PUBLISH
UNITED STATES COURT OF APPEALS
Filed 10/23/96
TENTH CIRCUIT
JOYCE WILSON, Individually, as
executrix of the estate of Datton Wilson,
Jr., and as natural guardian and next friend
of the minor child, Natalie J. Wilson;
ANTHONY D. WILSON; ANITA D.
WILSON; DATTON WILSON, III;
CRYSTAL L. JOHNSON; and KASHA
C. WILSON,
Plaintiffs-Appellants, Nos. 95-3390 and 95-3397
v.
LUTHER DONALD MEEKS;
TIMOTHY JOHN STOCK; BRUCE K.
POWERS; LANON THOMPSON;
DEBBIE MANN; J. EARL KITCHINGS;
CITY OF HAYSVILLE, a municipal
corporation; and JOHN COLEMAN,
Defendants-Appellees.
Appeal from the United States District Court
For the District of Kansas
D.C. No. 91-CV-1504-PFK
Jerry L. Berg, Law Offices of Jerry L. Berg, P.A., Wichita, Kansas, for Plaintiffs-
Appellants.
Stephen E. Robison (David G. Seely with him on the briefs), Fleeson, Gooing, Coulson &
Kitch, L.L.C., Wichita, Kansas, for Defendant-Appellee Luther Donald Meeks.
Alan L. Rupe, Morrison & Hecker L.L.P., Wichita, Kansas, for Defendants-Appellees.
__________________________________
Before PORFILIO, TACHA, and BRORBY, Circuit Judges.
PORFILIO, Circuit Judge.
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This appeal represents the second time this case is before us. Plaintiffs, Datton
Wilson, Jr.’s estate and the surviving members of his family, brought this lawsuit
pursuant to 42 U.S.C. § 1983 with pendent state law claims alleging nineteen separate
causes of action arising from the shooting death of Mr. Wilson during a confrontation
with the Haysville Police Department on December 7, 1990. In the first appeal, we held
the individual police officers were entitled to qualified immunity on plaintiffs’ federal
claims. Wilson v. Meeks, 52 F.3d 1547 (10th Cir. 1995) (Wilson I). On remand, the
district court granted summary judgment in favor of the City of Haysville and the
individual defendants on the remainder of plaintiffs’ claims. Plaintiffs now appeal, and
we affirm.
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The basic facts are described in detail in this court’s original opinion and need not
be repeated here. Wilson I at 1549-51. Suffice that the first appeal established the
qualified immunity of the individual police officers from all of plaintiffs’ federal claims.
On remand, the district court informed both parties, “in the face of the circuit
court’s findings and directives, it was assumed here [by the court] that this case was over;
that the remaining claims were without merit and should be timely dismissed. Not so,
said plaintiffs counsel.” Wilson v. Meeks, No. 91-1504-PFK, 1995 WL 643834, at *2 (D.
Kan. Oct. 12, 1995). As a result of the plaintiffs’ position, the court suggested the
individual defendants and the City of Haysville (defendants) renew their motions for
summary judgment on all the remaining claims. After holding a hearing and considering
both parties’ voluminous filings, the court granted defendants’ motions.
On appeal, plaintiffs raise three issues. First, plaintiffs argue this court’s earlier
decision was made without appellate jurisdiction and is therefore either void or voidable.
Second, they assert the district court’s grant of summary judgment on the pendent state
claims was inappropriate. Third, plaintiffs contend the City of Haysville should be held
liable for the combined acts and omissions of its employees despite our conclusion the
individual defendants were entitled to qualified immunity.
Plaintiffs argue Johnson v. Jones, ___ U.S. ___, 115 S.Ct. 2151 (1995),
eliminated this court’s appellate jurisdiction to consider defendants’ initial appeal of the
district court’s disposition of the qualified immunity issue. They maintain we lacked
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jurisdiction to issue our April 20, 1995 opinion and should have so concluded upon
consideration of plaintiffs’ petition for rehearing, which was not finally resolved until
after the Court’s issuance of Johnson. Plaintiffs maintain defendants’ appeal involved
questions of “evidence sufficiency” and, therefore, appellate jurisdiction was eliminated
by Johnson. Id. at 2159; Sevier v. City of Lawrence, Kan., 60 F.3d 695, 700 (10th Cir.
1995). They contend upon remand the district court incorrectly denied their collateral
attack on this court’s assumption of jurisdiction in Wilson I.
However, defendants correctly guide us to analyze this issue under the doctrine of
the law of the case. “The law of the case is a judicial doctrine designed to promote
decisional finality. Once a court decides an issue, the doctrine comes into play to prevent
the re-litigation of that issue in subsequent proceedings in the same cases.” Pittsburg &
Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1536 n. 4 (10th Cir. 1995) (citing
Arizona v. California, 460 U.S. 605, 618-19 (1983)). The doctrine is considered only a
rule of practice and is not a limit on a court’s power or authority. Id. Over time, three
circumstances have evolved justifying a departure from that doctrine:
[T]he circumstances justifying a departure from the law of the case
are narrow. The most widely quoted statement is by former Tenth Circuit
Chief Judge Orie Phillips, sitting in another circuit, that the law of the case
must be followed “unless the evidence on a subsequent trial was
substantially different, controlling authority has since made a contrary
decision of the law applicable to such issues, or the decision was clearly
erroneous and would work a manifest injustice.
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United States v. Monsisvais, 946 F.2d 114, 117 (10th Cir. 1991) (quoting White v.
Murtha, 377 F.2d 428, 432 (5th Cir. 1967)) (emphasis added); see also Major v. Benton,
647 F.2d 110, 112 (10th Cir. 1981).
Plaintiffs argue Johnson, however, represents an intervening controlling change in
the applicable law that would obviate the doctrine of the law of the case. In Johnson, the
Court revisited the issue whether defendants can immediately appeal under 28 U.S.C.
§ 1291 a district court’s fact-related determination denying qualified immunity based on
the pretrial record. Id. at 2153. The Court held “a defendant, entitled to invoke a
qualified-immunity defense, may not appeal a district court’s summary judgment order
insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’
issue of fact for trial.” Id. at 2159. In so holding, the Court framed its inquiry narrowly
at the outset by explicitly noting, “[t]he order in question resolved a fact-related dispute
about the pretrial record, namely whether or not the evidence in the pretrial record was
sufficient to show a genuine issue of fact for trial.” Id. at 2153.
Subsequently, the Court has clarified the extent and impact of Johnson’s reach. In
Behrens v. Pelletier, ___ U.S. ___, 116 S.Ct. 834, 842 (1996), the Court stated:
[R]espondent asserts that appeal of denial of the summary-judgment
motion is not available because the denial rested on the ground that
“[m]aterial issues of fact remain.” This, he contends, renders the decision
unappealable under last Term’s decision in Johnson v. Jones, 515 U.S., at
____, 115 S.Ct. at 2156-2157. That is a misreading of the case. Every
denial of summary judgment ultimately rests upon a determination that
there are controverted issues of material fact, see Fed. R. Civ. Proc. 56, and
Johnson surely does not mean that every denial of summary judgment is
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nonappealable. Johnson held, simply, that determinations of evidentiary
sufficiency at summary judgment are not immediately appealable merely
because they happen to arise in a qualified-immunity case; if what is at
issue in the sufficiency determination is nothing more than whether the
evidence could support a finding that particular conduct occurred, the
question decided is not truly “separable” from the plaintiff’s claim, and
hence there is no “final decision” under Cohen and Mitchell. See 515 U.S.
at ____, 115 S.Ct. at 2156-2157. Johnson reaffirmed that summary-
judgment determinations are appealable when they resolve a dispute
concerning an “abstract issu[e] of law” relating to qualified immunity, id. at
____, 115 S.Ct. at 2158-- typically, the issue whether the federal right
allegedly infringed was “clearly established[.]”
(emphases in original).
Since Johnson, this court has applied the new jurisdictional rule on only four
occasions. In Sevier v. City of Lawrence, Kan., 60 F.3d 695 (10th Cir. 1995), we
concluded we lacked jurisdiction under Johnson to review the district court’s disposition
of qualified immunity explaining, “we remain without jurisdiction to review the court’s
finding that there existed genuine issues of disputed facts that precluded the entry of
summary judgment.” Id. at 701. In Mick v. Brewer, 76 F.3d 1127 (10th Cir. 1996),
applying Johnson and Sevier, we concluded we possessed jurisdiction to review the
district court’s legal determination of what constituted clearly established law on
plaintiff’s excessive force and failure to intervene claims but lacked jurisdiction to review
the district court’s ruling genuine issues of material fact precluded summary judgment.
Id. at 1133. As a result, we proceeded to analyze only part of the defendants-appellants’
appeal. Id. at 1134-37. In Myers v. Oklahoma County Bd. of County Comm’rs, 80 F.3d
421 (10th Cir. 1996), petition for cert. filed, 65 U.S.L.W. 3017 (U.S. June 27, 1996) (No.
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95-2091), we concluded we did not have jurisdiction to hear an appeal when “the district
court denied summary judgment to the individual defendants on their qualified immunity
defense on the sole basis that ‘there [was] a genuine issue for trial regarding the
reasonableness of defendants’ conduct.’” Id. at 424 (quoting the district court’s order).
Finally, in Shinault v. Cleveland County Bd. of County Comm’rs, 82 F.3d 367 (10th Cir.
1996), we held we lacked jurisdiction under Johnson to review the district court’s
conclusion there was a genuine issue of material fact concerning the motivation behind
Mr. Shinault’s termination by the Board. “[T]he district court found that a genuine issue
of material fact existed as to whether Skinner fired Shinault for engaging in
constitutionally protected political activities, and under Johnson, that finding is
unreviewable.” Id. at 370.
Several other courts of appeal have distinguished Johnson in particular cases.
Jemmott v. Coughlin, 85 F.3d 61, 66 (2d Cir. 1996) (“For the purpose of this appeal,
however, the defendants are not contesting the sufficiency of plaintiff’s proof, or the
district court’s ruling that disputed issues of fact require the denial of their summary
judgment motion. Instead, they argue that even if plaintiff’s allegations are accepted as
true, no clearly established constitutional right was violated.”); Heidmann v. Rother, 84
F.3d 1021, 1027 (8th Cir. 1996) (“We, therefore, find it necessary to review the record
and consider the legal context of plaintiffs’ constitutional and statutory claims, in order to
determine whether this interlocutory appeal raises abstract issues of law relating to
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qualified immunity over which we presently have jurisdiction. We hold that it does.”);
Cantu v. Rocha, 77 F.3d 795, 803 (5th Cir. 1996) (“Unlike the present appeal, the
defendants in Johnson did not contend that when taking all of the plaintiff’s factual
allegations as true no violation of a clearly established right was shown.”); Dolihite v.
Maughon, 74 F.3d 1027, 1034 n. 3 (11th Cir. 1996) (“Unlike Johnson . . . the primary
argument of each appealing public official in this case is that a reasonable public official
could have believed that his or her actions were lawful, in light of clearly established law
and the information possessed by each official. This argument raises the core qualified
immunity issue and is, therefore, immediately appealable”) (citations omitted), cert.
denied ___ S.Ct.. ___, 1996 WL 442721, 65 U.S.L.W. 3110 (U.S. Oct. 7, 1996) (No. 96-
183); Sanderfer v. Nichols, 62 F.3d 151, 153 n.2 (6th Cir. 1995) (“[T]his order is
immediately reviewable because, as discussed below, the plaintiff’s version of events,
regardless of the sufficiency of the supporting evidence, does not state a claim for such a
[constitutional] violation.”).
Applying these principles to our disposition in Wilson I, we now conclude we had
appellate jurisdiction under Johnson. We analyzed plaintiffs’ claims for failure to render
medical aid and cover-up in terms of whether defendants violated a clearly established
constitutional duty. Wilson I at 1554-56 (medical aid) and at 1556-58 (cover-up). These
were pure issues of law that were not dependent upon the resolution of any facts.
However, we also considered whether plaintiffs’ excessive force claim presented a
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genuine issue of material fact precluding summary judgment. Id. at 1553. Standing
alone, this inquiry could be affected by Johnson; however, because the other legal issues
present in Wilson I were reviewable, we would have had the option of exercising our
pendent appellate jurisdiction to also review the district court’s disposition of the
excessive force claim. See Johnson, 115 S.Ct. at 2159 (assuming arguendo potential
availability of pendent appellate jurisdiction in a similar context); Shinault, 82 F.3d at
370 (suggesting availability of pendent appellate jurisdiction); but see Mick, 76 F.3d at
1134 (not addressing possibility of pendent appellate jurisdiction in a case where the
court concluded it only possessed the jurisdiction to hear part of the appeal).
Because this court had appellate jurisdiction to decide Wilson I under Johnson,
we hold that Johnson does not represent an intervening change in the law making the
exception to the law of the case doctrine inapplicable. Accordingly, Wilson I governs
this second appeal.
Plaintiffs argue the district court erred by granting summary judgment on their
pendent Kansas state law claims of assault and battery, false arrest, fraud, and wrongful
death against various defendants. They advance the novel theory that it was
inappropriate for the district court to rely on determinations made by this court in Wilson
I to resolve these claims. Plaintiffs maintain under Kansas law genuine issues of material
fact existed precluding summary judgment on each of their pendent claims.
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First, arguing they established a false arrest claim against Officer Meeks, they
assert a factual question remains concerning whether Officer Meeks was the initial
aggressor in the incident leading to Mr. Wilson’s death, forfeiting his right to self-
defense. Second, plaintiffs contend the district court improperly granted summary
judgment on their pendent state wrongful death claim, contending the police officers’
failure to render first aid amounted to negligence under Kansas law. Third, plaintiffs
argue the district court erred by granting summary judgment on their fraud claim,
maintaining fraud and fraud by silence do not have to rise to the level of a constitutional
violation to be actionable under Kansas law.
We review summary judgment dispositions de novo, applying Fed. R. Civ. P. 56 in
identical fashion as did the district court. Hooks v. Diamond Crystal Specialty Foods,
Inc., 997 F.2d 793, 796 (10th Cir. 1993). On appeal, this court considers all the evidence
in the light most favorable to the non-moving party. Applied Genetics Int’l, Inc. v. First
Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). Appellate consideration
includes drawing all reasonable inferences from the available underlying facts. United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam). Summary judgment is
appropriate only if there is no genuine issue of material fact for trial. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986).
The district court’s disposition of these issues was correct. The court determined
the assault and battery claims against Officer Meeks were precluded by our holding his
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actions were objectively reasonable. It found Kansas’ law of self-defense includes a two-
part test requiring proof of both subjective belief in the need to defend oneself and
objective reasonableness. Thus our conclusion the officer’s actions were objectively
reasonable in terms of the excessive force claim supported the objective prong, and
Officer Meeks’ testimony he was in fear of Mr. Wilson’s firearm met the subjective
inquiry.
In Kansas, “[a]ssault is defined as ‘an intentional threat or attempt, coupled with
apparent ability, to do bodily harm to another, resulting in immediate apprehension of
bodily harm. No bodily contact is necessary.’” Vetter v. Morgan, 913 P.2d 1200, 1203
(Kan. Ct. App. 1995) (quoting Taiwo v. Vu, 822 P.2d 1024, 1027 (Kan. 1991)). The
elements of battery include touching or striking another person with the intent of bringing
about either a contact, or an apprehension of contact that is harmful and offensive.
Williams v. Kearbey, 775 P.2d 670, 674 (Kan. Ct. App. 1989). One may defend against
an assault and battery by raising the affirmative defense of self-defense. Sanders v.
Sitton, 292 P.2d 1099, 1101 (Kan. 1956). Kansas has codified these principles of self-
defense in Kan. Stat. Ann.§ 21-3211 (1995), which provides:
A person is justified in the use of force against an aggressor when
and to the extent it appears to him and he reasonably believes that such
conduct is necessary to defend himself or another against such aggressor’s
imminent use of unlawful force.
The Kansas Supreme Court has explained the two-prong test contemplated by the statute:
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The first prong is subjective and requires a showing that the defendant
sincerely and honestly believed it necessary to kill to defend himself. The
second prong is an objective standard and requires a showing that a
reasonable person in the defendant’s circumstances would have perceived
self-defense as necessary.
State v. Tyler, 840 P.2d 413, 422 (Kan. 1992); see also State v. Stewart, 763 P.2d 572
(Kan. 1988).
Relying principally on Lewis v. Marmon, 655 P.2d 953 (Kan. Ct. App. 1982),
plaintiffs assert a jury must determine whether Officer Meeks’ actions met the objective
reasonable person standard. In Lewis, the Kansas Court of Appeals noted the general rule
in this inquiry represents a factual question to be determined by the jury. Id. at 956.
However, the court later did not foreclose the possibility of summary judgment being
appropriate in some circumstances. “Summary judgment is an exception to this rule, and
has been granted in only a very few cases, such as where the officer had prior knowledge
that his adversary was armed and dangerous, or where the officer was confronted by an
armed assailant.” Id. at 957.
In Wilson I, this court concluded Officer Meeks’ deadly force was in response to
Mr. Wilson’s pointing his firearm in the officer’s general direction. In short, Officer
Meeks acted in response to an armed assailant. Plaintiffs attempt to avoid this conclusion
by asserting a genuine issue of material fact exists about whether Officer Wilson was the
initial aggressor in the incident. This argument is a transparent variation on the
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“surrender position” argument advanced in Wilson I.1 Thus, our holding of objective
reasonableness subsumes Officer Meeks responded to Mr. Wilson’s action, and Mr.
Wilson, not Officer Meeks, was the aggressor here. There simply is no remaining
genuine issue of material fact relating to this claim.
The district court held plaintiffs’ false arrest claim against Officer Meeks must fall
for identical reasons as their assault and battery claim. That holding is correct. If Officer
Meeks’ actions were reasonable when he used deadly force against Mr. Wilson, they were
also reasonable when he initially confronted him.
Based on our holding police officers have no clearly established constitutional duty
to render medical assistance and the conclusion the officers’ actions were reasonable
under the circumstances, Wilson I at 1556, the district court concluded defendants’
failure to provide medical aid to Mr. Wilson did not support a wrongful death claim. It
recognized our holding on the issue is tantamount to saying the officers had no duty to
provide aid beyond that given in this case, thus obviating any potential finding of
negligence which would be a necessary prerequisite for a wrongful death claim.
Hence, the district court concluded plaintiffs’ fraud claim was simply a state law
analogue to their federal cover-up claim and is precluded by our holding plaintiffs’
allegations of a cover-up were without merit. In Slaymaker v. Westgate State Bank, 739
Plaintiffs had contended Mr. Wilson approached the officer in a non-threatening
1
“surrender position.”
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P.2d 444 (Kan. 1987), the Kansas Supreme Court described the elements necessary to
prove fraud.
Actionable fraud includes an untrue statement of material fact,
known to be untrue by the person making it, made with the intent to deceive
or recklessly made with disregard for its truthfulness, where another party
justifiably relies upon the statement and acts to his injury. The injured party
must have been deceived by, and have relied upon, the defendant’s
misrepresentations in order to recover damages for fraud. The injured
party’s reliance on a fraudulent misrepresentation must be reasonable,
justifiable and detrimental.
Id. at 450 (citations and quotation marks omitted); Nordstrom v. Miller, 605 P.2d 545,
551-52 (Kan. 1980). Additionally, a claim of fraud may be established by concealment or
silence.
To establish fraud by silence, the plaintiff must show by clear and
convincing evidence the following elements: (1) that defendant had
knowledge of material facts which plaintiff did not have and which plaintiff
could not have discovered by the exercise of reasonable diligence; (2) that
defendant was under an obligation to communicate the material facts to the
plaintiff; (3) that defendant intentionally failed to communicate to plaintiff
the material facts; (4) that plaintiff justifiably relied on defendant to
communicate the material facts to plaintiff; and (5) that plaintiff sustained
damages as a result of defendant’s failure to communicate the material facts
to the plaintiff.
OMI Holdings, Inc. v. Howell, 918 P.2d 1274 (Kan. 1996) (quoting Lesser v. Neosho
County Community College, 741 F. Supp. 854, 863 (D. Kan. 1990)). The common
element of these two types of fraud is either a specific intent to deceive or at least
recklessness leading to the deception. In analyzing plaintiffs’ cover-up claim in Wilson I,
we concluded there was no basis for the allegation the police engaged in a conspiracy or
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cover-up to prevent plaintiffs from discovering critical facts concerning the shooting.
This eliminates any possibility defendants intended to deceive plaintiffs either by
providing false information or failing to disclose material facts relevant to plaintiffs’
investigation of the incident and forecloses the conclusion defendants acted recklessly to
deceive plaintiffs. Consequently, the district court did not err in holding plaintiffs’ fraud
claim must fail.
Plaintiffs argue the district court erred in granting summary judgment for the City
of Haysville on their municipal liability claims, contending the individual defendants’
qualified immunity does not preclude a finding of municipal liability against the City. In
Monell v. Department of Social Servs., 436 U.S. 658 (1978), the Supreme Court declared
municipalities and other local government entities were “persons” within the meaning of
42 U.S.C. § 1983. Id. at 690 (overruling Monroe v. Pape, 365 U.S. 167, 187 (1961)).
However, in so doing, the Court explicitly rejected municipal liability based on either a
respondeat superior or vicarious liability theory. Instead, municipalities may not be held
liable “unless actions pursuant to official municipal policy of some nature caused a
constitutional tort.” Monell, 436 U.S. at 691.
The district court correctly concluded no municipal liability could be found in this
case because there was no constitutional violation committed by any of the individual
defendants. “A municipality may not be held liable where there was no underlying
constitutional violation by any of its officers.” Hinton v. City of Elwood, Kan., 997 F.2d
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774, 782 (10th Cir. 1993) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799, cert.
denied, 476 U.S. 1154 (1986)).
Plaintiffs make the broad assertion no finding of individual liability is necessary
for a court to find a municipality liable for constitutional violations attributable to it. This
assertion is blatantly inaccurate.
When a finding of qualified immunity is predicated on the basis that the law
is not clearly established, it is indeed correct that “there is nothing
anomalous about allowing [a suit against a municipality] to proceed when
immunity shields the defendants[, for] [t]he availability of qualified
immunity does not depend on whether a constitutional violation has
occurred.”
An individual municipal officer may also be entitled to qualified
immunity, however, because the officer’s conduct did not violate the law....
In such a case, a finding of qualified immunity may preclude the imposition
of any municipal liability.
Hinton, 997 F.2d at 783 (quoting Watson v. City of Kansas City, Kan., 857 F.2d 690, 697
(10th Cir. 1988) (alterations in original)). Because qualified immunity in Wilson I was
predicated on the conclusion no constitutional violation occurred, Hinton teaches the City
of Haysville cannot be held liable in this case.
Finally, plaintiffs make a relatively incomprehensible argument that whether a
constitutional violation occurred must be judged from Mr. Wilson’s perspective and all
the officers’ actions and omissions must be taken into consideration in totality. Plaintiffs
argue, even if none of the defendants violated the constitution individually, the possibility
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still exists, and a jury must determine, whether their combined actions violated the
constitution. There is a serious logical flaw in plaintiffs’ syllogism.
We fail to comprehend exactly how no individual officer could violate Mr.
Wilson’s constitutional rights, but somehow collectively, all of them could. Plaintiffs cite
no authority supporting this novel theory, and they do not otherwise elucidate. We are not
persuaded.
AFFIRMED.
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