Moore v. Indehar

BEAM, Circuit Judge,

dissenting.

The district court correctly invoked the qualified immunity privilege to protect Officer Kurt Indehar from Adam Moore’s unsupported constitutional claim, granting summary judgment and dismissal. The panel majority (“court” or “panel”) now reverses this holding. From this result, I respectfully dissent.

Police officers assigned to street duty in populous urban locations have difficult and dangerous jobs, especially in high crime areas and more especially at places where gangs of armed young men congregate and tend to shoot at each other and even at *764passing vehicles. Into this adverse environment came Officers Indehar and Hafs-tad on the evening of March 23, 2003, exposing themselves as we now see to personal liability and the risk of interference with their on-going governmental functions.

The qualified immunity privilege Inde-har asserts is “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The privilege “is an immunity from suit rather than a mere defense to liability.” Id. Indeed, Judge Murphy writing in Nelson v. County of Wright, 162 F.3d 986 (8th Cir.1998), states that “[t]he applicability of qualified immunity ... should be decided at the ‘earliest possible stage in litigation.’ ” Id. at 989 (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)).

As noted by Judge Shepherd, the United States Supreme Court has delineated a two-part qualified immunity analysis. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Its applicability may be tested, as here, by motion for summary judgment. In this context, a reviewing court must first consider whether taken in the light most favorable to Moore, the facts show that In-dehar violated a constitutional right. Id. If this threshold question is answered in the affirmative, “the next sequential step is to ask whether the right was clearly established.” Id.

In this case, however, we need only answer the first question: did Indehar through use of excessive force directed at Moore, violate Moore’s Fourth Amendment rights? The answer to this inquiry is a resounding “no.”

In determining whether a constitutional violation has occurred, we are required to make a factual determination based upon the evidence in the record. See Scott v. Harris, — U.S. -, 127 S.Ct. 1769, 1774-75, 167 L.Ed.2d 686 (2007). But, the applicability of qualified immunity in a particular instance is “a question of law.” Nelson, 162 F.3d at 989.

At the summary judgment stage, the facts asserted by Moore need to be viewed in the light most favorable to him as the non-moving party, but only if he establishes a “ ‘genuine’ dispute as to those facts.” Scott, 127 S.Ct. at 1776 (quoting Fed.R.Civ.P. 56(c)). A plaintiff, here Moore, seeking to defeat a properly supported summary judgment motion based on qualified immunity must raise some genuine issue of material fact as to whether a constitutional violation has actually occurred. See id. “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Here, there are no material facts in dispute that bear upon the only issue before the court-qualified immunity vel non.

Although qualified immunity is an affirmative defense, the burden is on the plaintiff to plead and, if presented with a properly supported motion for summary judgment, to present evidence from which a reasonable jury could find that the defendant officer has violated the plaintiffs constitutional rights. Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir.1997). See, e.g., Norris v. Engles, 494 F.3d 634, 638 (8th Cir.2007); Wright v. Rolette County, 417 F.3d 879, 884-87 (8th Cir.2005), cert. denied, — U.S.-, 126 S.Ct. 1338, 164 L.Ed.2d 53 (2006). 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 evi*765dence to permit a reasonable jury to conclude that [Indehar’s] use of deadly force was objectively unreasonable.” Id. at 899 (citing Gardner v. Buerger, 82 F.3d 248, 252 (8th Cir.1996)).

As indicated, Moore asserts that his Fourth Amendment rights were violated because Indehar subjected him to excessive force. I agree with the court that “[t]o establish a violation of the Fourth Amendment in a section 1983 action, the claimant must demonstrate a seizure occurred and the seizure was unreasonable.” McCoy v. City of Monticello, 342 F.3d 842, 846 (8th Cir.2003) (emphasis added) (citing Hawkins v. City of Farmington, 189 F.3d 695, 702 (8th Cir.1999)). Failure to establish either element, i.e., seizure or unreasonableness, is fatal to plaintiffs claim. And, not every act of a police officer that results in a restraint on liberty necessarily constitutes a seizure, rather the restraint must be effectuated “through means intentionally applied.” Brower v. County of Inyo, 489 U.S. 593, 597,109 S.Ct. 1378,103 L.Ed.2d 628 (1989). Finally, the court is correct when it says that the issue in this case is one of intent and that bystanders (such as Moore) are not seized for Fourth Amendment purposes when struck by an errant bullet in a shootout. Ante at 760. Thus, to establish his Fourth Amendment claim, Moore must show that Officer Inde-har intended to seize Moore by intentionally firing his weapon at Moore.

With this legal framework in mind, I turn to the undisputed material facts, many of them taken directly from Judge Shepherd’s opinion.

Moore and several others, including Rufus Loyd, were “hanging out” in a parking lot behind a convenience store near the intersections of Lowry and Lyndale Avenues in North Minneapolis, Minnesota, when an occupant in a car traveling eastbound on Lowry Avenue fired five to seven shots in the direction of the [Moore-Loyd] group. Though Moore attempted to run, he tripped and fell to the ground. After the car passed, Moore ran to the corner of a building to see if he could identify the car, and Loyd stepped out into the street, pulled a pistol, and fired two or three shots towards the fleeing car. Moore was not armed.... [4]
At that same time, Officers Peter Hafs-tad and Kurt Indehar were traveling in a marked Minneapolis Police Department patrol car northbound on Lyndale Avenue to answer an unrelated call. When they heard the shots being fired, they turned right onto Lowry Avenue and began driving eastbound, the same direction as the car from which the shots had been fired. Having heard gunfire, both officers drew their weapons while still traveling in their patrol car. Upon seeing Loyd, both officers noticed that he was holding a handgun. The officers turned into the parking lot behind a convenience store.

Ante at 757-59. Loyd and Moore ran away across the lot. For a short distance they ran side-by-side. Then Moore outdistanced Loyd and they ran one behind the other in more or less a direct line toward a hole in the fence. App’x at 59-60, 166, 229. At relevant times, Loyd was between Moore and the police car and approximately ten feet behind the fleeing Moore. App’x at 166. While the car was still in motion, Officer Indehar fired “more than one” shot in Moore and Loyd’s direction *766out the front passenger-side window.5 App’x at 169. Unbeknownst to Indehar at the time, one of his bullets hit Moore, in the left arm. App’x at 177-78, 108. Moore continued to run through the parking lot and escaped the area through a hole in a fence in the back of the lot.' In his deposition, Moore testified as follows regarding' his attempt to evade Officers Indehar and Hafstad: “I ran south behind the wood fence and all the way down to the gated fence (indicating). There is a hole in the gated fence cut out, and I ran right through there.” App’x at 109.

As Loyd and Moore ran across the parking lot with the police car following, Inde-har fired .at Loyd because “I [Indehar] observed [Loyd] look back, and I thought he was going to start shooting again.” App’x at 169. Indehar also testified that he “didn’t intend to shoot Mr. Moore.”6 App’x at 178. Thus, there is absolutely no admissible evidence in the record that indicates that Indehar intentionally “shot at Moore” or that directly rebuts or disputes Indehar’s statement that he did not intend to shoot at Moore. And as earlier noted, Moore has the burden of proof on the issue of intent to seize through use of excessive force.

Despite this dearth of evidence supportive of Moore’s claim, the panel appears to bottom its decision to reverse the district court on a purported responsibility to “view the facts in the light most favorable to Moore.” Ante at 761. It is worth repeating, however, that this rule of eviden-tiary gloss applies only to facts that are material to the legal issue under consideration, i.e., the occurrence of a Fourth Amendment seizure, Federal Rule of Civil Procedure 56(c), and to such facts that are genuinely in dispute. Scott, 127 S.Ct. at 1776.

Upon analysis of the available facts, it appears that the court’s ultimate conclusion relies upon four evidentiary or credibility inferences. I review each in order.

First, the panel attempts to depreciate the value of Indehar’s deposition declarations made under oath, intimating that his words constitute self-serving statements. Ante at 761. Of course Indehar’s words are self-serving as are the testimonial words of virtually any party to any litigation, including, in this case, the testimony and statements of Moore and Loyd. But self-serving *767words are not untruthful or second-class words, especially when a commissioned police officer is involved. In Thomas v. Runyon, 108 F.3d 957 (8th Cir.1997), the court noted that even sworn statements, if unchallenged, are sufficient for the purposes of summary judgment. Id. at 961. Here, even with Indehar available to Moore by way of deposition cross-examination, no inconsistencies or issues of credibility were developed by Moore with regard to Inde-har’s testimony. And, there is substantial case law in this circuit sustaining summary judgment where this occurs. Id. “In order to defeat [a motion for summary judgment], plaintiff must develop some evidence or argument going beyond possible self-interest of the witness.” Id. Moore’s case totally fails in this regard.

Second, the panel hints at some qualitative weighing that arises from the idea that a “ ‘jury might disbelieve [Indehar’s] testimon[y],’ ” ante at 761 (alterations in original) (quoting Thompson, 257 F.3d at 899). But Thompson says “the plaintiffs may not stave off summary judgment ‘armed with only the hope that the jury might disbelieve witnesses’ testimony.’” Thompson, 257 F.3d at 899 (quoting Gardner v. Buerger, 82 F.3d 248, 252 (8th Cir.1996)). Other circuits concur in this idea. “A party cannot create a dispute of fact by simply questioning the credibility of a witness.” Bodett v. CoxCom, Inc., 366 F.3d 736, 740 n. 3 (9th Cir.2004). See also Dugan v. Smerwick Sewerage Co., 142 F.3d 398, 406 (7th Cir.1998) (challenging the credibility of the movant’s affiant is not, alone, generally enough to avoid summary judgment).

Third, the majority points to the undisputed fact that Indehar aimed his gun and fired in Moore’s direction. Ante at 761. More importantly, however, the evidence is undisputed that Indehar also fired in Loyd’s direction and, indeed, at Loyd.7 App’x at 169, 178. From other undisputed evidence given under oath, the gun-toting Loyd was running beside or following directly behind the fleeing Moore along a relatively straight-line path toward a hole in the fence, App’x at 59-60, 166, during which time Loyd, with gun in hand, looked back toward Officer Indehar. This firing in Moore’s direction allegation, ante at 761, offers thin gruel as nourishment for an excessive force claim sufficient to support a Fourth Amendment seizure.8

Fourth, the court strangely refers to evidence that after Moore and Loyd disappeared through the hole in the fence, Inde-har “secured by handcuffing four other males who remained in the parking lot.” Ante at 761. This, the panel says, “rebuts Officer Indehar’s” testimony that he was aiming at Loyd and not Moore, thus, presenting a genuine issue of fact as to Inde-har’s state of mind at an earlier time at a different location under different circumstances. How this evidence bears the weight placed upon it by the court is not *768readily evident. Likewise, its relevance or materiality to the issue of whether Indehar shot at Moore or only in his direction is difficult to divine.9

In sum, Indehar’s testimony that he fired at Loyd and that he did not intend to shoot Moore is offset only by testimony that Indehar fired “more than one” shot in Moore and Loyd’s direction and by the fact that he later handcuffed four individuals in the vicinity of the convenience store. Given this evidence, there simply is no proof that a Fourth Amendment seizure occurred, making summary judgment for Indehar mandatory under this circuit’s McCoy v. City of Monticello two-part test. Ante at 759-60.

Further, under element two of the McCoy v. City of Monticello requirements, even had there been a seizure, Indehar’s actions were not unreasonable. As the district court correctly noted, the reasonableness of an officer’s use of force must be judged from the “ ‘perspective of a reasonable officer on the scene’ in light of the fact that 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.’ ” App’x at 15-16 (quoting Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Given the undisputed material facts of this case, I agree with the district court that, “[cjonsidering the totality of the circumstances ... even if [Moore] was ‘seized,’ Indehar’s use of force was not objectively unreasonable.” App’x at 18.

Finally, under the undisputed material facts in this matter, it is not possible, again for the reasons set forth by the district court, App’x at 19, that a reasonable police officer in the same or similar circumstances could have believed that he or she was violating Moore’s constitutional rights. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

“We review de novo the legal issue relating of the existence of qualified immunity.” Guite v. Wright, 147 F.3d 747, 749 (8th Cir.1998). The district court correctly identified and applied the applicable standards and reached the correct conclusion. “Particularly applicable to this case is the principle that ‘[s]ummary judgment is appropriate against a party who has the burden of proof at trial and has failed to make a sufficient showing to establish the existence of an essential element to h[is] case.’ ” Lawson v. Hulm, 223 F.3d 831, 834 (8th Cir.2000) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Moore has clearly not shouldered this burden. Offi*769cer Indehar is entitled to qualified immunity.

Accordingly, I dissent.

. Officer Hafstad testified that Moore had a gun both in the street and in the parking lot and aimed it at the officers as they pulled into the parking lot. App’x at 224, 231. However, Moore denies this claim. So, for purposes of the summary judgment motion, we must assume that he was not armed.

. The court states that “Officer Indehar aimed his gun and fired with his handgun pointed at Moore.” Ante at 761. This may be a technically correct statement, but it is misleading. It is undisputed that as Moore and Loyd ran away from the police car, they ran generally side-by-side for a short distance and then Moore outdistanced Loyd as they proceeded in a straight line toward a hole in the parking lot fence. App’x at 59, 162-170, 227-232. Accordingly, it is not possible for Inde-har to have pointed his handgun in Moore’s direction without also pointing the weapon in Loyd’s direction as well.

. In the court’s footnote 3, ante at 761-62, the majority attempts to attack the credibility of Officer Indehar's testimony on this issue by pointing out that Officer Hafstad "fired his weapon at Moore and not Loyd.” Hafstad’s actions are not proof of Indehar’s intent. While there is no evidence as to exactly when each officer fired his weapon, it is clear that initially Moore was slightly to the left of Loyd and that Hafstad, the driver, fired his weapon through the windshield in front of him while Indehar fired his weapon from a different angle, that is, out the right passenger-side window. Both officers discharged their guns while the car was moving. Accordingly, any evidentiary flaw lies with the court’s attempt to adjust Indehar’s unrebutted deposition testimony that he did not intend to fire at Moore. Further, a fair analysis of the deposition testimony of the officers, especially their markings on Ex. J, App'x at 59; Ex. K, App’x at 60, indicates that there never was a time relevant to this fast-moving situation when -Loyd was not positioned close to Moore or between Moore and Indehar. .

. The court attempts to discredit Indehar by citing Mercado v. City of Orlando, 407 F.3d 1152, 1154-55, 1158 (11th Cir.2005) wherein an officer's claim that he was aiming his weapon at a seated victim's shoulder was refuted when a projectile launched by the policeman from a distance of six feet hit the victim’s head instead. Ante at 762. This is far different than the firing of a handgun at a fleeing miscreant from the passenger-side window of a moving police car from a distance far in excess of six feet. App’x at 237.

. The court boldly states that "[a] genuine dispute of fact remains as to whether Officer Indehar intended to seize Moore, or Loyd, or both Moore and Loyd, when Officer Indehar fired his weapon.” Ante at 762 This contention voices both an irrelevancy and an unsupportable conclusion. There is no dispute that both officers fired their weapons. The crucial issue is whether Officer Indehar intentionally fired at Moore rather than at Loyd when he discharged his firearm.

. The court says "[f]urthermore, Officer Inde-har clearly intended, as demonstrated by his handcuffing of the four males who remained in the area, to detain, at least temporarily, all individuals in the area, evincing a reasonable inference that Officer Indehar was seeking to seize Moore when Officer Indehar shot Moore." Ante at 762. Under the facts of the situation, the officers clearly had probable cause to detain Moore and Loyd. However, the fighting issue here is the use of excessive force to do so. How this handcuffing of persons in the parking lot after Moore and Loyd had departed through the hole in the fence bears upon the discrete issues in this appeal is not explained. The record indicates that after Moore and Loyd disappeared, a group of people had congregated around a nearby parked car with one male, whose hand could not be seen, reaching into the vehicle from the car's open door. Officer Indehar "thought he had a gun.” App’x at 173. Concerned for their safety, the officers ordered the men to show their hands. When the one man did not, he was more forcefully ordered to do so and the area was then secured by the handcuffing of the four men. App’x at 173-76. How this act "evinc[ed] a reasonable inference that Officer Indehar was seeking to seize Moore" through excessive force, is not readily evident.