Arnold v. City of Olathe, Kansas

35 F.4th 778

Mark ARNOLD, as special administrator and duly-appointed representative and on behalf of heirs of the estate of Ciara Howard, Plaintiff - Appellant,

v. CITY OF OLATHE, KANSAS; Wade Lanphear; Tim Sweany; Ian Mills; Steve Menke; Jameson Miller; Theron Chaulk; Calvin Hayden; Clinton Peterson, Defendants - Appellees,andMichael Butaud; Chad Mellick; Brian Wessling; Johnson County, Kansas; Board of County Commissioners of Johnson County, Kansas; Nate Denton; Tamara Sparks, Defendants.

No. 21-3152

United States Court of Appeals, Tenth Circuit.

FILED May 19, 2022

Ryan J. Gavin, Morgan & Morgan, St. Louis, Missouri, for Plaintiff-Appellant.

Kirk T. Ridgway (Alex S. Gilmore, with him on the brief), Ferree, Bunn & Ridgway, Chtd., Overland Park, Kansas, for Defendants-Appellees.

Andrew D. Holder and Michael K. Seck of Fisher, Patterson, Sayler & Smith, L.L.P., Overland Park, Kansas, for Defendants - Appellees.

Before TYMKOVICH, Chief Judge, HARTZ, and McHUGH, Circuit Judges.

TYMKOVICH, Chief Judge.

Ciara Howard brandished a gun at three police officers after an extended standoff with hours of negotiations. The officers shot her, and she died from her wounds. Plaintiff Mark Arnold brought several claims on behalf of Ms. Howard's estate, alleging that the officers used unconstitutionally excessive force. The district court found that the officers did not violate Howard's constitutional rights and dismissed the case.

We affirm. The officers did not recklessly create the need to use deadly force. And when the officers did use force, it was reasonably necessary to prevent harm to themselves and others. The officers are thus entitled to qualified immunity.

I. Background

The plaintiff is Mark Arnold, who is the special administrator of Ciara Howard's estate.¹ For the purposes of this appeal, the defendants are Olathe Police Department (OPD) officers, the City of Olathe, and Jefferson County Sheriff's Office (JCSO) officers. The OPD officers are Tim Sweany, Ian Mills, and Jameson Miller. OPD Major Wade Lanphear was present at the time of the shooting but is not a party on appeal. The JCSO officers are Theron Chaulk and Clinton Peterson.

On August 21 and 22, 2017, the Johnson County District Court issued bench warrants for Howard. The warrants were for felony supervision violations and aggravated escape from custody. On August 23, OPD received a call that Howard was hiding at her boyfriend Larry Sumners's house.

A group of OPD officers including Miller arrived at Sumners's house at 2:48 p.m. OPD was the first agency to arrive and thus took control of the scene. Sumners told the officers that he owned the house and that Howard had left the house after they had gotten into a fight. Sumners initially denied entry to the officers. He later admitted, however, that Howard was inside and gave the officers verbal and written consent to search the house. Sumners also told the police that he kept a .45 caliber pistol with hollow-point bullets in the house under a mattress, but that he had hidden it in a closet and Howard did not know where it was. At 3:04 p.m., officers saw Howard trying to crawl under a mattress, which lead the officers to believe she was searching for the gun.

Between 2:48 p.m. and 3:35 p.m., several JCSO deputies and additional OPD officers arrived. Officer Mills arrived at 3:13 p.m. and called his supervisor, Sweany, to the scene. Sweany arrived at 3:14 p.m. and took control. Sweany learned that there was an unknown female inside who was possibly armed. At some point before 3:30 p.m., JCSO Officers Chaulk and Peterson arrived on the scene. Chaulk and Sweany discussed whether to request each agency's tactical teams. But neither the police department nor the sheriff's office deployed its tactical team because the officers could not confirm whether Howard was armed.

During the duration of the encounter, between 2:48 p.m. and 5:34 p.m., OPD officers spoke with Howard and tried to convince her to exit the house. She refused their requests to leave.

Around 4:00 p.m., Officer Lanphear, a trained crisis negotiator, arrived on the scene. Though he became the officer in charge, he did not take over for Sweany as a supervisor. At some point after his arrival, Lanphear spoke with Sweany and Sumners and learned that there was a loaded gun in the house. But he did not recommend activation of the OPD Tactical Support Unit (TSU) because it was unclear whether Howard had access to the gun. The TSU team manual states that the TSU will generally be activated for armed or barricaded subjects. Instead of activating the TSU, Lanphear called the Olathe Police Chief and discussed the possibility of sending a K-9 with a team of officers through the front of the house. Lanphear also heard Sweany talking to Howard about unloading the gun. Howard referred to the gun as "her power" and stated she was trying to unload the firearm. Lanphear and Sweany discussed entering the front of the house and sending in a K-9, but Lanphear felt that Howard was talking in circles and the officers’ approach should be to elicit Howard's surrender without entering the house.

At 4:12 p.m., Sweany asked Sumners to convince Howard to leave the house. Sumners spoke with Howard and told her that "the SWAT team is coming, and they're trigger happy." Sumners also asked his girlfriend, "What if they shoot you and you don't die and you're a paraplegic. You want to be a fuckin’ vegetable?" Howard responded with comments about committing suicide and said she was ready to die. Sumners told Sweany that a few days earlier Howard had made superficial cuts on her wrists while threatening suicide. Sweany was able to observe Howard from the back window of the house. He observed that she had a clenched jaw and jerky movements. Sweany believed that Howard was under the influence of methamphetamine.

At 5:27 p.m., Howard told Sumners she needed five minutes to think and have a cigarette. Sweany told Howard she had five minutes, requested a shield, and advised he was going to take a team and a K-9 to the front porch. Sweany approached Chaulk, informed him that the Olathe Police Department was going to enter the residence, and asked for a JCSO deputy to assist. Chaulk asked Peterson to assist in the entry, and Peterson agreed.

At 5:34 p.m., officers Sweany, Miller, Mills, and Peterson discussed the layout of the house and formed a line at the front of the house. Mills had a K-9 with him. From 5:34 p.m. to 5:40 p.m., Sweany told Howard to go out the back door and warned her that they would send in the K-9 if she did not leave. Mills had the dog bark several times. At 5:37 p.m., Sweany noted that Howard was in the laundry room. At 5:40 p.m., another officer announced over the radio that Howard's hands were empty. Officers Sweany, Mills (with his K-9), Miller, and Peterson entered the house two hours and fifty-two minutes after they had arrived.

Lanphear was surprised that the officers entered the house. He then entered and evaluated Howard's tone. He did not perceive that the officers’ entry had evoked an emotional response. Instead, shut in the laundry room, Howard was mostly asking questions about going to jail.

At 5:42 p.m., an officer outside the house again announced that Howard's hands were empty. At 5:49 p.m., the officers discussed what would happen if Howard exited the laundry room. Until 5:56 p.m., Sweany attempted to convince Howard to come out of the laundry room. The officers directed Howard to leave the laundry room at least 35 times. At one point, Howard opened the laundry room door four to six inches. Miller could see her face, hair, and hands. Howard began making kissing and barking noises at the K-9. As Howard interacted with the K-9, Sweany noticed that she started to become aggressive. Howard looked at the officers as if taking inventory, and then looked back into the laundry room as if trying to orient herself to what items were in the room.

When Howard's demeanor changed, Sweany decided that he needed to enter the laundry room and seize Howard. Sweany realized that Howard "was going to do something that [he] needed to intercept, and retreat was not an option based on the number of people behind [him]." Sweany decided that if Howard started firing through the wall, "there [wa]s no way that [the officers] could have gotten out of that house effectively without an officer getting hurt." Howard said that she was going to call the police and slammed the laundry room door shut. Sweany immediately forced the door open with his shoulder.

Upon entry into the laundry room, Sweany yelled, "Stop! Gun!" Howard was waiving a .45 caliber handgun in the general direction of the officers. Sweany, Miller, and Peterson drew their guns, while Mills attempted to control the K-9. Sweany, Miller, and Peterson repeatedly yelled at Howard to drop the gun. Howard did not comply. Instead, she pointed the gun toward the officers with her finger on the trigger and said, "you ain't cops." When the officers again instructed her to drop the gun, Howard responded, "I'll take every single one of you." Immediately after that statement—about 13 seconds after the officers entered the laundry room—Sweany, Peterson, and Miller fired their guns at Howard. She died from gunshot wounds.

Sumners had informed an officer that Howard was bipolar, but Sweany, Miller, and Peterson testified that they were not aware of this fact before they entered the house.

Arnold, as a special administrator of Howard's estate, brought § 1983 excessive force claims against Peterson, Mills, Miller, and Sweany, along with supplemental state law claims of assault and battery.² Arnold also brought a supervisory liability claim against Chaulk and a municipal liability claim against the City of Olathe.

All defendants moved for summary judgment, which the district court granted. The district court found that the individual officers were entitled to qualified immunity because Arnold did not demonstrate that the officers used excessive force or...