No 4th Amendment Seizure Where Civil Rights Plaintiff Fled; No Malicious Prosecution Where Evidence Supported Gun Charge
Brooks v. Gaenzle, ___ F.3d ___ , 2010 WL XXX, No. 09-1489 (10th Cir. 2010) (CO).
In this 42 USC § 1983 Civil Rights case, the court upholds the district court’s grant of summary judgment to the defendant cops/law enforcement entities on the petitioner’s Fourth Amendment claims of unreasonable use of force and malicious prosecution, and denies pendent jurisdiction on related state tort claims, reversing the district court on the state claims and dismissing them without prejudice.
Petitioner and another were suspects at the scene of a burglary in progress. A suspect inside the house shot a gun at police. Petitioner was seen fleeing, was told to stop, and was shot in the back. He got away and was apprehended a few days later. The other suspect also fled and died in a later gun battle with the police, with the gun used at the burglary. Petitioner was convicted of most charges relating to the burglary, but acquitted of having the gun in his possession.
He brought the civil § 1983 action for the Fourth Amendment violation and resulting injury under a theory of excessive force, and for maliciously prosecuting him for possessing the gun.
The COA upheld the district court's determination that there was no Fourth Amendment seizure. In spite of police show of authority and use of deadly force, and in spite of the bullet hitting the petitioner, he did not stop, he fled, and he therefore was not seized (following the general rule of Hodari D.). The COA discusses whether momentarily stopping a person who was injured raises a Fourth Amendment seizure issue, but determines that there are no facts of a momentary stopping.
The COA also upholds the district court determination that P failed to show, on the malicious prosecution count, that but for the defendants’ alleged lies that he had a gun, there would have been no probable cause to charge him with the gun. There was sufficient other evidence to charge him with a gun: other witnesses who saw him with a gun earlier in the day; his own later retracted statement that he had a gun that day; his admissions to others that he shot at a police officer during the burglary Finally, his vague claim of a conspiracy to violate his civil rights did not raise a triable claim.
In this 42 USC § 1983 Civil Rights case, the court upholds the district court’s grant of summary judgment to the defendant cops/law enforcement entities on the petitioner’s Fourth Amendment claims of unreasonable use of force and malicious prosecution, and denies pendent jurisdiction on related state tort claims, reversing the district court on the state claims and dismissing them without prejudice.
Petitioner and another were suspects at the scene of a burglary in progress. A suspect inside the house shot a gun at police. Petitioner was seen fleeing, was told to stop, and was shot in the back. He got away and was apprehended a few days later. The other suspect also fled and died in a later gun battle with the police, with the gun used at the burglary. Petitioner was convicted of most charges relating to the burglary, but acquitted of having the gun in his possession.
He brought the civil § 1983 action for the Fourth Amendment violation and resulting injury under a theory of excessive force, and for maliciously prosecuting him for possessing the gun.
The COA upheld the district court's determination that there was no Fourth Amendment seizure. In spite of police show of authority and use of deadly force, and in spite of the bullet hitting the petitioner, he did not stop, he fled, and he therefore was not seized (following the general rule of Hodari D.). The COA discusses whether momentarily stopping a person who was injured raises a Fourth Amendment seizure issue, but determines that there are no facts of a momentary stopping.
The COA also upholds the district court determination that P failed to show, on the malicious prosecution count, that but for the defendants’ alleged lies that he had a gun, there would have been no probable cause to charge him with the gun. There was sufficient other evidence to charge him with a gun: other witnesses who saw him with a gun earlier in the day; his own later retracted statement that he had a gun that day; his admissions to others that he shot at a police officer during the burglary Finally, his vague claim of a conspiracy to violate his civil rights did not raise a triable claim.
posted by Anonymous at 4:11 PM
<< Home