Myers v. Brewer ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 24, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
KRISTINA MYERS, individually, and as
administrator of the Estate of Steven P.
Myers, and as natural parent and legal
guardian of K.D.M., C.F.M. and K.J.M.,
minors,
Plaintiff - Appellee,
v. No. 18-3145
(D.C. No. 2:17-CV-02682-CM-JPO)
VIRGIL BREWER, individually and in his (D. Kan.)
official capacity as Undersheriff of Barber
County, Kansas,
Defendant - Appellant,
and
LONNIE SMALL, individually and in his
official capacity as Sheriff of Barber
County, Kansas,
Defendant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, BALDOCK, and BACHARACH, Circuit Judges.
_________________________________
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Virgil Brewer, Undersheriff of Barber County, Kansas, shot and killed Steven
Myers with a beanbag round fired from a 12-gauge shotgun. After the shooting,
Mr. Myers’ wife, Kristina Myers, commenced this action in the district court, which
dismissed or declined to exercise jurisdiction over most of her claims, though it refused
to dismiss her excessive force claim under Fed. R. Civ. P. 12(b)(6) based on qualified
immunity. Undersheriff Brewer appealed, and Ms. Myers moved to dismiss the appeal
for lack of jurisdiction.1 For the following reasons, we deny the motion to dismiss and
affirm the denial of qualified immunity.
I
On October 6, 2017, at 6:26 pm, the Barber County Sheriff’s office received a call
indicating that Mr. Myers was in front of a bar with a shotgun.2 Forty-one minutes later,
at 7:07 pm, several officers, including Undersheriff Brewer, Sheriff Lonnie Small, and
Deputy Mark Suchy, arrived on scene. Mr. Myers had already gone home, put away his
gun, and taken his dog for a walk, but officers began searching for him house-to-house.
Sheriff Small entered one house with his K-9, followed by Undersheriff Brewer and
1
Undersheriff Brewer asserts “[t]his . . . is an appeal from a final judgment
under Fed. R. Civ. P. 54(b), and this Court has jurisdiction under 28 U.S.C. § 1291.”
Aplt. Br. at 1. In fact, this is an interlocutory appeal from the denial of qualified
immunity, and the district court docket sheet confirms that court never entered a Rule
54(b) certification. See Aplt. App., Vol. 1 at 1-6.
2
Because this case was decided on a Rule 12(b)(6) motion, “we accept all
well-pleaded factual allegations in the complaint as true,” Thomas v. Kaven, 765 F.3d
1183, 1188 n.1 (10th Cir. 2014), and may consider audio and video recordings taken
from the responding officers’ body cameras, which are referenced in the complaint,
see Montoya v. Vigil, 898 F.3d 1056, 1060 n.2 (10th Cir. 2018); Brokers’ Choice of
Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 & n.22 (10th Cir. 2017).
2
Deputy Suchy. Sheriff Small reached the back door and spotted Mr. Myers in a backyard
shed, approximately fifteen feet away. Sheriff Small shouted for Mr. Myers to come out
of the shed as he turned and led the K-9 away, telling Undersheriff Brewer, “he’s in the
shed,” Aplt. App., Vol. 1 at 10, para. 30. Sheriff Small pointed for Undersheriff Brewer
to confront Mr. Myers, who, seconds later, emerged from the shed and stood in the
backyard, unarmed.
Undersheriff Brewer and Deputy Suchy shouted to Mr. Myers, “Put your hands
up!” and “Get on the ground!” Id. at 11, para. 33. Mr. Myers continued standing “in the
yard, with empty hands at his sides.” Id., para. 34. After eight seconds, Undersheriff
Brewer shot him in the chest with a beanbag round fired from a 12-gauge shotgun from a
distance of approximately six to eight feet. Mr. Myers screamed, “Ow!,” fell to his hands
and knees, and then collapsed face down on the ground. Id., para. 39. Undersheriff
Brewer handcuffed him and rolled him over; his shirt was covered with blood, which
began to pool on the ground. After some five and half minutes, Deputy Suchy
commenced CPR. When the coroner arrived, he assessed the scene and said, “That’s
from a beanbag? Holy shit! I thought they weren’t supposed to penetrate. Must’ve been
pretty damn close, like six to eight feet maybe?” Id. at 12, para. 49. Deputy Suchy and
another officer continued their efforts to resuscitate Mr. Myers, but they failed, and he
was pronounced dead at the scene.
Ms. Myers brought this action on behalf of her husband’s estate and their three
minor children. She asserted claims against Sheriff Small and Undersheriff Brewer in
their individual and official capacities for excessive force in violation of the Fourth
3
Amendment (count one), “[s]urvival,” id. at 14, (count two), conspiracy to use excessive
force (count three), violation of the civil right to familial relationship (count four), and
wrongful death under state law (count five). Undersheriff Brewer and Sheriff Small filed
separate motions to dismiss under Rule 12(b)(6) based on qualified immunity. They also
submitted recordings of the call and videos captured by the responding officers’ dash and
body cameras, including Deputy Suchy’s body camera, which partially recorded the
shooting.
The district court considered this material and dismissed all but the excessive force
claim against Undersheriff Brewer, declining to exercise supplemental jurisdiction over
the state law individual capacity claims. Those rulings are not before us. Regarding the
excessive force claim against Undersheriff Brewer, the district court concluded that the
video taken from Deputy Suchy’s body camera did not clearly contradict the allegations
in the complaint, which adequately alleged a constitutional violation. The court further
concluded that the complaint adequately alleged a violation of clearly established law,
and thus Undersheriff Brewer was not entitled to qualified immunity at this stage of the
proceedings. This appeal followed.3
II
We review de novo the district court’s denial of a Rule 12(b)(6) motion to dismiss
based on qualified immunity. Prager v. LaFaver, 180 F.3d 1185, 1190 (10th Cir. 1999).
3
Ms. Myers moved to dismiss the appeal, asserting the district court identified
factual issues precluding qualified immunity. See Johnson v. Jones, 515 U.S. 304,
313-14 (1995). We deny the motion to dismiss because, as set out below, this appeal
involves issues of law.
4
“A defendant may immediately appeal the denial of a 12(b)(6) motion based on qualified
immunity to the extent that denial turns on an issue of law.” Id. (citing Behrens v.
Pelletier, 516 U.S. 299, 307 (1996)). We agree with the district court, as a matter of law,
that the video here does not clearly contradict the allegations in the complaint, and we
confine our analysis accordingly. “Although qualified immunity defenses are typically
resolved at the summary judgment stage, district courts may grant motions to dismiss on
the basis of qualified immunity.” Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir.
2014). “Asserting a qualified immunity defense via a Rule 12(b)(6) motion, however,
subjects the defendant to a more challenging standard of review than would apply on
summary judgment.” Id. (internal quotation marks omitted). “At the motion to dismiss
stage, it is the defendant’s conduct as alleged in the complaint that is scrutinized for
objective legal reasonableness.” Id. (brackets and internal quotation marks omitted). We
evaluate “(1) whether the facts that a plaintiff has alleged make out a violation of a
constitutional right, and (2) whether the right at issue was clearly established.” Keith v.
Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013) (internal quotation marks omitted).
“We review [Fourth Amendment] excessive force claims under a standard of
objective reasonableness, judged from the perspective of a reasonable officer on the
scene, rather than with 20/20 vision of hindsight.” Pauly v. White, 874 F.3d 1197, 1215
(10th Cir. 2017) (internal quotation marks omitted), cert. denied, 138 S. Ct. 2650 (2018).
We evaluate the totality of circumstances, “allow[ing] 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
5
situation.” Plumhoff v. Rickard, 572 U.S. 765, 774-75 (2014) (brackets and internal
quotation marks omitted). Our analysis “requires careful attention to the facts and
circumstances of each particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.” Pauly,
874 F.3d at 1215 (emphasis and internal quotation marks omitted).
The circumstances here, as alleged in the complaint, are sufficient to indicate a
Fourth Amendment violation. There was no crime at issue, and although the police
received a call that Mr. Myers was in front of a bar with a shotgun, there are no
allegations that he was prohibited from possessing a shotgun in public. Nor did he pose
an immediate threat to the officers or anyone else—the officers did not arrive on scene
for some forty-one minutes, and there are no allegations that Mr. Myers threatened
anyone in the interim.4 Indeed, the complaint avers that he went home, put away his gun,
and took his dog for a walk. When the officers later encountered Mr. Myers, they
ordered him out of the backyard shed and, “[w]ithin a few seconds . . . [he] was
standing—unarmed—outside of the shed in the middle of the backyard.” Aplt. App.,
Vol. 1 at 11, para. 32. Although he did not immediately comply with Undersheriff
Brewer and Deputy Suchy’s orders to put his hands up and get on the ground,
4
Even if we must accept Undersheriff Brewer’s assertion that he believed
Mr. Myers had committed aggravated assault by threatening people with the shotgun
in front of the bar, our conclusion remains unchanged because the allegations in light
of the totality of circumstances remain sufficient to allege a constitutional violation.
See Morris v. Noe, 672 F.3d 1185, 1195 n.4 (10th Cir. 2012).
6
Undersheriff Brewer fired the beanbag round “[a]fter a mere eight seconds of shouting
inconsistent commands at [Mr.] Myers.” Id., para. 36. Yet there are no allegations that
Mr. Myers was actively resisting arrest or attempting to evade arrest. Rather, the
complaint alleges that he was shot as he “stood in the yard, with empty hands at his
sides.” Id., para. 34. According to the complaint, he “did not threaten the officers,
brandish a weapon, or attempt to escape.” Id., para. 35. These allegations state a
constitutional violation and satisfy the first prong of the qualified immunity analysis.
We turn to whether the law was clearly established. The Supreme Court has
repeatedly admonished “courts not to define clearly established law at a high level of
generality.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (ellipsis and
internal quotation marks omitted). “A clearly established right is one that is sufficiently
clear that every reasonable official would have understood that what he is doing violates
that right.” Id. (internal quotation marks omitted). “We do not require a case directly on
point, but existing precedent must have placed the statutory or constitutional question
beyond debate.” Id. (internal quotation marks omitted). “The dispositive question is
whether the violative nature of particular conduct is clearly established.” Id. (internal
quotation marks omitted).
Undersheriff Brewer shot Mr. Myers from a distance of six to eight feet with a
beanbag round fired from a 12-gauge shotgun. Although Mr. Myers had been in front of
a bar with a shotgun some forty-one minutes earlier, when Undersheriff Brewer
confronted him he had committed no crime, possessed no weapon, and immediately
complied with the order to come out of the shed. He neither resisted arrest nor attempted
7
to flee, though he did fail to put his hands up and get on the ground within the eight
seconds of being ordered to do so before Undersheriff Brewer fired the beanbag. We
have held it is clearly established that an officer uses excessive force when he executes a
forceful takedown of a subject who at most was a misdemeanant, but otherwise posed no
threat and did not resist arrest or flee. See Morris, 672 F.3d at 1198. We have also held
it is clearly established that an officer uses excessive force when he shoots a subject who
possessed a knife and took three steps toward the officer from a distance of some five to
ten feet but otherwise made no threatening motion. See Tenorio v. Pitzer, 802 F.3d 1160,
1165-66 (10th Cir. 2015). Indeed, our decision in Tenorio was predicated on Zuchel v.
City & County of Denver, 997 F.2d 730, 735 (10th Cir. 1993), where a restaurant
manager called the police because Zuchel had created a disturbance. By the time the
police arrived, Zuchel had left and was found nearby in a “heated exchange” with several
teenagers, one of whom shouted—incorrectly—that he had a knife. Id. Zuchel took
“three wobbly steps toward” the officer, who was six to eight feet away, and the officer
shot him. Id. at 736. We held this evidence was sufficient to support a jury finding that
the officer’s use of force was not objectively reasonable. Id. We think Zuchel, Tenorio,
and Morris clearly established that the use of force under the circumstances confronted
by Undersheriff Brewer here was not objectively reasonable. Accordingly, we affirm the
denial of qualified immunity.
8
III
The motion to dismiss this appeal is denied, and the judgment of the district court
is affirmed.
Entered for the Court
Bobby R. Baldock
Circuit Judge
9