Tina Smith v. Michael Kilgore
Opinion
Tina Smith, mother of Raymond A. Smith Jr., sued the Kansas City Chief of Police, the members of the Board of Police Commissioners, and officers Selvir Abidovic, Christopher Krueger, Christopher James Taylor, and Andrew E. Keller, alleging they violated her son's constitutional rights when two officers used deadly force against him. The defendants moved for summary judgment, which the district court
1
granted. Smith appeals. Having jurisdiction under
I.
About 4:00 P.M. on May 26, 2012, officers Abidovic and Keller were dispatched on a report of suspicious activity in a park. Officer Abidovic found two people nearly fitting the dispatcher's description, one later identified as Raymond Smith. Officer Abidovic approached the suspects, who began walking away. He yelled, "Stop, come talk to me!" Smith began running away from officer Abidovic, out of the park. Officer Abidovic chased him on foot. Officer Keller radioed dispatch about the pursuit. Officers Krueger and Taylor were dispatched to assist.
Chasing Smith into a parking lot, officer Abidovic saw a gun in his hand. He announced over dispatch radio, "He's armed!" He pointed his gun at Smith, shouting, "Drop the gun!" Smith did not drop it. As Smith was climbing over a chain-link fence, he fired a shot at officer Abidovic. Officer Abidovic then fired three shots at Smith. Officer Keller radioed dispatch, "Shots fired." From their patrol car, officers Krueger and Taylor found Smith on the other side of the fence. They saw him begin to raise his gun in their direction. Officer Krueger fired five shots at Smith. He fell to the ground. Officer Abidovic called for an ambulance. Smith died from the gunshot wounds.
Smith's mother sued, alleging excessive force; battery; assault; negligent hiring and retention; wrongful death; failure to provide adequate medical care; and related Monell claims. The district court dismissed *483 the negligent hiring and retention claim, and granted summary judgment for the defendant on all other claims. 2 Smith appeals the grant of summary judgment.
II.
This court reviews a grant of summary judgment de novo.
See
TCF Nat'l Bank v. Mkt. Intelligence, Inc.
,
Smith argues there is a genuine issue of material fact whether the decedent fired or pointed his gun at officers. The district court found as an undisputed fact that Smith fired at officer Abidovic. It based this conclusion on officer Abidovic's affidavit and the dashcam video from officers Abidovic and Keller's patrol car. Officer Abidovic states in his affidavit: "As Mr. Smith climbed over the fence, he pointed his gun at me, while I was about 20 yards away, and fired a shot at me." Smith argues this statement is contradicted by officer Keller's statement that he did not see the decedent point his gun at officer Abidovic. But officer Keller explains in his affidavit that he was not looking. When the decedent reached the fence, officer Keller reentered his patrol vehicle and began reversing the car to meet the decedent on the other side of the fence. Backing up, he heard gunshots. He reports hearing one gunshot, followed by several others that "sounded like return fire." According to his affidavit, he does not know who fired first. The dashcam audio captures the sound of a single gun shot, followed by three more. This audio is consistent with both officers' accounts.
Smith next argues that officer Abidovic's statement conflicts with the dashcam video because it does not show the decedent raising a gun toward officer Abidovic as he climbs the fence. When the shots are fired, only the decedent's legs are visible in the video. It therefore does not depict the decedent pointing his gun at officer Abidovic, nor does it negate this account. By pointing to the inconclusiveness of the video, Smith has failed to "set forth specific facts showing that there is a genuine issue for trial."
TCF Nat'l Bank
,
The district court found as an undisputed fact that Smith started to raise his gun toward officers Krueger and Taylor. It based this conclusion on officer Krueger's affidavit: "Within a split second, before my patrol car came to a complete stop, I immediately saw Mr. Smith look at me, then start to raise his gun in my direction." Smith attacks the credibility of officer Krueger, asserting his multiple statements contradict each other and create a genuine issue for trial. In a 2012 statement, officer Krueger says he saw officer Abidovic chasing the decedent before the decedent began to raise a semiautomatic shotgun "in a threatening manner." At his 2017 deposition and in his 2017 affidavit, officer Krueger says he did not see officer Abidovic chasing the decedent. Whether he saw officer Abidovic chasing the decedent is distinct from the material inquiry: whether the decedent pointed his gun at officer Krueger. On this point, the evidence is consistent. In his 2017 deposition, officer Taylor testified that as he and officer Krueger approached the decedent, he pointed his gun at them. Officers Krueger and Taylor both say that when the decedent climbed the fence, he raised his gun in their direction.
See
Smith v. City of Brooklyn Park
,
Finally, Smith argues that the district court erred in discounting witness statements. The district court correctly held that witnesses' testimony that they did not see the decedent with a gun minutes before or after his confrontation with police does not create a genuine issue whether the decedent had a gun that he pointed and fired during his confrontation with police. Two eyewitnesses saw the confrontation. Florence Anderson told police she was across the street and down the block when she saw the decedent run through the parking lot, jump the fence, get shot, and fall to the ground. She did not see him with a gun, and she did not see anything in his hands. Another officer, Denny Mason, observed the shooting from a police helicopter. He saw officers Abidovic and Krueger with their guns drawn. He saw something tucked under Smith's arm that could have been a gun.
The district court discounted these statements as double hearsay because they are witness statements recorded by officers in police reports. This court "review[s] the admission of evidence for consideration at the summary judgment stage for an abuse of discretion."
Gannon Int'l, Ltd. v. Blocker
,
Nor did the district court err in ruling that Anderson's and Mason's statements do not create a genuine issue for trial. "The district court must base its determination regarding the presence or absence of a material issue of factual dispute on evidence that will be admissible at trial."
Firemen's Fund Ins. Co. v. Thien
,
No potentially admissible evidence in the record supports Smith's allegations that the decedent was unarmed, did not point his gun at officers, and did not shoot at an officer. The evidence does not present a sufficient dispute to require submission to a jury.
See
Quick v. Donaldson Co.
,
III.
In light of Part II above, the district court correctly ruled that officers Abidovic and Krueger used reasonable force. The officers' use of deadly force was a seizure subject to Fourth Amendment reasonableness requirements.
See
Tennessee v. Garner
,
Officers Abidovic and Krueger were reasonable in using deadly force. The decedent fired at officer Abidovic and began to raise his gun toward officers Krueger and Taylor. Either of these facts would justify deadly force to prevent harm to officers and others. An officer's use of deadly force is objectively reasonable against armed suspects who point their gun toward officers.
See
Partlow v. Stadler
,
Because officers Abidovic and Krueger used reasonable force, the district court properly rejected Smith's assault, battery, and wrongful death claims.
See
Wright v. United States
,
IV.
Smith argues that the district court erred by granting summary judgment on her claim that the officers failed to follow established policies and procedures for providing prompt medical care because questions of fact remain about who called Emergency Medical Services (EMS) and when. The Fourteenth Amendment's Due Process Clause "require[s] the responsible government or governmental agency to provide medical care to persons ... who have been injured while being apprehended by the police."
City of Revere v. Massachusetts Gen. Hosp.
,
*487
See
Carpenter v. Gage
,
* * * * * * *
The judgment is affirmed.
The Honorable Sarah W. Hays, United States Magistrate Judge for the Western District of Missouri.
The defendants raised qualified immunity in their answer to the complaint, but not in their motion for summary judgment. The district court did not address qualified immunity, and neither does this court.
Reference
- Full Case Name
- Tina SMITH, Individually, and a Natural Mother and Lawful Heir of Raymond A. Smith, Jr., Deceased, Plaintiff-Appellant v. Michael KILGORE, Member Kansas City Board of Police Commissioners; Alvin Brooks, Member Kansas City Board of Police Commissioners; Angela Wasson-Hunt, Member Kansas City Board of Police Commissioners; Michael Rader, Member Kansas City Board of Police Commissioners; Sylvester James, Member Kansas City Board of Police Commissioners; David Kenner, Member Kansas City Board of Police Commissioners; Darryl Forte, Chief of Police; Selvir Abidovic, Police Officer, # 5569; Christopher Krueger, Police Officer, # 5476; Christopher Taylor, Police Officer, # 5353; Andrew Keller, Police Officer, # 5576, Defendants-Appellees
- Cited By
- 42 cases
- Status
- Published