Unseld Nance, Sr. v. Erik Sammis

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-1353

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Unseld Nance, Sr., individually *

and as the natural father and next *

friend of Unseld Nance, Jr.; Pamela *

Farrow, *

*

Plaintiffs - Appellees, *

*

v. *

*

*

Erik Sammis, individually; Jimmy * Appeal from the United States

Evans, individually; William Johnson, * District court for the Eastern

individually; Robert Paudert, * District of Arkansas.

individually, *

*

Defendants - Appellants, *

*

City of West Memphis, Arkansas; *

Unknown Arkansas State Police *

Officers, in their official capacity, *

*

Defendants. *

*

--------------------------------------- *

*

Deborah Farrow, individually and as *

co-administrator of the Estate of *

DeAunta Farrow; Robin Perkins, *

individually and as co-administrator of *

the Estate of DeAunta Farrow, *

*

Plaintiffs - Appellees, *

*

v. *

*

Erik Sammis, individually and in *

official capacity as Officer of West *

Memphis Police Department; Jimmy *

Evans, individually; William Johnson, *

individually; Robert Paudert, *

individually, *

*

Defendants - Appellants, *

*

City of West Memphis, Arkansas, *

*

Defendant. *

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Submitted: September 22, 2009

Filed: November 10, 2009

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Before MURPHY, JOHN R. GIBSON, and RILEY, Circuit Judges.

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MURPHY, Circuit Judge.

This case arises from the fatal shooting of DeAunta Farrow and seizure of

Unseld Nance by two police officers in West Memphis, Arkansas. The families of

Farrow and Nance brought this action under 42 U.S.C. § 1983 and state law against

the two officers, as well as the chief of police, the mayor, and the city, alleging in

particular excessive force and unreasonable seizure in violation of the Fourth

Amendment. The district court1 denied summary judgment to the officers on the basis

1

The Honorable Brian S. Miller, United States District Judge for the Eastern

District of Arkansas.

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of qualified immunity, but granted the summary judgment motions of the chief of

police, the mayor, and the city. The officers appeal, and we affirm.

I.

The West Memphis police department received information that after dark on

June 22, 2007, two or three black males were going to rob a particular convenience

store. Seven members of the Special Response Team, including defendant officers

Erik Sammis and Jimmy Evans, were ordered to conduct surveillance in the area of

the convenience store. Four were stationed in a vehicle one block south of the store,

another was positioned across the street from the store, and officers Sammis and

Evans were located about two blocks to the north.

Officers Sammis and Evans were parked in a dark gray, unmarked pickup truck

in the parking lot of an apartment complex. They were wearing camouflage pants,

dark grey shirts, and black bulletproof vests. The backs of their vests had the word

"POLICE" written on them. It was already dark, and the area surrounding the

apartment complex was poorly lit. At about 10:00 p.m. the officers noticed two black

males, later identified as twelve year old DeAunta Farrow and fourteen year old

Unseld Nance, walking toward the apartment complex. Farrow was on the officers'

right; Nance was on their left.

The parties disagree as to what happened next. According to Nance, he and

Farrow were walking to the apartment building to retrieve his cell phone. Farrow had

a toy gun tucked into the waistband of his pants. The gun was gray with a black

handle, and it had an orange cap at the tip of the barrel. As the two boys neared the

apartment building, they saw two men get out of a dark pickup truck. The men

pointed flashlights and guns at them and one shouted , "Get on the ground and drop

the gun." Nance immediately dropped to the ground, but Farrow remained standing.

Nance says the men did not identify themselves as police, nor did they have a visible

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badge or patch to signify that they were law enforcement officers. The next thing he

heard was a gunshot. He contends that Farrow was shot while "fixing to get on the

ground" and while the toy gun was still tucked into his waistband. Nance does not

recall hearing any warnings from the men before the shooting.

Officers Sammis and Evans report that as the boys approached, they saw

something in Farrow's right hand that appeared to be a handgun. They got out of their

truck with their guns drawn and flashlights on. Sammis claims that he shouted,

"Police!" and ordered Farrow to drop his gun. Although Nance hit the ground

immediately, both officers say Farrow remained standing and did not drop his weapon

despite repeated commands to do so and that he raised his right hand while still

holding the gun. Sammis then fired two rounds in rapid succession. Two shots hit

Farrow.

Sammis told Evans to handcuff Nance while he bent over Farrow who was

lying face down on the parking lot. Sammis says he asked Farrow if he had been hit

and that he responded, "Yeah. It's only a toy gun." Sammis rolled Farrow to his side

and found the toy gun underneath him at waist level. Appellees contend that it was

still tucked into Farrow's waistband.

Evans contacted headquarters to report the shooting and the injuries to Farrow.

The other members of the surveillance team hurried to the scene, and Evans

relinquished control of Nance to the other officers. Sammis and Evans contend that

they had custody of Nance for no more than 10 minutes and that he was still

handcuffed when they turned him over. Nance asserts that he was handcuffed for

almost 30 minutes at the scene of the shooting and while being transported to the

police station. Paramedics attempted to stabilize Farrow once they arrived, but their

efforts were unsuccessful and he died at the scene.

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An Arkansas state police officer conducted a videotaped interview of Nance

less than three hours after the shooting. During the interview, Nance stated that he

and Farrow had been walking to their cousin's apartment when "two people got out

of the car and pointed guns." They told Farrow and him to get on the ground and "to

put the gun down." Nance reported that the two men did not identify themselves and

that he had initially thought "they was people playing." Nance later stated that it had

occurred to him that the men might be police officers because of how they shouted,

but he repeatedly said that the men did not identify themselves and that he had not

seen any police badge or patch on their clothing.

When asked about the gun, Nance demonstrated to the state police officer how

Farrow had had the barrel of the toy gun tucked into his waistband while they walked

to the apartment building. Nance reported that Farrow had been covering the handle

of the gun with his right hand and that he never removed the gun from his waistband

during their walk. Nance also showed the officer how Farrow had raised his hands up

after they were ordered to get on the ground. It was unclear from his oral statement

and demonstration whether Nance meant that Farrow had the gun in his hand at that

point or whether it remained in his waistband.

At the conclusion of the interview, the state police officer drafted a summary

statement for Nance to sign. It states in relevant part:

De[A]unta was carrying with his right hand as we walked it was under

his shirt with the handle showing. We saw 2 men get out of a black

pickup truck by a dumpster they had two flashlights. Then one of them

said get on the ground. I got on the ground De[A]unta was standing.

His arms were partially raised up with the toy gun in his right hand. I

was looking straight and didn’t see the men. They said drop the gun.

De[A]unta was fixing to get on the ground when they shot.

During his deposition, however, Nance testified that Farrow had still had the toy gun

"tucked in his pants" at the time officer Sammis fired his weapon.

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The medical examiner assigned to the case, Dr. Daniel Konzelman, testified that

based upon the trajectory of the bullet wounds in Farrow’s body, it was unlikely he

had had both hands raised at the time he was shot. Dr. Konzelman also stated that the

trajectory indicated that Farrow's left arm was not raised but that he could not

determine the position of Farrow's right arm.

Nance's parents filed their action in the federal district court, individually and

on behalf of their son, against officers Sammis and Evans, the chief of police, the

mayor, and the city. They alleged violations of the First, Fourth, and Fourteenth

Amendments, as well as various state law claims. Thereafter, Farrow's parents

brought their action, individually and on behalf of the estate of their deceased son,

against the same defendants alleging violations of the Fourth and Fourteenth

Amendments and state law. The two cases were consolidated. All defendants moved

for summary judgment with the individual defendants seeking qualified immunity.

The district court analyzed the excessive force and unreasonable seizure claims

against officers Sammis and Evans under the Fourth Amendment, concluding that

appellees had presented sufficient evidence for a reasonable jury to determine that the

officers' actions violated clearly established constitutional rights of Nance and Farrow.

The court determined that the pretrial record contained genuine issues of material fact

as to "whether Farrow held a toy gun in his hand that could be mistaken for a real gun

and [whether he] raised it toward Sammis, or if the toy gun was 'tucked in' Farrow's

pants at the time Sammis fired his weapon." The district court concluded that these

questions precluded qualified immunity on appellees' claims arising from the

shooting. The officers now appeal those decisions.

The court concluded that the two officers could not however be held liable for

the prolonged detention of Nance after he was turned over to others at the scene of the

shooting. The court noted that, "[a]lthough the continued detention of Nance appears

to have been unnecessary and unwarranted, plaintiffs have failed to name any

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individual responsible for the detention." The court granted qualified immunity to

Sammis and Evans as to the continued detention and that has not been appealed.

Finding no basis for municipal liability, the district court granted summary

judgment to the city. The court also granted summary judgment to the chief of police

and the mayor on the § 1983 claims, concluding that appellees provided insufficient

evidence to support a finding of supervisor liability. The chief of police and the

mayor filed a petition to appeal if the district court's order were interpreted to permit

any state law claims to survive against them, but no appeal was taken with respect to

them.2

II.

Qualified immunity protects government officials from liability under § 1983

when their conduct does not violate "clearly established statutory or constitutional

rights of which a reasonable person would have known." Hope v. Pelzer, 536 U.S.

730, 739 (2002). The test for whether an officer is entitled to qualified immunity is

twofold: (1) whether the facts alleged, taken in the light most favorable to the injured

party, show that the officer's conduct violated a constitutional right; and (2) whether

the constitutional right was clearly established at the time of the deprivation so that

a reasonable officer would understand his conduct was unlawful. Pearson v. Callahan,

129 S. Ct. 808, 815-16 (2009); Henderson v. Munn, 439 F.3d 497, 501-02 (8th Cir.

2006). If no reasonable factfinder could answer yes to both of these questions, the

2

The chief of police and the mayor worry that the district court's order would

permit appellees to pursue state law claims against them. We believe this is an

inaccurate reading of the order. Appellees have not made any factual allegations in

their complaints, during summary judgment, or on appeal to suggest that they are

pursuing state law claims against the mayor or the chief of police. The only claims

raised against them were under § 1983, and the district court granted summary

judgment on them. Based on the record we conclude that the chief of police and the

mayor were properly dismissed.

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officer is entitled to qualified immunity. See Plemmons v. Roberts, 439 F.3d 818, 822

(8th Cir. 2006).

We review a district court's denial of qualified immunity de novo, viewing the

facts in the light most favorable to the nonmoving parties and drawing all reasonable

inferences in their favor. Cavataio v. City of Bella Villa, 570 F.3d 1015, 1019 (8th

Cir. 2009). Denial of qualified immunity will be affirmed if "a genuine issue of

material fact exists as to whether a reasonable officer could have believed his actions

to be lawful." Craighead, 399 F.3d at 960. We are prohibited from weighing

evidence or making credibility determinations at this stage. Tlamka v. Serrell, 244

F.3d 628, 634 (8th Cir. 2001).

We first address officer Sammis' claim for qualified immunity with respect to

appellees' excessive force and unreasonable seizure claims. All claims that law

enforcement officers have used excessive force, whether deadly or not, in the course

of an arrest, investigatory stop, or other seizure are analyzed under the Fourth

Amendment's objective reasonableness standard. Graham v. Connor, 490 U.S. 386,

388 (1980). The key question is "whether the officers' actions are 'objectively

reasonable' in light of the facts and circumstances confronting them, without regard

to their underlying intent or motivation." Craighead, 399 F.3d at 961. The

reasonableness of an officer's use of force is evaluated by looking at 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 officers or others, and whether he is actively

resisting arrest or attempting to evade by flight." Brown v. City of Golden Valley,

574 F.3d 491, 496 (8th Cir. 2009).

"Apprehension by the use of deadly force is a seizure subject to the

reasonableness requirement of the Fourth Amendment." Hassan v. City of

Minneapolis, 489 F.3d 914, 919 (8th Cir. 2007). The use of deadly force is not

constitutionally unreasonable if an officer has "probable cause to believe that the

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suspect poses a threat of serious physical harm, either to the officer or others." Moore,

514 F.3d at 762. But where 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" Craighead, 399 F.3d at 961.

Because a reasonableness review of the officers' conduct requires an

examination of the sequence of events surrounding the shooting, we begin our

analysis by examining the facts in the record. All parties agree that Nance

immediately got to the ground when Sammis shouted his order and that Farrow

remained standing. The issues of disputed fact include whether the officers identified

themselves as police, whether they saw Farrow with a gun in his hand, whether they

had reason to fear for their safety at the time of the shooting, and whether they gave

warnings before using deadly force.

Both officers assert that Farrow disobeyed repeated orders from Sammis to drop

his weapon and get to the ground. The officers contend that instead Farrow began to

raise his arms toward the officers while holding the gun in his right hand. Sammis

testified that he had yelled, "Police" at the outset of the encounter and that he shouted,

"No!" before firing his weapon in the direction of Farrow and Nance. If the trier of

fact believes the officers' version of the facts, they would have had probable cause to

believe that Farrow posed "a threat of serious physical harm" to them and the use of

deadly force in response could have been justified. Moore, 514 F.3d 762.

Nance, the only other living witness to the shooting, related a different set of

facts. He testified that the weapon was just a toy gun, that it remained tucked in

Farrow's waistband during the confrontation with the officers, and that Farrow was

"fixing to get on the ground" at the time he was shot. Nance did not remember

hearing officer Sammis yell, "Police" or "No!" prior to firing. In his interview with

the state police Nance stated that Farrow had raised his hands before he was shot. Dr.

Konzelman testified in his deposition that it was unlikely that Farrow was raising both

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arms at the time he was shot, based upon the trajectory of the bullet wounds in his

body.

Viewing the controverted record in the light most favorable to the nonmoving

parties, as we are required to do at this stage, we must presume that the officers

approached Farrow and Nance without identifying themselves as police officers, that

the toy gun was tucked in Farrow's pants throughout the entire confrontation, that

Sammis only said to drop the gun and get on the ground, and that Farrow may have

raised his hand or hands while trying to get to the ground before Sammis shot him

twice without warning. These facts taken in the light most favorable to appellees

could establish the excessive use of force and unreasonable seizure in violation of

Farrow and Nance's Fourth Amendment rights. Pearson, 129 S. Ct. at 815-16; Moore,

514 F.3d at 759.

Police officers are often forced to make split second judgments in circumstances

that are "tense, uncertain, and rapidly evolving," Graham, 490 U.S. at 397, and here

Sammis and Evans were in the area to watch for armed suspects and they knew they

might encounter a dangerous situation. That alone would not permit the use of deadly

force, however. If the factfinder were to determine that Farrow raised a handgun

towards them and appeared ready to shoot, the use of deadly force could have been

objectively reasonable. Since the surrounding factual circumstances are in dispute,

material questions of fact prevent granting summary judgment on the basis of

qualified immunity.

Officer Sammis contends that the case law is not sufficiently established on a

right to be free from the use of deadly force "where the suspect has in his possession

a toy weapon that appears to be real and the suspect does not comply with the officers'

commands." For a constitutional right to be clearly established, there does not have

to be a previous case with exactly the same factual issues. Hope, 536 U.S. at 739.

Although the question must be a particularized inquiry “in light of the specific context

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of the case,” Samuelson v. City of New Ulm, 455 F.3d 871, 875 (8th Cir. 2006),

"[g]eneral statements of the law are capable of giving clear and fair warnings to

officers even where the very" circumstances confronting the officers has not

previously been addressed. Anderson v. Creighton, 483 U.S. 635, 640 (1987).

The right to be "free from excessive force in the context of an arrest is a clearly

established right under the Fourth Amendment's prohibition against unreasonable

seizures." Samuelson, 455 F.3d at 877. There is extensive case law setting forth the

requirement that an officer must have "probable cause to believe that the suspect poses

a threat of serious physical harm" before using deadly force. See Craighead, 399 F.3d

at 962 (collecting cases that put officers on notice that they may not use deadly force

under circumstances in which "they should know that the suspect does not present an

immediate threat of serious physical injury or harm"). The right of Farrow and Nance

to be free from the use of deadly force was clearly established in June 2007. Existing

case law would have made it sufficiently clear to a reasonable officer that a suspect

cannot be apprehended by use of deadly force unless that individual poses a threat of

serious physical harm.

Officer Evans was also denied qualified immunity in the district court on the

issue of excessive force and unreasonable seizure. The claims against Evans are based

not only on the use of excessive force but also the failure to prevent its use.

Appellees’ complaints alleged that officer Evans "made no efforts to prevent the

Defendant Sammis from violating the rights" of Farrow and Nance. We have

previously recognized that "one who is given the badge of authority of a police officer

may not ignore the duty imposed by his office" by failing to act to prevent the use of

excessive force. Putnam v. Gerloff, 639 F.2d 415, 423 (8th Cir. 1981). As of June

2007, it was clearly established that an officer who fails to intervene to prevent the

unconstitutional use of excessive force by another officer may be held liable for

violating the Fourth Amendment. Krout v. Goemmer, 2009 WL 3172180, at *5 (8th

Cir. Oct. 6, 2009) (finding case law clearly established on this constitutional right as

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of July 2006). Other circuits have also recognized the failure to intervene as a basis

for liability under a Fourth Amendment excessive force claim. See, e.g. Torres-Rivera

v. O'Neill-Cancel, 406 F.3d 43, 51-52 (1st Cir. 2005); Priester v. City of Riviera

Beach, 208 F.3d 919, 924-25 (11th Cir. 2000); Mick v. Brewer, 76 F.3d 1127, 1136

(10th Cir. 1996).

In a representative case, the Sixth Circuit rejected an officer's argument for

qualified immunity on an excessive force claim on the basis that he had not personally

participated in the use of deadly force which injured the plaintiff. Floyd v. City of

Detroit, 518 F.3d 398, 406 (6th Cir. 2008). As the court explained,

A police officer who fails to act to prevent the use of excessive force

may still be held liable where (1) the officer observed or had reason to

know that excessive force would be or was being used, and (2) the

officer had both the opportunity and the means to prevent the harm from

occurring.

Id. (emphasis in original). The officer had "participated in the tactical decision that

he and [his partner] would confront Floyd in the latter's backyard with their guns

drawn, without any verbal warning." Id. at 407. The officer had failed to protect the

plaintiff, and the fact that he was not the shooter did not absolve him of his

responsibility. Id.

Here, Evans confronted the boys with his gun drawn in a poorly lit parking lot.

Evans did not identify himself or Sammis as law enforcement officers and admits that

he failed to give any warning as to the possible use of deadly force or try to stop

Sammis from shooting. Evans' failure to take action to deescalate the situation if he

had an opportunity and means to do so could establish liability. Floyd, 518 F.3d at

406; Ngo v. Storlie, 495 F.3d 597, 603 (8th Cir. 2007) (holding qualified immunity

inappropriate where “a warning . . . was feasible and the failure to take an extra

moment to assess the situation” added to the unreasonableness of the officer’s

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actions). Without impermissible factual determinations of exactly what occurred that

evening, we cannot conclude at this stage that Evans is entitled to qualified immunity.

The Nance appellees base their unreasonable seizure claim not only on the use

of deadly force, but also on the officers' act of handcuffing Nance following the

shooting. While genuine issues of material fact exist with respect to the objective

reasonableness of the use of deadly force, we cannot say the same with respect to the

handcuffing of Nance. Even if we accept Nance's description of the facts, we could

not conclude that it was unreasonable for Sammis and Evans to handcuff him at the

scene of the shooting, whether it was for ten or thirty minutes. At that point the

officers did not know if Nance was armed or whether he and Farrow should be

considered possible suspects in the anticipated convenience store robbery. Moreover,

the parties agree that Sammis and Evans turned Nance over to other officers as soon

as they arrived.

III.

Significant factual disputes remain with respect to the shooting of DeAunta

Farrow and seizure of Unseld Nance. The current record did not conclusively

establish whether the actions of officers Sammis and Evans were objectively

reasonable. We therefore affirm the ruling of the district court denying the officers

summary judgment.

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