Jeffrey C. Rahn v. Vickie Hawkins , 73 F. App'x 898 ( 2003 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 02-3496
    ___________
    Jeffrey C. Rahn,                         *
    *
    Appellant,                  *
    *
    v.                                 * Appeal from the United States
    * District Court for the Eastern
    Vickie Hawkins, Officer; Craig Jansen, * District of Missouri.
    Officer; Gerry Fitzgerald, Officer;      *
    Timothy Burger, Detective;               *         [UNPUBLISHED]
    Ed Wagner; Douglas McGarry,              *
    Detective; Patrick Schierbecker,         *
    Detective; Ronald Livingston, Sgt.;      *
    Robert Cutt, Lt.; David Pacino, Lt.;     *
    Carl Wolf, Chief of Police for the       *
    City of Hazelwood,                       *
    *
    Appellees.                  *
    ___________
    Submitted: May 27, 2003
    Filed: August 26, 2003
    ___________
    Before MORRIS SHEPPARD ARNOLD, BYE, and RILEY, Circuit Judges.
    ___________
    PER CURIAM.
    This is a civil-rights case. City of Hazelwood, Missouri police officers Vickie
    Hawkins, Craig Jansen, and Gerry Fitzgerald shot and maced Jeffrey Rahn while
    attempting to arrest him following a credit-union robbery. Mr. Rahn sued these
    officers, as well as Lieutenant Robert Cutt, Sergeant Ronald Livingston, and Chief
    of Police Carl Wolf, under 
    42 U.S.C. § 1983
    . He claimed that Officers Hawkins,
    Jansen, and Fitzgerald used excessive force when they shot him eight times and
    maced him twice; that Officers Hawkins, Jansen, Fitzgerald, Cutt, and Livingston
    made false statements on police reports to justify their use of force and the issuance
    of an arrest warrant on charges not supported by probable cause; that Officers
    Hawkins, Jansen, and Fitzgerald conspired to arrest him on charges of kidnaping,
    first-degree assault, and armed criminal action by falsifying their original police
    reports; that Chief Wolf intimidated a bank-teller witness into including false
    information in her official statement, and Officers Hawkins, Jansen, Fitzgerald,
    Livingston, and Cutt conspired to conceal this witness’s information from the grand
    jury to justify the officers’ use of force; and that Chief Wolf failed to train his
    subordinates. The district court found the officers were entitled to qualified immunity
    on the excessive-force claim and granted summary judgment to defendants on the
    remaining claims.1 We reverse the grant of qualified immunity, and we affirm
    otherwise.
    Mr. Rahn attested to the following facts. On July 17, 1998, Officers Hawkins
    and Jansen responded to a police radio dispatch about an alarm at a credit union. As
    the officers were walking outside the credit union, Mr. Rahn exited the rear door with
    a gym bag in his hand. Officer Hawkins approached Mr. Rahn and ordered him to
    drop the bag. Mr. Rahn immediately did so, raising his hands above his head in a
    position of surrender. Officer Hawkins, ten feet from Mr. Rahn, then fired a
    succession of shots at him. Mr. Rahn attempted to surrender to Officer Jansen, and
    1
    Mr. Rahn sued other police officers who were dismissed prior to service, and
    asserted other claims which were disposed of by the district court at the summary
    judgment stage. Mr. Rahn does not raise these matters on appeal. See Mahaney v.
    Warren County, 
    206 F.3d 770
    , 771 n.2 (8th Cir. 2000) (per curiam) (claims not raised
    in brief are waived).
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    upon Officer Jansen’s command, took several steps toward him, keeping his arms
    raised in surrender. Officer Jansen fired numerous times at Mr. Rahn. Shortly
    thereafter, Officer Fitzgerald arrived on the scene and without warning, sprayed mace
    in Mr. Rahn’s face. Convinced that police were attempting to murder him, Mr. Rahn
    entered Officer Hawkins’s police car but not before Officer Fitzgerald shot him in the
    leg. Mr. Rahn drove the car three to five miles before he lost consciousness. Officers
    Fitzgerald and Livingston pursued him; Officer Fitzgerald again maced Mr. Rahn,
    who was unconscious; and the officers handcuffed Mr. Rahn, pulled him out of the
    window, and threw him on the ground. Because of his numerous gunshot wounds,
    Mr. Rahn was hospitalized for thirteen months and had ten surgeries.
    We review de novo the grant of summary judgment based on qualified
    immunity. See Seiner v. Drenon, 
    304 F.3d 810
    , 812 (8th Cir. 2002). When
    considering the qualified-immunity issue, we must first decide whether, viewed in the
    light most favorable to Mr. Rahn, the facts alleged show that the officers’ conduct
    violated a constitutional right. See Saucier v. Katz, 
    533 U.S. 194
    , 201 (2001).
    Claims that officers have used excessive force during an arrest are analyzed under the
    Fourth Amendment and its “objective reasonableness” standard. See Seiner, 
    304 F.3d at 812
    . The constitutionality of force used depends upon the facts and circumstances,
    including the severity of the crime at issue, whether the suspect posed an immediate
    safety threat to the officers or others, and whether the suspect actively resisted arrest
    or attempted to evade arrest by flight. See Graham v. Connor, 
    490 U.S. 386
    , 395-96
    (1989).
    We hold that Mr. Rahn has made out a constitutional violation. Mr. Rahn
    attested that he immediately dropped the gym bag he was carrying when Officer
    Hawkins ordered him to do so, and he raised both of his hands above his head in
    surrender; that he attempted to surrender to Officer Jansen, took several steps toward
    Officer Jansen upon command, and kept his arms raised in surrender while
    approaching Officer Jansen; and that he had lost consciousness while driving the
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    police car away from the credit union when Officer Fitzgerald maced him the second
    time. Even though the bank teller informed Officer Hawkins that Mr. Rahn had a gun
    when Officer Hawkins first came on the scene and Officer Hawkins relayed this
    information to Officer Jansen (this fact is not in dispute), in the present procedural
    posture of the case we are required to believe Mr. Rahn’s version of the events: that
    he had dropped the bag he was carrying and had raised both of his arms in surrender
    before Officers Hawkins and Jansen opened fire, and that he was unconscious in the
    car when Officer Fitzgerald maced him a second time. Based on this version of the
    events, we conclude that a reasonable officer would have known that Mr. Rahn did
    not pose an immediate threat to the officers’ or the bank teller’s safety, and that
    Mr. Rahn was not actively resisting arrest. See Saucier, 533 U.S. at 207 (excessive-
    force claims are evaluated for objective reasonableness based upon information
    officers had when conduct occurred); cf. Ribbey v. Cox, 
    222 F.3d 1040
    , 1043 (8th
    Cir. 2000) (affirming denial of qualified immunity to police officer who shot and
    killed passenger in car; other passenger’s version of events created genuine question
    of fact regarding whether officer had probable cause to believe that deceased
    passenger, who was turning reflexively down and away from breaking window, was
    reaching for weapon and thus posed significant threat of danger or serious physical
    harm to officer or others).
    We also hold that the constitutional right at issue was clearly established. See
    Hope v. Pelzer, 
    536 U.S. 730
    , 741 (2002) (salient question is whether state of law at
    time of events at issue gave officers “fair warning” that their alleged treatment of
    plaintiff was unconstitutional). In July 1998, at the time of the robbery, the law was
    clearly established that using deadly force against a suspect who was attempting to
    surrender, and macing an unconscious suspect, exceeded the Fourth Amendment’s
    objective-reasonableness standard. See Tennessee v. Garner, 
    471 U.S. 1
    , 11-12
    (1985) (if suspect threatens officer with weapon or there is probable cause to believe
    suspect has committed crime involving infliction or threatened infliction of serious
    physical harm, deadly force may be used if necessary to prevent escape, and if, where
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    feasible, some warning has been given); Ellis v. Wynalda, 
    999 F.2d 243
    , 247 (7th Cir.
    1993) (force that is reasonable while suspect poses threat is no longer reasonable once
    threat is no longer present).
    Accordingly, we reverse the grant of qualified immunity to Officers Hawkins,
    Jansen, and Fitzgerald, and we remand for further proceedings. We have carefully
    reviewed the dismissal of Mr. Rahn’s remaining claims and his arguments on appeal.
    We conclude that they lack merit; thus, we affirm in all other respects.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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