Submitted January 13, 2015.
[Copyrighted Material Omitted]
Appeal from United States District Court for the Western District of Missouri - Kansas City.
For Phillip Ransom, Plaintiff - Appellee: John Wray Kurtz, Hubbard & Kurtz, Kansas City, MO.
For Anthony Grisafe, both in his official and his individual capacity, John Randle, both in his official and his individual capacity, Tyrone Phillips, Angela Conaway-Dawdy, both in her official and her individual capacity, Thomas Dearing, Defendants - Appellants: Diane Chirnside, Assistant Attorney General, P. Benjamin Cox, Assistant Attorney General, Attorney General's Office, Kansas City, MO.
Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges. RILEY, Chief Judge, concurring. KELLY, Circuit Judge, concurring in part and dissenting in part.
Phillip Ransom sued Kansas City Police Officers Tyrone Phillips and Angela Conaway-Dawdy, Kansas City Police Detectives Anthony Grisafe and Justin Randle, and Kansas City Police Sergeant Thomas Dearing under 42 U.S.C. § 1983, alleging that the defendants violated his rights under the Fourth and Fourteenth Amendments of the Constitution. The defendants moved for summary judgment and argued that they were entitled to qualified immunity. The district court concluded that there were disputed issues of material fact and denied the motion. The defendants appeal. We reverse and direct entry of judgment for the defendants.
The facts here are recited " in the light most favorable" to Ransom, giving him " the benefit of all reasonable inferences," because he is the non-moving party. Williams v. Holley, 764 F.3d 976, 979 (8th Cir. 2014) (quotation omitted).
It was a dark and rainy evening on November 11, 2010. Phillip Ransom was driving home from work in Lenexa, Kansas, to Kansas City, Missouri. Two miles before his exit, Ransom's van began backfiring, and he pulled over to the side of the road on Gregory Boulevard, near I-435. The sounds from his van alerted someone, who called 911 and reported that shots had been fired from or near a white van, though the caller did not report having seen flashes indicative of gunfire coming from the car. Officers Tyrone Phillips and Angela Conaway (now Conaway-Dawdy) responded to the call and drove their squad car toward the intersection.
What happened once Officers Phillips and Conaway arrived at the scene was recorded by the dashboard camera inside the officers' squad car. The district court did not discuss the video or the scene as recorded by the camera. But the video was available to the court and the parties, and neither party disputes the accuracy of the video or alleges that it has been altered in any way. Thus, we will " view the facts in the light depicted by the videotape." Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
The video shows the following: The officers pass by Ransom's van as they arrive at the scene. Officer Conaway says, " There's probably the van," which is white, corroborating the call. The car pulls behind Ransom's van, which has on its hazard lights. Only seconds later, the van backfires. (If the viewer watches closely, sparks can be seen shooting out from the van's tailpipe; the tailpipe visibly shakes as it fires.) Just after the backfire, the driver's-side door of the van opens. Officer Phillips yells, " Get back in the car." Ransom appears not to hear Officer Phillips and steps out of the van. As soon as he does, the two officers fire a total of eight shots. Ransom does not react as if he has been hit by any shot, nor does he
appear to notice that the officers have fired at him. Instead, he briefly looks around and then down at the tailpipe of the van, shakes his head side-to-side, and turns and walks to the front of the van. The officers report " shots fired" into the radio. Moments later, Ransom raises his hands from the front of his van. Officer Phillips yells, " Lay on the ground." Ransom lowers his hands to the side of the van, but he stays in front of the vehicle. Only his hands are visible. Officer Phillips asks Ransom, " Where's it coming from?," to which Ransom replies, " My van is backfiring." Officer Phillips asks, " Your van is backfiring?" but then adds, " No, it's not. Our window's shot out!"  Officer Phillips then orders Ransom to turn around and walk toward the squad car. Ransom complies and walks backward, toward the squad car and out of sight of the camera.
Officer Phillips says to Officer Conaway, " That didn't sound like a backfire to me." Officer Conaway agrees. Officer Phillips says he heard " more than one. I heard, like, four." The Officers request back-up because they believe there may be another person there who had fired the shots, possibly from a ditch along the side of Gregory Boulevard. Officer Phillips asks Ransom if he has been shot; Ransom's response is inaudible. Ransom later tries to explain that the sound was from his van backfiring, but Officer Phillips says, " No, that was a gunshot." The officers tell Ransom they received a call about shots being fired and ask why he was getting out of his car. He explains that he thought his van was catching fire. Numerous other officers arrive and close off the area to the public. Near the end of the video, Officer Phillips can be heard telling another officer that he was sure he heard the sound of a gunshot, not a backfire, and that he heard it more than once.
In December 2012, Ransom filed a lawsuit in state court against the two officers who were at the scene, two detectives who later investigated the " shooting," and a Kansas City sergeant. The defendants removed the action to federal court, and in September 2013, Ransom filed a second amended complaint, raising claims under 42 U.S.C. § 1983. Ransom alleges that the defendants seized him at the scene and detained him for a total of four hours, including for " at least 34 minutes and 29 seconds" at the Kansas City Police Department. He says he was not " free to go" until told so by one of the detectives at the police department. He claims excessive force was used against him, that he was unreasonably seized, and that he was deprived of his liberty and held against his will without probable cause.
During discovery, various witnesses were deposed. Ransom testified that he saw the officers U-turn and pull behind him; at that time, his van still was backfiring. Ransom did not dispute the officers' belief that they heard multiple backfires, and he agreed that the sound of the backfires could easily be mistaken for gunshots. He did not realize, however, that the officers fired shots at him; instead, he thought their shots were the sound of his van backfiring. He testified, however, that a piece of what he " assumed . . . was glass . . . grazed the side of my head," but he was not bleeding from it. When Ransom saw Officer Conaway with her weapon drawn, he put up his hands. He also noticed at that time that the squad car was " shot up" and that a window had been shot out.
About five minutes after he was handcuffed, Ransom testified, he was taken to a police wagon that arrived. He had no further contact with Officers Phillips and Conaway. He eventually talked with Detectives Randle and Grisafe, who were there to investigate the shooting. Ransom heard someone say to take Ransom out of the van " and make him as comfortable as possible." That person, he later found out, was Sergeant Dearing, but Ransom testified that he had no personal interaction with the sergeant. Ransom asked if he could go home, but Detective Randle told him he was " going downtown" for questioning.
Ransom testified that he then was taken to the police headquarters. He was not handcuffed or put in the back seat of a patrol car, and he was allowed to bring his cell phone and call his wife. Ransom was not booked or fingerprinted, but he was put into a room that he assumed was locked because he heard it latch; no one told him it was locked. He signed a sheet detailing the Miranda warnings and agreed to talk without a lawyer present. He testified that no one yelled or cursed at him or otherwise threatened him during the interview. ...