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Wenzel v. City of Bourbon

United States Court of Appeals, Eighth Circuit

August 9, 2018

Eric Wenzel; Annie Alley; Thelma Wenzel Plaintiffs - Appellees
v.
City of Bourbon, Missouri Defendant Carl Storm, in his individual capacity Defendant-Appellant

          Submitted: March 15, 2018

          Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before WOLLMAN, SHEPHERD, and ERICKSON, Circuit Judges.

          WOLLMAN, Circuit Judge.

         After Bourbon, Missouri, Police Officer Carl Storm shot and killed Gary Wenzel (Wenzel), Wenzel's children, Eric Wenzel and Annie Alley, and his mother, Thelma Wenzel, (collectively, Plaintiffs) filed suit against Storm in federal district court. Plaintiffs alleged a claim under 42 U.S.C. § 1983, asserting that Storm had violated Wenzel's Fourth Amendment right to be free from excessive force.[1] The district court denied Storm's motion for summary judgment based on his claim of qualified immunity. We reverse the denial of summary judgment and remand with directions to grant qualified immunity to Storm. We deny Plaintiffs' motion to dismiss the appeal for lack of jurisdiction.

         I. Background

         Storm was familiar with the Wenzel family. Explaining that Bourbon "is a small town," Storm testified that he had seen Wenzel numerous times and that he had responded to a domestic dispute involving Wenzel. Storm stated that Wenzel's brother Ronnie had described Wenzel as "dangerous" and that he had instructed Storm to be careful when dealing with Wenzel. An officer from a nearby town told Storm that Wenzel had fled when officers tried to pull him over for improper tags and that officers were unable to apprehend him. According to his affidavit, Storm also knew of physical altercations between Wenzel and other police officers, as well as knowing that the Bourbon Police Department was investigating Wenzel's methamphetamine use and distribution.

         Storm worked the day shift on March 5, 2014. It was a bright, wintery day. The streets and highway were mostly clear, but there were patches of ice and snow on the country roads near Bourbon. Storm was in uniform and on patrol, driving a marked police car that was equipped with an in-car video system. His duty belt carried a pistol, a baton, and pepper spray.

         Storm had stopped Wenzel's nephew, Shawn, for a traffic violation earlier that morning. According to Storm, Shawn said to "be careful" if Storm came across Wenzel because Wenzel had said that he was "not going back to jail."

         After completing the traffic stop, Storm resumed patrolling and observed Wenzel drive past him. Storm decided to check Wenzel's tags based on the information that the tags were improper. Storm turned around, activated his lights and siren, and began to follow Wenzel. The ensuing chase was visually recorded on Storm's in-car video system, but the audio portion of the system was not activated.

         Wenzel sped through a stop sign and headed out of town, leading Storm on a chase that lasted ten or eleven minutes. The video shows Wenzel driving recklessly, frequently in the wrong lane, including when cresting hills and rounding turns. During the chase, dispatch relayed to Storm that Wenzel was classified as having "J3" status. Storm explained that the classification means "aggressive, known to be violent with weapons and violent towards law enforcement."

         As Wenzel tried to turn onto a snow-covered road, his vehicle veered into a shallow ditch and came to an abrupt stop against the ditch embankment. Meanwhile, Storm stopped his vehicle a few car-lengths behind Wenzel's vehicle and opened the driver's side door. Storm testified that while he was looking for a road sign or landmark to communicate his location to dispatch he noticed that Wenzel had exited his vehicle and was quickly approaching him. Although he could not clearly see Wenzel's hands, Storm did not see any weapons. He testified that Wenzel's hands were at his sides with his palms facing backward. Storm exited his car, drew his firearm, stood behind his open car door, and shouted to Wenzel that he stop and show his hands.

         The video shows Wenzel quickly exiting his vehicle and walking aggressively toward Storm's patrol car. Wenzel appears to be angry, with his arms swinging as he walked. The video shows that Wenzel did not comply with or even react to Storm's commands. He instead continued to approach Storm, coming to within a few steps from him, whereupon Storm fired his weapon three times. Approximately three seconds elapsed from the time Wenzel exited his vehicle to the time Storm fired the shots. Wenzel was found to be unarmed.

         The district court denied Storm's motion for summary judgment, concluding that the parties disputed "how Wenzel moved and to what extent his hands were visible to Storm." D. Ct. Order of April 13, 2017, at 9. The district court's order suggests that Storm violated Wenzel's clearly established right to be free from excessive force if Storm could see that Wenzel was not carrying a weapon and nonetheless used deadly force against Wenzel. See id. at 10 ("While an officer is not constitutionally required to wait until he actually sees a ...


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