Estate of Eric Jack Logan v. City of South Bend ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2922
ESTATE OF ERIC JACK LOGAN,
Plaintiff-Appellant,
v.
CITY OF SOUTH BEND, INDIANA, and RYAN O’NEILL,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:19-CV-495 DRL-MGG — Damon R. Leichty, Judge.
____________________
ARGUED SEPTEMBER 12, 2022 — DECIDED OCTOBER 3, 2022
____________________
Before EASTERBROOK, SCUDDER, and JACKSON-AKIWUMI,
Circuit Judges.
EASTERBROOK, Circuit Judge. Police officer Ryan O’Neill
shot and killed Eric Jack Logan after Logan walked menac-
ingly toward him. During a 3:30 am encounter, while O’Neill
was investigating reports that someone was stealing items
from parked cars, Logan picked up a hunting knife and ap-
proached O’Neill. The officer told Logan to stand still and put
down the weapon. Logan did neither, held the knife up, and
2 No. 21-2922
came within three steps of O’Neill. Logan threw the knife, hit-
ting O’Neill in the arm, and O’Neill fired his gun, hiSing Lo-
gan in the torso. Only after being shot did Logan obey the
command to get on the ground. O’Neill called for an ambu-
lance, but Logan died at a hospital. His estate filed this suit
under 42 U.S.C. §1983, accusing O’Neill of violating the
Fourth Amendment (applied to state actors by the Four-
teenth) by using deadly force when he was not in danger. See
Tennessee v. Garner, 471 U.S. 1 (1985). The district court
granted summary judgment in favor of O’Neill and his em-
ployer, the City of South Bend. 564 F. Supp. 3d 719 (N.D. Ind.
2021).
The facts we have recited come from the affidavit and dep-
osition of Officer O’Neill, the only surviving witness to the
events. The Estate does not deny that Logan had a hunting
knife; ignored commands to drop the knife, stand still, or get
down; advanced on O’Neill; and threw the knife at him. But
the Estate contends that one of O’Neill’s multiple descriptions
of these events implies that Logan threw the knife a second or
so before O’Neill pulled the trigger. If that is the sequence, the
Estate submits, then O’Neill was safe (Logan was no longer
armed) and could not use deadly force. Moreover, the Estate
contends, a jury might doubt O’Neill’s version of events be-
cause he did not activate his body camera until he had fired,
and he has been convicted of ghost employment, a felony in
Indiana. If O’Neill is not credible, the argument goes, then a
jury could find that he used unreasonable force.
Litigation must be resolved on the evidence that exists.
When an officer who used deadly force is the only possible
witness, a decedent’s estate is unlikely to succeed unless
physical evidence contradicts the officer’s account. So we
No. 21-2922 3
have said in multiple decisions. See, e.g., King v. Hendricks, 954
F.3d 981 (7th Cir. 2020); Gysan v. Francisko, 965 F.3d 567 (7th
Cir. 2020). The physical evidence, such as the bullet track, is
consistent with O’Neill’s account.
Disbelief of the only witness is not proof that the opposite
of the witness’s statements is true; disbelief would mean that
the record is empty, and on an empty record the plaintiff
loses, because the plaintiff has the burdens of production and
persuasion. See, e.g., Waldon v. Wal-Mart Stores, Inc., 943 F.3d
818, 823 (7th Cir. 2019) (“Criticizing the credibility of the mo-
vant’s affiants, alone, is not enough to avoid summary judg-
ment. ‘[W]hen challenges to witness’ credibility are all that a
plaintiff relies on, and he has shown no independent facts—
no proof—to support his claims, summary judgment in favor
of the defendant is proper.’ Springer v. Durflinger, 518 F.3d
479, 484 (7th Cir. 2008) (emphasis in original); see also Dugan
v. Smerwick Sewerage Co., 142 F.3d 398, 406 (7th Cir. 1998)
(‘[T]he prospect of challenging a witness’ credibility is not
alone enough to avoid summary judgment.’).”) See also
United States v. Zeigler, 994 F.2d 845 (D.C. Cir. 1993).
O’Neill has described the encounter in multiple, slightly
different, ways. The statement most favorable to the Estate
boils down to: “He threw a knife at me, so I shot him.” The
Estate maintains that this admits to a temporal sequence of
knife first, shot second. That is not clear to us; it could mean
that the two events were simultaneous. But let us take the Es-
tate’s perspective. Would that permit a reasonable jury to find
that O’Neill shot Logan after O’Neill was out of danger? Not
at all. Logan evidently was bent on harming the officer. Why
would anyone in O’Neill’s position believe that the knife was
the only weapon at Logan’s disposal? He might have had
4 No. 21-2922
concealed weapons—and Logan assuredly had fists, feet, and
elbows, all of which could have been used in the moment to
inflict damage. Logan was substantially larger than O’Neill.
That Logan closed on O’Neill and threw a knife shows that
the risk was ongoing during the few seconds that O’Neill had
to make decisions. The use of force must end after a suspect
has been subdued, Miller v. Gonzalez, 761 F.3d 822, 829 (7th
Cir. 2014), but Logan was still on his feet and advancing when
O’Neill opened fire.
The Estate concedes that O’Neill would be entitled to pre-
vail if he had pulled the trigger while the knife was still in
Logan’s hand; we think that the use of force remains reason-
able after a suspect employs a weapon, has not surrendered,
and thus remains dangerous. O’Neill tried to persuade Logan
to desist; it would make liSle sense to read the Constitution
as requiring officers to use deadly force as soon as they see a
weapon in a suspect’s hand, lest they give up their right of
self-defense.
The Estate relies on an expert who proposed to testify that
police officers are trained that they should continue shooting
until the danger has been suppressed. On this view, the fact
that O’Neill fired only two shots implies that he thought him-
self to be safe. Like the district court, we do not see how the
premise about training supports the conclusion that O’Neill
was secure. O’Neill knew that he had hit Logan with his sec-
ond shot, which induced Logan to surrender. The idea that
police officers must keep shooting a suspect in order to estab-
lish their right to have fired in the first place is perverse. Such
a principle would induce officers to empty their magazines—
making sure that the suspect dies—instead of using the least
No. 21-2922 5
force necessary to end the hazard. O’Neill left Logan with a
chance to live and should not be penalized for doing so.
The fact that many shootings by police eliminate an im-
portant source of evidence is troubling, but litigation remains
tied to the record. This record compels a decision for O’Neill.
AFFIRMED