David Roberts v. City of Omaha

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 12-3426

___________________________

David Roberts

lllllllllllllllllllll Plaintiff - Appellee

v.

City of Omaha, a Political Subdivision of the State of Nebraska

lllllllllllllllllllll Defendant - Appellant

Omaha Police Department, an Agency of the City

lllllllllllllllllllll Defendant

Josh Martinec, in his individual and official capacities; Phillip Ricker, in his

individual and official capacities; Erich Jones, in his individual and official

capacities; Justin Raders, in his individual and official capacities

lllllllllllllllllllll Defendants - Appellants

____________

Appeal from United States District Court

for the District of Nebraska - Omaha

____________

Submitted: May 14, 2013

Filed: July 31, 2013

____________

Before RILEY, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.

____________

RILEY, Chief Judge.

David Roberts sued the City of Omaha (city) and four Omaha Police

Department officers (officers) (collectively, defendants), alleging, among other

claims, Fourth Amendment excessive force violations of 42 U.S.C. § 1983; and

violations of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12132;

the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. § 794; and state tort

law. The district court granted in part and denied in part (1) the officers’ motion for

summary judgment based on qualified immunity, and (2) the city’s motion for

summary judgment. The defendants appeal the denial of summary judgment. Having

jurisdiction under 28 U.S.C. § 1291 and the collateral order doctrine, see Lockridge

v. Bd. of Trs. of Univ. of Ark., 315 F.3d 1005, 1012 (8th Cir. 2003) (en banc), we

affirm in part, reverse in part, and remand.

I. BACKGROUND

A. Facts1

Roberts suffers from a diagnosed mental disability, paranoid schizophrenia. On

January 11, 2010, Roberts lived in Omaha, Nebraska, with his parents and siblings.

At approximately 5:13 a.m., Roberts’s mother, Wanda Roberts (Mrs. Roberts), called

911 and reported that “Roberts was having a psychotic episode and had” attacked a

member of the family with a knife or screwdriver and then retreated to the basement.

The 911 dispatcher alerted Officers Martinec and Ricker that Roberts was

1

For this interlocutory appeal of the district court’s denial of qualified

immunity, except as otherwise noted, we accept the district court’s findings of fact,

taken in the light most favorable to Roberts. See Livers v. Schenck, 700 F.3d 340,

350 (8th Cir. 2012) (“In reviewing a district court’s denial of summary judgment

based upon qualified immunity, we ‘accept[] as true the facts that the district court

specifically found were adequately supported, along with those facts that the district

court likely assumed.’” (quoting Brown v. Fortner, 518 F.3d 552, 558 (8th Cir.

2008))).

-2-

schizophrenic, had attempted to assault a sibling, and potentially had a knife or

screwdriver with him in the basement. Roberts admits his mother made this call, but

denies the alleged attack occurred.

The officers and Roberts differ as to what happened next. In their depositions

the officers testified to the following series of events: Officers Martinec and Ricker

responded to the call and spoke to Roberts’s parents at their residence. Roberts’s

parents told the officers they did not believe Roberts was armed, but in Roberts’s

complaint he said his parents “reported to the officers . . . that [Roberts] might have

a knife or screwdriver, but . . . no guns.” Shortly thereafter, Officers Raders and Jones

joined Officers Martinec and Ricker at the residence. The officers claimed they spoke

with Roberts’s parents for “a few minutes” and then Mrs. Roberts and Officer

Martinec spoke from the top of the basement stairs with Roberts, who was still in the

basement. Officer Martinec maintains he spoke with Roberts for “several minutes.”

When Roberts refused Officer Martinec’s request to come upstairs, the officers

went into the basement. Officer Martinec drew his firearm, and the other officers

carried drawn tasers. When the officers entered the basement, Roberts was lying on

his bed in a curtained-off section of the basement. As the officers approached the bed,

Officer Martinec told Roberts to get his hands up. Officer Martinec twice told Roberts

to lie down on the floor and put his arms to the side. Roberts sat up with his knees on

the bed and put his hands up. Roberts did not lie down. Roberts was calm and

coherent. Officer Martinec admits he and Officer Ricker were within two to four feet

of Roberts when Officer Martinec gave this order, and that Roberts would have had

to lie down “[o]n the open spot in between [Officer Martinec] and Officer Ricker” and

would be “[w]ithin a foot” of each officer. Officer Jones did not understand whether

Officer Martinec intended for Roberts to lie down on the floor or on the bed.

Officer Ricker proceeded to secure Roberts, moving to the foot of Roberts’s bed

and grabbing Roberts by the left arm. Officer Martinec moved to holster his weapon,

-3-

preparing to help Officer Ricker secure Roberts. Pulling away from Officer Ricker,

Roberts reached under a pillow and drew a silver kitchen knife, which he swung at

Officer Ricker. Officer Martinec pulled his weapon and fired six rounds, hitting

Roberts in multiple places.

Roberts has minimal memory of the shooting, but he contests the officers’

version of events. And some of Roberts’s objections to the officers’ narrative are not

wholly devoid of evidentiary support. Roberts highlights that a mere six minutes

elapsed between the time Officers Martinec and Ricker notified dispatch they had

arrived at Roberts’s house and the time they called for an ambulance after the

shooting. Roberts notes Mrs. Roberts and Roberts’s brother Zachary stated in

affidavits they did not hear the officers speak to Roberts when the officers were in the

basement. Mrs. Roberts and Zachary claimed they heard gunshots within “[t]en to

twenty seconds” after the officers entered the basement. Roberts stresses that Mrs.

Roberts and Zachary stated “[t]he gunshots were fired in two separate groups of two

or three.” The district court accepted Roberts’s factual position for the purposes of

summary judgment, finding some evidence suggested “Officer Martinec continued to

fire shots at [Roberts] after he was subdued and no longer posed a threat,” and

circumstantial evidence indicated “use of deadly force against [Roberts] may have

been unreasonable.”

Roberts also contends Officer Ricker seized Roberts and threw him to the floor

before Officer Martinec shot Roberts. In support of this contention, Roberts claims

photographs of the crime scene display no bullet holes and little blood on Roberts’s

sheets. Roberts asserts his covers were out of place in the photographs, and there was

blood on the floor. The district court did not find as a matter of fact whether Officer

Ricker attempted to throw or did throw Roberts to the floor, and Roberts produced no

expert or other testimony to substantiate his theories regarding the photographic

evidence.

-4-

Roberts “vehemently disputes” the evidence that he threatened the officers with

a knife. In support of his position, Roberts points to a photograph of a knife on the

floor of his basement bedroom, suggesting the knife is “in the opposite direction one

would expect if it were being violently swung at an officer located at the foot of the

bed.” Roberts contends “the officers used knives found in [his] cluttered room to

justify an unprovoked shooting.” The district court stated it could not “discern the

level of threat posed by the knife described or how it was brandished, if at all.”

Roberts argues he produced evidence indicating Officer Martinec shot Roberts

in the back. The district court acknowledged “[b]oth parties have submitted hospital

photographs of [Roberts] in support of and opposition to that contention. Without

some explanatory evidence or testimony, the court is not able to discern exactly what

the photographs portray.” The district court did not rely on this allegation when

discussing Roberts’s claim of excessive force, which indicates the district court did

not find the photographs sufficient, without some explanatory testimony, to show

Roberts was shot in the back.

B. Procedural History

Roberts sued the city and the officers on April 7, 2011, alleging violations of

the ADA, the Rehabilitation Act, the Fourth and Fourteenth Amendments, and state

law. On March 15, 2012, the defendants moved for summary judgment, arguing

Roberts had not produced sufficient evidence to create a genuine dispute of material

fact as to any of his claims. See Fed. R. Civ. P. 56(a). The defendants’ motion did not

expressly raise the issue of qualified immunity. Roberts responded to the Motion for

Summary Judgment on May 4, 2012. On July 7, 2012, the defendants moved to

amend their summary judgment motion to include the defense of qualified immunity.

The district court granted the defendants’ motion to amend, and denied the

motion for summary judgment in part and granted the motion in part. Specifically, the

district court granted the defendants’ motion for summary judgment on Roberts’s

-5-

claim “that the officers [sic] attempts to secure [Roberts in handcuffs] or take him into

custody were improper,” reasoning “there [was] no evidence from which a reasonable

jury could conclude that [Roberts] was secure and was not a threat to officers or

anyone else in the home when they found him in the basement.” Without considering

separate conduct of each individual officer, and without analyzing what specific

alleged conduct violated the plaintiff’s clearly established constitutional or statutory

rights, the district court denied the motion for summary judgment as to all other

claims.

The defendants appeal.

II. DISCUSSION

A. Standard of Review

The officers are entitled to qualified immunity unless Roberts produced

sufficient evidence, considered in the light most favorable to Roberts, to show the

officers violated Roberts’s clearly established federal constitutional or statutory rights.

See Livers, 700 F.3d at 350. A constitutional or statutory right is clearly established

if “[t]he contours of the right [are] sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S.

635, 640 (1987). To overcome qualified immunity, Roberts must prove “that in the

light of pre-existing law the unlawfulness [of each of the officer’s conduct was]

apparent.” Id.

“Qualified immunity is ‘immunity from suit rather than a mere defense to

liability.’” Robbins v. Becker, 715 F.3d 691, 693 (8th Cir. 2013) (emphasis in

original) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)). We may therefore

hear an appeal from the district court’s denial of summary judgment based on

qualified immunity; “otherwise, it would be effectively unreviewable.” Id. (quoting

Jones v. McNeese, 675 F.3d 1158, 1160 (8th Cir. 2012) (quoting Scott v. Harris, 550

U.S. 372, 376 n.2 (2007))) (internal quotation marks omitted). Our interlocutory

-6-

review is narrow and limited. See id. “We may review a district court’s order

denying qualified immunity to the extent that it turns on an issue of law,” but “[w]e

have no jurisdiction to determine whether or not the pretrial record sets forth a

genuine issue of fact for trial.” Id. (quoting McNeese, 675 F.3d at 1160-61) (internal

quotation marks omitted).

On review of a district court’s denial of qualified immunity at summary

judgment, we

accept as true the facts that the district court specifically found were

adequately supported, along with those facts that the district court likely

assumed. Where there are questions of fact the district court did not

resolve, we determine the facts that it likely assumed by viewing the

record favorably to the plaintiff as in any other summary judgment

motion.

Livers, 700 F.3d at 350 (quoting Brown, 518 F.3d at 557-58) (alteration omitted).

B. Rehabilitation Act and ADA Claims

The district court denied the defendants’ motion for summary judgment on the

Rehabilitation Act and ADA claims, reasoning “[t]here is evidence from which a jury

could infer that the officers’ initial seizure of [Roberts] was due to his disability and

not for any criminal activity.” The district court did not identify this evidence, nor did

it explain how the evidence was sufficient to prove the officers violated Roberts’s

clearly established rights under the ADA and Rehabilitation Act.

The qualified immunity defense is available for ADA and Rehabilitation Act

claims. See Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998); Lue v. Moore, 43

F.3d 1203, 1205 (8th Cir. 1994). Therefore, the officers were entitled to summary

judgment unless Roberts produced evidence showing the officers violated a clearly

-7-

established right under these statutes. See Livers, 700 F.3d at 350; Gorman, 152 F.3d

at 914.

Roberts asserts the officers interfered with his statutory right to be taken into

custody and transported to the hospital without discrimination. Specifically, Roberts

maintains the ADA and Rehabilitation Act gave Roberts the right (1) to be taken into

custody safely and in a manner consistent with his special needs, and (2) not to be

arrested or otherwise discriminated against on the basis of his disability. There is no

clearly established law indicating Roberts’s suggested rights applied in the

circumstances of this case. The district court should have granted the officers

qualified immunity on these claims.

Roberts claims the ADA and Rehabilitation Act required the officers to take

Roberts’s disability into account when attempting to secure Roberts and take him into

custody, citing Gorman, 152 F.3d at 911-16. In Gorman, officers arrested Gorman,

a paraplegic confined to a wheelchair, after Gorman argued with a bar employee and

then two police officers. See id. at 909. Over Gorman’s protests, the officers placed

Gorman in a police van that was not wheelchair accessible and did not follow all of

Gorman’s directions regarding the special care Gorman would need to accommodate

his disability. See id. at 909-10. Gorman fell from his seat during transport, suffering

severe injuries and indignities. See id. at 910. We held “Gorman’s allegations that

the [officers] denied him the benefit of post-arrest transportation appropriate in light

of his disability fall within the framework of both . . . the ADA and . . . the

Rehabilitation Act.” Id. at 913. Roberts is correct in noting the ADA and the

Rehabilitation Act apply to law enforcement officers taking disabled suspects into

custody. Gorman does not explain what duties, if any, the ADA and Rehabilitation

Act impose on officers who are attempting to secure a potentially violent suspect in

an uncertain and rapidly evolving situation. See Rosen v. Montgomery Cnty. Md.,

121 F.3d 154, 158 (4th Cir. 2007) (“The police do not have to get an [ADA-qualified

hearing impairment] interpreter before they can stop and shackle a fleeing bank

-8-

robber”); Hainze v. Richards, 207 F.3d 795, 801 (5th Cir. 2000) (holding the ADA

“does not apply to an officer’s on-the-street responses to reported disturbances or

other similar incidents, whether or not those calls involve subjects with mental

disabilities, prior to the officer’s securing the scene and ensuring that there is no threat

to human life”). Gorman alone did not put the officers on notice that their conduct in

attempting to secure Roberts may violate the ADA and Rehabilitation Act.

Roberts also pursues what is sometimes called the “wrongful arrest” theory of

ADA and Rehabilitation Act liability. See Gohier v. Enright, 186 F.3d 1216, 1220-22

(10th Cir. 1999). Under this theory, law enforcement officers may be liable under the

ADA and Rehabilitation Act if the officers unreasonably mistake an innocent,

disability-related behavior for criminal conduct. See, e.g., Jackson v. Inhabitants of

the Town of Sanford, Civ. No. 94-12-P-H, 1994 WL 589617, at *1, 6 (D. Me. Sept.

23, 1994) (finding a municipality could be held liable under the ADA for wrongful

arrest after officers mistook the plaintiff’s facial paralysis for intoxication). Even

assuming Jackson—a district court opinion from another circuit—is consistent with

the law in our circuit, Jackson did not clearly establish the officers’ duties in the

circumstances of this case, where the officers were responding to a report that Roberts

was engaged in unlawful violent behavior, attacking a member of his family with a

knife or screwdriver. See Gohier, 186 F.3d at 1222 (holding the wrongful arrest

theory did not apply because the officer “did not misperceive lawful conduct caused

by [the plaintiff’s] disability as criminal activity and then arrest him for that conduct.

[The plaintiff’s] conduct was not lawful.”).

Taking all disputed facts in Roberts’s favor, nothing in the law clearly

established the ADA and Rehabilitation Act applied to the undisputed circumstances

of this case. No reasonable officer could have known the ADA and Rehabilitation Act

imposed a duty on the officers to accommodate Roberts’s disability while the officers

were attempting to secure Roberts and take him into custody for his own safety and

the safety of the officers and Roberts’s family. See Hainze, 207 F.3d at 801. The

-9-

officers are entitled to qualified immunity on Roberts’s ADA and Rehabilitation Act

claims.

C. Fourth Amendment

The district court denied, in part, summary judgment on Roberts’s Fourth

Amendment excessive force claims, finding “factual disputes with respect to whether

the officers reasonably believed [Roberts] committed a crime, whether he was a threat

to the officers, himself, or others, and whether he was actively resisting arrest.” Also,

the district court found “some evidence suggesting that Officer Martinec continued

to fire shots at [Roberts] after he was subdued and no longer posed a threat.”

“Viewing the evidence and drawing all reasonable inferences in the light most

favorable to [Roberts],” the district court found genuine disputes of material fact

precluding summary judgment.

At the outset we emphasize the district court did not conduct an individualized

analysis of each officer’s alleged conduct to determine whether the factual allegations

against each individual officer were sufficient to overcome qualified immunity.2 See

Livers, 700 F.3d at 351 (noting the district court “did not specify which acts of which

defendant required denying qualified immunity”); Baribeau v. City of Minneapolis,

596 F.3d 465, 482 (8th Cir. 2010) (explaining under “qualified immunity, a county

employee may be held personally liable for a constitutional violation only if his own

conduct violated a clearly established constitutional right”). On appeal we apply the

2

Under our supervisory authority over the lower courts, we recently reiterated

and explained, “Due to the significance of an early resolution for qualified immunity

issues—with an effective interlocutory appellate review—we consequently require

findings of fact and conclusions of law, similar by analogy to Fed. R. Civ. P. 52(a)(2)

(addressing ‘an interlocutory injunction’), sufficient to permit our court (1) to

determine what facts the district court assumed, in the light most favorable to the

nonmoving party, and (2) to evaluate the district court’s individualized legal analysis.”

Robbins, 715 F.3d at 694 & n.2.

-10-

qualified immunity analysis to each of the individual officers, accepting as true the

specific facts the district court assumed to be true for summary judgment purposes,

as well as those “‘facts the district court, in the light most favorable to the nonmoving

party, likely assumed.’” See Livers, 700 F.3d at 351 (quoting Johnson v. Jones, 515

U.S. 304, 319 (1995)).

Applying this standard, Officer Martinec is not entitled to qualified immunity.

The Fourth Amendment prohibits officers from using deadly force to make an arrest

“unless that individual poses a threat of serious physical harm.” Nance v. Sammis,

586 F.3d 604, 611 (8th Cir. 2009). “[W]here the suspect ‘poses no immediate threat

to the officer and no threat to others,’” deadly force is not justified. Id. at 610

(quoting Craighead v. Lee, 399 F.3d 954, 961 (8th Cir. 2005)).

The district court found a genuine dispute of material fact regarding whether

Roberts posed an objectively reasonable threat of violence during the entire encounter.

Some evidence intimates Officer Martinec fired his weapon at Roberts several times,

paused, and fired several more times, possibly shooting Roberts in the back. We are

bound by the district court’s evidence-supported factual findings for purposes of

Officer Martinec’s appeal. See Livers, 700 F.3d at 350.3

Officers Jones and Raders are entitled to qualified immunity insofar as their

own conduct is concerned. Roberts admits Officer Martinec was the only officer to

fire on Roberts. Roberts does not allege Officers Jones or Raders made physical

contact with or otherwise applied any force against Roberts. Simply put, Officers

Jones and Raders did nothing that could arguably support a claim of excessive force.

3

We do not address whether Roberts, who has little memory of the shooting and

no witness or expert testimony to support his position, presented sufficient evidence

on summary judgment to rebut the officers’ unanimous assertions that Roberts pulled

a knife on the officers.

-11-

As for Officer Ricker, Roberts alleges Officer Ricker used excessive force in

attempting to throw Roberts to the floor before the shooting. Even assuming Roberts

produced sufficient evidence to show Officer Ricker attempted to throw Roberts to the

floor, given the uncontested circumstances of this case, a reasonable officer in Officer

Ricker’s position would not have understood this conduct was unlawful. Officer

Ricker was justified in using reasonable force to arrest and secure Roberts in light of

Mrs. Roberts’s report that Roberts had attacked a family member with a weapon and

potentially was still armed. See Chambers v. Pennycook, 641 F.3d 898, 905 (8th Cir.

2011) (advising that “‘the right to make an arrest or investigatory stop necessarily

carries with it the right to use some degree of physical coercion or threat thereof to

effect it’” (quoting Graham v. Connor, 490 U.S. 386, 396 (1989))). Officer Ricker

reasonably might have believed, as would the hypothetical reasonable law

enforcement officer, that it was necessary to bring Roberts forcefully to the floor for

Roberts’s own safety and the safety of the officers. See Brown v. City of Golden

Valley, 574 F.3d 491, 496 (8th Cir. 2009) (“[T]he test is whether the amount of force

used was objectively reasonable under the particular circumstances.”). In the

uncertain and rapidly evolving circumstances in which Officer Ricker found himself,

we cannot say it was objectively unreasonable for Officer Ricker to move Roberts off

the bed and to the floor after Roberts refused to comply with Officer Martinec’s order

to lie down. See id. (emphasizing “[w]e evaluate the reasonableness of an officer’s

use of force ‘from the perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight’” (quoting Graham, 490 U.S. at 396)).

Roberts proposes Officers Jones, Raders, and Ricker can be liable for failing

to prevent Officer Martinec from using excessive force against Roberts. The district

court found Roberts abandoned this theory of liability because it was not listed in the

district court’s pretrial order. Roberts did not contest this finding on appeal, so

Roberts waived this claim and cannot now recover under the failure to act theory. See

Jenkins v. Winter, 540 F.3d 742, 751 (8th Cir. 2008) (noting “[c]laims not raised in

an opening brief are deemed waived”).

-12-

D. Municipal Liability

The district court also denied summary judgment to the city, reasoning “[t]here

are . . . issues of fact with respect to the adequacy of the City’s training.” We

ordinarily only have “‘jurisdiction on interlocutory appeal . . . [to resolve] the issue

of qualified immunity.’” Lockridge, 315 F.3d at 1012 (quoting Mettler v. Whitledge,

165 F.3d 1197, 1202 (8th Cir. 1999)). However, we have pendent appellate

jurisdiction over certain claims that are “inextricably intertwined” with the qualified

immunity analysis. Id. “An issue is inextricably intertwined with properly presented

issues only when the appellate resolution of the collateral appeal necessarily resolves

the pendent claims as well.” Id. (quoting Kincade v. City of Blue Springs, Mo., 64

F.3d 389, 394 (8th Cir. 1995)) (internal quotation marks omitted).

Roberts alleged the city deprived him of the benefits of a public service—safe

and lawful police detention—because the city failed properly to train its employees

under the ADA and Rehabilitation Act. As is the case for failure to train claims

arising under § 1983, actions under the ADA and the Rehabilitation Act require proof

of deliberate indifference. See Meagley v. City of Little Rock, 639 F.3d 384, 389 (8th

Cir. 2011) (adopting deliberate indifference standard for actions to recover

compensatory damages under the ADA and Rehabilitation Act); Szabla v. City of

Brooklyn Park, Minn., 486 F.3d 385, 389-90 (8th Cir. 2007) (en banc) (deciding, to

establish liability against a municipality based on an official policy, the plaintiff must

show the municipality was deliberately indifferent to a known risk that the policy at

issue would result in violations of constitutional rights). In Szabla, we held, where the

constitutional right allegedly violated by individual officers was not clearly

established at the time of the occurrence, the municipality could not be liable for

failure to train because the risk of harm “was not so obvious at the time of th[e]

incident that [the municipality’s] actions [could] properly be characterized as

deliberate indifference.” Szabla, 486 F.3d at 393.

-13-

Roberts can only prevail on his ADA and Rehabilitation Act claims by showing

the city’s deliberate indifference to his alleged right to be free from discrimination in

the circumstances of this case, but the city, like the individual officers, lacked notice

the officers’ actions might have violated Roberts’s asserted rights. See id. Our

decision granting qualified immunity to the individual officers necessarily forecloses

liability against the municipality on Roberts’s failure to train claims as well. See

Cooper v. Martin, 634 F.3d 477, 481-82 (8th Cir. 2011). The issue of the city’s

liability therefore is “inextricably intertwined” with the qualified immunity issues in

this appeal. Lockridge, 315 F.3d at 1012. Having jurisdiction over this pendent

appellate claim, we reverse the district court’s denial of the city’s motion for summary

judgment on Roberts’s ADA and Rehabilitation Act failure to train claims against the

city.

III. CONCLUSION

We affirm in part and reverse in part. We affirm the district court’s denial of

qualified immunity and denial of summary judgment to Officer Martinec on Roberts’s

Fourth Amendment excessive force claim in securing Roberts. We reverse the denial

of qualified immunity and denial of summary judgment for Officers Ricker, Jones,

and Raders on Roberts’s Fourth Amendment excessive force claims as to these

individual officers. We reverse the district court’s denial of qualified immunity for

all the officers and the denial of summary judgment as to the ADA and Rehabilitation

Act claims. We also reverse the district court’s denial of the city’s motion for

summary judgment on Roberts’s ADA and Rehabilitation Act failure to train claims.

We remand for further proceedings consistent with this opinion.

______________________________

-14-