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Thompson v. Hubbard

United States Court of Appeals, Eighth Circuit
Jul 30, 2001
257 F.3d 896 (8th Cir. 2001)

Summary

holding that qualified immunity applied when the officer's "use of force, as he describes it, was within the bounds of the Fourth Amendment, and all of the evidence presented to the district court is consistent with that account" and noting that "[t]he plaintiffs may not stave off summary judgment armed with only the hope that the jury might disbelieve witnesses' testimony"

Summary of this case from Smith v. City of Brooklyn Park

Opinion

No. 00-2505.

Submitted: May 17, 2001.

Filed: July 30, 2001. Rehearing Denied: September 27, 2001.

Appeal from the United States District Court for the Eastern District of Missouri, Lawrence O. Davis, United States Magistrate Judge.

Eric A. Ruttencutter, argued, Clayton, MO, for appellant.

Mark Zoole, argued, St. Louis, MO, for appellee.

Before WOLLMAN, Chief Judge, HANSEN, Circuit Judge, and BARNES, District Judge.

The Honorable Harry F. Barnes, United States District Judge for the Western District of Arkansas, sitting by designation.



After Ravone Thompson was shot and killed by police officer Bryan Hubbard, his parents and his daughter brought an action for damages under 42 U.S.C. § 1983 against Hubbard, Michael Washington, who is Hubbard's supervisor, and the city of Pine Lawn, alleging excessive use of force in violation of Thompson's civil rights. The district court granted summary judgment for the defendants. We affirm.

The Honorable Lawrence O. Davis, United States Magistrate Judge for the Eastern District of Missouri, hearing the case by consent of the parties pursuant to 28 U.S.C. § 636(c).

I.

Responding to a report of shots fired and two suspects fleeing on foot from the scene of an armed robbery in Pine Lawn, Missouri, Hubbard approached Thompson as he was getting into his car. Thompson fit the description of one of the robbery suspects, a black man wearing a blue and gold jacket, and was in an area where, based on the direction of their flight, Hubbard believed the suspects might be. Thompson initially appeared to surrender, but then turned to flee. Hubbard attempted to grab him, but succeeded only in pulling off his jacket.

A foot chase ensued, ending when Thompson ran into the space between two buildings and climbed over a short fence. According to Hubbard, Thompson got up from the ground, looked over his shoulder at Hubbard, and moved his arms as though reaching for a weapon at waist level. Thompson's back remained turned toward Hubbard and obscured his hands from Hubbard's view. Hubbard yelled, "stop," and when Thompson's arms continued to move, he fired a single shot into Thompson's back just below his right shoulder blade. Thompson died from the wound. No weapon was found on his body. Officer Marvin Berry, who had followed most of the foot chase in a patrol car, stated that he attempted to look down the space between the two buildings where he had seen Thompson and Hubbard run, but that he neither saw nor heard the shooting, leaving Hubbard as the lone surviving witness to the shooting.

We review the district court's grant of summary judgment de novo, applying the same standard as that court applied, and viewing the evidence in the light most favorable to the plaintiffs. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). Summary judgment is appropriate where there is no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. Id. at 469-70. "In essence, we must inquire `whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Id. at 470 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

The § 1983 claims will not lie against either Hubbard and Washington individually or against the city unless plaintiffs can prove an underlying violation of Thompson's Fourth Amendment rights. See Krueger v. Fuhr, 991 F.2d 435, 440 (1993). We analyze a claim of excessive force in apprehending a suspect in the light of the Fourth Amendment's prohibition against unreasonable seizures. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). "The `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. at 396, 109 S.Ct. 1865. "[T]he question is whether the officer's actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397, 109 S.Ct. 1865. We have held that deadly force is justified where the totality of the circumstances give the officer probable cause to believe that a fleeing suspect poses a threat of serious physical harm to the officer or to others. Nelson v. County of Wright, 162 F.3d 986, 990 (8th Cir. 1998).

Thus, to defeat the motion for summary judgment, the plaintiffs needed to present enough evidence to permit a reasonable jury to conclude that Hubbard's use of deadly force was objectively unreasonable. See Gardner v. Buerger, 82 F.3d 248, 252 (8th Cir. 1996). We conclude that summary judgment was appropriate in this case because Hubbard's use of force, as he describes it, was within the bounds of the Fourth Amendment, and all of the evidence presented to the district court is consistent with that account. Compare Krueger, 991 F.2d at 439 (summary judgment against plaintiffs appropriate despite the fact that the suspect was shot in the back where such a shot was consistent with the reasonable use of force described by the officer) with Gardner, 82 F.3d at 253 (summary judgment inappropriate where officer's own account of shooting raised genuine issue as to its reasonableness). The plaintiffs may not stave off summary judgment "armed with only the hope that the jury might disbelieve witnesses' testimony." Gardner, 82 F.3d at 252.

We disagree with the plaintiffs' contention that if, as Hubbard maintains, Thompson turned and looked at him while the two were in close proximity and moved as though reaching for a weapon, a jury could conclude that Hubbard's use of deadly force was objectively unreasonable because Hubbard should have considered the fact that the waistband of Thompson's sweat pants may not have been strong enough to hold a gun. An officer is not constitutionally required to wait until he sets eyes upon the weapon before employing deadly force to protect himself against a fleeing suspect who turns and moves as though to draw a gun. See Ryder v. City of Topeka, 814 F.2d 1412, 1419 n. 16 (10th Cir. 1987) (concluding that, because a requirement that a suspect actually have a weapon would place police in "a dangerous and unreasonable situation . . . whether a particular seizure is reasonable is dependent on the `totality of the circumstances,' and not simply on whether the suspect was actually armed"). "The calculus of reasonableness must embody 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, 109 S.Ct. 1865. Moreover, neither the plaintiffs' attacks on Officer Berry's credibility nor anything else in the record undermines Hubbard's credibility. The evidence adduced by the plaintiffs is simply insufficient to support even an inference that Hubbard is lying, nor is it sufficient to satisfy the plaintiffs' burden of proving that his actions were not objectively reasonable. However tragic Thompson's death, plaintiffs have failed to come forward with sufficient evidence to justify submitting their case to a jury.

The judgment is affirmed.


Summaries of

Thompson v. Hubbard

United States Court of Appeals, Eighth Circuit
Jul 30, 2001
257 F.3d 896 (8th Cir. 2001)

holding that qualified immunity applied when the officer's "use of force, as he describes it, was within the bounds of the Fourth Amendment, and all of the evidence presented to the district court is consistent with that account" and noting that "[t]he plaintiffs may not stave off summary judgment armed with only the hope that the jury might disbelieve witnesses' testimony"

Summary of this case from Smith v. City of Brooklyn Park

finding that the use of deadly force was objectively reasonable when an unarmed subject moved his arms as though reaching for a weapon

Summary of this case from Fitz v. Stoner

finding officer's conduct reasonable when the suspect was reaching as if to pull out a firearm

Summary of this case from Dorato v. Smith

affirming district court's grant of summary judgment for the officer because evidence was so one-sided that it need not be presented to the jury

Summary of this case from Billingsley v. City of Omaha

affirming summary judgment against excessive force claim because officer's use of deadly force was reasonable, even though it later was determined that the suspect possessed no weapon because the suspect had fled from an officer investigating an armed robbery, he moved his arms around and obscured them from the officer's view, he ignored officer's commands to stop, and when he moved his arms again, officer shot him, and explaining that "[a]n officer is not constitutionally required to wait until he sets eyes upon the weapon before employing deadly force to protect himself against a fleeing suspect who turns and moves as though to draw a gun"

Summary of this case from White v. City of Topeka

explaining an officer is not legally required "to wait until he sets eyes upon the weapon before employing deadly force to protect himself"

Summary of this case from Wealot v. Brooks

In Thompson v. Hubbard, 257 F.3d 896 (8th Cir. 2001), Judge Wollman stated, for instance, "to defeat the motion for summary judgment, [Moore] needed to present enough evidence to permit a reasonable jury to conclude that [Indehar's] use of deadly force was objectively unreasonable."

Summary of this case from Moore v. Indehar

stating that the suspect and the officer were involved in " foot chase," that the suspect "moved his arms as though reaching for a weapon," and that the officer yelled "`stop' when [the suspect's] arms continued to move"

Summary of this case from NGO v. STORLIE

In Thompson v. Hubbard, 257 F.3d 896 (8th Cir. 2001), the heirs of a suspected armed robber brought a § 1983 claim against a police officer for his wrongful death.

Summary of this case from Billingsley v. City of Omaha

In Thompson v. Hubbard, 257 F.3d 896 (8th Cir. 2001), an officer, responding to a “shots fired” call, engaged in a foot chase with a suspect who the officer believed was attempting to reach for a weapon.

Summary of this case from LeFever v. Castellanos

explaining that it was reasonable for an officer to shoot an armed robbery suspect during a foot chase when the suspect turned towards officer and reached as if for a gun

Summary of this case from Ingraham v. City of Albuquerque

noting that the suspect had his back to the officer and obscured his hand from the officer's view

Summary of this case from Dorato v. Smith

firing at a suspect who looked over his shoulder and reached for his waistband during a foot chase was justified

Summary of this case from Loch v. City of Litchfield

In Thompson the officer had reason to believe that the suspect was armed because he was believed to have fled from the scene of an armed robbery.

Summary of this case from Hickenbottom v. Nassan

In Thompson v. Hubbard, 257 F.3d 896 (8th Cir. 2001), the court held that it could not find that excessive force was used as a matter of law based upon an officer's uncontradicted account of a shooting of a fleeing suspect.

Summary of this case from Hickenbottom v. Nassan

In Thompson v. Hubbard, 257 F.3d 896 (8th Cir. 2001), the 8th Circuit affirmed a district court's summary judgment for the defendant where the suspect was later found to have no gun. The police officer, responding to reports of shots fired and armed robbery, chased after a man fitting the description of the suspects.

Summary of this case from Davis v. Southeastern Pennsylvania Transportation Auth.
Case details for

Thompson v. Hubbard

Case Details

Full title:Doris THOMPSON; Thomas Thompson, Jr.; Ashley Thompson, By and Through Her…

Court:United States Court of Appeals, Eighth Circuit

Date published: Jul 30, 2001

Citations

257 F.3d 896 (8th Cir. 2001)

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