Submitted: June 14, 2018
from United States District Court for the Northern District
of Iowa - Ft. Dodge
LOKEN, GRUENDER, and ERICKSON, Circuit Judges.
GRUENDER, Circuit Judge.
Zachary Church appeals the district court's adverse grant of
summary judgment on his claims under 42 U.S.C. § 1983
and state law. The district court concluded that Officer Bob
Anderson is entitled to qualified immunity because his
actions were objectively reasonable under the circumstances.
early hours of December 25, 2013, Anderson, an officer with
the Cedar Falls Police Department, noticed a vehicle parked
with its engine running. Anderson found Church in the
driver's seat and detected odors of alcohol and burnt
marijuana. After frisking Church and finding no weapons,
Anderson escorted him toward his patrol car, intending to
take him to the police station to conduct field sobriety
tests in a controlled environment. According to Anderson,
however, Church suddenly hit him with a roundhouse punch to
the left side of his head, knocking him to his knees. Church
continued to hit Anderson, who radioed for backup. In later
deposition testimony, Anderson stated that he felt a tug on
his duty belt, where he kept his service weapon, and that he
was exhausted and lightheaded. Fearing for his life, Anderson
warned Church that he would shoot him if he did not stop. As
Church continued the assault, Anderson fired a shot, hitting
Church in the lower left abdomen. The shot backed Church up,
but he started moving toward Anderson again. Anderson then
fired two more shots, hitting Church in the front left
shoulder and in the back right shoulder area. The first shot
was fired from a distance of approximately eighteen to
twenty-four inches, while the other two shots were fired from
a distance of at least four feet.
survived the shooting but has no recollection of the
incident. Anderson's patrol car was equipped with an
audio-video recording system, which could be activated by his
body microphone. But the events took place outside the range
of the camera, and Anderson did not activate the audio. Thus,
Anderson has provided the only account of what happened.
Church was charged in a criminal proceeding with assault on a
peace officer with intent to inflict serious injury; the jury
convicted him of the lesser-included offense of assault on a
civil action, the district court granted Anderson summary
judgment, finding that he was entitled to qualified immunity
because his use of deadly force was justified under the
circumstances. Church v. Anderson, 249 F.Supp.3d
963, 977-79 (N.D. Iowa 2017). In reaching this conclusion,
the district court relied on Church's criminal conviction
for assaulting Anderson and on Anderson's testimony.
Id. at 977-79 & n.8. As the court explained,
"Anderson's testimony concerning Church's
assault on him, and Anderson's response, are
uncontroverted. . . . Because Church has no memory of the
events, Anderson is the only witness to the shooting and his
account, therefore, stands unrebutted by definition."
Id. at 977 n.8.
review de novo a decision granting summary judgment
on the basis of qualified immunity. Burton v. St. Louis
Bd. of Police Comm'rs, 731 F.3d 784, 791 (8th Cir.
2013). To overcome Anderson's claim of qualified
immunity, Church bears the burden of showing that the facts
alleged, construed in the light most favorable to Church,
demonstrate the violation of a constitutional right that was
clearly established at the time of the violation. See
Gilmore v. City of Minneapolis, 837 F.3d 827, 832 (8th
Cir. 2016). "To establish a constitutional violation
under the Fourth Amendment's right to be free from
excessive force, the test is whether the amount of force used
was objectively reasonable under the particular
circumstances." Brown v. City of Golden Valley,
574 F.3d 491, 496 (8th Cir. 2009). A right is clearly
established if "every reasonable official would have
understood that what he is doing violates that right."
Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (per
appeal, Church's main argument is that we should create
an evidentiary presumption at the summary judgment stage
against an officer who fails to use audio or video recording
equipment that he has been issued. He argues that Anderson
should not benefit from Church's inability to remember
the incident given that Anderson failed to activate his
recording equipment. The proposed presumption would permit
the court to infer from the lack of audio evidence that
Anderson's use of force was excessive, allowing the
claims to proceed to trial. While we recognize that cases
involving the use of force in which only one side can tell
its story present "a unique evidentiary problem,"
we decline to adopt such a radical solution. See Ludwig
v. Anderson, 54 F.3d 465, 470 n.3 (8th Cir. 1995).
Church admits that he knows of no court anywhere that has
recognized such a presumption. Moreover, we must follow
circuit precedent, Mader v. United States, 654 F.3d
794, 800 (8th Cir. 2011), which places the burden of showing
the violation of a clearly established right on Church,
see Gilmore, 837 F.3d at 832.
also claims that the physical evidence concerning the
shooting and "[d]iscrepancies and variations" in
Anderson's testimony are sufficient to bring his claims
to trial even without the proposed evidentiary presumption.
See Ellison v. Lesher, 796 F.3d 910, 916 (8th Cir.
2015). In particular, he points to Anderson's lack of
physical injuries consistent with a violent assault, his
knowledge that Church was unarmed, and his failure to use
less violent means to subdue Church, as well as the
jury's acquittal of Church on the more serious charge of
assault with intent to inflict serious bodily injury. Church
also highlights Anderson's inability to provide specifics
regarding the tug he felt on his duty belt, and he emphasizes
that Anderson, having failed to renew his warning after the
first shot, fired a shot that hit him in the back.
to the Supreme Court, "The calculus of reasonableness
must embody allowance for the fact that police officers are
often forced to make split-second judgments-in circumstances
that are tense, uncertain, and rapidly evolving-about the
amount of force that is necessary in a particular
situation." Graham v. Connor, 490 U.S. 386,
396-97 (1989). The Court provided factors to evaluate a
constitutional excessive force claim, including the severity
of the suspect's crime, whether the suspect was
threatening the officers or others, and whether he was
"actively resisting arrest or attempting to evade arrest
by flight." Id. at 396. Even when we construe
the record in Church's favor, Anderson's use of force
was objectively reasonable under two of these three factors:
he posed an immediate threat to Anderson's safety and was
actively resisting arrest.
Church was acquitted of the more serious charge, it is
undisputed that he assaulted Anderson, who did have injuries
consistent with such an assault, even if those injuries were
limited. Weighing approximately 268 pounds, Church was far
larger than Anderson, who weighed approximately 190 pounds.
Anderson testified that he feared that he might lose
consciousness and that Church could potentially access his
service weapon and kill him. Given the size difference
between the two men, Anderson's concerns about his
safety, and the "tense, uncertain, and rapidly
evolving" situation, see Graham, 490 U.S. at
397, it was reasonable for him to use deadly force to defend
himself, see Aipperspach v. McInerney, 766 F.3d 803,
806 (8th Cir. 2014). As for the availability of less lethal
force, Anderson testified that he could not reach his taser
or pepper spray-which were on the opposite side of his duty
belt from his service weapon-due to Church's repeated
punches. But even if we assume that Anderson could have used
these alternatives, an officer need not "pursue the most
prudent course of conduct as judged by 20/20 hindsight
vision." See Retz v. Seaton, 741 F.3d 913, 918
(8th Cir. 2014). And because deadly force was justified,
Anderson was not required to warn Church before each shot and
was permitted to use force until the threat had ended.
See Plumhoff v. Rickard, 134 S.Ct. 2012, 2022
one shot did apparently enter Church's right shoulder
area from the rear, this case bears little similarity to
those in which "an unarmed man was shot in the back of
the head," Gardner v. Buerger, 82 F.3d 248, 254
(8th Cir. 1996), or four of six shots entered the suspect
from behind, Felder v. King, 599 F.3d 846, 848 (8th