Matthew King v. Hendricks County Commissioner

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 19-2119

MATTHEW KING, individually and as

Representative of the Estate of

Bradley King, deceased,

Plaintiff-Appellant,

v.

HENDRICKS COUNTY COMMISSIONERS,

et al.,

Defendants-Appellees.

____________________

Appeals from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:17-cv-04412-JRS-TAB — James R. Sweeney, II, Judge.

____________________

ARGUED JANUARY 9, 2020 — DECIDED MARCH 31, 2020

____________________

Before WOOD, Chief Judge, and EASTERBROOK and BARRETT,

Circuit Judges.

WOOD, Chief Judge. Bradley King, a 29-year-old resident of

Hendricks County, Indiana, who suffered from paranoid

schizophrenia, was killed by a police officer on November 29,

2016, during an encounter at his home. Two Hendricks

2 No 19-2119

County reserve deputies went to the Kings’ family home to

perform a “welfare check” after Bradley called 9-1-1 and re-

quested help. Matters then spun horribly out of control,

though what precisely happened is disputed, aside from the

fact that Bradley wound up dead. The only living eyewit-

nesses are the officers involved.

The evidence developed for purposes of the defendants’

motion for summary judgment was as follows. The deputies,

Jason Hays and Jeremy Thomas, testified that upon their arri-

val, Bradley came out of the house, walked toward them, and

pulled a ten-inch knife out of his shorts pocket. Hays and

Thomas backpedaled, drew their service firearms, and yelled

at Bradley to stop and drop the knife. Bradley disregarded

their commands and kept moving forward. Then, with the

knife in his left hand, left arm raised in front of him so that the

blade was pointing toward the officers, he started running at

Hays. When Bradley was approximately eight feet away,

Hays fired one shot. It proved to be fatal. According to the

autopsy, the bullet grazed Bradley’s left upper arm and en-

tered his chest, directed “left to right, downwards, and

slightly front to back.” A large knife, which Bradley’s father

identified as one from the Kings’ kitchen, was recovered from

the ground near Bradley’s left hand. An examination of the

knife did not reveal any latent fingerprints.

Bradley’s father, Matthew King, disputes the officers’ ac-

count. He asserts that Bradley was never violent, even when

suffering a psychotic episode, and would not have charged at

the police with a knife. King urges that circumstantial evi-

dence, including but not limited to the bullet trajectory, the

lack of fingerprints on the knife, and the fact that Bradley was

right-handed and thus probably would not have held the

No. 19-2119 3

knife in his left hand, substantially undermines the deputies’

account. King contends that his son’s killing was unwarranted

and unlawful.

In the aftermath, King brought federal civil rights claims

under 42 U.S.C. § 1983 against Hays, the Hendricks County

Commissioners, the Hendricks County Sheriff’s Department,

and the Sheriff. He also brought federal claims under the

Americans with Disabilities Act (“ADA”) and the Rehabilita-

tion Act against the Commissioners and the Sheriff’s Depart-

ment, as well as state civil rights and tort claims. The district

court granted summary judgment to all defendants on the

federal claims and declined to exercise supplemental jurisdic-

tion over the state-law claims. The court concluded that there

was no genuine dispute of material fact for trial; that Hays’s

actions did not violate Bradley’s rights under the Fourth

Amendment; and that the institutional defendants did not vi-

olate the ADA and Rehabilitation Act. King appealed the dis-

trict court’s judgment on the federal claims, and we now af-

firm.

I

We review the district court’s grant of summary judgment

de novo. Daza v. Indiana, 941 F.3d 303, 308 (7th Cir. 2019). Sum-

mary judgment is appropriate when there is no dispute of ma-

terial fact and the movant is entitled to judgment as a matter

of law. FED. R. CIV. P. 56(a). At the summary-judgment stage,

we construe all facts in the record and reasonable inferences

in the light most favorable to the nonmoving party. Daza, 941

F.3d at 308. But this does not extend to drawing inferences

that are supported by only speculation or conjecture. Id. We

may affirm summary judgment on any ground supported by

4 No 19-2119

the record, as long as the parties adequately presented the is-

sue before the district court and the nonmoving party had an

opportunity to contest it. De Lima Silva v. Dep’t of Corr., 917

F.3d 546, 558 (7th Cir. 2019).

II

A

King first asserts a claim against Hays individually under

42 U.S.C. § 1983 for a violation of Bradley’s Fourth Amend-

ment rights. Section 1983 authorizes private suits to redress

deprivations of constitutional rights by state actors. The

Fourth Amendment assures the right to be free from unrea-

sonable “seizures,” a category that includes a law enforce-

ment officer’s use of deadly force against a free citizen. Ten-

nessee v. Garner, 471 U.S. 1, 7 (1985). Whether use of deadly

force constitutes a constitutionally reasonable seizure is an

objective inquiry and must be “judged from the perspective

of a reasonable officer on the scene, rather than with the 20/20

vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396

(1989).

Other circuits have concluded that “the level of force that

is constitutionally permissible in dealing with a mentally ill

person,” such as Bradley, “‘differs both in degree and in kind

from the use of force that would be justified against a person

who has committed a crime or who poses a threat to the com-

munity.’” Gray v. Cummings, 917 F.3d 1, 11 (1st Cir. 2019)

(quoting Bryan v. MacPherson, 630 F.3d 805, 829 (9th Cir.

2010)). “Consequently, a subject’s mental illness is a factor

that a police officer must take into account in determining

what degree of force, if any, is appropriate.” Id. (citing Estate

of Armstrong ex rel. Armstrong v. Village of Pinehurst, 810 F.3d

No. 19-2119 5

892, 900 (4th Cir. 2016); Champion v. Outlook Nashville, Inc., 380

F.3d 893, 904 (6th Cir. 2004)); see also Vos v. City of Newport

Beach, 892 F.3d 1024, 1034 (9th Cir. 2018) (“These indications

of mental illness create a genuine issue of material fact about

whether the government’s interest in using deadly force was

diminished.”). We agree with our colleagues that officers of-

ten should approach persons known or suspected to have a

mental-health problem differently from the way they handle

those whom they suspect of criminal activity.

But we also heed the Supreme Court’s admonition that

“[t]he calculus of reasonableness must embody allowance for

the fact that police officers are often forced to make split-sec-

ond judgments—in circumstances that are tense, uncertain,

and rapidly evolving—about the amount of force that is nec-

essary in a particular situation.” Graham, 490 U.S. at 396–97;

see also Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018); Williams

v. Ind. State Police Dep’t, 797 F.3d 468, 473 (7th Cir. 2015). “This

is true even when, judged with the benefit of hindsight, the

officers may have made ‘some mistakes.’” City & Cnty. of San

Francisco, Cal. v. Sheehan, 575 U.S. 600, 135 S. Ct. 1765, 1775

(2015) (quoting Heien v. North Carolina, 574 U.S. 54, 61 (2014)).

“When addressing the use of deadly force, the court con-

siders whether a reasonable officer in the circumstances

would have probable cause to believe that the [person] poses

an immediate threat to the safety of the officers or others.”

Sanzone v. Gray, 884 F.3d 736, 740 (7th Cir. 2018). If the person

of interest threatens the officer with a weapon, deadly force

may be used, because the risk of serious physical harm to the

officer has been shown. Id. This is so even if a less deadly al-

ternative is available to the officers. Plakas v. Drinski, 19 F.3d

1143, 1149 (7th Cir. 1994). And this is so whether or not the

6 No 19-2119

targeted person suffers from a mental illness—the critical con-

sideration is whether he or she poses an immediate threat to

the officers or others.

Here, there is a potential issue of fact. If we accept the de-

fendants’ account of the critical events—that is, Bradley

pointed a large knife at them, disregarded their repeated com-

mands to drop the knife, and then charged at Hays—then

Hays’s use of deadly force was constitutionally reasonable.

On the other hand, if Bradley did not pose an immediate

threat of serious harm to the officers, then deadly force was

unlawful. But the existence of a possible issue of fact does not,

by itself, prevent summary judgment. We must examine the

record to see whether King has proffered sufficient evidence

to permit a rational factfinder to find in his favor. See Singer

v. Raemisch, 593 F.3d 529, 533 (7th Cir. 2010). If so, then sum-

mary judgment is inappropriate, but if the opponent of sum-

mary judgment offers “only speculation or conjecture” that

raises a “metaphysical doubt,” then there is no job for a fact-

finder to perform. Id.

Sadly, “the person most likely to rebut the officers’ version

of events—the one killed—can’t testify.” Cruz v. City of Ana-

heim, 765 F.3d 1076, 1079 (9th Cir. 2014). To ensure fairness to

a deceased plaintiff whose representative alleges an imper-

missible use of deadly force, given the impossibility of victim

testimony to rebut the officers’ account, we scrutinize all the

evidence to determine whether the officers’ story is consistent

with other known facts. Maravilla v. United States, 60 F.3d

1230, 1233–34 (7th Cir. 1995); see also Scott v. Henrich, 39 F.3d

912, 915 (9th Cir. 1994), cert. denied, 515 U.S. 1159 (1995) (“In

other words, the court may not simply accept what may be a

self-serving account by the police officer. It must also look at

No. 19-2119 7

the circumstantial evidence that, if believed, would tend to

discredit the police officer’s story, and consider whether this

evidence could convince a rational factfinder that the officer

acted unreasonably.”). If physical evidence contradicts the

deputies’ testimony, summary judgment is likely inappropri-

ate. Cruz, 765 F.3d at 1078–80; see also Capps v. Olson, 780 F.3d

879, 884–85 (8th Cir. 2015).

King’s theory is that Bradley presented no threat to the of-

ficers and the killing was unjustified. King contends that the

officers planted the knife on Bradley after the fact and fabri-

cated the story about his charging at Hays. In support of this

theory, King pointed to the following evidence: (1) Bradley

did not generally have a propensity for violence, even when

he was having a “bad day” in terms of his mental health; (2)

Bradley previously interacted with other police officers, and

in one instance had a knife, but did not become violent on

those occasions; (3) it is unlikely that Bradley would have car-

ried a ten-inch kitchen knife in his shorts pocket, because his

favorite knife was a small paring knife and he did not gener-

ally walk around with it; (4) while Hays and Thomas both

stated in their depositions that Bradley held the knife in his

left hand, and the knife was recovered from the ground near

his left hand, Hays said in a prior statement that he thought

Bradley might have held the knife in his right hand; (5) Brad-

ley was right-handed and likely would not have held a knife

in his left hand; (6) forensic testing of the knife by King’s ex-

pert yielded no latent fingerprints; (7) the trajectory of the bul-

let indicates that Bradley was likely at an angle to Hays,

whereas Hays testified that he shot him straight on and aimed

for center mass; and (8) Deputy Thomas did not shoot at Brad-

ley as Bradley was supposedly running at Hays.

8 No 19-2119

We appreciate the difficulty King faces in countering the

officers’ testimony, but most of this evidence does not under-

mine the officers’ account. King in the end is forced to rely on

the theory that the officers shot Bradley for no reason and

planted the knife on him. But the evidence supporting that

version of events does not rise above speculation or conjec-

ture. It creates only metaphysical doubt and requires us to

make logical leaps rather than reasonable inferences. Some of

King’s evidence actually hurts, rather than helps, his case.

King’s broad assertion that Bradley did not generally

show an inclination toward violence does not negate the evi-

dence that he behaved violently in this instance. King testified

in his deposition that Bradley was “scared some of the time”

and “that’s where the knife thing came from.” This supports

the inference that Bradley may have pulled a knife on the of-

ficers if he felt threatened. Likewise, the fact that Bradley did

not react violently in previous interactions with the police

tells us nothing about whether he reacted violently this time.

King’s acknowledgment that Bradley had a knife on him in

an earlier encounter with the police undermines the argument

that it was out of character for Bradley to carry a knife around.

Finally, King’s theory that Bradley would not have been hold-

ing a kitchen knife because he preferred a different knife tells

us very little. Even if we assume, favorably to King, that Brad-

ley usually carried a small paring knife, that does not rule out

the possibility that he found a larger knife in the family

kitchen on the fateful day.

Next, despite King’s claim that Bradley would not have

carried a knife in his left hand because he was right-handed,

the record evidence suggests that he had a large kitchen knife

in his left hand. Hays and Thomas both testified to this effect

No. 19-2119 9

in depositions. Furthermore, the grazing wound to Bradley’s

left arm and the bullet trajectory in his body are consistent

with his holding the knife in his left hand, up in front of his

face, and leaning forward slightly, as the officers testified. It

is also telling that after the shooting the knife was collected

from the ground to Bradley’s left.

King cannot make anything of the lack of fingerprint evi-

dence: no evidence is no evidence. It is not affirmative evi-

dence that contradicts the officers’ testimony. We have previ-

ously warned in criminal cases that “successful development

of latent prints on firearms is difficult to achieve.” United

States v. Paladino, 401 F.3d 471, 478 (7th Cir. 2005). “In reality,

very few identifiable latent prints are found on firearms, a fact

that has been discussed in both literature and the judicial sys-

tem.” Id. The same logic applies to knives used as weapons.

And it is far too great a leap to infer from the lack of finger-

prints on the knife that the police planted it after the shooting.

Finally, the fact that Thomas did not shoot Bradley does

not help King’s case. Bradley allegedly charged at Hays, not

Thomas, and so it makes sense that Hays, not Thomas, would

decide it was necessary to use his firearm in self-defense.

From Thomas’s failure to shoot we can reasonably infer that

Thomas did not view Bradley as posing an imminent threat

to him; we cannot, however, reasonably infer that Bradley did

not pose an imminent threat to Hays.

We also note that there is no evidence that the officers

planted the knife on Bradley after the fact, as King hypothe-

sizes: nothing suggesting that the knife could not have fit in-

side the pocket from which the officers claimed Bradley

pulled it; no prints on the knife; and no indication that the of-

ficers went inside the Kings’ home.

10 No 19-2119

Ultimately, we are left with substantial testimonial and

physical evidence supporting Hays’s version of events, and

no concrete evidence rebutting it. King did not present

enough evidence to raise a genuine dispute of fact for trial,

and so summary judgment for Hays on the section 1983 claim

was appropriate. In light of our ruling on the merits, we have

no need to address Hays’s back-up assertion that he was en-

titled to qualified immunity.

B

King also brings a section 1983 municipal liability claim

against the Hendricks County Commissioners, the Sheriff’s

Department, and Sheriff Brett Clark (the Municipal Defend-

ants).

In Monell v. New York City Dep’t Soc. Servs., 436 U.S. 658

(1978), the Supreme Court recognized that a local government

may be liable for constitutional injuries resulting from its own

actions or policies. Id. at 694. But it is premature for us to delve

into the question of municipal liability until we are satisfied

that a constitutional violation has been alleged and properly

supported. See City of Los Angeles v. Heller, 475 U.S. 796, 799

(1986) (“If a person has suffered no constitutional injury at the

hands of the individual police officer, the fact that the depart-

mental regulations might have authorized the use of constitu-

tionally excessive force is quite beside the point.” (emphasis

in original)).

As discussed above, King has not established facts suffi-

cient to allow a fact-finder to conclude that Hays’s use of

deadly force violated Bradley’s Fourth Amendment rights.

There is thus no constitutional violation for which the institu-

tional defendants and Sheriff Clark may be liable. Unlike in

No. 19-2119 11

the Eighth Amendment context, where we have said that an

agency may be subject to Monell liability for deliberate indif-

ference at the policy level to prisoners’ serious medical needs

even when its individual agents did not act with deliberate

indifference, see Glisson v. Indiana Dep’t of Corrs., 849 F.3d 372,

378 (7th Cir. 2017), a government entity cannot passively com-

mit a Fourth Amendment violation. This is the case even if we

accept, for purposes of argument, King’s assertion that Hen-

dricks County fails to give reserve police officers such as Hays

and Thomas adequate training in how to deal with the men-

tally ill and how to de-escalate situations so that the use of

deadly force can be avoided. Even supposing that the county

would have been better advised to respond to persons expe-

riencing mental-health crises with medical personnel or social

workers, rather than armed police officers, its failure to do so

does not automatically lead to liability. For liability to attach,

there must be an unreasonable search or seizure, not just neg-

ligence or a failure to choose the best option.

Because there was no underlying Fourth Amendment vio-

lation, summary judgment for the Municipal Defendants on

the section 1983 claim against them was proper.

III

Title II of the Americans with Disabilities Act provides

that “no qualified individual with a disability shall, by reason

of such disability, be excluded from participation in or be de-

nied the benefits of the services, programs, or activities of a

public entity, or be subjected to discrimination by any such

entity.” 42 U.S.C. § 12132. A “qualified individual” is “an in-

dividual with a disability who, with or without reasonable

modifications to rules, policies, or practices, … or the provi-

12 No 19-2119

sion of auxiliary aids and services, meets the essential eligibil-

ity requirements for the receipt of services or the participation

in programs or activities provided by a public entity.” Id.

§ 12131(2). A “public entity” includes “any State or local gov-

ernment,” or “any department, agency, special purpose dis-

trict, or other instrumentality of a State or States or local gov-

ernment.” Id. § 12131(1). The parties do not dispute that Brad-

ley was a qualified individual or that the Hendricks County

Commissioners and the Sheriff’s Department are public enti-

ties covered by the statute.

Claims under section 504 of the Rehabilitation Act are

treated as “functionally identical” and can be considered to-

gether with Title II claims. Wagoner v. Lemmon, 778 F.3d 586,

592 (7th Cir. 2015). For simplicity, we refer to Title II and sec-

tion 504 collectively as “Title II” in the following analysis.

Whether Title II applies to law enforcement investigations

and arrests, and if so to what extent, is an open question in

this circuit. Our fellow circuits are split. Compare Hainze v.

Richards, 207 F.3d 795, 801 (5th Cir. 2000) (“Title II does not

apply to an officer’s on-the-street responses to reported dis-

turbances or other similar incidents, whether or not those calls

involve subjects with mental disabilities, prior to the officer’s

securing the scene and ensuring that there is no threat to hu-

man life.”) with Vos, 892 F.3d at 1036 (“Title [II] applies to ar-

rests.”); Seremeth v. Bd. of Cnty. Comm’rs Frederick Cnty., 673

F.3d 333, 339 (4th Cir. 2012) (“Having concluded that the ADA

applies to the investigation of criminal conduct, we next con-

sider whether the deputies’ conduct was reasonable under the

circumstances.”); Bircoll v. Miami-Dade Cnty., 480 F.3d 1072,

1085 (11th Cir. 2007) (“[T]he question is not so much one of

No. 19-2119 13

the applicability of the ADA because Title II prohibits dis-

crimination by a public entity by reason of [a person’s] disa-

bility. The exigent circumstances presented by criminal activ-

ity and the already onerous tasks of police on the scene go

more to the reasonableness of the requested ADA modifica-

tion than whether the ADA applies in the first instance.”); and

Gohier v. Enright, 186 F.3d 1216, 1221 (10th Cir. 1999) (“[A]

broad rule categorically excluding arrests from the scope of

Title II … is not the law.”). Most recently, the First Circuit as-

sumed without deciding that Title II applies to police encoun-

ters. Gray, 917 F.3d at 17 (“For present purposes, it is sufficient

for us to assume … that Title II of the ADA applies to ad hoc

police encounters … and that exigent circumstances may shed

light on the reasonableness of an officer’s actions.”).

The Supreme Court granted certiorari to decide this issue

in City & Cnty. of San Francisco, Cal. v. Sheehan, supra, but it

dismissed the question as improvidently granted after San

Francisco changed its argument after the Ninth Circuit’s de-

cision and before the Supreme Court could rule. 135 S. Ct. at

1773–74 (“Our decision not to decide whether the ADA ap-

plies to arrests is reinforced by the parties’ failure to address

a related question: whether a public entity can be liable for

damages under Title II for an arrest made by its police officers.

Only public entities are subject to Title II, and the parties agree

that such an entity can be held vicariously liable for money

damages for the purposeful or deliberately indifferent con-

duct of its employees. But we have never decided whether

that is correct.” (internal citations omitted)).

Like the First Circuit in Gray, we may assume without de-

ciding that Title II applies to the officers’ interaction with

Bradley. We also may assume that Hendricks County could

14 No 19-2119

be held vicariously liable under Title II for Hays’s actions, and

that “deliberate indifference” is the appropriate standard by

which to analyze the institutional defendants’ conduct. No

matter, because in order to prevail on his claims King must

show that “‘but for’ [Bradley’s] disability, he would have been

able to access the services or benefits desired.” Wis. Cmty.

Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 754 (7th Cir.

2006). King’s evidence falls short on that critical point.

The police responded promptly to Bradley’s call for assis-

tance, and there is no competent evidence contradicting

Hays’s account that he shot Bradley because Bradley ran at

him with a knife. We have been given no reason to believe that

Hays’s response would have been different had someone not

suffering from a mental illness done the same thing, and King

does not propose anything that Hays should have done dif-

ferently to accommodate Bradley’s mental illness. Hays’s

“failure to disarm, or take the decedent under control, was not

because he was inadequately trained to deal with disabled in-

dividuals, but because the decedent threatened him with a

deadly weapon before he could subdue him.” Thompson v.

Williamson Cnty., Tenn., 219 F.3d 555, 558 (6th Cir. 2000).

“Thus, if the decedent was denied access to medical services

it was because of his violent, threatening behavior, not be-

cause he was mentally disabled.” Id.

Furthermore, King’s claims about Hendricks County’s al-

leged supervisory failures lack specificity. He calls for “addi-

tional training, oversight, and policy guidance,” but does not

say what Hendricks County should train all officers to do

when they interact with people suffering from mental ill-

nesses (of which there are a great variety and which involve

countless different symptoms). What training should Hays

No. 19-2119 15

have received that, if he acted in accordance with it, would

have prevented Bradley from running at Hays with a knife?

King has no direct answer for this, but rather points to a pre-

vious encounter Bradley had with the police in which the of-

ficers were able to get him to drop the knife he was carrying

and called an ambulance to take him to the hospital. But it is

possible that Hays acted identically to the officers in the pre-

vious encounter, and the only thing that differed was Brad-

ley’s response.

Bradley’s death at the hands of police officers whom he

called for help when he was suffering a mental-health crisis is

undoubtedly heartbreaking for his family, as well as a sober-

ing reminder about the difficulties of dealing with the men-

tally ill. Nonetheless, the record before us does not indicate

that Hays was deliberately indifferent to Bradley’s disability

or that Hendricks County was deliberately indifferent to the

needs of community members suffering from mental illness

and failed adequately to train officers in how to handle such

persons. Finally, there is no evidence that but for alleged dis-

crimination on the basis of his disability, Bradley would still

be alive.

We therefore conclude that the district court did not err in

granting summary judgment to the defendants on the ADA

and Rehabilitation Act claims.

IV

We AFFIRM the district court’s judgment in all respects.