Louise Arnold v. Charles McClinton

United States Court of Appeals

For the Eighth Circuit

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No. 23-1566

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Louise Arnold, Adminstrator for the Estate of Roderick McDaniel

lllllllllllllllllllllPlaintiff - Appellee

v.

Officer Charles McClinton, individual and official capacity

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court

for the Western District of Arkansas - El Dorado

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Submitted: February 13, 2024

Filed: August 14, 2024

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Before LOKEN, COLLOTON,1 and KELLY, Circuit Judges.

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LOKEN, Circuit Judge.

Louise Arnold, as administrator of Roderick McDaniel’s estate, brought this

action under 42 U.S.C. § 1983 and the Arkansas Civil Rights Act (ACRA) against

Deputy Charles McClinton of the Columbia County Sheriff’s Office, Columbia

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Judge Colloton became chief judge of the circuit on March 11, 2024. See 28

U.S.C. § 45(a)(1).

County Sheriff Mike Loe, and Columbia County, alleging that Deputy McClinton

used excessive force when he shot and killed McDaniel outside an apartment complex

in Magnolia, Arkansas. Deputy McClinton appeals the district court’s interlocutory

order denying his motion for summary judgment based on qualified immunity. We

have jurisdiction to review de novo interlocutory orders denying qualified immunity

to the extent the appeal turns on issues of law. Wallace v. City of Alexander, 843

F.3d 763, 766-67 (8th Cir. 2016) (citations omitted). Reviewing the denial of

qualified immunity de novo, we reverse.

I.

The summary judgment record includes Statements of Material Facts by the

parties supporting and opposing summary judgment, plus video of a significant part

of the encounter between McDaniel and Deputy McClinton captured by McClinton’s

body camera and dashboard camera. Arnold’s Statement of Material Facts states,

with respect to nearly every fact statement in Deputy McClinton’s Statement, “subject

to genuine dispute.” This will not do. Rule 56(c)(1) of the Federal Rules of Civil

Procedure provides that “[a] party asserting that a fact . . . is genuinely disputed must

support the assertion” with evidence, or with pleadings such as interrogatory answers

and admissions. Failing to properly support the assertion permits the court “to

consider the fact undisputed for purposes of the motion.” Rule 56(e)(2). A party

opposing summary judgment may not rely on her pleadings or “merely assert[] that

the jury might, and legally could, disbelieve the defendant’s denial.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). We will consider undisputed all facts

in Deputy McClinton’s Statement that are not contradicted or disputed in the video

or by other evidence that supports Arnold’s naked assertion that they are “subject to

genuine dispute.”

A Columbia County resident was shot and killed on November 19, 2018. An

eyewitness reported to responding officers, including Deputy McClinton, that a man

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named Roderick McDaniel was the shooter and had taken the gun with him as he fled

the scene. No gun was recovered at the crime scene. An arrest warrant issued for

McDaniel on a charge of first-degree murder. A dispatch advised local officers that

the warrant issued and that McDaniel was believed to be driving a white SUV.

While on patrol late the following evening, Deputy McClinton noticed a white

SUV idling in a parking space at an apartment complex. McClinton positioned his

patrol car several feet behind the SUV, blocking the SUV from backing out of the

space. He approached the driver’s side door. The SUV’s occupant partially rolled

down the tinted window. Deputy McClinton asked his name. The man responded,

“Roderick McDaniel.” McClinton radioed the name to dispatch. McDaniel rolled up

the window, gunned the vehicle in reverse, and collided with McClinton’s patrol

vehicle, just as dispatch was telling McClinton that Roderick McDaniel was “him,”

the man charged with first-degree murder. McClinton drew his service weapon and

ordered McDaniel to stop multiple times. McDaniel “slammed his vehicle into drive

and gunned it forward.” Deputy McClinton fired a single shot into the driver’s side

window, hitting McDaniel. The SUV accelerated forward, jumped a curb, traveled

through the lawn, reentered the parking lot, and collided with other parked cars.

Deputy McClinton and another responding officer found McDaniel deceased in the

crashed SUV, with a loaded handgun located “in or around” his hand. Ballistic

testing determined that the handgun was used to murder the other person.

The parties dispute several facts about the shooting. Deputy McClinton posits

that McDaniel, in a desperate attempt to flee arrest, reversed the SUV, violently

colliding with the patrol car, then “gunned” it forward toward Deputy McClinton,

who fired believing McDaniel was trying to run him down. Arnold posits that the

SUV was still in reverse when Deputy McClinton shot McDaniel, and that Deputy

McClinton was never in the direct path of the SUV and was always positioned safely

to its side. The video footage does not establish whether the SUV was in reverse or

forward drive when Deputy McClinton fired the fatal shot. The video supports

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Arnold’s contention that McClinton was standing away from his patrol vehicle when

he fired and was not in the path of the SUV.

In denying Deputy McClinton’s motion for summary judgment dismissing the

§ 1983 and ACRA claims against him based on qualified immunity, the district court

determined that material factual disputes, particularly whether McDaniel was driving

the SUV forward toward Deputy McClinton when he was shot, precluded it from

determining as a matter of law whether Deputy McClinton used unconstitutional

deadly force when he shot McDaniel. The court concluded that Deputy McClinton

was therefore not entitled to summary judgment based on qualified immunity because

“it was clearly established that it is unreasonable to use deadly force against a suspect

merely for fleeing, even when that flight is via automobile.” The court granted

summary judgment dismissing all claims against Sheriff Loe and Columbia County.

II.

“In a § 1983 action, an officer is entitled to qualified immunity unless: (1) the

officer’s conduct violated a constitutional right, and (2) that right was clearly

established.” Ching ex rel. Jordan v. City of Minneapolis, 73 F.4th 617, 620 (8th Cir.

2023). We have discretion to choose which of the two elements to address first. See

Pearson v. Callahan, 555 U.S. 223, 236 (2009). “Put simply, qualified immunity

protects all but the plainly incompetent or those who knowingly violate the law.”

Mullenix v. Luna, 577 U.S. 7, 12 (2015).

“Claims that an officer seized a person with excessive force ‘are properly

analyzed under the Fourth Amendment’s objective reasonableness standard.’”

Wallace, 843 F.3d at 768, quoting Graham v. Connor, 490 U.S. 386, 388 (1989).

“[A]pprehension by the use of deadly force is a seizure subject to the reasonableness

requirement of the Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1, 7 (1985).

In that seminal case, the victim’s father sued a police officer who shot and killed a

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burglary suspect attempting to flee from arrest. The officer had no reason to believe

the suspect was armed. Id. at 3-4. The Sixth Circuit held that the officer was entitled

to qualified immunity and dismissed the damage action based on a Tennessee statute

providing that a police officer, after giving notice of intent to arrest, “may use all the

necessary means to effect the arrest” if the person flees or forcibly resists. Id. at 4.

The Supreme Court held that the statute was unconstitutional if applied to

“nondangerous fleeing suspects” because “[w]here the suspect poses no immediate

threat to the officer and no threat to others, the harm resulting from failing to

apprehend him does not justify the use of deadly force to do so.” Id. at 11.

In Garner, the Court did not strike the statute down as facially unconstitutional,

concluding there were circumstances in which it “would pass constitutional muster.”

Id. at 12. The Court provided important guidance regarding circumstances in which

deadly force would be constitutionally permissible:

Where the officer has probable cause to believe that the suspect poses

a threat of serious physical harm, either to the officer or to others, it is

not constitutionally unreasonable to prevent escape by using deadly

force. Thus, if the suspect threatens the officer with a weapon or there

is probable cause to believe that he has committed a crime involving the

infliction or threatened infliction of serious physical harm, deadly force

may be used if necessary to prevent escape, and if, where feasible, some

warning has been given.

Id. at 11-12. In determining whether the use of deadly force was objectively

reasonable, “[w]e must consider the totality of the circumstances, including the

severity of the crime at issue, whether the suspect poses an immediate threat to the

safety of the officer or others, and whether the suspect is actively fleeing or resisting

arrest.” Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012) (citing Graham,

490 U.S. at 397); see Wallace, 843 F.3d at 768; Capps v. Olson, 780 F.3d 879, 884

(8th Cir. 2015); Aipperspach v. McInerney, 766 F.3d 803, 806 (8th Cir. 2014).

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Without referencing the above-quoted guidance from Garner, or even

acknowledging that Garner addressed the issue at all, the district court denied Deputy

McClinton qualified immunity because whether McDaniel was threatening to run

McClinton down by moving the SUV is a disputed fact and the act of fleeing itself

does not create an immediate threat to an officer’s safety, citing unpublished opinions

from the Eastern District of Missouri and the Western District of Arkansas. On

appeal, Arnold relies on our statement in Capps that “[t]he use of deadly force against

a fleeing suspect who does not pose a significant and immediate threat of serious

injury or death to an officer or others is not permitted.” 780 F.3d at 886.

McClinton argues the district court erred by employing a standard that ignores

a critical portion of the Supreme Court’s guidance in Garner -- if “there is probable

cause to believe that [the suspect] has committed a crime involving the infliction or

threatened infliction of serious physical harm, deadly force may be used if necessary

to prevent escape” of a dangerous fleeing felon, even if the officer using deadly force

is not threatened. 471 U.S. at 11-12. We agree. In this situation, “the officer is

allowed to infer that the suspect is inherently dangerous by the violent nature of the

crime.” Ryder v. City of Topeka, 814 F.2d 1412, 1419 (10th Cir. 1987); accord

Krueger v. Fuhr, 991 F.2d 435, 438-40 (8th Cir. 1993). As the Supreme Court has

explained, the reference in Garner to “necessary to prevent escape” was a reference

to the prevention of “serious physical harm either to the officer or others;” when there

is probable cause to believe the suspect has committed a crime fitting this description,

“his mere being at large poses an inherent danger to society.” Scott v. Harris, 550

U.S. 372, 382 & n.9 (2007). Capps (and the cases cited in Capps) did not involve the

use of deadly force against a suspect who was wanted for murder and was seized to

prevent escape. Indeed, Capps did not even reference the Supreme Court’s governing

guidance in Garner. Thus, we do not consider these cases to be contrary to Ryder and

Krueger.

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In this case, at the time of their encounter, Deputy McClinton knew that a

warrant for first-degree murder had issued for Roderick McDaniel, that he used a gun

and drove a white SUV from the crime scene, and that no gun had been found. The

SUV driver gave his name but did not give McClinton a look inside the vehicle, then

attempted to flee by ramming the SUV into the patrol vehicle when Deputy

McClinton radioed to dispatch and learned Roderick McDaniel was “him.” This gave

McClinton probable cause to believe he had encountered a first-degree murder

suspect and deadly force may be used if necessary to prevent his escape. McClinton

also had reason to believe McDaniel was armed with a firearm, making him even

more dangerous to the public at large if he escaped. Though McClinton did not give

a verbal warning that he was going to employ deadly force, he did order McDaniel

to stop at least twice after he started reversing. Thus, he did not “stand silent before

shooting.” Estate of Morgan v. Cook, 686 F.3d 494, 497-98 (8th Cir. 2012).

In these circumstances, we conclude that Deputy McClinton is entitled to

qualified immunity because his conduct in this case did not violate McDaniel’s

clearly established rights. See Plumhoff v. Rickard, 572 U.S. 765, 778-81 (2014).

“An officer violates a clearly established right only if a reasonable officer in the same

position would understand his conduct violates the right.” Jordan, 73 F.4th at 620.

The Supreme Court has repeatedly cautioned “not to define clearly established law

at a high level of generality.” Kisela v. Hughes, 584 U.S. 100, 104 (2018); see White

v. Pauly, 580 U.S. 73, 78-79 (2017). “‘Specificity is especially important in the

Fourth Amendment context.’” Kisela, 584 U.S. at 104, quoting Mullenix, 577 U.S.

at 12. In excessive force cases, “police officers are entitled to qualified immunity

unless existing precedent ‘squarely governs’ the specific facts at issue.” Id., quoting

Mullenix, 577 U.S. at 13.

The district court stated that at the time Deputy McClinton shot McDaniel “it

was clearly established that it is unreasonable to use deadly force against a suspect

merely for fleeing, even when that flight is via automobile.” Maybe so, but McDaniel

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was not a suspect who was “merely fleeing.” Deputy McClinton had probable cause

to believe that McDaniel had committed first-degree murder the day before and that

McDaniel was still armed with the murder weapon. First-degree murder is as

inherently violent as a crime can be. A reasonable officer aware of the Supreme

Court’s guidance in Garner, as applied by this court in Krueger and by the Tenth

Circuit in Ryder, would believe it was constitutionally permissible to use deadly force

to prevent the escape of this dangerous felon who was attempting to flee in a vehicle.

Arnold does not cite, and we have not found, any post-Garner cases from this Court

that clearly establish a police officer could not use deadly force against a likely-

armed, first-degree murder suspect attempting to flee from arrest via vehicle. To

defeat qualified immunity, “[a] plaintiff must identify either controlling authority or

a robust consensus of cases of persuasive authority that placed the statutory or

constitutional question beyond debate at the time of the alleged violation.” Kelsay

v. Ernst, 933 F.3d 975, 979 (8th Cir. 2019) (en banc) (cleaned up).

Arnold counters that “the requirement that a suspected wrongdoer’s actions

pose an ‘immediate’ threat to someone [before an officer may employ deadly force]

was beyond debate in 2018.” But the above-cited cases recognize that the presence

of an “immediate threat” is but a single factor in the analysis. Time-wise, the

immediacy of the threat is obviously different when the threat of serious physical

harm is letting a dangerous felon escape into the community, not a face-to-face

encounter with the officer using deadly force. “To determine whether a person is an

immediate threat, an officer may consider both the person’s present and prior

conduct.” Wallace, 843 F.3d at 768, citing Garner, 471 U.S. at 11-12. The

determination of clearly established Fourth Amendment law “must be undertaken in

light of the specific context of the case, not as a broad general proposition.” Brosseau

v. Haugen, 543 U.S. 194, 198 (2004) (quotation omitted). We consider the totality

of the circumstances in evaluating excessive force claims, “including the severity of

the crime at issue.” Capps, 780 F.3d at 884 (quotations omitted). Deputy McClinton

is entitled to qualified immunity from Arnold’s § 1983 excessive force claim.

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III.

Arnold’s ACRA excessive force claim against Deputy McClinton requires little

discussion. As in McDaniel v. Neal, Arnold “made no independent arguments related

to [her] ACRA claim.” 44 F.4th 1085, 1093 (8th Cir. 2022). Deputy McClinton is

entitled to qualified immunity as to Arnold’s ACRA claim “because the ACRA is

generally treated as coextensive with § 1983 and analyzed under federal standards.”

Id.; see Muntaquim v. Payne, 628 S.W.3d 629, 635 (Ark. 2021).

The district court’s Order of March 21, 2023 is reversed in part, and the case

is remanded with instructions to enter summary judgment in favor of Deputy

McClinton and dismiss the case.

KELLY, Circuit Judge, dissenting.

“[A]ll claims that law enforcement officers have used excessive force—deadly

or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free

citizen should be analyzed under the Fourth Amendment.” Graham, 490 U.S. at 395.

“In Graham, the Supreme Court expressly tied the reasonableness of force under the

Fourth Amendment to three factors: (1) ‘the severity of the crime at issue, [(2)]

whether the suspect poses an immediate threat to the safety of the officers or others,

and [(3)] whether he is actively resisting arrest or attempting to evade arrest by

flight.’” Atkinson v. City of Mountain View, 709 F.3d 1201, 1213 (8th Cir. 2013)

(alterations in original) (quoting Graham, 490 U.S. at 396). In my view, the court

does not engage with the Graham factors, instead relying entirely on “guidance in

Garner” to conclude that if there is probable cause to believe that a suspect “has

committed a crime involving the infliction or threatened infliction of serious physical

harm,” an officer may use deadly force to prevent that suspect’s escape because they

pose an “inherent danger.” Taking into account both Graham and Garner, I submit

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that the immediate threat Arnold posed when he was shot by McClinton remains in

genuine dispute. See Graham, 490 U.S. at 397; Garner, 471 U.S. at 11-12.

As we have explained, “[t]he determination whether the force used to effect a

seizure was reasonable ultimately requires a case-specific balancing of ‘“the nature

and quality of the intrusion on the individual’s Fourth Amendment interests” against

the countervailing governmental interests at stake.’” Chambers v. Pennycook, 641

F.3d 898, 906 (8th Cir. 2011) (citing Graham, 490 U.S. at 396 (quoting Garner, 471

U.S. at 8)). In many cases, it may be that when a suspect who has committed a

serious, violent crime attempts to flee, there is an “immediate threat” to the safety of

others. But to allow an inference that this is so ignores the fact-specific inquiry

inherent to every excessive force case. Scott, 550 U.S. at 383 (“Although [an] attempt

to craft an easy-to-apply legal test in the Fourth Amendment context is admirable, in

the end we must still slosh our way through the factbound morass of

‘reasonableness.’”). Furthermore, doing so unnecessarily collapses the Graham

factors.

Here, the factual dispute in question is material because it concerns

what—outside of attempting to flee—McDaniel was doing at the time McClinton

shot him. See Scott, 550 F.3d at 383. The record may be limited, but the district court

found that the video footage from Officer McClinton’s bodycam and dashcam—and

that of Officer J. Skinner, who was also at the scene, as backup—created a genuine

dispute of material fact that precluded summary judgment on Arnold’s excessive

force claim. More specifically, the district court concluded that there was a factual

dispute about what direction McDaniel’s car was moving when McClinton fired his

gun. This dispute is material because it informs how significant and immediate a

threat McDaniel may have posed to McClinton and passersby. See Graham, 490 U.S.

at 396. In my view, neither this conclusion nor any “implied facts” the district court

may have relied on are “blatantly contradicted by the record.” Scott, 550 U.S. at 380.

And as a result, we lack jurisdiction over this appeal. Raines v. Counseling Assocs.,

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883 F.3d 1071, 1075 (8th Cir. 2018) (finding we lacked jurisdiction to review denial

of qualified immunity where district court found a dispute of material fact based on

video evidence in case involving stabbing suspect apprehended with a knife in his

hand).

I respectfully dissent.

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