harris right Lowry onto began Avenue and driv- -, 1769, 1775, 167 127 L.Ed.2d S.Ct. eastbound, ing the same direction as the (2007). However, construing the rec car from which the shots had been fired. ord, may only por the “court consider the Having gunfire, heard both officers drew tion of the submitted materials that weapons their traveling while still in their admissible or useable at trial.” Walker patrol Upon seeing car. Loyd, both offi- Wayne County, F.2d cers noticed that he holding was a hand- Cir.1988). appeal, On review the “[w]e gun. The officers turned into the parking grant summary judg district court’s lot behind a convenience store. Moore be- novo, ment applying de the same stan gan fleeing when he saw the infrared laser Grayson dards аs the district court.” from one of the guns. they officer’s As Ross, (8th Cir.2006). away, ran Loyd was between Moore and charge, With this we recite the facts of this car, police approximately ten feet be- light construed in the most favorable hind Moore. While car was still in to Moore. motion, Officer Indehar multiple fired Loyd’s shots in Moore and direction from approximately p.m. At 7:00 on March passenger-side window.1 Within the others, Moore and several including fired, couple first of shots being one of Loyd, “hanging Rufus were out” in a park- Officer Indehar’s hit bullets Moore ing lot behind a convenience store near the left arm. Moore continued to run through Lowry Lyndale intersections of and Ave- parking lot and escaped the area Minnesota, nues in North Minneapolis, through a hole in a fence in the back of the occupant traveling when an in a car east- lot. Lowry bound on fired Avenue five to seven shots in group. the direction A friend drove Moore to an emergency run, Though attempted hospital room where personnel contacted tripped ground. police fell to the After the report authorities to that a gunshot car passed, Moore ran to the corner of a being victim was treated. After Moore car, building identify treated, if he could see was officer took him into deposition transcript 1. Officer Indehar states in his purposes summary judgment, for Loyd he observed "look back” and assumed stage proceeding, thus we must "gоing shooting again.” was to start accept as true that never shot at the squad He claims that had shot at the car squad Wayne County, car. Walker v. Cf. they Lyndale made the turn from onto (8th Cir.1988) ("[I]f F.2d party Lowry sentencing, Loyd Avenue. At testified challenge hearsay fails to evidence submitted squad that he never shot at the car. There is court, to the the court does not commit error no indication in the record that Officer Inde- evidence.”). considering such objected Loyd’s sentencing to the use of employ two-step process booked interrogated, was We custody. Moore considering qual an claim of when officer’s first-degree jail, charged into with First, immunity. viewing the evi ified at Officers allegedly shooting assault in the dence jailed Indehar. Moore was Hafstad and offi plaintiff, we determine whether the charge dropped was for month until conduct a constitutional cer’s violated was also evidence. who lack of Saucier, 201, 121 right. S.Ct. first-degree for at- charged assault If we determine that the officer officers, at the eventual- tempting to shoot right, violated a constitutional then discharge reckless ly pled guilty to we consider must “whether municipality. firearm within a depri established the time of against suit Officer Inde- brought Moore vation such that a reasonable officialwould 1983, § alleging 42 under U.S.C. unlawful understand conduct was right violation of his Fourth Amendment Vaughn he v. situation confronted.” force. to be from the use of excessive free (8th 845, County, Greenе 438 F.3d 850 judg- moved for Officer Indehar Cir.2006) Saucier, 202, (citing 533 U.S. im- qualified ment a defense asserting of 2151). step 121 “This second is a S.Ct. sum- munity. granted The district court under inquiry fact-intensive and must be mary judgment, appeals. and Moore of specific taken of context

case, as a broad general proposition.” not Ulm, City v. New 455 F.3d Samuelson of II. (8th Cir.2006) (internal 871, quotations 875 to be from exces right “The free omitted). clearly

sive force is established A. prohibi under the Fourth Amendment’s against tion unreasonable seizures action, that Moore asserts 747, person.” Wright, v. 147 F.3d Guite subjected to force in vio excessive (8th Cir.1998) (citations omitted). A 750 the Fourth Amendment when Of lation of action is when a supported section 1983 shot him in the arm. We ficer Indehar police officer violates this constitutional analysis qualified immunity by begin Paul, City v. 324 right. Crumley St. determining if Officer Indehar violated of (8th Cir.2003). However, 1003, F.3d 1007 “To estab rights. constitutional Moore’s immunity, a qualified under the doctrine of of Amendment a violation the Fourth lish of police officer is entitled to dismissal action, 1983 the claimant must in a section such if his does not an action “conduct occurred demonstrate seizure statutory or con violate established McCoy City v. was unreasonable.” seizure rights (8th of which a reasonable Monticello, stitutional 842, 342 846 Cir. F.3d v. person 2003) would have known.” Sanders Farming (citing City Hawkins v. 523, Cir.1999)). (8th City Minneapolis, 695, 474 F.3d 526 ton, F.3d 189 702 (8th Cir.2007) Fitzger v. (quoting Harlow an individual’s an officer restrains When ald, 818, 2727, 800, 73 457 U.S. or a show of liberty through physical force (1982)). “Qualified immunity L.Ed.2d 396 a Fourth Amendment seizure authority, Ohio, 1, liability, it consti 20 n. just Terry is not a defensе v. occurs. (1968). Lee, 1868, Hanig 16, from suit.” immunity tutes S.Ct. L.Ed.2d 822, However, every act that (citing not officer 415 F.3d Katz, 194, 200, liberty necessarily in a restraint on Saucier v. results (2001)). seizure, restraint 2151, 150 rather the L.Ed.2d 272 constitutes S.Ct. “through must be effectuated means inten ers are not seized for Fourth Amendment tionally applied.” County Brower v. purposes when struck an errant bullet 593, 597, 109 Inyo, 489 U.S. Birchwell, S.Ct. 103 in a Claybrook shootout. See (1989). (6th L.Ed.2d 628 Cir.2000) (de 199 F.3d termining that plaintiff, who was struck by that, Indehar argues under errant during police bullet shootout with Brower, shooting because he was at Loyd, father-in-law, her was not seized because could not have been seized because aiming officers were at her father-in-law object Moore was not the of “means inten and did not realize she was hiding near tionally applied.” responds car); by parked City Childress v. subjective Officer Indehar’s intent should Arapaho, 1156-57 Cir. not be considered because Officer Indehar 2000) (finding, in hostage shooting no intentionally discharged in the di Fourth Amendment “seizure” because rection of and therefore Officer officers “[t]he intended to restrain the mi him using Indehar seized “means inten fugitives, nivan and the [the hos tionally applied” explained in Brower. O’Connell, tages]”); Medeiros v. Moore further asserts Supreme (2nd Cir.1998) 167-69 (holding that that, specifically provided Court has even where a hostage is struck an errant if Officer Indehar had intended to shoot bullet, governing principle is that such Loyd, Moore could still be seized for consequences cannot form the basis of a Fourth purposes Amendment based on violation); Fourth Amendment Rucker v. Brower’s statement that seizure oc “[a] (4th County, 278, 946 F.2d 281 Harford curs even when an person unintended or Cir.1991) (explaining that Brower “does thing ‍‌​​‌​‌​‌​‌​​​​​‌‌‌‌‌​‌​​​​​‌‌‌‌‌​‌​‌​‌​​‌‌‌​‌‌‌‌‍object is the of the detention or not mean ... just that a seizure occurs so taking, but the taking detention or itself long as the act of restraint itself is intend 596,109 must be willful.” Id. at S.Ct. 1378 though ed ... it restrains one not intended (internal omitted). citations restrained”); to be Landol-Rivera v. Cruz 797, In both Hill v. California, 401 U.S. Cosme, (1st 791, Cir.1990) 906 F.2d 794-96 802-04, 1106, 91 S.Ct. 28 L.Ed.2d 484 (declining hostage to hold that was seized (1971), Maryland Garrison, and v. for Fourth purposes Amendment po when 79, 85-89, 1013, U.S. 107 S.Ct. 94 L.Ed.2d lice officers fired at suspect’s getaway car (1987), cases which the Court and accidentally struck hostage). Brower, relied in the seizures resulted Thus, Moore must show that Officer Inde- from factual identity. mistakes as to See har intended to seize through Brower, 596, 489 U.S. at 109 S.Ct. 1378. means firing at weapon Moore to Hill, In police mistakenly arrested a establish a Fourth Amendment claim. man who was in Hill’s apartment believing Hill, that man 802-04, to be see 401 at Moore points to evidence in the Garrison, and in police record that contradicts Officer Indehar’s obtained a search warrant for the third claim that he aiming Loyd, was at apartment floor specific at a address mis (1) Moore. That evidence police includes takenly believing that only there was one Peter, report Sergeant from Chuck Officer apartment floor, on the third see supervisor, Indehar’s in which Sgt. Peter 85-89, 107 at S.Ct. 1013. reported that either Officer Hafstad or question presented The here is not one Officer Indehar had information “air[ed] identity, mistaken rather one of intent. regarding suspects running were [who] As other bystand- circuits have explained, south and east from the area Lowry SE fired, holding a had had been was fire Sgt. that Peter Lyndale,” and arm, gesture Indehar had also which that Officer made Offi “found out foot,” that had fled on people at the 2 as interpreted preparing shot cer Indehar (2) that Sgt. Peter a recommendation response Loyd’s to shoot at them. a Medal of Honor Indehar receive Officer actions, Indehar fired but Sgt. incident wherein for his actions in this striking Moore in target, missed states, Indehar shot Peter “Officer only If we arm. considered Indehar’s de (3) Moore,” subsequent arrest and Moore’s intent, position testimony proof assaulting and one-month detention purposes Moore was not seized court, the district officers. Before and, thus, Fourth Amendment failed to report and challenged Peter’s Sgt. actions show Officer Indehar’s violat inad- he submitted as the recommendation rights. ed his Fourth Amendment This is court prop- The district missible evidence. not, however, a situation where Moore’s evidence, this to consider erly declined only defeating qualified chance immuni and, finding hearsay it constituted that the ty hope might rests “the thus, v. Mays See inadmissible. testimon[y].” disbelieve [Indehar’s] Cir.2001) Rhodes, 644, 648 255 F.3d Hubbard, Thompson v. (“While light record we review the (8th Cir.2001) (quoting Gardner Buer non-moving par- ... most favorable (8th Cir.1996)). ger, pre- ty, wе do not stretch favorable responsibility to view the Our facts to consider as evidence sumption far as so see inadmissible statements found City, 496 City Iowa F.3d O’Neil hearsay.”); Fund Ins. Co. v. Firemen’s (8th Cir.2007) (“In deciding motion Thien, 8 F.3d summary ‘courts judgment, for are re- (“The must base its determi- district court to facts and draw quired view the reason- or absence regarding presence nation in the able inferences dispute factual on of a material issue of [summary trial.”); party judg- to the opposing admissible at evidence that will be ” (interviews Scott, Walker, (quoting at in motion.’ S.Ct. ment] 850 F.2d 434-35 1774) (alteration original)), constituted inadmissible at and one report Furthermore, hearsay). charge Moore’s set of when Officer Inde- critical facts-that assaulting Officers Hafstad allegеdly gun for har arrived a scene where shots on a genuine not create and Indehar does fired, fleeing; began had been that Indehar’s intent at the issue to Officer gun and Indehar aimed his fired Officer weapon, he and there is no time fired his Moore;2 handgun pointed with his Indehar was involved evidence that Officer Moore; hit Indehar’s bullet Officer charge in the to arrest and Moore. decision shooting, that after the Officer Indehar other by handcuffing four males secured deposition testi Officer Indehar’s sworn parking in the lot-rebuts who remained incident mony describing the constitutes testimony that Indehar’s deposition Officer his regarding some intentions evidence and did intend aiming he was weapon. According to Offi upon firing his genuine Moore, prеsenting to shoot thus Indehar, cer when he Officer Hafstad intent as to Indehar’s when at which shots issue Officer arrived a scene qualification years tests on passed he had 2. Officer testified that to maintain his Indehar attempts except two required the first on occasions. he is law enforcement certification pass was able handgun those to accuracy with On two occasions to his demonstrate attempts. year previous qualification tests on his second ten twice a and that over weapon.3 he fired his The most notable of were objectively reasonable in light of law.”). facts, course, clearly established these is that Officer Inde- har’s bullet struck Moore. Mercado v. Cf. “However, clear, as Brоwer makes Orlando, 1152, 1155, City seizure, alone, standing is not sufficient Cir.2005) (11th (holding that, despite the for liability. section 1983 The seizure aiming claim that he was officer’s the must be unreasonable.” McCoy, 342 F.3d shoulder, judgment victim’s Brower, (citing 599, at 847 “must purposes the court assume that [the 1378). In S.Ct. situations where an officer aiming for [the victim’s] head officer] attempts apprehend subject by using based on the evidence [the officer] force, deadly analyze courts the seizure [“less-lethal,” was trained to use baton- under the Fourth objective Amendment’s launching] weapon, weapon that the accu reasonableness Craighead standard. rately targets up hit from distances to five Lee, 954, Cir.), cert. yards, inju and that denied, [the victim] suffered 546 U.S. 126 S.Ct. head.”). (2005). genuine ries to A disputе “Hence, of L.Ed.2d 359 ‘[w]here suspect poses fact remains as to whether Officer Indehar no immediate threat to the Loyd, others, or officer and no intended seize or both threat the harm resulting failing apprehend Moore and when Officer Indehar him justify does not Furthermore, deadly the use of weapon. force to fired his Officer ” Garner, do so.’ Id. intended, (quoting Tennessee v. Indehar as demonstrated 1, 11, 105 471 U.S. S.Ct. 85 L.Ed.2d 1 handcuffing of the four males who (1985)). However, “[w]here the officer has area, detain, remained at least probable cause to believe that suspect area, all temporarily, individuals poses harm, a threat physical of serious evincing a reasonable inference that Offi others, either to the officer or to it is not seeking cer Indehar was to seize Moore constitutionally unreasonable to prevent when shot Moore. escape by using deadly force.” Brosseau facts, light of these reasonable could Haugen, 197-98, find that Officer Indehar intentionally shot (2004) 160 L.Ed.2d (quoting Gar in an apprehen effort to effect his ner, 1694). 471 U.S. at 105 S.Ct. Gardner, sion. at (holding See 82 F.3d “Whether an officer’s use of force is rea that although proper focus on is the sei ‘judged is from perspective sonable the itself, zure courts should not “refuse to let scene, a reasonable officer on the rather juries draw reasonable inferences from ev ” than with the vision of hindsight.’ 20/20 surrounding idence about events and lead McCoy, (quoting 342 F.3d at 848 Graham seizure”); ing up to the sеe also Littrell v. Connor, 386, 396, 109 S.Ct. Franklin, 1865, 104 (1989)). L.Ed.2d 443 (“[W]here questions exist, of historical fact jury the must questions resolve those so Assuming the facts in the may that the court make the legal Moore, ultimate to a could de determination of whether officers’ actions cide that Officer Indehar’s decision to use 3. We note that Officer Hafstad testified in his fact that Moore and were deposition weapon that he indeed fired his at running away "straight-line path” in a Loyd. through Moore and not He did so squad support closer to the car as squad driving windshield of the car and while Officer intending Indehar’s claim that he was testimony the vehicle. We note this to dem- Loyd, to shoot the closer individual. onstrate the flaw in the dissent’s reliance Samuelson, 1694; objective- seize Moore was see deadly force to (“The right Indehar F.3d at 877 to be free from ly When Officer unreasonable. scene, in fired force of an shots had been excessive the context arrest on the arrived Loyd holding gun. clearly right a While is a established under and he saw began running away against from prohibition and Moore Fourth Amendment’s (internal officers, who quotation it was not unreasonable seizures.” omitted)). suggest manner a as to alteration the facts moved such and On we begin Loyd might required point that Officer Indehar are assume this officers. Indehar shooting posed at the Officer Moore no threat to Officers that not see specifically any per- states he did and other Hafstad or son; and did not with a that Moore Officer Indehar as much in admitted Thus, assum- pose safety. deposition responses to his and in a threat his must, ing interrogatories. we Indehar’s the facts as Moore’s When Officer In- against scene, an unarmed use of excessive force dehar arrived on shots had been fired, the offi- simply fleeing man however he noted specifically who was cers unreasonable and a violation holding was Moore was firearm Amendment. Fourth action took was to flee the Thus, a officer

scene. reasonable would B. shooting have known Moore was viola- rights; tion of Moore’s constitutional of a immuni- qualified Our consideration such, right to be from the use free ty does not end with ‍‌​​‌​‌​‌​‌​​​​​‌‌‌‌‌​‌​​​​​‌‌‌‌‌​‌​‌​‌​​‌‌‌​‌‌‌‌‍the determi- defense force situation excessive Moore’s an vio- nation of whether officer’s conduct clearly established. Next, we right. lated a constitutional to be right must consider whether Moore’s

free from force is estab- excessive III. determination, we reaching lished. we Accordingly, reverse the district must “whether reasonable official decide judgment grant court’s based would understand conduct violated” immunity and remand for fur- qualified on to be from excessive Moore’s free proceedings. ther Munn, Henderson v. force. Cir.2006). key “The distinction BEAM, dissenting. Judge, Circuit inquiry reasonableness between [this step under the correctly one made first invoked the The district court immunity qualified analysis] immunity protect qualified privilege Of- right allegedly violated must be defined ficer Kurt Indehar from Adam Moore’s claim, appropriate specificity level before unsupported granting constitutional clearly it judgment court can determine whether was summary and dismissal. The (“court” Craighead, F.3d at 962 majority “panel”) established.” 399 or now panel Saucier, 202, result, 533 U.S. at 121 S.Ct. (citing this From this I holding. reverses 2151). dissent. respectfully 1985, duty in assigned it officers to street

Since has been established Police have difficult and by populous Court the use of urban locations Supreme the jobs, high in crime deadly against fleeing suspect dangerous especially a who force significant especially places of death and more where pose does threat areas not congregate and injury young or of armed men physical gangs or serious to the officer Garner, even at at each other and permitted. 471 U.S. tend to shoot others is 764 Into this adverse envi- the evidence in record. See

passing vehicles. the Scott v. — Harris, -, 1769, Indehar and Hafs- 127 ronment came Officers U.S. S.Ct. (2007). 23, 2003, 1774-75, evening But, of March tad on 167 L.Ed.2d 686 now exposing immunity as we see to in applicability qualified par- themselves personal liability and the risk of interfer- question ticular instance “a is law.” on-going governmental Nelson, ence with their 162 F.3d at 989.

functions. summary judgment stage, At ‍‌​​‌​‌​‌​‌​​​​​‌‌‌‌‌​‌​​​​​‌‌‌‌‌​‌​‌​‌​​‌‌‌​‌‌‌‌‍the immunity qualified privilege

The Inde- by need facts asserted Moore to be viewed “an entitlement not to asserts is stand him light most favorable to as the litiga- trial or face the other burdens of non-moving party, only if he but estab- “ 511, Forsyth, tion.” Mitchell 472 v. U.S. dispute lishes a ‘genuinе’ as to those (1985). 526, 2806, 105 S.Ct. 86 L.Ed.2d Scott, (quoting facts.” 127 S.Ct. immunity The an privilege “is suit 56(c)). plaintiff, A Fed.R.Civ.P. here liability.” rather than a mere defense to Moore, seeking properly sup- to defeat Indeed, Judge Murphy writing Id. in Nel- ported summary judgment motion based (8th County Wright, son v. 162 F.3d 986 qualified immunity on must raise some Cir.1998), applicability “[t]he states that of genuine issue of fact material as wheth- ... qualified immunity should be decided er a actually constitutional violation has possible stage litiga- ‘earliest occurred. See id. “Where the record tak- ” (quoting tion.’ Id. at 989 Hunter v. en as a whole not lead a could rational 224, 227, 534, Bryant, 502 112 S.Ct. U.S. trier nonmoving of fact to find ” (1991)). 116 L.Ed.2d 589 party, ‘genuine there is no issue for trial.’ by Shepherd, As Judge noted the United (quoting Id. Elec. Indus. Matsushita Co. v. Supreme States has 574, 586-87, Court delineated Zenith Rаdio Corp., two-part qualified immunity analysis. (1986)). 1348, 106 S.Ct. L.Ed.2d 538 Katz, 194, 201, Saucier v. 121 Here, there are no material facts in dis- (2001). S.Ct. 150 L.Ed.2d Its pute only bear issue before tested, here, applicability may be court-qualified immunity vel non. summary judgment. motion In this immunity Although qualified is an affir- context, reviewing court must first con- defense, mative burden is on the sider whether taken most fa- and, plaintiff if plead presented with a vorable to the facts show that In- properly supported motion for right. dehar violated a constitutional Id. judgment, present evidence from which If is question this threshold answered in a reasonable could find that the de- affirmative, sequential step “the next plaintiffs fendant officer has violated the to ask whether the estab- Marshall, Otey constitutional rights. lished.” Id. (8th Cir.1997). See, 121 F.3d hоwever, In we need an- e.g., Engles, Norris v. swer question: the first did Indehar (8th Cir.2007); County, v. Rolette Wright through use of excessive force directed at Cir.2005), 884-87 cert. Moore, violate Moore’s Fourth Amend- — denied, U.S.-, rights? inquiry ment answer to this The (2006). Thompson L.Ed.2d 53 Hub- is a resounding “no.” (8th bard, Cir.2001), Judge 257 F.3d 896 stated, instance, determining a whether constitutional Wollman “to defeat occurred, violation required judgment, has we are to the motion for present a enough make factual determination based needed to evi- [Moore] Lowry Lyndale con- intersections and a to the of permit reasonable dence to in deadly Minneapolis, force Avenues North use of Minneso clude that [Indehar’s] ta, occupant Id. at 899 when an in a car traveling unreasonable.” objectively Buerger, on fired fivе Lowry eastbound Avenue (citing Gardner Cir.1996)). (8th shots in seven the direction [Moore-Loyd] group. Though Moore indicated, that his As Moore asserts run, attempted tripped and fell to rights were violated Fourth Amendment ground. passed, the car After subjected him to exces- because building ran to the a Moore corner of I court that agree sive force. car, if identify see he could and Fourth a violation of the “[t]o establish street, stepped pulled out into the action, in a section 1983 Amendment and fired pistol, two or three shots to oc- must demonstrate a seizure claimant fleeing [4] wards the car. Moore was not the seizure was unreasonable.” curred and armed.... Monticello, F.3d McCoy City added) time, (citing At that same Petеr (emphasis Officers Hafs- traveling and Kurt Farmington, 189 F.3d tad Indehar were in City Hawkins v. Cir.1999)). Depart- marked Minneapolis to estab- Police Failure element, i.e., Lyndale car patrol or unrea- ment northbound on lish either seizure sonableness, fatal claim. Avenue answer an unrelated call. plaintiffs is And, they being fired, heard of a that When the shots every police not act officer Lowry liberty necessarily they on turned onto Avenue in a restraint results eastbound, seizure, began driving rather the restraint same constitutes as the car means in- direction from which shots “through must be effectuated gunfire, County Having had been fired. heard tentionally applied.” Brower v. 597,109 1378,103 weapons officers Inyo, both drew their while S.Ct. (1989). traveling Upon car. Finally, patrol the court is still their L.Ed.2d 628 seeing Loyd, both noticed says it that the in this officers correct when issue holding a The bystanders handgun. he was officers case one of intent and that (such Moore) lot parking Fourth turned into behind a are not seized for as by an convenience store. purposes when struck Amendment at 760. errant bullet in a shootout. Ante at 757-59. and Moore ran Ante Thus, his Fourth Amendment to establish lot. away across the For a short distance claim, Inde- must show that Officer Moore side-by-side. ran Then Moore outdi- they intentional- intended to seize Moore they ran one behind the stanced ly firing weapon Moore. in more or less a direct line toward a other mind, I legal 59-60, 166, With this framework App’x hole in the fence. facts, undisputed turn material to the timеs, Loyd At relevant was between 229. many directly Judge taken of them approximate- and the car and Moore Shepherd’s opinion. fleeing ten feet behind the Moore. ly others, car was still in including App’x and several Ru- at 166. While the motion, fired “more than “hanging park- were out” Officer Indehar

fus Loyd’s near in Moore and direction behind a convenience store one” shot ing lot So, er, purposes denies 4. Hafstad testified that Moore had this claim. parking motion, in the street and in the lot both summary judgment we must they pulled it at into and aimed officers that he was armed. assume parking App’x Howev- lot. passenger-side through window.5 of intent to seize use of excessive out the front force. at to Indehar App’x at 169. Unbeknownst time, his bullets hit

the one of Despite support- this dearth of evidence 177-78, at App’x the left arm. 108. claim, panel appears ive of Moore’s to through park- to run Moore continued bottom its decision to reverse the district purported responsibility on a court ing escaped through lot and the area “view the facts hole in a in the back of the lot.' fence to Moore.” Ante at 761. It is worth re- deposition, his Moore testified as follows however, peating, that this rule of eviden- attempt to evade Officers regarding' ‍‌​​‌​‌​‌​‌​​​​​‌‌‌‌‌​‌​​​​​‌‌‌‌‌​‌​‌​‌​​‌‌‌​‌‌‌‌‍his tiary gloss only to facts that are applies “I ran Indehar and Hafstad: south behind legal material to the issue under consider- way fence and all the down to the the wood ation, i.e., the ocсurrence of a Fourth (indicating). There is a hole in gated fence seizure, Amendment Federal Rule of Civil out, and I ran gated fence cut 56(c), Procedure and to such facts that are through App’x there.” at 109. Scott, genuinely in dispute. 127 S.Ct. at Loyd park- Moore ran across the As 1776.

ing police following, lot with the car Inde- facts, Upon analysis of the available it Loyd “I har fired .at because [Indehar] appears that the court’s ultimate conclu- back, [Loyd] thought I observed look evidentiary sion relies four or credi- going shooting again.” to start was bility inferences. I review each in order. App’x at Indehar also testified that 169. First, panel attempts depreciate he “didn’t intend to shoot Mr. Moore.”6 deposition the value Indehar’s declara- Thus, absolutely App’x at 178. there is no oath, intimating tions made under that his in the record that indi- admissible evidence self-serving words constitute statements. intentionally cates that Indehar “shot at Ante 761. Of course Indehar’s words are directly disputes Moore” or that rebuts or self-serving as are the testimonial words Indehar’s statement he did not intend virtually any party any litigation, includ- noted, earlier to shoot at Moore. And as ing, in this testimony and state- proof Loyd. Moore has the burden of on the issue ments of Moore and But self-serving proof 5. The court that “Officer Indehar states actions are not of Indehar’s intent. handgun exactly and fired with his aimed While there is no evidence as to when pointed may at Moore.” Ante at 761. bе weapon, This each officer fired his it is clear that statement, technically initially slightly correct but it is mis- Moore was to the left Hafstad, driver, leading. undisputed It is that as Moore and weapon and that fired his car, they away ran ran through the windshield in front of him while generally side-by-side for a short distance and weapon Indehar fired his from a different they pro- is, then Moore outdistanced angle, right passenger-side out the straight ceeded in a line toward a hole in discharged guns window. Both officers their 59, 162-170, parking App’x at 227- lot fence. moving. Accordingly, any while the car was Accordingly, possible Inde- 232. it is not evidentiary attempt flaw lies with the court’s pointed handgun har to have in Moore’s adjust deposition Indehar’s unrebutted tes- pointing weapon direction without also timony that he did not intend to fire at Moore. Loyd’s direction as well. Further, analysis deposition a fair of the testi- officers, mony especially markings their J, 59; K, 761-62, App'x App’x on Ex. ante at Ex. In the court’s footnote indicates that majority attempts credibility attack the there never was time relevant testimony fast-moving -Loyd to this situation when Officer Indehar's on this issue pointing positioned out that Officer Hafstad "fired his close to Moore or between weapon Loyd.” at Moore and not Hafstad’s Moore and Indehar. .

767 (7th Cir.1998) 398, 406 (challenging not or second-class F.3d are untruthful words words, po- credibility of the movant’s a commissioned affiant especially when not, alone, generally enough v. Run- sum- officer is involved. Thomas avoid lice (8th Cir.1997), judgment). the court mary 108 F.3d 957 yon, statements, if un- that noted even sworn Third, the majority points the undis- purposes for the challenged, are sufficient puted fact that aimed gun Indehar Here, at summary Id. judgment. 961. of fired in Moore’s direction. at 761. Ante by with Indehar available to even however, importantly, More the evidence is cross-examination, in- deposition no way of that also in undisputed Indehar fired credibility were consistencies or issues and, indeed, Loyd’s Loyd.7 direction at by regard to Inde- developed Moore with undisputed at 178. From other App’x And, there is substantial testimony. har’s oath, given gun-toting evidence under sustaining case law this circuit or running following was beside di- occurs. “In order judgment where this Id. rectly fleeing along behind the summаry judg- to defeat motion [a straight-line relatively path toward a hole ment], develop evi- plaintiff must some fence, 59-60, 166, during in the at App’x beyond argument going possible or dence hand, Loyd, time which looked of the witness.” Id. Moore’s self-interest firing back toward Officer Indehar. This totally regard. case fails in this allegation, in Moore’s at direction ante Second, at qualita hints some panel gruel thin an offers as nourishment for weighing that arises from the idea tive force support excessive claim sufficient to “ ‘jury disbelieve might [Indehar’s] a Fourth Amendment seizure.8 ” (alterations in testimon[y],’ at 761 ante Fourth, strangely Thompson, F.3d at the court refers to original) (quoting 899). says plaintiffs Loyd disap- But evidence that after Moore and Thompson “the fеnce, peared through in the may summary judgment not off the hole Inde- stave by hope handcuffing four other ‘armed with that the “secured testimony.’” in the parking witnesses’ males who remained lot.” might disbelieve This, says, panel at 761. “rebuts Thompson, (quoting 257 F.3d at 899 Gard Ante testimony Buerger, Indehar’s” that he was ner v. Cir. Officer 1996)). Moore, thus, aiming pre- concur at and not Other circuits in this idea. by of fact to Inde- dispute senting genuine “A create a of fact issue party cannot at a credibility a wit har’s state of mind at an earlier time simply questioning CoxCom, Inc., F.3d location under different circum- ness.” Bodett v. different (9th Cir.2004). n. also How this evidence bears See stances. Co., weight placed by it court is Dugan Sewerage v. Smerwick by genuine boldly attempts "[a] 7. The court to discredit Indеhar 8. The court states Orlando, City citing Mercado v. dispute fact remains as to whether Officer 1152, 1154-55, wherein Loyd, or or Indehar intended to seize aiming an officer's that he claim was Moore and when Officer Indehar both weapon at a victim's seated shoulder weapon.” at 762 conten- fired his Ante This projectile refuted when a launched unsup- irrelevancy both an and an tion voices policeman a distance six feet hit dispute that portable conclusion. There is no head is far victim’s instead. Ante 762. This weapons. The crucial both officers fired their firing handgun of a at a different than the intentionally issue is whether Officer fleeing passenger-side miscreant from the when he at Moore rather than fired moving police window of car from dis- discharged App’x feet. his firearm. tance far excess of six Likewise, readily evident. its relevance or ed material facts of agree this I materiality that, to the issue of whether Indehar the district court “[cjonsidering the shot at Moore or in his direction is totality of the ... circumstances even if difficult to divine.9 ‘seized,’ [Moore] Indehar’s use of force objectively was not unreasonable.” App’x sum, testimony Indehar’s he at 18. that he fired at did not intend to only by testimony shoot Moore is offset Finally, under the undisputed material than that Indehar fired “more one” shot in matter, facts it possible, again is not Loyd’s by Moore and direction and by the reasons set forth the district fact that four he later handcuffed individu- court, 19, Apр’x at that a reasonable vicinity als in the of the convenience store. officer the same or similar circum- evidence, simply Given this there is no stances could have believed that he or she proof that a Fourth Amendment seizure was violating Moore’s rights. constitutional occurred, making summary judgment for 635, 640, Anderson v. Creighton, 483 U.S. mandatory Indehar under this circuit’s 3034, (1987). 107 S.Ct. 97 L.Ed.2d 523 McCoy City two-part v. Monticello test. Ante at 759-60. “We review de legal novo the issue relat ing of the existence of qualified immunity.”

Further, under element two of the Wright, Guite v. McCoy City requirements, Monticello Cir.1998). The district correctly court seizure, even had there been a Indehar’s identified and applied applicable stan actions were not unreasonable. As the dards and rеached the noted, correct conclusion. correctly district court the reason- “Particularly applicable to this case is ableness of an officer’s use of force must “ principle that ‘[s]ummary judgment judged ap be is ‘perspective of a rea- propriate against party sonable ‍‌​​‌​‌​‌​‌​​​​​‌‌‌‌‌​‌​​​​​‌‌‌‌‌​‌​‌​‌​​‌‌‌​‌‌‌‌‍officer on who has the bur the scene’ den of proof fact at trial and that officers ‘are often has failed to forced to make make split-second a sufficient judgments showing to establish circumstances the exis —in tense, uncertain, tence of an are essential rapidly element to h[is] ” evolving Hulm, the amount of force that case.’ Lawson v. is —about ” necessary particular in a situation.’ Aрp’x (quoting Celotex Corp. v. Connor, Catrett, (quoting 15-16 322-23, Graham 106 S.Ct. 386, 396-97, (1986)). 91 L.Ed.2d 265 Moore has (1989)). L.Ed.2d 443 Given the undisput- clearly not shouldered this burden. Offi- "[f]urthermore, says 9. The court explained. Officer Inde- The record indicates that after intended, clearly by as demonstrated Loyd disappeared, Moore and group peo- handcuffing of the ple congregated four males who remained had nearby parked around a area, detain, male, temporarily, in the at least all car with one whose hand could not be area, seen, evincing individuals in the reaching reasonable into the vehicle from the car's seeking inference that open Officer Indehar was "thought door. Officer Indehar he had seize Moore when Officer gun.” App’x Indеhar shot at 173. Concerned for their Moore." Ante safety, at 762. Under the facts of the the officers ordered the men to show situation, probable not, had officers their hands. When the one man did However, Loyd. cause to detain forcefully Moore and was more ordered to do so and the fighting issue here is the use of excessive area handcuffing was then secured handcuffing force to per- do so. How this App’x the four men. at 173-76. How this parking sons in the lot after Moore and act "evinc[ed] reasonable inference that Of- departed through had the hole in seeking the fence ficer Indehar was to seize Moore" force, appeal bears through discrete issues in this readily excessive is not evident. immuni- qualified is entitled to cer

ty. I

Accordingly, dissent. America, STATES

UNITED

Plaintiff/Appellee, BANKS, III, Frazier

Clarence

Defendant/Appellant.

No. 06-3593. Appeals, States

United Court

Eighth Circuit. May 2007.

Submitted:

Filed: Jan.

Case Details

Case Name: Moore v. Indehar

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Feb 1, 2008

Citation: 514 F.3d 756

Docket Number: 06-4047

Court Abbreviation: 8th Cir.