John Raines, III v. Andrew Burningham

United States Court of Appeals

For the Eighth Circuit

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No. 16-4141

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John Morrison Raines, III, as Guardian of the Estate of John Morrison Raines IV

Plaintiff - Appellee

v.

Counseling Associates, Inc.; Janet Stannard, MD; Lauren Gates, MGR; Richard

Moore, EdD; Lou Strain, LPE; Mental Health Risk Retention Group, Inc; Conway

Regional Medical System, Inc.; Continental Casualty Company; Rodger D.

Langster, MD

Defendants

Andrew Burningham, Conway Police Officer; James Burroughs, Conway Police

Officer; Steven Culliford, Conway Police Officer

Defendants - Appellants

John & Jane Does, I-X; City of Conway, Arkansas; Scottsdale Insurance Company

Defendants

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Appeal from United States District Court

for the Eastern District of Arkansas - Little Rock

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Submitted: December 14, 2017

Filed: March 5, 2018

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Before SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges.

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ERICKSON, Circuit Judge.

In response to an emergency call from a male reporting he had been stabbed

inside his apartment and was hiding in the closet, police officers located John Raines

IV (“Raines”) standing outside on the sidewalk of the apartment building holding a

knife. During the encounter with Raines, which lasted less than two minutes, the

officers shot at Raines twenty-one times. Raines is paralyzed from the waist down

as a result of the encounter.

John “Jack” Morrison Raines III brought this action in his capacity as guardian

of Raines’s estate. The claims are against three police officers claiming unreasonable

seizure and against the City of Conway, Arkansas, under 28 U.S.C. § 1983 for failure

to train the officers on how to interact with a mentally ill person; for negligence, gross

negligence, and willful and wanton conduct; and for violations of due process and the

right to be free from cruel and unusual punishment under the Arkansas Civil Rights

Act. The defendants moved for summary judgment. The district court1 denied the

motion on all claims except for the negligence and cruel and unusual punishment

claims. The officers appeal the denial of summary judgment based on qualified

immunity. We dismiss the appeal for lack of jurisdiction.

I. BACKGROUND

On March 10, 2013, police responded to an apartment complex in Conway,

Arkansas following a report of a stabbing victim hiding inside a closet and a robbery

1

The Honorable James M. Moody, Jr., United States District Judge for the

District of Minnesota.

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in progress inside the apartment. Officer Andrew Burningham was first to arrive on

scene. He approached Raines, who was standing outside on the sidewalk by the

apartment building with a knife in his hand. Officer Burningham ordered Raines to

drop the knife and then he drew his handgun. Raines began saying “fine, fine, fine”

and raised the knife to just above his shoulder level, waving it back and forth.

Approximately 20 seconds later, Officers Steven Culliford and James Burroughs

arrived at the scene. They drew their handguns and repeatedly directed Raines to

“Drop the knife!” Additional officers arrived on scene and formed a semi-circle

around Raines with their guns drawn. Raines continued waving the knife and shifting

his weight from foot to foot on the sidewalk. Officers Culliford and Burroughs told

Raines that he would be shot if he came towards them.

When Officer Rachel Hanson arrived on the scene, she pointed her handgun

at Raines and instructed him to “Drop the knife!” She then re-holstered her weapon,

drew her taser, and moved towards Raines. Detective Jason Cameron, with his gun

drawn, positioned himself directly behind Officer Hanson in order to provide

protection and “cover” to Officer Hanson. The taser video camera confirmed that at

some point during Officer Hanson’s approach towards Raines, Officers Burningham,

Culliford, and Burroughs began firing their weapons at Raines. Detective Cameron

did not fire his weapon. In total, officers fired twenty-one shots. Raines was struck

four times – in the left arm, left face, left chest, and mid-back. As a result of the

encounter, Raines is paralyzed from the waist down.

Officers Burningham, Burroughs, and Culliford moved for summary judgment

on the Fourth Amendment unreasonable seizure claim, arguing that their use of

deadly force against Raines was legally justified. In support of their argument that

Raines made an aggressive movement towards Officer Hanson while holding the

knife, the officers relied on deposition testimony from those at the scene as well as

two videos, one taken from a police vehicle dashboard camera and one taken from the

taser video camera. Raines contended that the videos contradict the officers’ version

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of events and that there remained a question as to whether Raines posed a threat when

he was shot by the officers.

After studying the videos and considering the other evidence presented by the

parties, the district court held that Raines raised a genuine dispute as to whether the

officers had probable cause to suspect that Raines posed a significant threat of death

or serious physical injury to others. Accordingly, the district court denied summary

judgment on the issue of qualified immunity. This interlocutory appeal followed.

II. DISCUSSION

This Court reviews de novo the denial of qualified immunity. Rush v.

Perryman, 579 F.3d 908, 912 (8th Cir. 2009) (citing Duckworth v. St. Louis Metro.

Police Dep’t, 491 F.3d 401, 405 (8th Cir. 2007)). “[W]e will affirm if ‘there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.’” Estate of Morgan v. Cook, 686 F.3d 494, 496 (8th Cir. 2012)

(quoting Fed. R. Civ. P. 56(a)). “In determining whether an officer is entitled to

qualified immunity, we ask (1) ‘whether, taking the facts in the light most favorable

to the injured party, the alleged facts demonstrate that the official’s conduct violated

a constitutional right’; and (2) whether the asserted constitutional right is clearly

established.” Lee v. Driscoll, 871 F.3d 581, 584 (8th Cir. 2017) (quoting Wallingford

v. Olson, 592 F.3d 888, 892 (8th Cir. 2010)).

Although an order denying qualified immunity is immediately appealable, “our

interlocutory jurisdiction is limited.” Mallak v. City of Baxter, 823 F.3d 441, 445-46

(8th Cir. 2016) (citing Cooper v. Martin, 634 F.3d 477, 479-80 (8th Cir. 2011) and

Johnson v. Jones, 515 U.S. 304, 319-20 (1995)). “[W]e have authority to decide the

purely legal issue of whether the facts alleged by the plaintiff are a violation of clearly

established law.” Franklin ex rel. Franklin v. Peterson, 878 F.3d 631, 635 (8th Cir.

2017) (citations omitted). We do not have jurisdiction over an interlocutory appeal

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from a district court’s denial of summary judgment based on qualified immunity when

the denial is premised on a determination that “the pretrial record sets forth a

‘genuine’ issue of fact for trial.” Mallak, 823 F.3d at 446 (quoting Johnson, 515 U.S.

at 319-20). An exception lies “where the record plainly forecloses the district court’s

finding of a material factual dispute.” Mallak, 823 F.3d at 446.

The initial inquiry is whether the officers’ shooting of Raines amounted to a

Fourth Amendment violation. Estate of Morgan, 686 F.3d at 496. In making this

determination, we have said:

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. The use of deadly force is not

constitutionally unreasonable if an officer has probable cause to believe

that the suspect poses a threat of serious physical harm, either to the

officer or others.

Id. (quotations and citations omitted). “But where a person ‘poses no immediate

threat to the officer and no threat to others,’ deadly force is not justified.” Ellison v.

Lesher, 796 F.3d 910, 916 (8th Cir. 2015) (quoting Tennessee v. Garner, 471 U.S. 1,

11 (1985)).

The officers testified that they all believed Raines aggressively advanced on

Officer Hanson just prior to the shots being fired. The defendants contend that their

testimony is supported by the taser video when played in slow motion. Raines

counters that the video evidence demonstrates that he was continuing to exhibit the

same movements as he had done during the minute before he was shot. Unlike in

Scott v. Harris, 550 U.S. 372, 379-80 (2007), where irrefutable video evidence

resolved any factual disputes regarding the parties’ conduct, the video evidence in

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this case is inconclusive as to whether or not Raines advanced on the officers in a

manner that posed a threat of serious physical harm to an officer.

Whether the officers reasonably believed Raines posed a sufficient threat

depends on what occurred. The district court was unable to make this determination

based on the evidence presented. Having reviewed the evidence in the record, we

conclude that there is a key factual question in this case about whether Raines

advanced on Officer Hanson just before being shot, which is both material and

disputed, that precludes us from resolving the legal issue of whether the officers’

conduct constitutes a violation of clearly established law.

While we have jurisdiction to determine whether conduct constitutes a

violation of clearly established law, “we lack jurisdiction to determine whether the

evidence could support a finding that particular conduct occurred at all.” Franklin,

878 F.3d at 638 (citing Behrens v. Pelletier, 516 U.S. 299, 313 (1996) and Johnson,

515 U.S. at 313-18). Accordingly, the court’s determination on the issue of qualified

immunity was not a final decision. Franklin, 878 F.3d at 638 (citing Johnson, 515

U.S. at 313).

III. CONCLUSION

The appeal is dismissed for lack of jurisdiction.

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