Jacobi Malone v. Robert Hinman

United States Court of Appeals

For the Eighth Circuit

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No. 15-3465

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Jacobi P. Malone

lllllllllllllllllllll Plaintiff - Appellant

v.

Robert Hinman, Individually and in his official capacities; City of Little Rock, a

municipal corporation and public body corporate and politic; Stuart Thomas,

individually and in his official capacity as Chief of Police, Little Rock Department

lllllllllllllllllllll Defendants - Appellees

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Appeal from United States District Court

for the Eastern District of Arkansas - Little Rock

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Submitted: September 20, 2016

Filed: February 7, 2017

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Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.

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SMITH, Circuit Judge.

Jacobi P. Malone appeals the district court’s1 grant of summary judgment to

Little Rock Police Officer Robert Hinman, Little Rock Police Chief Stuart Thomas,

and the City of Little Rock (collectively, “defendants”) on Malone’s various

constitutional claims under 42 U.S.C. § 1983 for Officer Hinman’s alleged use of

excessive force in shooting Malone. Viewing the facts in the light most favorable to

Malone and evaluating the reasonableness of Officer Hinman’s actions “from the

perspective of a reasonable officer on the scene,” Graham v. Connor, 490 U.S. 386,

396 (1989), we conclude that Officer Hinman is entitled to qualified immunity.

Accordingly, we affirm the district court’s grant of summary judgment to Officer

Hinman, Chief Thomas, and the City of Little Rock.

I. Background

We recite the facts in the light most favorable to Malone as the non-moving

party. See id. at 388.

At approximately 2:00 a.m. on the morning of July 16, 2011, Jacobi Malone,

then 18 years old, was walking back to his car parked in the Rivermarket area of

downtown Little Rock, Arkansas. Malone approached a crowd of 40 or 50 people

near his parked car. In the crowd, Malone saw a former schoolmate in the midst of an

escalating disturbance. Malone’s former schoolmate pulled out a pistol and pointed

it at the crowd. Malone tried to “defuse the situation.” He approached the young man

with the “intention” to “push the gun down towards the ground,” but, unfortunately,

the gun discharged. When the gun discharged the first time, Malone’s hand was on

the young man’s arm. The gun then discharged “one or two more times” before

Malone “snatched” the gun from the young man. Hearing the gunshots, the crowd

scattered. Malone started running, too, with the pistol now in his hand.

1

The Honorable D.P. Marshall Jr., United States District Judge for the Eastern

District of Arkansas.

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Meanwhile, Officer Hinman patrolled downtown Little Rock on his bicycle

when he “heard what sounded like a disturbance and saw a large group of

approximately forty to fifty people in the parking lot and on the sidewalk in front of

the parking lot in the 200 block of East Markham.” As Officer Hinman approached

the crowd on his bike, he “heard one gunshot fired.” Officer Hinman observed that

once the first shot was fired, the crowd dispersed in all directions. He subsequently

observed Malone fleeing on foot while holding the gun.

Officer Hinman says that he yelled “stop” to Malone but that Malone continued

to run. Malone, however, did not hear anyone yell at him to “stop.” Malone was

experiencing “an adrenaline rush,” and he did not “hear anything.” Officer Hinman

“knew that [Malone] was running toward where Officer [Steve] Montgomery and

several other individuals were located.” Officer Hinman drew his weapon and fired

multiple rounds at Malone, striking Malone in the arm, back, leg, and neck. The bullet

that hit Malone in the neck paralyzed him from the chest down. When Officer

Hinman fired his gun, Malone was two to three feet from Officer Montgomery.

Officer Montgomery and Officer Wade Neihouse, who were present at the time

of the shooting, testified that three to five seconds elapsed between the first shot and

shots fired by Officer Hinman at Malone. Officer Hinman estimated that “ten seconds

elapsed from the time [he] heard the first shot until the time [he] fired [his] service

weapon as Mr. Malone was fleeing.”

Malone filed suit against the defendants for violations of his federal and state

constitutional rights. He sought relief pursuant to 42 U.S.C. § 1983 and the Fourth,

Fifth, Eighth, and Fourteenth Amendments to the United States Constitution; the

Arkansas Constitution; and the common-law tort of assault and battery. Specifically,

he alleged excessive force in violation of the Fourth Amendment against Officer

Hinman; maintenance of a widespread custom of permitting excessive force against

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Chief Thomas and the City of Little Rock; and assault and battery against Officer

Hinman. The defendants moved for summary judgment.

The district court granted the defendants’ motion. The district court found that

Officer Hinman was entitled to qualified immunity on Malone’s constitutional claims

because Officer Hinman’s actions were objectively reasonable under the

circumstances. The court cited the short period of time that elapsed—less than ten

seconds—between when Officer Hinman heard the gunfire and when he shot Malone.

The court emphasized that while Malone was running away from Officer Hinman at

the time that Officer Hinman shot him, Malone was running toward Officer

Montgomery. The court also noted the crowd’s presence when the shots were fired

and that Malone held a gun as he ran. Although the court found it “disconcerting” that

Officer Hinman had given inconsistent testimony about whether Malone turned to fire

at him and found it “unclear” whether Officer Hinman saw Malone shoot into the

crowd, it concluded that such details did not “change the constitutional analysis

because no genuine issues of material fact exist.” The court also determined that

Malone’s claims against Chief Thomas and the City of Little Rock failed for lack of

evidence because Malone did not rebut Chief Thomas’s testimony that Officer

Hinman was trained properly and that excessive-force incidents are properly

investigated and handled. The court dismissed Malone’s state-law claim without

prejudice and dismissed the federal claims with prejudice.

II. Discussion

On appeal, Malone argues that the district court erred in (1) granting summary

judgment based on qualified immunity to Officer Hinman on Malone’s excessive-

force claim, and (2) granting summary judgment to Chief Thomas and the City of

Little Rock on Malone’s claim of a widespread custom of excessive force.

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A. Excessive Force

Malone argues that the district court erred in granting Officer Hinman’s motion

for summary judgment based on qualified immunity on Malone’s excessive-force

claim.

We apply de novo review to the district court’s grant of summary judgment to

the defendants, “viewing the evidence in the light most favorable to [Malone] and

drawing all reasonable inferences in [his] favor.” Loch v. City of Litchfield, 689 F.3d

961, 965 (8th Cir. 2012). A district court appropriately grants summary judgment to

the movant “if ‘there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “An

official is entitled to qualified immunity unless (1) the evidence, viewed in the light

most favorable to the plaintiff, establishes a violation of a constitutional or statutory

right, and (2) the right was clearly established at the time of the violation.” Id.

“Since this case presents an issue of whether an officer used excessive force,

the case must be analyzed under the Fourth Amendment’s ‘objective reasonableness’

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

490 U.S. at 388). The standard that we apply in deadly force cases is well settled:

The reasonableness of a use of force turns on whether the officer’s

actions were objectively reasonable in light of the facts and

circumstances confronting him, without regard to his subjective intent

or motivation. [Graham, 490 U.S. at] 397, 109 S. Ct. 1865. We 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. Id. at 396, 109 S. Ct. 1865. The use of deadly force

is reasonable where an officer has probable cause to believe that a

suspect poses a threat of serious physical harm to the officer or others.

See Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct. 1694,

85 L. Ed.2d 1 (1985). We judge the reasonableness of [an officer’s] use

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of force “from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at

396, 109 S. Ct. 1865.

Loch, 689 F.3d at 965.

If a “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.” Garner, 471 U.S. at 11. But “[w]here 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.” Id. “Before employing deadly force, an officer should give ‘some warning’

when it is ‘feasible’ to do so.” Loch, 689 F.3d at 967 (quoting Garner, 471 U.S. at

11–12).

“Once the predicate facts are established, the reasonableness of [an officer’s]

conduct under the circumstances is a question of law.” Tlamka v. Serrell, 244 F.3d

628, 632 (8th Cir. 2001). But Malone contends that factual disputes exist about the

predicate facts that prelude a grant of summary judgment on Malone’s excessive-

force claim in Officer Hinman’s favor. Malone asserts that a factual dispute exists as

to whether Officer Hinman knew that someone had been injured when Officer

Hinman shot Malone. Therefore, Malone argues, the court could not consider Officer

Hinman’s purported knowledge in determining whether Officer Hinman had probable

cause to believe that Malone posed a threat to Officer Hinman or others. He also

claims that factual disputes exist as to whether Officer Hinman observed Malone

shooting when the shots were fired into the crowd and whether Malone ever turned

toward Officer Hinman. Malone asserts that these fact disputes preclude a reasonable

conclusion that Malone threatened Officer Hinman or others.

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Officer Hinman stated in his affidavit that after he initially heard shots fired,

he observed “Malone, holding a weapon, . . . fire approximately two more shots into

the crowd.” Malone recalled and testified similarly that the gun discharged two to

three times while he wrestled the gun from his friend. Malone also admitted that he

took possession of the gun and had it in his hand as he fled. Officer Hinman testified

that he observed Malone holding the gun when it fired. In contrast, Malone testified

that he had not acquired possession when the gun fired because he was simply

pushing the young man’s arm down to avoid injury to others. Like the district court,

we conclude that these differing viewpoints do not change our constitutional analysis.

The crucial common fact in both accounts is Malone’s eventual possession of the

weapon at the time that Officer Hinman fired. The differences in the factual

statements are thus not material. In his brief, Malone admits that “[a]s [he] was trying

to get the gun, the gun discharged” and that when he was “able to get his hand on the

gun . . . it went off again once, maybe twice.” This is consistent with Officer

Hinman’s testimony about hearing gun shots fired. Malone has pointed to no record

evidence to refute Officer Hinman’s testimony that he heard shots fired or that he

observed Malone fleeing with the gun after the shots were fired. In fact, Malone

testified that when people scattered following the gunshots, he had “possession of the

gun” and his “intentions were to run and . . . get rid of the weapon, so [he] ran back

west, up the sidewalk” with the gun. As the district court summarized, the material,

“undisputed facts according to Malone are these: around 2:00 a.m. he had a pistol in

his hand after shots had been fired in a crowd at the Rivermarket; and he was fleeing

the scene toward other people nearby.”2

2

To support his argument that the district court erred in finding that Officer

Hinman’s actions did not constitute excessive force, Malone also points to the report

of Sergeant Calvin K. Grogan. Sergeant Grogan arrived at the scene shortly after the

incident occurred. Sergeant Grogan wrote, “Officer Hinman said he confronted the

man and that the man in quotations ‘tried to get his gun out,’ end quotations.” Malone

argues that the district court erred in finding Officer Hinman’s actions objectively

reasonable because Officer Hinman’s statement to Sergeant Grogan that Malone

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Based on these undisputed facts, the relevant question is whether Officer

Hinman’s use of deadly force against Malone was objectively reasonable under the

circumstances. See Loch, 689 F.3d at 965. More specifically, the question is whether

Officer Hinman had “probable cause to believe that [Malone] pose[d] a threat of

serious physical harm to the officer or others.” See id. (emphasis added). Viewing the

facts in the light most favorable to Malone, he did not pose a threat of serious

physical harm to Officer Hinman because he was running away from Officer Hinman.

But we conclude that, looking at the circumstances from the perspective of a

reasonable officer and taking the disputed facts in Malone’s favor, Malone posed a

threat of serious physical harm to others. Officer Hinman knew that approximately

three gunshots had just been fired in a crowd of 40 to 50 people. He then saw Malone

running away with a gun toward Officer Montgomery and others as the crowd

dispersed. Officer Hinman instructed Malone to stop, but Malone did not stop

because he did not hear Officer Hinman.3 Malone continued to run toward Officer

“tried to get his gun out” was a lie. But the dispute over whether Officer Hinman told

Sergeant Grogan that Malone tried to get his gun out is not material to Officer

Hinman’s entitlement to qualified immunity. As explained supra, we have construed

the facts in the light most favorable to Malone and accepted his version of events. We

evaluate Officer Hinman’s actions in reacting to these circumstances “from the

perspective of a reasonable officer on the scene.” Graham, 490 U.S. at 396.

3

No genuine issue of material fact exists as to whether Officer Hinman

provided Malone with a warning prior to using deadly force. Officer Hinman testified

that he yelled “stop” to Malone but that Malone continued to run. Malone testified

that he did not hear anyone yell “stop” to him. Malone was experiencing “an

adrenaline rush,” and he did not “hear anything.” Malone “did not testify that

warnings were not given but only that he did not hear any warnings”; as a result, his

testimony “fails to contradict the officer’s positive testimony that he warned

[Malone] . . . before firing a shot. Consequently, [Malone’s] testimony that he did not

hear any warnings fails to present a question of material fact as to whether the giving

of the warnings was feasible and if in fact they were given.” Ford v. Childers, 855

F.2d 1271, 1276 (7th Cir. 1988). Nor does Malone’s reliance on the testimony of

Tunisha Johnson generate a disputed issue of fact. She testified only to what she saw,

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Montgomery. The record shows that Malone was two to three feet from Officer

Montgomery at the time that Officer Hinman fired his gun. The entire event occurred

within three to ten seconds.

Like the district court, we recognize the tragic nature of these events: “Taking

Malone’s version as the truth, his good deed in defusing a dangerous argument,

coupled with two split-second decisions, resulted in a promising young man’s

paralysis.” Nonetheless, applying the required review standard, we hold that Officer

Hinman’s use of deadly force was objectively reasonable. Therefore, the district court

did not err in granting Officer Hinman’s motion for summary judgment based on

qualified immunity on Malone’s excessive-force claim.

B. Widespread Custom of Excessive Force

Malone argues that the district court erred in granting summary judgment to

Chief Thomas and the City of Little Rock on his claim of a widespread custom of

excessive force. According to Malone, “[i]gnoring or concealing police misconduct,

and the inadequate investigation of excessive force, as well as failures to discipline,

supervise or monitor police officers for misconduct, are all actionable theories of

Monell4 liability.” (Italics omitted.) Malone contends that Chief Thomas knew that

the Little Rock Police Department altered evidence to fit Officer Hinman’s story. He

also contends that he offered evidence to contradict Chief Thomas’s statement. He

asserts that the district court excluded such evidence because Malone failed to

provide it prior to the discovery cut-off deadlines. Malone asserts that the district

court’s exclusion of this evidence was erroneous because it impeached Chief

Thomas’s testimony.

not to what she heard. She testified, “I seen, I guess it was the officer running and the

police officer just shot him.” She never discussed whether warnings were given prior

to Officer Hinman shooting Malone.

4

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

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Section 1983 liability for a constitutional violation may attach to

a municipality if the violation resulted from (1) an “official municipal

policy,” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct.

2018, 56 L. Ed. 2d 611 (1978), (2) an unofficial “custom,” id.; or (3) a

deliberately indifferent failure to train or supervise, see City of Canton,

Ohio v. Harris, 489 U.S. 378, 389, 109 S. Ct. 1197, 103 L. Ed. 2d 412

(1989). Policy and custom are not the same thing. “[A] ‘policy’ is an

official policy, a deliberate choice of a guiding principle or procedure

made by the municipal official who has final authority regarding such

matters.” Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999).

Alternatively, a plaintiff may establish municipal liability through an

unofficial custom of the municipality by demonstrating “(1) the

existence of a continuing, widespread, persistent pattern of

unconstitutional misconduct by the governmental entity’s employees;

(2) deliberate indifference to or tacit authorization of such conduct by

the governmental entity’s policymaking officials after notice to the

officials of that misconduct; and (3) that plaintiff was injured by acts

pursuant to the governmental entity’s custom, i.e., that the custom was

a moving force behind the constitutional violation.” Snider v. City of

Cape Girardeau, 752 F.3d 1149, 1160 (8th Cir. 2014).

Corwin v. City of Indep., Mo., 829 F.3d 695, 699–700 (8th Cir. 2016) (alteration in

original) (footnote omitted).

Because we conclude that Officer Hinman did not violate Malone’s

constitutional rights, there can be no § 1983 or Monell liability on the part of Chief

Thomas and the City. See, e.g., Monell, 436 U.S. at 691 (“Congress did not intend

municipalities to be held liable unless action pursuant to official municipal policy of

some nature caused a constitutional tort.”); Sitzes v. City of W. Memphis Ark., 606

F.3d 461, 470 (8th Cir. 2010) (agreeing with district court that plaintiffs’ failure to

train and failure to supervise claims “could not be sustained absent an underlying

constitutional violation by the officer”); Sanders v. City of Minneapolis, Minn., 474

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F.3d 523, 527 (8th Cir. 2007) (“Without a constitutional violation by the individual

officers, there can be no § 1983 or Monell . . . municipal liability.”).5

III. Conclusion

Accordingly, we affirm the judgment of the district court.

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5

Malone also argues that the district court erred in granting the defendants’

motion to strike certain exhibits attached to Malone’s response to the defendants’

motion for summary judgment because they were offered after the discovery deadline

expired. The district court’s exclusion of this evidence relates to Malone’s Monell

claim against Chief Thomas and the City. We need not reach this issue because

Malone failed to establish an underlying constitutional violation to support his Monell

claim.

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