Lewis v. City of Edmond

48 F.4th 1193

Vicki Jo LEWIS and Troy Levet Lewis, individually and as co-personal representatives of the Estate of Isaiah Mark Lewis, deceased, Plaintiffs - Appellees,

v. CITY OF EDMOND, an Oklahoma municipal corporation; Police Sergeant Milo Box, Defendants,andPolice Officer Denton Scherman, Defendant - Appellant.

No. 21-6081

United States Court of Appeals, Tenth Circuit.

FILED September 16, 2022

Kathryn D. Terry (Catherine L. Campbell and Cody J. Cooper, with her on the briefs), Phillips Murrah, P.C., Oklahoma City, Oklahoma, for Defendant-Appellant.

Devi M. Rao, Roderick & Solange MacArthur Justice Center (Daniel M. Greenfield, Roderick & Solange MacArthur Justice Center, Northwestern Pritzker School of Law, Chicago, Illinois, Easha Anand, Roderick & Solange MacArthur Justice Center, San Francisco, California, and Christina N. Davis, Roderick & Solange MacArthur Justice Center, Washington, D.C. on the brief), Washington, D.C., for Plaintiffs-Appellees.

Before HARTZ, BALDOCK, and McHUGH, Circuit Judges.

BALDOCK, Circuit Judge.

Officer Denton Scherman of the Edmond, Oklahoma Police Department shot an unarmed assailant, Isaiah Mark Lewis, four times (a fifth shot missed). Lewis died as a result of his wounds. Plaintiffs, the representatives of Lewis's estate, brought this civil rights action under 42 U.S.C. § 1983 alleging Defendant Scherman used excessive force against the decedent in violation of the Fourth Amendment. Scherman now appeals the district court's decision denying his motion for summary judgment based on qualified immunity. Lewis v. City of Edmond , No. CIV-19-489-R, 2021 WL 2815851 (W.D. Okla. July 6, 2021). We reverse.

Our jurisdiction to review this denial, though limited, arises under 28 U.S.C. § 1291 via the collateral order doctrine. See Duda v. Elder , 7 F.4th 899, 909–10 (10th Cir. 2021). Our jurisdiction is limited because at this intermediate stage of the litigation, controlling precedent generally precludes us from reviewing a district court's factual findings if those findings have (as they do here) at least minimal support in the record. See Lynch v. Barrett , 703 F.3d 1153, 1158–60, 1160 n.2 (10th Cir. 2013). In such case, "[t]hose facts explicitly found by the district court, combined with those that it likely assumed, ... form the universe of facts upon which we base our legal review of whether [a] defendant[ ] [is] entitled to qualified immunity." Fogarty v. Gallegos , 523 F.3d 1147, 1154 (10th Cir. 2008). Our legal review, which is de novo, is confined to "(1) whether the facts that the district court ruled a reasonable jury could find would suffice to show a legal violation, and (2) whether th[e] [applicable] law was clearly established at the time of the alleged violation." Dalton v. Reynolds , 2 F.4th 1300, 1307–08 (10th Cir. 2021) (cleaned up) (quoting Roosevelt-Hennix v. Drickett , 717 F.3d 751, 753 (10th Cir. 2013) ).

Defendant Scherman does not dispute the facts recited by the district court, when viewed in a light most favorable to Plaintiffs, suffice to show a violation of the decedent's Fourth Amendment right to be free from excessive force. See City & Cty. of S.F. v. Sheehan , 575 U.S. 600, 603, 135 S.Ct. 1765, 191 L.Ed.2d 856 (2015) ("Because this case arises in a summary judgment posture, we view the facts in the light most favorable to ... the nonmoving party."). Accordingly, we assume without deciding that those facts are sufficient to establish a constitutional violation. What Scherman does dispute is the district court's holding that the law was clearly established at the time of the incident such "that every reasonable [officer] would have understood" Scherman's actions, given the facts knowable to him, violated decedent's constitutional right. Rivas-Villegas v. Cortesluna , ––– U.S. ––––, 142 S. Ct. 4, 7, 211 L.Ed.2d 164 (2021) (per curiam) (emphasis added) (quoting Mullenix v. Luna , 577 U.S. 7, 11, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015) (per curiam)); see also White v. Pauly (Pauly I ), 580 U.S. 73, 76–77, 137 S.Ct. 548, 196 L.Ed.2d 463 (2017) (per curiam) ("Because this case concerns the defense of qualified immunity, ... the Court considers only the facts that were knowable to the defendant officers.").

I.

The facts recited by the district court are as follows. Lewis was at his girlfriend's house around 10:30 a.m. on April 29, 2019, when she noticed he was acting strangely. An altercation arose after Lewis asked to look at his girlfriend's cell phone. An individual outside the house heard the altercation. Around 1:00 p.m., a neighbor called 911 and stated a young man was "beating up" a girl. Lewis , 2021 WL 2815851, at *1. In response to the call, police officers arrived on the scene around 1:04 p.m. Upon their arrival, Lewis's girlfriend told the officers that reports of a physical altercation between the two were overblown.

While officers were en route, Lewis removed his clothing and fled his girlfriend's house on foot. For the next hour or so, Lewis eluded police by running naked around the neighborhood and hiding. Although not part of the initial response team, Sergeant Milo Box and Defendant Scherman were assisting in the search for Lewis when they spotted him in a yard in a nearby neighborhood. Box and Scherman both knew a call referencing a domestic disturbance triggered the original dispatch. As Scherman slowly drove past Lewis, Box exited the patrol car, identified himself as a police officer, pointed his taser at Lewis, and commanded him to stop and get on the ground. Rather than comply, Lewis turned toward the nearest residence and forced his way inside by busting through the front door's oval glass window.

After watching Lewis physically break through the front door, Sergeant Box believed the residence was not Lewis's home. Whether anyone was in the home was unknown. Box followed Lewis inside. Box observed Lewis attempting to exit the back door and again commanded him to stop and get on the ground. Lewis then turned on Box and charged at him. Box deployed his taser on Lewis without effect. While Box and Lewis "fought" in the living room, Box deployed his taser a second time, again without effect. Id . By this time, Defendant Scherman had entered the residence.

Scherman moved from the front entry hallway, a "small space," into the living room where he observed "Lewis pummeling Box," a felony under Oklahoma law. Id at *1, *7 ; see Okla. Stat. tit. 21, § 649(B) (proscribing assault and battery upon a police officer). According to the district court, while Scherman watched, "Lewis ‘continued to strike Box in the head, face, and neck,’ and Box attempted to use his taser [a third time] to ‘drive stun’ Lewis." Lewis , 2021 WL 2815851, at *1. The taser failed to subdue Lewis, and Box disappeared from Scherman's line of sight. Lewis then turned toward Scherman, whom the district court described as an "undersized officer." Id . at *7. Scherman drew his firearm. As Lewis advanced toward him, Scherman shot Lewis four times in the front of his body. Lewis sustained gunshot wounds to his face, groin, and both thighs.

At the point Defendant Scherman began shooting, the parties’ respective versions of events diverge, so an understanding of what the district court actually found is critical. In the district court's words:

[T]he Plaintiffs do not dispute that after his fight with Box in the living room, Lewis turned toward Scherman and advanced in his direction as Scherman backed down the entry hallway toward the front door. Four gunshot wounds in the front of Lewis's body and the bullet casings recorded in the Edmond police department's crime scene sketch confirm this account.

Id . at *2 (record citations omitted). Notably, however, the district court rejected as contrary to Plaintiffs’ evidence Defendant Scherman's claim (1) that Lewis barreled toward or charged him in a tackling position, (2) that Lewis was close enough to land a punch on his face, and (3) that he shot Lewis from close range. Instead, Plaintiffs say Lewis "moved his arms in a windmill motion" while he advanced towards Scherman and he was "more than one and a half to two feet away from Scherman when Scherman discharged his firearm." Id . (internal brackets omitted).

II.

On the question of whether Defendant Scherman violated Lewis's right to be free from excessive force, the district court found that "after Scherman first shot Lewis, Lewis no longer ‘continued to barrel toward him ....’ A reasonable jury could conclude that, after Scherman discharged his firearm once, Lewis no longer presented a threat of serious physical harm" to Scherman or others.¹ Id . at *7 (cleaned up) (emphasis added); see Tennessee v. Garner , 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (holding that where a suspect poses no immediate threat to the officer or others, the use of deadly force is excessive). As noted, Scherman does not challenge the district court's finding that when he shot Lewis multiple times, his use of force was objectively unreasonable and violated the Fourth Amendment. See Graham v. Connor , 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (holding an objective reasonableness standard governs Fourth Amendment excessive force claims). The only question for our resolution then is whether the law at the time of the incident was "clearly established," or, in other words, provided "fair warning" to a reasonable officer that his conduct was unconstitutional. Hope v. Pelzer , 536 U.S. 730, 739–41, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). Because Defendant Scherman raised the defense of qualified immunity, Plaintiffs have the burden of demonstrating the constitutional violation was clearly established on the date of the incident, April 29, 2019.² See Estate of Smart v. City of Wichita , 951 F.3d 1161, 1168–69 (10th Cir. 2020).

So what constitutes the fair warning necessary for us to conclude the law was clearly established? According to Plaintiffs, "it has been clearly established for over a...