The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
JAMES MICHAEL BOLGER, as the
personal representative of the estate
of JONATHAN J. BOLGER, deceased PLAINTIFF
V. CASE NO: 3:20-CV-3052
UNITED STATES OF AMERICA
and DAVID SULLIVAN, individually DEFENDANTS
MEMORANDUM OPINON AND ORDER
DENYING MOTION TO DISMISS
Before the Court are a Motion to Dismiss and Brief in Support (Docs. 18 & 19) filed
by the Government on behalf of Defendant David Sullivan. Plaintiff James Bolger filed a
Response in Opposition (Doc. 24). The Court heard oral argument on the Motion during
the case management hearing held on February 9, 2021. The Motion (Doc. 18) is ripe
for decision, and for the reasons given below, it is DENIED.
|. BACKGROUND
This case arises out of the death of Jonathan Bolger (“Mr. Bolger’) in the early
hours of August 20, 2017. Mr. Bolger was camping at the Spring Creek Campground in
the Buffalo River National Forest, and was shot and killed by David Sullivan, who was in
the campground in his capacity as a ranger in the National Park Service (“NPS”). James
Bolger (‘Plaintiff’), on behalf of his brother's estate, filed suit before this Court. The
Amended Complaint alleges claims against the United States pursuant to the Federal
Tort Claims Act. It also alleges a Bivens claim against Ranger Sullivan for violating Mr.
Bolger’s Fourth Amendment rights by shooting and killing him. The Government filed the
instant Motion to dismiss the Bivens claim against Ranger Sullivan. The Motion argues
that Ranger Sullivan is entitled to qualified immunity because it was not clearly
established on August 20, 2017, that his conduct was a violation of Mr. Bolger's
constitutional rights.
Unsurprisingly, the parties disagree as to some of the key facts in the moments
before Ranger Sullivan shot Mr. Bolger. For the purposes of this Motion, however, the
Court assumes that the facts are true as pleaded by Plaintiff. Thus, the facts laid out are
taken from the Amended Complaint in this matter (Doc. 4), without regard for Ranger
Sullivan's competing testimony.'
Ranger Sullivan's shift began on August 19, 2017. Around 1:30 a.m. on August
20, Ranger Sullivan began to perform an after-hours sweep of the Spring Creek
Campground on foot, accompanied by another ranger, Tim Cole. Both rangers carried
large flashlights and were armed with guns. Mr. Bolger was at Campsite 3 in the
campground and saw the flashlights approach through the darkness, though he did not
know who carried them. Even as alleged in the Amended Complaint it is unclear whether
Mr. Bolger held an air pellet gun as he approached the rangers. See Doc. 4, 7 104 (“When
Sullivan and Cole shined their flashlights on Bolger, he likely had a pellet gun in his left
hand .... Alternatively, Bolger had a flashlight on his person .. . .”). However, the
Amended Complaint asserts that even if Mr. Bolger did have an air pellet gun in his hand
1 The Government attached as exhibits to the Motion to Dismiss excerpts from Ranger
Sullivan's interview with a special agent from the Investigative Services Branch of the
NPS and an interview of Mr. Bolger’s girlfriend by a sergeant from the county sheriffs
office. See Docs. 18-1 & 18-2. In the Brief in Support, the Government argued that these
documents are “necessarily embraced by the complaint” and “are not matters outside the
pleading.” (Doc. 19, p. 2 n.1). At the hearing, however, the Government conceded that
the Court has to accept the facts as alleged in the Amended Complaint and not Ranger
Sullivan's characterization of the facts.
when he encountered the rangers, it was always “pointed downward, toward the ground,
and never in the direction of Sullivan or Cole.” /d.
Ranger Sullivan was equipped with a body-worn camera (“BWC”) that began
recording approximately twelve seconds before he shot Mr. Bolger. Still images from that
footage are included in the Amended Complaint. In the first image, Mr. Bolger initially
shields his eyes from the beam of the flashlights with his right arm. His left arm is down
at his side. It is not discernable from the image whether Mr. Bolger holds anything in his
lefthand. See id. at p. 24. He then lowers his right arm and turns to his left, reaching his
right arm across his body toward his pickup truck, which is visible behind him and to his
left. His left arm remains down at his side. See id. at p. 25. In the next image, Mr. Bolger
continues to reach towards the door of his truck. His right side is toward Ranger Sullivan's
BWC, right arm outstretched towards the truck, and his left arm and hand are not visible.
See id. The footage then shows that Mr. Bolger reaches the door of the truck and begins
to open it, pivoting his body so that his back is turned to Ranger Sullivan. His right arm
and hand are visible on the door handle of the truck, and his left arm and hand are still
not visible because of his angle to Ranger Sullivan's BWC. While Mr. Bolger’s hand is
on the door handle, the truck door is still closed. See id. at 26-27. This is the posture
Plaintiff alleges Mr. Bolger was in when Ranger Sullivan shot him.2- The Amended
Compiaint alleges that Ranger Sullivan did not give any warning before he shot Mr.
Bolger, id. at JJ} 103 & 132, nor identify himself as law enforcement, id. at J] 111 & 131.
Mr. Bolger died at the scene.
? It is further alleged that, according to the autopsy report, Mr. Bolger suffered one gunshot
wound to the “lateral right abdominal flank” and one to the “right back.” /d. at J 134.
ll. LEGAL STANDARD
To survive a motion to dismiss, a pleading must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). The complaint “must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” /d. In ruling on a motion to dismiss, the Court must “accept
as true all facts pleaded by the non-moving party and grant all reasonable inferences from °
the pleadings in favor of the nonmoving party.” Gallagher v. City of Clayton, 699 F.3d
1013, 1016 (8th Cir. 2012) (quotation marks omitted).
The same standard applies when the moving party asserts the defense of qualified
immunity. “Qualified immunity protects public officials from § 1983 damage actions if
‘their conduct does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.” Bradford v. Huckabee, 394 F.3d 1012, 1015
(8th Cir. 2005) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To determine
if an official is entitled to qualified immunity, we must determine whether the alleged facts
demonstrate that the official's conduct violated a constitutional right, and whether it would
be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Groenewold v. Kelley, 888 F.3d 365, 370-71 (8th Cir. 2018). “To prevail at
this stage of the proceedings, defendants must show that they are entitled to qualified
immunity on the face of the complaint.” Bradford, 394 F.3d at 1015.
The courts are “permitted to exercise their sound discretion in deciding which of
the two prongs of the qualified immunity analysis should be addressed first.” Pearson v.
Callahan, 555 U.S. 223, 236 (2009). “For a right to be deemed clearly established, the
‘contours of the right must be sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” Buckley v. Rogerson, 133 F.3d 1125, 1128 (8th
Cir. 1998) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “Although earlier
cases involving ‘fundamentally similar’ facts can provide especially strong support for a
conclusion that the law is clearly established, they are not necessary to such a finding.”
Hope v. Peizer, 536 U.S. 730, 741:(2002). “[T]he issue is not whether prior cases present □
facts substantially similar to the present case but whether prior cases would have put a
reasonable officer on notice that the use of deadly force in these circumstances would
violate [the individual’s] right not to be seized by the use of excessive force.” Craighead
v. Lee, 399 F.3d 954, 962 (8th Cir. 2005).
Ill. DISCUSSION
The Government asks the Court to begin with the second prong of the qualified
immunity analysis and find that it was not clearly established that Ranger Sullivan’s
conduct violated Mr. Bolger’s Fourth Amendment rights. However, since the Government
relies on Ranger Sullivan’s version of the facts in its briefing and not Plaintiff's, its
arguments and citations are inapposite. The Court might well agree that an officer is
entitled to qualified immunity where, immediately before the decedent was shot, he “had
in his possession a realistic looking handgun and refused to comply with [an officer's]
commands to drop the weapon” and then “ma[de] a sudden move and reache[d]’ in a
threatening manner. (Doc. 19, p. 13). But that is not the appropriate inquiry here because
those are not the facts alleged in the pleadings. Rather, the Court finds that Plaintiff has
carried his burden to plead that it was clearly established in August 2017 that Ranger
Sullivan would violate Mr. Bolger’s constitutional rights by shooting and killing him under
the circumstances alleged.
Plaintiff directs the Court to Cole v. Hutchins, 959 F.3d 1127 (8th Cir. 2020), to
support his position. In Cole, Officer Hutchins shot and killed Roy Richards. Richards
had been fighting with his uncle, Darrell Underwood, and at some point before the police
were called, displayed a gun. Underwood and Richards were fighting in Underwood's
front yard when: a neighbor announced ‘that the police had arrived. The two men □□
continued fighting for a few more seconds. Then Underwood went to his front porch, and
Richards went to his vehicle and removed a gun. Richards then walked towards the
porch, “holding the gun vertically facing either the sky or the ground.” /d. at 1132. As
Richards was approaching, Underwood went into the house and closed the door. Then
Richards turned around and walked back towards his car. A few seconds later, Officer
Hutchins shot and killed Richards.
The Eighth Circuit affirmed the district court's finding that Officer Hutchins was not
entitled to qualified immunity. First, the Eighth Circuit held that it was objectively
unreasonable for Officer Hutchins to have shot Richards given the facts before the court.
In particular, the court emphasized that Richards’ “gun [was] pointed either toward the
ground or the sky,” and he “was not pointing the weapon at Underwood or wielding it in
an otherwise menacing fashion.” /d. at 1133. The court also noted that the officer had.
failed to provide a warning before shooting “despite having five to ten seconds from when
he saw Richards emerge from behind his vehicle with a gun” until the officer fired. /d.
The Eighth Circuit also emphasized that Richards was “visibly retreating” from
Underwood's door at the time he was shot. /d. Based on these facts, the Eighth Circuit
held that in the moment he shot Richards, “Officer Hutchins did not have probable cause
to believe Richards posed an immediate threat of serious physical harm to Underwood,”
and shooting Richards under those circumstances violated Richards’ Fourth Amendment
rights. /d.
Second, the Eighth Circuit held that at the time the facts occurred, in October 2016,
“it was clearly established that a person does not pose an immediate threat of serious
physical harm to another when, although the person is in possession of a gun, he does □
not point it at another or wield it in an otherwise menacing fashion.” /d. at 1134. An
individual “seemingly in possession of a gun” nevertheless does not pose an immediate
threat of serious bodily harm when “he does not raise it toward another or otherwise
appear ‘ready to shoot’ in the moment.” /d. at 1134 (quoting Nance v. Sammis, 586 F.3d
604, 611 (8th Cir. 2009)).
Here, Plaintiff alleges that Ranger Sullivan never identified himself as a law
enforcement officer and never warned Mr. Bolger that he would shoot, despite the
interaction lasting at least twelve seconds. He further alleges that Mr. Bolger was not
holding a gun, or that if he was, he always kept it pointed at the ground and never pointed
it at Ranger Sullivan. Finally, Plaintiff characterizes Mr. Bolger’s movement toward his
truck in the moments before he was killed as movement “away from Sullivan.” (Doc. 4,
100 & 101). Therefore, Plaintiff has sufficiently alleged that even if Mr. Bolger was in
possession of a gun, he did not point it or wield it in a menacing way, and it was clearly
established that by shooting Mr. Bolger under those circumstances, Ranger Sullivan
violated Mr. Bolger’s Fourth Amendment rights.
At the hearing, the Government argued that Ranger Sullivan could have
reasonably perceived Mr. Bolger reaching for his truck door as a menacing action. The
Court cannot reach such a conclusion, however, because this would require the Court to
abandon the legal standard at this stage of the proceedings. In considering a motion to
dismiss under Rule 12(b)(6), the Court is required to accept as true the facts as pleaded
and make all reasonable inferences in the plaintiff's favor.
In Partridge v. City of Benton, 929 F:3d 562 (8th Cir. 2019), Officer Ellison shot
and killed Keagan Schweikle. When Officer Ellison encountered Keagan, he was holding
gun. The officer then ordered Keagan to drop his gun. Instead, Keagan raised the gun
to his own head. Officer Ellison directed Keagan to drop the gun again. Keagan began
moving the gun away from his head, and Officer Ellison shot and killed him. On a Rule
12(c) motion for judgment on the pleadings, the district court granted the officer qualified
immunity and dismissed the suit, concluding that “it would have ‘been nearly impossible
for Ellison to tell whether Keagan was moving the gun away from his head to comply with
Ellison’s order or if he was repositioning the gun to aim it at the officers.” /d. at 565
(quoting the district court's opinion, 2018 WL 11216398, at *3 (E.D. Ark. Mar. 9, 2018)).
The Eighth Circuit reversed, holding that “[t]his conclusion does not accept the facts in
the complaint as true and draw all reasonable inferences in favor of the nonmoving party.”
Id. at 566. For the same reason, the Court declines to infer that a reasonable officer could
have perceived Mr. Bolger’s move away from the ranger and toward his truck to be a
menacing action that presented an immediate threat to Ranger Sullivan.
In the alternative, the Government asks the Court to find that Ranger Sullivan's
use of force was objectively reasonable. However, since the Court holds above that it
was clearly established that Ranger Sullivan’s alleged conduct violated Mr. Bolger's
Fourth Amendment rights, the ranger’s use of force is necessarily unreasonable.
IV. CONCLUSION
For these reasons, IT IS ORDERED that Ranger Sullivan’s Motion to Dismiss
(Doc. 18) is DENIED.
IT IS SO ORDERED on this YU day of Fenaeiy 2021.
Zul oT pa Brooks
ITED STATES DISTRICT JUDGE