Alyssa Esker v. Christopher Lutz ( 2022 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 3, 2022
Decided August 18,2022
Before
DIANE S. SYKES, Chief Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 21-2574
ALYSSA ESKER, Administrator of the Appeal from the United States District
ESTATE OF EDWIN J. ESKER, Court for the Southern District of
Plaintiff-Appellant, Illinois.
v. No. 19-cv-00691-SPM
CHRISTOPER LUTZ, Stephen P. McGlynn,
Defendant-Appellee. Judge.
ORDER
In July 2017 Sergeant Christopher Lutz shot and killed Edwin Esker while
responding to a domestic disturbance call in Monroe County, Illinois. When Sergeant
Lutz and his partner arrived at the Esker home, they found Edwin walking toward
them carrying a running chainsaw, which he declined to drop upon being instructed to
do so. When Edwin got within 15 feet—chainsaw still in hand—Sergeant Lutz fired
three shots in rapid succession, killing Edwin.
No. 21-2574 Page 2
Alyssa Esker, Edwin’s daughter and the administrator of his estate, later invoked
42 U.S.C. § 1983 and brought this lawsuit against Sergeant Lutz, claiming that his use of
excessive force violated Edwin’s Fourth Amendment rights. The district court entered
summary judgment in Sergeant Lutz’s favor, concluding both that the use of deadly
force was not excessive in these circumstances and that, in any event, he was entitled to
qualified immunity. We agree and affirm.
I
On July 5, 2017 Linda Esker called the non-emergency line for the Monroe
County Sheriff’s Department requesting help dealing with her ex-husband, Edwin, who
lived on the same property in an RV. Over the course of about 13 minutes, Linda stated
that Edwin was drunk, threatening to kill her, and acting erratically—including, about
seven minutes into the call, by picking up a chainsaw and walking down the driveway.
While Linda stayed on the line with the dispatcher, Sergeant Christopher Lutz
and Deputy Sheriff Steve Meister arrived at the Esker property in separate cars. To
reach Linda’s house, the officers had to drive down a long, rough driveway with
overgrown vegetation obscuring their view on both sides. Sergeant Lutz stopped his car
at a sharp left turn in the driveway, saw Edwin, and got out of his car to talk to him. At
that point, Sergeant Lutz testified, Edwin was maybe 50 to 75 feet away holding a
running chainsaw. Edwin kept moving toward the officers despite Sergeant Lutz’s
“repeated, loud verbal commands to drop the chainsaw” and get on the ground. When
Edwin was about 15 feet away—showing no signs of slowing or dropping the
chainsaw, despite continued warnings— Sergeant Lutz fired three shots in quick
succession. Sergeant Lutz hit Edwin once in the jaw and twice in the chest. Edwin died
from his injuries before paramedics arrived.
II
All agree that the overarching question in Fourth Amendment excessive force
claims is whether the officer’s actions were “objectively reasonable in light of the facts
and circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989)
(cleaned up); see also Tennessee v. Garner, 471 U.S. 1, 11–12 (1985) (explaining that if a
suspect “threatens [an] officer with a weapon . . . deadly force may be used if necessary
to prevent escape, and if, where feasible, some warning has been given”); Horton v.
Pobjecky, 883 F.3d 941, 949 (7th Cir. 2018) (“When an officer reasonably believes an
assailant’s actions place him, his partner, or those in the immediate vicinity in imminent
danger of death or serious bodily injury, the officer can reasonably exercise the use of
No. 21-2574 Page 3
deadly force.”) (cleaned up). Based on our review of the summary judgment record, the
propriety of the use of force here—and, in turn, the viability of the estate’s § 1983
claim—turns on one fact: the distance between Edwin and his running chainsaw and
Sergeant Lutz when he opened fire.
Both Sergeant Lutz and Deputy Meister testified that Edwin was about 15 feet
away when Sergeant Lutz took his first shot. Illinois State Police crime scene
investigator W. Grant Hentze more generally testified that the distance between
Sergeant Lutz’s police vehicle and Edwin’s body was less than 50 feet. At that close of a
distance, confronted with a non-compliant and intoxicated individual advancing
toward him with a running chainsaw, we cannot say it was objectively unreasonable for
Sergeant Lutz to use deadly force to protect both himself and Deputy Meister. See
Horton, 883 F.3d at 949; compare City & County of San Francisco v. Sheehan, 575 U.S. 600,
612–13 (2015) (concluding that the officers’ use of potentially deadly force was
reasonable where knife-wielding suspect “kept coming at the officers until she was only
a few feet away” from a cornered officer) (cleaned up).
To be sure, summary judgment would not be appropriate if Esker had come
forward with evidence that Edwin was substantially further away from the officers
when Sergeant Lutz fired his first shot—so much further away that it would have been
objectively unreasonable for him to use deadly force. See, e.g., Horton, 883 F.3d at 949
(explaining that the operative question is whether the use of deadly force is justified by
the totality of the circumstances and emphasizing that, as circumstances change and the
danger officers face subsides, an officer’s authorization to use deadly force may
dissipate).
But the estate did not do so. Linda Esker and Linda and Edwin’s son, Jacob, each
tried to approximate the distance in deposition testimony, but their competing
estimates fail to create a material dispute of fact. Neither Linda nor Jacob saw the events
unfold firsthand, but each measured from what they understood to be Sergeant Lutz’s
position at the corner of the driveway to the pool of blood left where Edwin fell. Linda
testified that this distance was about 25 feet, while Jacob put it at “50 feet or
something.” Even taking these conflicting measurements in the light most favorable to
the estate, Jacob’s 50-foot estimate is fully consistent with the crime scene investigator’s
own approximation, and still puts Edwin dangerously close to the officers—especially
in light of Sergeant Lutz’s testimony that Edwin covered most of the ground that was
initially between them in the span of just seconds.
No. 21-2574 Page 4
The estate also produced an expert report from mechanical engineer Adam
Crepin, who used latitudinal and longitudinal coordinates from the crime scene
investigator’s GPS device to estimate the distance between Edwin’s body and Sergeant
Lutz’s vehicle. Based on this GPS data, the expert estimated that Edwin and Sergeant
Lutz were about 93 feet apart.
If that had been the sum of the expert’s testimony, the estate may have created a
genuine issue for trial. But the expert emphasized in his report that due to the
imprecision of the recorded GPS coordinates and inherent measurement errors, the
actual distance could have been anywhere between 13 and 171 feet. There is a world of
difference between the circumstances confronting Sergeant Lutz if Edwin was 171 as
opposed to just 13 feet away, and the burden was on Edwin’s estate (as the plaintiff) to
narrow that range. Without any record evidence establishing which of these figures is
more likely, we cannot say that the 13 to 171 feet range is enough for the estate’s § 1983
claim to survive summary judgment.
The estate also raises other facts that, in its view, demonstrate that Sergeant
Lutz’s actions were objectively unreasonable, but none of these require resolution by a
jury. Esker first points to the forensic pathologist’s testimony addressing hypothetical
scenarios, based on Edwin’s injuries, in which Edwin posed no threat to Sergeant Lutz
after the first shot was fired—rendering the second and third shots excessive and
objectively unreasonable. But, by his own admission, the forensic pathologist could not
opine to a reasonable degree of certainty that any of these scenarios were accurate. That
leaves us with no expert opinion that the physical evidence undermines the officers’
testimony that Edwin continued to advance toward them even after Sergeant Lutz fired
the first shot.
Esker also makes the unsupported accusation, based on speculative critiques of
the foliage visible in the crime scene photographs, that the officers and crime scene
investigator manipulated the scene—including by moving Sergeant Lutz’s car closer to
Edwin’s body after the shooting. But there is no genuine factual question there and, in
any event, Esker does not explain how such manipulation would bear on Sergeant
Lutz’s and Deputy Meister’s firsthand testimony that Edwin was 15 feet away holding
the running chainsaw when he was shot. Nor does it undermine Linda and Jacob
Esker’s estimates that Sergeant Lutz and Edwin were 25 feet or 50 feet apart—in either
scenario, a distance close enough to warrant the use of deadly force.
Even if record evidence supported the estate’s contention that Sergeant Lutz
used excessive force, however, summary judgment was also proper based on qualified
No. 21-2574 Page 5
immunity. Determining that there was a constitutional violation is not the end of the
§ 1983 analysis. A plaintiff must also establish that the constitutional right was clearly
established at the time of the encounter, see Sheehan, 575 U.S. at 611, or that the violation
was so egregious that “no reasonable officer could have thought he was acting
lawfully,” see Dockery v. Blackburn, 911 F.3d 458, 467 (7th Cir. 2018).
The estate did not—and, based on our review, could not—point the district court
to a decision establishing that the use of deadly force on these facts (close proximity and
continuing to advance, a running chainsaw, and a failure to obey oral commands) was a
violation of the suspect’s constitutional rights. Nor is the conduct so obviously
egregious as to make qualified immunity inappropriate. To the contrary, cases
involving similar circumstances, where an armed suspect did not surrender and law
enforcement fired multiple shots in quick succession, establish that Sergeant Lutz was
permitted not only to shoot once, but to keep shooting until “the threat [had] ended.”
Plumhoff v. Rickard, 572 U.S. 765, 777 (2014).
For these reasons, we AFFIRM.