“Given . . . the scant three seconds that he had to observe [plaintiff’s] unabated approach towards him, it was reasonable for [defendant officer] to believe that [plaintiff] posed an immediate threat of serious physical harm to him, notwithstanding the fact that [defendant officer] could see that [plaintiff’s] hands were empty and the later-discovered fact that [plaintiff] was unarmed.”
How later courts described this case
- “Given . . . the scant three seconds that he had to observe [plaintiff’s] unabated approach towards him, it was reasonable for [defendant officer] to believe that [plaintiff] posed an immediate threat of serious physical harm to him, notwithstanding the fact that [defendant officer] could see that [plaintiff’s] hands were empty and the later-discovered fact that [plaintiff] was unarmed.”
- “Given his knowledge of that reputation and the scant three seconds that he had to observe Wenzel’s unabated approach towards him, it was reasonable for Storm to believe that Wenzel posed an immediate threat of serious physical harm to him, notwithstanding the fact that Storm could see that Wenzel’s hands were empty and the later-discovered fact that Wenzel was unarmed.”
Written by the judges who cited it.
The opinion
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-2028
___________________________
Eric Wenzel; Annie Alley; Thelma Wenzel
lllllllllllllllllllllPlaintiffs - Appellees
v.
City of Bourbon, Missouri
lllllllllllllllllllllDefendant
Carl Storm, in his individual capacity
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: March 15, 2018
Filed: August 9, 2018
____________
Before WOLLMAN, SHEPHERD, and ERICKSON, Circuit Judges.
____________
WOLLMAN, Circuit Judge.
After Bourbon, Missouri, Police Officer Carl Storm shot and killed Gary
Wenzel (Wenzel), Wenzel’s children, Eric Wenzel and Annie Alley, and his mother,
Thelma Wenzel, (collectively, Plaintiffs) filed suit against Storm in federal district
court. Plaintiffs alleged a claim under 42 U.S.C. § 1983, asserting that Storm had
violated Wenzel’s Fourth Amendment right to be free from excessive force.1 The
district court denied Storm’s motion for summary judgment based on his claim of
qualified immunity. We reverse the denial of summary judgment and remand with
directions to grant qualified immunity to Storm. We deny Plaintiffs’ motion to
dismiss the appeal for lack of jurisdiction.
I. Background
Storm was familiar with the Wenzel family. Explaining that Bourbon “is a
small town,” Storm testified that he had seen Wenzel numerous times and that he had
responded to a domestic dispute involving Wenzel. Storm stated that Wenzel’s
brother Ronnie had described Wenzel as “dangerous” and that he had instructed
Storm to be careful when dealing with Wenzel. An officer from a nearby town told
Storm that Wenzel had fled when officers tried to pull him over for improper tags and
that officers were unable to apprehend him. According to his affidavit, Storm also
knew of physical altercations between Wenzel and other police officers, as well as
knowing that the Bourbon Police Department was investigating Wenzel’s
methamphetamine use and distribution.
Storm worked the day shift on March 5, 2014. It was a bright, wintery day.
The streets and highway were mostly clear, but there were patches of ice and snow
on the country roads near Bourbon. Storm was in uniform and on patrol, driving a
marked police car that was equipped with an in-car video system. His duty belt
carried a pistol, a baton, and pepper spray.
1
Plaintiffs also alleged state-law claims against Storm and state and federal
claims against the City of Bourbon, Missouri. Storm has not appealed from the denial
of official immunity on the state-law claims. The claims against the City have been
dismissed and are not at issue in this appeal.
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Storm had stopped Wenzel’s nephew, Shawn, for a traffic violation earlier that
morning. According to Storm, Shawn said to “be careful” if Storm came across
Wenzel because Wenzel had said that he was “not going back to jail.”
After completing the traffic stop, Storm resumed patrolling and observed
Wenzel drive past him. Storm decided to check Wenzel’s tags based on the
information that the tags were improper. Storm turned around, activated his lights
and siren, and began to follow Wenzel. The ensuing chase was visually recorded on
Storm’s in-car video system, but the audio portion of the system was not activated.
Wenzel sped through a stop sign and headed out of town, leading Storm on a
chase that lasted ten or eleven minutes. The video shows Wenzel driving recklessly,
frequently in the wrong lane, including when cresting hills and rounding turns.
During the chase, dispatch relayed to Storm that Wenzel was classified as having “J3”
status. Storm explained that the classification means “aggressive, known to be
violent with weapons and violent towards law enforcement.”
As Wenzel tried to turn onto a snow-covered road, his vehicle veered into a
shallow ditch and came to an abrupt stop against the ditch embankment. Meanwhile,
Storm stopped his vehicle a few car-lengths behind Wenzel’s vehicle and opened the
driver’s side door. Storm testified that while he was looking for a road sign or
landmark to communicate his location to dispatch he noticed that Wenzel had exited
his vehicle and was quickly approaching him. Although he could not clearly see
Wenzel’s hands, Storm did not see any weapons. He testified that Wenzel’s hands
were at his sides with his palms facing backward. Storm exited his car, drew his
firearm, stood behind his open car door, and shouted to Wenzel that he stop and show
his hands.
The video shows Wenzel quickly exiting his vehicle and walking aggressively
toward Storm’s patrol car. Wenzel appears to be angry, with his arms swinging as he
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walked. The video shows that Wenzel did not comply with or even react to Storm’s
commands. He instead continued to approach Storm, coming to within a few steps
from him, whereupon Storm fired his weapon three times. Approximately three
seconds elapsed from the time Wenzel exited his vehicle to the time Storm fired the
shots. Wenzel was found to be unarmed.
The district court denied Storm’s motion for summary judgment, concluding
that the parties disputed “how Wenzel moved and to what extent his hands were
visible to Storm.” D. Ct. Order of April 13, 2017, at 9. The district court’s order
suggests that Storm violated Wenzel’s clearly established right to be free from
excessive force if Storm could see that Wenzel was not carrying a weapon and
nonetheless used deadly force against Wenzel. See id. at 10 (“While an officer is not
constitutionally required to wait until he actually sees a weapon before employing
deadly force against an individual, the visibility of the person’s hands is an important
factor.”).
II. Discussion
We have jurisdiction over this interlocutory appeal under the collateral order
doctrine. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). When reviewing the denial
of qualified immunity, we accept as true the facts that the district court found were
adequately supported, as well as the facts that the district court likely assumed, to the
extent they are not “blatantly contradicted by the record.” Thompson v. Murray, 800
F.3d 979, 983 (8th Cir. 2015) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).
We review de novo issues of law. See Brown v. City of Golden Valley, 574 F.3d 491,
495 (8th Cir. 2009).
Plaintiffs moved to dismiss the appeal, arguing that the district court’s denial
of qualified immunity was based on a disputed fact—namely, whether Storm could
see Wenzel’s hands. For purposes of our review, we will assume that Storm could
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see that Wenzel was not holding a weapon in his hands, for the record does not
“blatantly contradict” that fact. We thus deny the motion to dismiss and proceed to
the legal question whether Storm’s conduct violated Wenzel’s clearly established
federal rights.2 See Mitchell, 472 U.S. at 529 n.9 (emphasizing that “the appealable
issue is a purely legal one: whether the facts alleged (by the plaintiff, or, in some
cases, the defendant) support a claim of violation of clearly established law”);
Lockridge v. Bd. of Trs. of Univ. of Ark., 315 F.3d 1005, 1008 (8th Cir. 2003) (en
banc) (explaining that we have jurisdiction to “determine whether all of the conduct
that the district court ‘deemed sufficiently supported for purposes of summary
judgment’ violated the plaintiff’s clearly established federal rights” (quoting Behrens
v. Pelletier, 516 U.S. 299, 313 (1996))); see also Scott, 550 U.S. at 381 n.8 (“[O]nce
we have determined the relevant set of facts and drawn all inferences in favor of the
nonmoving party to the extent supportable by the record, the reasonableness of [the
officer’s] actions . . . is a pure question of law.” (citations omitted)).
Qualified immunity shields a law enforcement officer from liability in a § 1983
action unless the officer’s conduct violates a clearly established constitutional or
statutory right of which a reasonable person would have known. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). An officer 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.” Loch v. City of Litchfield, 689 F.3d
961, 965 (8th Cir. 2012) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
We analyze excessive force claims in the context of seizures under the Fourth
Amendment, applying its reasonableness standard. See Graham v. Connor, 490 U.S.
2
Rejecting Plaintiffs’ argument to the contrary, we conclude that Storm
satisfied the requirements of Rule 28(a)(8)(A) of the Federal Rules of Appellate
Procedure by adequately citing the parts of the record on which he relied.
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386, 395 (1989). The Fourth Amendment requires us to consider, “based on the
perspective of a reasonable officer on the scene, ‘whether the officers’ actions are
“objectively reasonable” in light of the facts and circumstances confronting them.’”
Ellison v. Lesher, 796 F.3d 910, 916 (8th Cir. 2015) (quoting Graham, 490 U.S. at
397). “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.”
Loch, 689 F.3d at 965 (citing Tennessee v. Garner, 471 U.S. 1, 11 (1985)); see
Brosseau v. Haugen, 543 U.S. 194, 197 (2004) (“[I]t is unreasonable for an officer to
‘seize an unarmed, nondangerous suspect by shooting him dead.’” (quoting Garner,
471 U.S. at 11)).
We conclude that the district court erred in ruling that Storm’s use of deadly
force was not reasonable under the circumstances. Considering the version of the
evidence that the district court assumed or likely assumed in reaching its decision, the
facts and circumstances confronting Storm were that of a fleeing suspect whose
reckless rules-violating driving constituted a hazard to oncoming motorists. Storm
was aware of Wenzel’s aggressiveness and of his violence towards law enforcement
officers. The manner in which Wenzel exited his vehicle and charged towards Storm
while exhibiting an angry visage was in keeping with the reputation he had earned
during his earlier interactions with law enforcement officers. Given his knowledge
of that reputation and the scant three seconds that he had to observe Wenzel’s
unabated approach towards him, it was reasonable for Storm to believe that Wenzel
posed an immediate threat of serious physical harm to him, notwithstanding the fact
that Storm could see that Wenzel’s hands were empty and the later-discovered fact
that Wenzel was unarmed. See Loch, 689 F.3d at 966 (“Even if a suspect is
ultimately ‘found to be unarmed, a police officer can still employ deadly force if
objectively reasonable.’” (quoting Billingsley v. City of Omaha, 277 F.3d 990, 995
(8th Cir. 2002))).
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We reject Plaintiffs’ contention that it was unreasonable for Storm to use
deadly force when, they say, he could have used his baton or his pepper spray to
subdue Wenzel. We do not judge the use of force “with the 20/20 vision of
hindsight,” and we make “allowance for the fact that police officers are often forced
to make split-second judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary in a particular
situation.” Graham, 490 U.S. at 396-97. A reasonable officer on the scene would
have viewed Wenzel’s indisputably aggressive approach as a precursor to a physical
altercation. Storm was required to make a split-second decision in unpredictable and
dangerous circumstances, and he was not constitutionally required to attempt to re-
holster his firearm, grab his baton or pepper spray canister, and do battle with the
fast-approaching, known-to-be-confrontational Wenzel. Cf. Thompson v. City of
Monticello, 894 F.3d 993, 999 (8th Cir. 2018) (dismissing appeal for lack of
jurisdiction where the video evidence did not conclusively establish that the plaintiff
was “aggressive and confrontational such that a reasonable officer . . . would have
believed he posed an immediate threat”); Raines v. Counseling Assocs., Inc., 883
F.3d 1071, 1075 (8th Cir. 2018) (dismissing appeal for lack of jurisdiction where the
video evidence was “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”),
petition for cert. filed, 87 U.S.L.W. 3038 (U.S. July 11, 2018) (No. 18-110).
We reverse the order denying qualified immunity.
______________________________
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