Robin Thompson v. James"Clint" Murray

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-2250

___________________________

Robin Thompson, as Personal Representative of the Estate of Jermell Thompson, deceased

lllllllllllllllllllll Plaintiff - Appellee

v.

James “Clint” Murray, individually and in his official capacity

lllllllllllllllllllll Defendant - Appellant

Dustin Caudell, individually and in his official capacity; City of Morrilton,

Arkansas, a municipality

lllllllllllllllllllll Defendants

Norbert Gunderman, Jr., individually and in his official capacity

lllllllllllllllllllll Defendant - Appellant

____________

Appeal from United States District Court

for the Eastern District of Arkansas - Little Rock

____________

Submitted: April 17, 2015

Filed: September 2, 2015

____________

Before WOLLMAN and GRUENDER, Circuit Judges, and GRITZNER, District

Judge.1

____________

WOLLMAN, Circuit Judge.

Following a police pursuit, Officer James “Clint” Murray shot Jermell

Thompson (Jermell) through the windshield and side window of Jermell’s vehicle.

Jermell died from the gunshot wounds. Robin Thompson (Thompson), Jermell’s

mother and the personal representative of his estate, brought suit against Murray,

Officer Dustin Caudell, Chief of Police Norbert Gunderman, Jr., and the City of

Morrilton (the city) (collectively, Defendants). Thompson alleged claims of

excessive force, supervisory liability, and municipal liability under the federal Civil

Rights Act, 42 U.S.C. § 1983, and claims under Arkansas law. Murray, Caudell,

Gunderman, and the city moved for summary judgment. The district court2 granted

Caudell’s motion, denied the city’s motion, granted Defendants’ motion as it

pertained to Thompson’s duplicative official-capacity claims against Murray and

Gunderman, and denied Murray’s motion for summary judgment based on qualified

immunity. Murray and Gunderman bring this interlocutory appeal. We dismiss

Murray’s appeal for lack of jurisdiction, and because the district court did not address

or rule on Thompson’s claims against Gunderman in his individual capacity, we

dismiss Gunderman’s appeal for want of a reviewable order.

1

The Honorable James E. Gritzner, United States District Judge for the

Southern District of Iowa, sitting by designation.

2

The Honorable Billy Roy Wilson, United States District Judge for the Eastern

District of Arkansas.

-2-

I.

On the afternoon of November 29, 2008, an employee of the Number 9 liquor

store in Morrilton, Arkansas, called 911 to report the theft of a half gallon of Crown

Royal whiskey. The caller described the suspect as a black man, reported that he

might be intoxicated, stated that the man had left driving a maroon car, and gave the

license plate number. Murray and Caudell of the Morrilton Police Department

responded in separate police cruisers. Caudell located the vehicle—a 1992 Chevy

Corsica—first and began following it, activating his blue lights and siren. Murray

quickly caught up and followed behind Caudell’s police cruiser. Jermell, who was

driving the Corsica, continued on his course in a manner that did not respond to the

blue lights and sirens. Both Caudell’s and Murray’s dashboard cameras recorded the

incident. The footage shows that Jermell stayed in his lane throughout the pursuit and

was not driving erratically.

When Jermell reached a red light, he stopped or slowed his vehicle and did not

proceed through the intersection. The dashboard cameras show that other cars at the

intersection had also come to a stop or were slowing to a stop. To Jermell’s left was

a left-turn lane. Caudell and Murray attempted to “box in” Jermell’s vehicle. Caudell

pulled to the shoulder, stopping to the right of Jermell’s car, and Murray drove around

to the left of Jermell’s vehicle and stopped just in front of Jermell’s vehicle at an

angle that blocked Jermell’s path. The footage from Caudell’s dashboard camera

shows that the other vehicles at the intersection were stopped or slowing to a stop and

that Jermell began backing up his vehicle until it was out of view of the camera.

The subsequent events occurred within a few seconds. The parties agree that

Murray exited his vehicle and positioned himself near the rear of his cruiser.

Defendants suggest that Murray positioned himself near the back right quarter panel

of his vehicle, while Thompson contends that Murray was positioned near the back

left of his vehicle. An expert opinion and the timing of events offer some support for

-3-

Thompson’s theory. The parties agree that Jermell stopped backing up and began

moving forward, but Thompson argues that Jermell was moving forward at a speed

as low as two miles per hour, while Defendants claim that Jermell’s vehicle began

accelerating forward, rapidly reaching a speed of approximately twenty miles per

hour or more. The parties also dispute in which direction Jermell’s car moved

forward. Thompson claims that Jermell was moving forward and to the left, into the

left turn lane and around Murray and Murray’s police cruiser. Thompson’s theory has

support in the fact that Jermell’s vehicle ultimately did circumvent Murray’s police

car, going around Murray’s car on the left.3 Defendants contend that Jermell was

moving in Murray’s direction and appeared to be attempting to run over Murray.

Several witnesses also stated that it appeared that Jermell was attempting to run over

Murray or that Jermell’s vehicle would hit Murray.

When Jermell’s vehicle began moving forward, Murray began firing at it.

Murray moved to his right, claiming that he did so to avoid being hit by Jermell’s car.

Thompson suggested below, however, that Murray’s movement to the right actually

placed him in the path of Jermell’s car. Caudell fired several shots at Jermell’s tires.

Murray’s shots went through the front windshield and driver’s side window of the

vehicle; Caudell’s shots missed their target. Jermell’s vehicle went left of and around

Murray’s cruiser, then veered to the right, across the intersection, and into a ditch.

Jermell died from gunshots to his face and chest.

The district court noted that Murray’s entitlement to qualified immunity

depended on whether it was reasonable for Murray to believe that Jermell posed a

threat of serious physical harm to Murray or to others at the time of the shooting. The

3

In addition, several witnesses gave statements supporting the notion that

Jermell’s vehicle was moving forward slowly and was headed around the police car.

These statements were offered in opposition to summary judgment and appeared only

in the report of one of Thompson’s experts, rather than in the form of affidavits.

-4-

district court determined that the answer to that inquiry depended on a number of

disputed issues, including: (1) where Murray was standing when Jermell’s vehicle

began moving forward, (2) how far away Jermell’s vehicle was from Murray, (3)

which direction Jermell’s vehicle was moving, (4) how fast Jermell’s vehicle was

moving, (5) where Murray was standing when he began firing at Jermell, (6) how

many shots Murray fired, (7) where Murray was standing when he fired shots through

the side window, and (8) whether it was reasonable for Murray to believe that Jermell

still posed a threat when he fired shots through the side window.

II.

The “first and fundamental question” in an appeal from a denial of qualified

immunity is that of jurisdiction. Walton v. Dawson, 752 F.3d 1109, 1115 (8th Cir.

2014) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)). An

order denying qualified immunity is immediately appealable “to the extent that it

turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). In an

interlocutory appeal from such an order, our jurisdiction is limited to resolving

abstract questions of law related to the qualified-immunity determination—typically,

whether the allegedly infringed federal right was clearly established. Behrens v.

Pelletier, 516 U.S. 299, 313 (1996). We lack jurisdiction to review the district court’s

determination regarding evidence sufficiency—i.e., what facts a party may or may not

be able to prove at trial. Johnson v. Jones, 515 U.S. 304, 313 (1995). We do not have

jurisdiction to review whether a factual dispute is “genuine,” but we do have

jurisdiction to review the purely legal question whether a dispute identified by the

district court is material. See, e.g., Kovacic v. Villarreal, 628 F.3d 209, 211 n.1 (5th

Cir. 2010).

Because our jurisdiction is limited in an interlocutory appeal from an order

denying qualified immunity, we are constrained by the version of the facts that the

district court assumed or likely assumed in reaching its decision, see Ellison v.

-5-

Lesher, No. 13-3371, slip op. at 2-3, 2015 WL 4645667, at *1 (8th Cir. Aug. 6, 2015),

to the extent that version is not “blatantly contradicted by the record,” Walton, 752

F.3d at 1116 (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). Typically, if the

district court did not state which facts it found were adequately supported, we must

determine which facts it likely assumed by viewing the record in the light most

favorable to the plaintiff. See Lockridge v. Bd. of Trs. of the Univ. of Ark., 315 F.3d

1005, 1008 (8th Cir. 2003) (en banc).

Here, the district court’s list of disputed issues allows us to deduce which facts

it likely assumed in reaching its decision. We can infer, for example, that the district

court likely assumed that when Jermell’s vehicle began moving forward at the

intersection, it was accelerating at a slow rate, rather than quickly accelerating to

approximately twenty miles per hour, as Defendants claim. We can also infer that the

district court likely assumed that as Jermell’s car began to move forward, Murray was

standing near the back left of his police cruiser—the location where Thompson claims

Murray stood and which arguably offered more protection from Jermell’s vehicle than

the area near the back right quarter panel of the cruiser. The district court also likely

assumed that Murray was not standing either directly in the path of Jermell’s car or

near enough to Jermell’s car for the slow-moving vehicle to constitute an immediate

threat.

The record does not blatantly contradict the version of the facts that the district

court likely assumed. See Walton, 752 F.3d at 1116. This version of the facts has

at least some support in the forensic evidence, camera footage, the opinions of

Thompson’s experts, and common sense. Defendants argue that the facts were

undisputedly otherwise, but this argument challenges the district court’s conclusions

regarding evidence sufficiency and the genuineness of factual disputes—conclusions

that we have no jurisdiction to review.

-6-

Murray is entitled to qualified immunity unless the above-described facts

demonstrate that he violated a clearly established constitutional or statutory right of

which a reasonable person would have known. See Richmond v. City of Brooklyn

Ctr., 490 F.3d 1002, 1006 (8th Cir. 2007). An officer may not use deadly force

against a fleeing suspect unless the suspect poses an immediate and significant threat

of serious injury or death to the officer or to bystanders. Capps v. Olson, 780 F.3d

879, 886 (8th Cir. 2015); see also Tennessee v. Garner, 471 U.S. 1, 11 (1985). This

general standard can be sufficient to clearly establish a fleeing suspect’s rights in a

case where they have obviously been infringed. Brosseau v. Haugen, 543 U.S. 194,

199 (2004).

Defendants argue that in a more particularized sense, “there is no case law

clearly establishing that the use of deadly force is inappropriate” against a suspect

who is “bearing down on” an officer and who is “driving into oncoming traffic

through a heavily trafficked intersection while running a red light after being chased

by police and refusing to stop even when guns are aimed at him.” Although this

argument is framed to pose the purely legal question whether Jermell’s right to be free

from the use of deadly force was clearly established, it is founded on facts not

assumed by the district court—for example, that, at the time of the shooting, Jermell’s

vehicle was moving toward Murray, who was in an unprotected position, or toward

the slowed or stopped oncoming traffic, and at a high enough speed to pose an

immediate and significant risk of serious injury. At bottom, this is an argument about

the sufficiency of the evidence, a question we lack jurisdiction to review, however

inventively it is structured as an abstract legal argument. See Mahamed v. Anderson,

612 F.3d 1084, 1086-87 (8th Cir. 2010).

Defendants also contend that even assuming that Thompson is correct that

Murray was not in immediate danger when Jermell’s car began moving forward,

Murray’s mistaken belief that he was in danger was reasonable because it accorded

with what several witnesses believed. These witnesses’ versions of events, however,

-7-

were not likely assumed by the district court, and so we lack jurisdiction to weigh the

sufficiency and credibility of the evidence supporting Thompson’s version of the

facts against the relative credibility of these witnesses.

Defendants’ remaining challenges are similarly premised on facts that the

district court did not likely assume—including that Jermell’s vehicle was moving

toward Murray and that it was close enough and accelerated quickly enough to pose

a significant and immediate threat at the time of the shooting. Defendants’ arguments

about the district court’s denial of qualified immunity to Murray essentially challenge

the district court’s determination that there were genuine disputes over issues of

material fact. We thus lack jurisdiction over Murray’s interlocutory appeal.

With respect to Gunderman’s appeal, the district court addressed Gunderman’s

role while considering the city’s motion for summary judgment on municipal liability.

It did not address Thompson’s claims against Gunderman in his individual capacity,

however, and did not enter an order denying Gunderman qualified immunity, or

otherwise resolving Gunderman’s motion for summary judgment on the individual-

capacity claims against him.4

III.

Murray’s appeal is dismissed for lack of jurisdiction. Gunderman’s appeal is

dismissed for want of a reviewable order

______________________________

4

Although the parties make arguments in their briefs regarding the city’s

municipal liability, the city was not listed in the notice of appeal. Even if the city

were an appellant, the city’s municipal liability is not inextricably intertwined with

any qualified-immunity appeal over which we have jurisdiction. Kincade v. City of

Blue Springs, 64 F.3d 389, 394 (8th Cir. 1995) (noting that the exercise of pendent

appellate jurisdiction may be appropriate if an otherwise unappealable decision is

“inextricably intertwined” with an appealable one).

-8-