Piper Partridge v. City of Benton, Arkansas ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-3001
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Piper Partridge, Individually as mother and next of kin to Keagan Schweikle and as
Special Administratrix of the Estate of Keagan Schweikle; Dominic Schweikle,
Individually as father and next of kin to Keagan Schweikle
Plaintiffs - Appellants
v.
City of Benton, Arkansas; Kyle Ellison, Individually and as Employee of City of
Benton, Arkansas; Kirk Lane, Individually and as Employee of City of Benton,
Arkansas; John Does, 1-20, Individually and as Employees of City of Benton,
Arkansas
Defendants - Appellees
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Central
____________
Submitted: January 12, 2023
Filed: June 12, 2023
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Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
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BENTON, Circuit Judge.
Police officers shot and killed Keagan Schweikle. His parents, Piper Partridge
and Dominic Schweikle, sued the officers and the City of Benton, Arkansas, under
42 U.S.C. § 1983 and state law. After the district court dismissed the case on the
pleadings, this court reversed and remanded in part. Partridge v. City of Benton,
929 F.3d 562 (8th Cir. 2020). The district court then granted defendants’ motion for
summary judgment. Having jurisdiction under 28 U.S.C. § 1291, this court reverses
and remands.
I.
Piper Partridge called police on October 17, 2016. Her teenage son, Keagan
Schweikle (Schweikle), had gone into the woods holding a gun and threatening
suicide. Benton Police Officer Kyle Ellison, Sergeant Ronald Davidson, and
Detective Douglas Speer found him alone by a riverbank. Officer Ellison, about 45
feet from Schweikle, had the only clear view.
Ellison found Schweikle partially turned away from him. He commanded him
to show his hands. Schweikle turned toward the officer, revealing a gun in his right
hand at his side. Ellison drew his weapon, screaming at Schweikle to drop the gun.
Schweikle instead brought the gun to his temple. Ellison continued commanding
him to drop the gun. Schweikle moved the gun. Ellison shot and killed him.
The parents sued the city and the officers in both their official and individual
capacities. The district court dismissed the suit on the pleadings. This court
reversed, holding that the complaint sufficiently alleged that Schweikle “was shot as
he began to move the gun away from his head, per Ellison’s orders to ‘drop the gun,’
and never pointed the gun at the officers.” Partridge, 929 F.3d at 565. These facts,
if established, would be a violation of Schweikle’s clearly established right to be free
from excessive force. Id. at 567. This court reversed dismissal of the parents’
excessive force and Monell claims, vacated dismissal of the state-law claims, and
remanded. Id. at 569.
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After discovery, defendants moved for summary judgment. Citing officer
testimony, they claimed that Schweikle pointed the gun at Ellison the moment before
he was shot. The parents, citing a forensic expert, claimed that Schweikle never
pointed the gun at Officer Ellison. The district court granted defendants’ motion for
summary judgment. The district court said that plaintiffs had proffered “no evidence
supporting their argument that Keagan . . . did not point the muzzle in the direction
of the officers.” Concluding that no constitutional violation had occurred, the court
dismissed all claims. The parents again appeal.
“This court reviews de novo a grant of summary judgment.” Torgerson v.
City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). This court affirms
if there is “no genuine issue as to any material fact and the movant is entitled to
judgment as a matter of law.” Id., quoting Fed. R. Civ. P. 56(c)(2). “A fact is
‘material’ if it may ‘affect the outcome of the suit.’” Erickson v. Nationstar Mortg.,
LLC, 31 F.4th 1044, 1048 (8th Cir. 2022), quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). There exists “a genuine issue for trial” where a rational
trier of fact, considering the record “as a whole,” could find for the nonmoving party.
Torgerson, 643 F.3d at 1042, quoting Ricci v. DeStefano, 557 U.S. 557, 586 (2009).
II.
The parents argue that the parties genuinely dispute how Schweikle moved
the gun before being shot, and that this dispute is material. Defendants say
Schweikle pointed the gun at Officer Ellison, while the parents say that Schweikle
lowered the gun away from the officers, “drop[ping] the gun” as Ellison
commanded.
This dispute is genuine because the parents introduced enough evidence for a
jury to find in their favor. See Zubrod, 907 F.3d at 575. A forensic pathologist, Dr.
Cyril H. Wecht, found it highly unlikely that Schweikle pointed his gun at the
officers before being shot. Dr. Wecht testified that, based on Schweikle’s autopsy,
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pointing his gun at the officers would have required “a very awkward, highly
atypical, unnatural twisting of the wrist.” While Schweikle’s pointing his gun at the
officers may have been “anatomically possible,” it would have required “a very
abnormal movement.” A jury might conclude, based on Dr. Wecht’s testimony, that
Schweikle did not “awkward[ly]” and “unnatural[ly]” twist his wrist to point the gun
at the officers before being shot.
True, Dr. Wecht concedes it was “anatomically possible” for Schweikle to
point his gun at the officers. This does not mean that Schweikle did point it at the
officers. A jury must determine whether Schweikle moved his gun into an
“anatomically possible” but “very awkward, highly atypical” position before being
shot. See Anderson, 477 U.S. at 249 (“[A]t the summary judgment stage[,] the
judge’s function is not himself to weigh the evidence and determine the truth of the
matter.”); Torgerson, 643 F.3d at 1042 (“Credibility determinations, the weighing
of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge.” (quoting Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000)).
Defendants incorrectly claim it “undisputed” that Schweikle pointed his gun
at the officers. But the parents do dispute it. A section heading in their brief
opposing summary judgment says Schweikle “Did Not Pose a Threat, Did Not Point
a Firearm at Officers.” They maintain this position on appeal.
Defendants emphasize the lack of eyewitness testimony that Schweikle did
not point his gun at the officers. But a lack of eyewitness testimony is not a lack of
evidence. Dr. Wecht’s testimony, if believed, supports a reasonable inference that
Schweikle did not point his gun at the officers. That suffices to survive summary
judgment. See Anderson, 477 U.S. at 255 (“[T]he drawing of legitimate inferences
from the facts” is a “jury function[.]”). See also Judicial Comm. on Model Jury
Instructions for the Eighth Circuit, Manual of Model Civil Jury Instructions for the
District Courts of the Eighth Circuit § 1.04 (2022) (“[T]he law makes no distinction
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between the weight to be given to direct and circumstantial evidence.”). Cf. Church
v. Anderson, 898 F.3d 830, 832 (8th Cir. 2018) (relying on an officer’s “unrebutted”
testimony where a plaintiff had no recollection of the incident and provided neither
direct nor indirect evidence contradicting the officer’s testimony).
The officers’ testimony that Schweikle pointed his gun appears weaker than
defendants claim. Two officers—whose police reports describe Schweikle pointing
his gun—later indicated that they could not see Schweikle the moment before he
was shot. Even testimony from Officer Ellison—the shooter—could establish either
that Schweikle pointed his gun or that “just the movement” of Schweikle’s arm
prompted Ellison to fire.1
Even setting aside internal discrepancies and variations, the officers’
descriptions directly contradict the physical evidence as interpreted by Dr. Wecht.
In video interviews, all three officers pantomimed how they believed Schweikle
moved the muzzle from his temple to point it at the officers. None pantomimed a “a
very awkward, highly atypical, unnatural twisting of the wrist.” But according to
1
The dissent minimizes inconsistencies between the two other officers’
written statements and video interviews and overemphasizes the fact that the
writings, submitted one day after the incident, tell similar stories. Sergeant Davidson
wrote that Schweikle “moved the muzzle in [the officers’] direction.” But during
his interview he admitted that a tree “partially obscured” his view of Schweikle and
he was unsure where Schweikle’s arm was pointing when he was shot. Detective
Speer wrote that Schweikle “made a forward motion with the gun,” but pantomimed
that the muzzle was pointing toward the sky at the moment Schweikle was shot.
Even if the officers’ statements were “largely consistent” about the muzzle’s
direction, a jury could rationally question the officers’ recall given the numerous—
and admitted—inaccuracies and inconsistencies about everything from the timing of
the incident (were shots fired five seconds or “milliseconds” after Schweikle raised
his arm?), to the officers’ distance from Schweikle (were officers 40 feet away or 45
yards?), to Schweikle’s arm position when he was shot.
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Dr. Wecht, the autopsy shows that Schweikle could not have pointed the gun without
this “awkward” and “unnatural” wrist contortion. Believing Dr. Wecht’s
testimony—as required on appeal—requires rejecting the officers’ accounts. The
parties thus genuinely dispute whether Schweikle pointed his gun at the officers. See
Wilson v. City of Des Moines, 293 F.3d 447, 454 (8th Cir. 2002) (“Because of the
internal discrepancies and variations in the officers’ testimony, among other things,
there remain factual issues in dispute that prohibit a grant of summary judgment.”).
This dispute is material because it is “outcome determinative under prevailing
law.” Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989). This court has
already held that defendants will be liable if Schweikle “never pointed the gun at the
officers” but instead “moved his gun in compliance with commands to drop his gun.”
Partridge, 929 F.3d at 565, 567. According to this court, it was clearly established
at the time that shooting Schweikle under those circumstances would have been a
constitutional violation.2 Id. at 567, citing District of Columbia v. Wesby, 138 S.
2
The dissent envisions an in-between scenario where—although Schweikle
“never pointed the gun at the officers” and “was shot as he began to move the gun
away from his head, per Ellison’s orders to ‘drop the gun,” Partridge, 929 F.3d at
565—he still somehow moved the gun in a “menacing action” that indisputably
provided probable cause to believe that he “posed an immediate deadly threat.” The
record does not compel this view of the facts. All three officers pantomimed
Schweikle pointing the gun at them—testimony undermined by Dr. Wecht. To find,
as the dissent would, that Schweikle indisputably menaced the officers would ignore
the pantomime videos, cherry-pick phrases like “a forward motion” from written
reports, and conclude that those phrases describe a motion that—indisputably—is
“menacing.”
Such usurpation of the jury function is not compelled by this court’s
precedent. As the dissent’s cases show, when an individual points a gun at officers,
a court can find the action sufficiently “menacing” without asking a jury. See
Partlow v. Stadler, 774 F.3d 497, 502 (8th Cir. 2014) (“[T]he officers believed that
Partlow was aiming the barrel of the shotgun at them.”); Aipperspach v. McInerney,
766 F.3d 803, 807 (8th Cir. 2014) (“[O]fficers [] believed that Al–Hakim pointed a
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Ct. 577, 589 (2018). That decision controls. See Murphy v. FedEx Nat. LTL, Inc.,
618 F.3d 893, 905 (8th Cir. 2010) (describing the “law-of-the-case” doctrine, which
“requires courts to adhere to decisions made in earlier proceedings”). A jury could
conclude, based on Dr. Wecht’s testimony, that Schweikle “never pointed the gun at
the officers” but instead “moved his gun in compliance with commands to drop his
gun.” Partridge, 929 F.3d at 565, 567. If it did, the parents could win their case.
Cf. Rogers v. King, 885 F.3d 1118, 1120–22 (8th Cir. 2018) (affirming qualified
immunity where officers initially held their fire as a suicidal woman refused to
comply with commands to drop the gun and instead “wave[d] the gun around,” but
then shot her when she pointed the gun at an officer). Partridge thus identified a
genuine dispute of material fact. See Erickson, 31 F.4th at 1048 (“A fact is
‘material’ if it may ‘affect the outcome of the suit.’” (quoting Anderson, 477 U.S.
at 248)).
The parents identified a genuine dispute of material fact whether Schweikle
pointed his gun at the officers. This precludes summary judgment. The district
court’s dismissal of Partridge’s excessive force claim is reversed. Because the
district court relied on its excessive-force conclusion to dismiss Partridge’s Monell
and state-law claims, those decisions are vacated. See Wealot v. Brooks, 865 F.3d
1119, 1128 (8th Cir. 2017) (“[F]or municipal liability to attach, individual liability
first must be found on an underlying substantive claim.”).
real firearm at officers, endangering their lives.”); Rogers, 885 F.3d at 1122. A court
can also conclude the opposite: when an individual is retreating, not pointing his
gun, and turned away from a potential target, he is not “menacing” and cannot be
shot without warning. Richards v. Hutchins, 959 F.3d 1127, 1133 (8th Cir. 2020).
But where the evidence does not indisputably establish where and how Schweikle
moved the gun as he was shot, this court should not conclude—without a trial—that
Schweikle took a “menacing action” with the firearm that created an immediate
deadly threat.
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*******
The judgment is reversed and the case remanded for proceedings consistent
with this opinion.
SHEPHERD, Circuit Judge, dissenting.
I would affirm the judgment of the district court. I do not believe that the
parents introduced enough evidence to create a genuine factual dispute as to whether
Keagan Schweikle moved his gun in the direction of the officers before Officer
Ellison opened fire. For that reason, I respectfully dissent.
I.
“When a defendant asserts qualified immunity at the summary judgment
stage, the plaintiff must produce evidence sufficient to create a genuine issue of fact
regarding whether the defendant violated a clearly established right.” Bishop v.
Glazier, 723 F.3d 957, 961 (8th Cir. 2013). “Officers’ excessive uses of force violate
the Fourth Amendment if ‘objectively unreasonable.’” Tatum v. Robinson, 858 F.3d
544, 547 (8th Cir. 2017) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).
“Objective unreasonableness is ‘judged from the perspective of a reasonable officer
on the scene,’ in light of ‘the facts and circumstances of each particular case . . . .’”
Id. (quoting Graham, 490 U.S. at 396).
“The use of deadly force is reasonable where an officer has probable cause to
believe that a suspect poses a threat of serious physical harm to the officer or others.”
Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012). While “mere
possession of a firearm” is not enough, this Court has recognized that an individual
pointing a firearm at another or otherwise moving a firearm in a “menacing action”
generally gives officers probable cause to use deadly force. Cole ex rel. Est. of
Richards v. Hutchins, 959 F.3d 1127, 1132 (8th Cir. 2020) (citing Partridge v. City
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of Benton, 929 F.3d 562, 566 (8th Cir. 2019)). Accordingly, the dispositive fact in
this case is whether Schweikle pointed his gun at the officers or otherwise moved it
in a menacing way.
In characterizing the issue as “whether Schweikle pointed his gun at the
officers” and nothing more, the majority sets the bar too high. Our cases do not
require an armed individual to take direct aim before officers can reasonably use
deadly force. Instead, a “menacing action” with a firearm is sufficient so long as
such action provides probable cause to believe that the suspect poses an immediate
deadly threat. Hutchins, 959 F.3d at 1132; see also Partlow v. Stadler, 774 F.3d 497,
502 (8th Cir. 2014) (use of deadly force objectively reasonable where armed
individual “move[d] the shotgun in such a way that the officers believed [he] was
aiming the barrel of the shotgun at them”); Aipperspach v. McInerney, 766 F.3d 803,
807 (8th Cir. 2014) (use of deadly force objectively reasonable where individual
“held what appeared to be a handgun, refused repeated commands to drop the gun,
pointed it once at [an officer], and then waved it in the direction of officers deployed
along the ridge line in an action they perceived as menacing”); Rogers v. King, 885
F.3d 1118, 1121-22 (8th Cir. 2018) (use of deadly force objectively reasonable
where suicidal individual “failed to respond to commands to drop [her] weapon” and
“raised the gun to [the officer’]s shin level”); accord Garczynski v. Bradshaw, 573
F.3d 1158, 1168 (11th Cir. 2009) (per curiam) (use of deadly force objectively
reasonable where suicidal individual ignored commands to drop gun and instead
“swung the gun from his head in the direction of the officers, at which point they
fired”).3 On summary judgment, our task is to ask “whether the evidence presents a
3
Our previous decision in this case is not to the contrary. See Partridge v.
City of Benton, 929 F.3d 562 (8th Cir. 2019). There, we held that no reasonable
officer could conclude that Schweikle was a threat based on the facts alleged in the
complaint, including that Schweikle “never pointed the gun at the officers” but
instead “was shot as he began to move the gun away from his head, per Ellison’s
orders.” Id. at 565. But we recognized that different facts arising during
discovery—namely whether Schweikle moved his gun in a menacing action—could
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sufficient disagreement to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986).
The evidence before us is decidedly one-sided. The only eyewitness
testimony comes from the three officers present at the scene of the shooting. In their
statements taken soon after the incident, all three officers agreed on the primary
material fact at issue: that Schweikle initially raised his arm and pointed the gun at
his head before moving his arm and pointing or moving the gun toward the officers
just before Officer Ellison fired three shots.4 To rebut these eyewitness accounts
lead to a different analysis. See id. at 566 (“The complaint does not tell the direction
or speed Keagan moved the gun, how far he moved it before Ellison shot him, or the
timing of the facts.”); id. at 567 (“[T]he complaint does not allege that Keagan
moved to aim his gun at Ellison. Nor is there an allegation that Ellison believed
Keagan to be moving to aim at him.”).
4
Officer Ellison: “I gave another order for the subject to drop the gun and he
moved the gun away from his head and pointed it towards my direction. I
immediately feared for my life and fired three rounds at the subject’s chest.” Officer
Ellison reiterated this same version of events in his video interview with
investigators: “He pulled the muzzle away from his head and began lowering his
hand to point the gun in our direction. That’s when I fired three times at him.” R.
Doc. 60-35, at 7:37-44 (emphasis added). Officer Davidson: “Again, I heard Officer
Ellison give the man the command to ‘Drop the gun!’ It was near this time that the
man brought the gun from his own temple and moved the muzzle in our direction.
As the gun was leveling toward us, Officer Ellison and [the K-9] were still between
me and the subject and I heard three shots.” Officer Davidson later stated in his
video interview with investigators that he felt threatened “at the moment that the gun
was coming away from [Schweikle’s] head and coming in our direction.” R.
Doc. 60-12, at 14:44-48. Officer Speer: “I could see in [Schweikle’s] right hand a
black handgun held to his head. . . . During this time as I was getting my footing, the
subject makes a forward motion with the gun and I heard three shots.” Officer Speer
later clarified in his video interview with investigators that Schweikle had moved
the gun away from his head and extended it partially (roughly 75%) toward the
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and create a genuine factual issue for trial, the parents offered expert testimony from
a forensic pathologist, Dr. Cyril Wecht. In his report, Dr. Wecht stated that the path
of the bullet wounds through Schweikle’s body “indicates that his right upper arm
was lifted nearly completely laterally away from his body when he was shot,
consistent with the report that Keagan was holding a gun in his right hand to his head
when police found him.” Later, in his deposition, Dr. Wecht stated that, for
Schweikle to have pointed the muzzle of the gun at the officers, it would require
“very awkward, highly atypical, unnatural twisting of the wrist.” Nonetheless, while
he found it “very difficult to perceive,” Dr. Wecht stated, without reservation, that
such a movement is “anatomically possible.”
In my view, Dr. Wecht’s testimony is insufficient to create a genuine factual
issue for trial and defeat summary judgment. Upon a properly supported motion for
summary judgment, the nonmoving party “must respond by submitting evidentiary
materials that set out ‘specific facts showing that there is a genuine issue for trial.’”
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Critical here, the
factual dispute must be genuine, meaning there is sufficient evidence for a “rational
trier of fact to find for the nonmoving party.” Id. (quoting Ricci v. DeStefano, 557
U.S. 557, 586 (2009)). Merely raising “some metaphysical doubt as to the material
facts” is not enough to defeat summary judgment. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Based on the evidence before us, a rational jury could come to only one
conclusion: Schweikle moved the barrel of his gun in the officers’ direction before
Officer Ellison opened fire. The parents, on the other hand, would ask the jury to
reject the officers’ unanimous recollection that Schweikle moved his gun menacingly
officers when he heard Officer Ellison open fire. R. Doc. 60-31, at 4:45-5:10.
Officer Speer confirmed that he felt Schweikle was a threat, given that Schweikle
had a gun “pointed at himself, pointed at us.” R. Doc. 60-31, at 6:45-47.
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in their direction in favor of expert testimony that it would have been “very
awkward,” but “anatomically possible,” for Schweikle to have pointed his gun at
them. Moving his gun in the officers’ direction and pointing it directly at them are
not the same thing. Even if they were, “such speculation [by an expert] is not enough
to controvert consistent officer testimony to the contrary and generate a genuine
dispute of material fact for trial.” Jordan v. Howard, 987 F.3d 537, 545 (6th Cir.
2021); cf. Smith v. Kilgore, 926 F.3d 479, 484 (8th Cir. 2019) (“[The plaintiff] ‘may
not stave off summary judgment armed with only the hope that the jury might
disbelieve witnesses’ testimony.’” (citation omitted)).
Indeed, to deliver a verdict in the parents’ favor, the jury would have to
disbelieve both the officers’ largely consistent testimony and the expert’s testimony
that is consistent with the officers’ recollections, namely that it was “anatomically
possible” for Schweikle to have pointed the gun at the officers before he was shot.
It may be a different case if Dr. Wecht had testified that such a movement was
anatomically impossible. But that was not Dr. Wecht’s testimony. No reasonable
jury could find for the parents on such a thin basis.
The majority misinterprets the officers’ testimony to directly contradict
Dr. Wecht’s by pointing out that none of the officers recalled Schweikle awkwardly
twisting his wrist, as Dr. Wecht described. This again misses the point. Dr. Wecht
testified that “it requires very awkward, highly atypical, unnatural twisting of the
wrist to bring the gun around so that the muzzle of the gun is pointed at the officers.”
R. Doc. 66-8, at 43 (emphasis added). But the officers largely testified that
Schweikle pointed the gun in their direction or at least moved the gun in their
direction. And the officers’ videotaped testimony is entirely consistent with this
characterization of the record. The majority asserts that “[a]ll three officers
pantomimed Schweikle pointing the gun at them.” Supra at 6 n.2. The record shows
otherwise. In fact, both Officers Davidson and Speer pantomimed Schweikle
moving the gun toward them in a menacing fashion but not pointing it directly at
them. See R. Doc. 60-12, at 8:00, 16:15 (Davidson Interview); R. Doc. 60-31,
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at 2:35, 4:44, 5:06 (Speer Interview). Only Officer Ellison arguably pantomimed
Schweikle pointing the gun directly at the officers. See R. Doc. 60-35, at 7:37. But
Ellison stated immediately thereafter that he did not know exactly how far Schweikle
had lowered his hand. R. Doc. 60-35, at 7:55-8:17. Thus, while Dr. Wecht spoke
to whether Schweikle was pointing his gun directly at the officers when Schweikle
was shot, the officers focused on Schweikle’s movement of the gun in the moments
immediately before he was shot. According to our cases, such a “menacing action”
with a firearm is enough for an officer to reasonably believe that an individual poses
an immediate threat of serious bodily harm. See Hutchins, 959 F.3d at 1132
(collecting cases).
The majority also points out that the officers’ testimony included
inconsistencies. However, these inconsistencies were relatively minor and related
only to tangential details: exactly how far the officers were from Schweikle during
the incident and exactly how much time elapsed between the moment Schweikle
raised the gun to his head and when he allegedly pointed it at the officers.5 But as
to the critical moment when Officer Ellison fired his weapon, the officers’ testimony
is remarkably consistent. “[D]ifferences in the . . . officers’ testimony about what
happened during the crucial last moments of [an] encounter,” when accompanied by
other evidence, may be enough to “raise a genuine issue of material fact about the
reasonableness of what the officers did.” Wilson v. City of Des Moines, 293 F.3d
447, 449 (8th Cir. 2002). But minor inconsistencies on immaterial details—details
that “do[] not change the analysis of the reasonableness of the officers’ actions”—
are not enough. Smith v. City of Brooklyn Park, 757 F.3d 765, 774 (8th Cir. 2014)
(per curiam).
5
The majority states that the officers disagreed on whether they were “40 feet
away or 45 yards” from Schweikle. Supra at 5 n.1. However, Officer Speer clarified
in his video interview that while he had written “45 yards” in his statement, that was
a misstatement and he meant 45 feet. R. Doc. 60-31, at 6:01-32.
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II.
In my view, the parents have not presented sufficient evidence to generate a
genuine dispute of material fact. Accordingly, the defendants are entitled to
qualified immunity. See Loch, 689 F.3d at 965 (8th Cir. 2012) (“An official is
entitled to qualified immunity unless (1) the evidence, viewed in the light most
favorable to the plaintiff, establishes a violation of a constitutional or statutory right,
and (2) the right was clearly established at the time of the violation.”).
At prong one, Officer Ellison did not violate Schweikle’s constitutional rights
because his use of deadly force was objectively reasonable under the circumstances.
Given the facts as supported by the record—a suicidal teenager under the influence
of cough syrup who revealed a handgun to officers and, after repeated commands to
drop the gun, removed the gun from his temple and moved it toward the officers—
“a reasonable officer would have had probable cause to believe that [Schweikle]
posed a threat of serious physical harm, and any mistake in believing that []he posed
such a threat was objectively reasonable.” Rogers, 885 F.3d at 1122 (citation
omitted). This conclusion stands even if Schweikle had no intention of firing upon
the officers and never directly pointed his gun at them but was instead attempting to
comply with their orders. See Partlow, 774 F.3d at 502-03. What matters from a
constitutional perspective is not Schweikle’s own intentions but “‘whether, from an
objective viewpoint and taking all factors into consideration, [Officer Ellison]
reasonably feared for his life’ or the lives of his fellow officers.” Aipperspach, 766
F.3d at 808 (citation omitted). Because Officer Ellison’s use of deadly force was
objectively reasonable under the circumstances, he did not violate Schweikle’s
constitutional rights and is entitled to qualified immunity.
Even if the use of force was excessive, Schweikle’s right to be free from
excessive force was not clearly established. A wealth of case law confirms that
“[t]here is ‘no constitutional or statutory right’ that prevents an ‘officer from using
deadly force when faced with an apparently loaded weapon.’” Rogers, 885 F.3d
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at 1122 (citation omitted). Further, the parents cite no cases that place Schweikle’s
right to be free from deadly force in these circumstances “beyond debate.” Plumhoff
v. Rickard, 572 U.S. 765, 779 (2014) (citation omitted). Thus, even if Officer Ellison
did violate Schweikle’s constitutional rights, those rights were not clearly
established in these circumstances.
Because the parents fail to establish that Officer Ellison violated Schweikle’s
constitutional rights, much less any clearly established constitutional rights, the
parents’ municipal liability claims fail as well. See Saunders v. Thies, 38 F.4th 701,
716 (8th Cir. 2022) (“[I]n order for municipal liability to attach, individual liability
first must be found on an underlying substantive claim.”) (citation omitted).
III.
For the foregoing reasons, I respectfully dissent. The facts of this case are
tragic. Nonetheless, I do not believe that the parents introduced enough evidence to
rebut the officers’ consistent eyewitness testimony that Schweikle moved the barrel
of his gun in their direction, which gave Officer Ellison an objectively reasonable
basis to use deadly force. I would affirm the judgment of the district court granting
summary judgment to the defendants on the basis of qualified immunity.
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