Appeal from the United States District Court for the Central district of Illinois. No. 84-3378 -- Richard Mills, Judge.
Bauer, Chief Judge, and Cummings, Wood, Jr., Cudahy, Posner, Flaum, Coffey, Easterbrook, Ripple, Manion, and Kanne, Circuit Judges, and Pell, Senior Circuit Judge. Cummings, Circuit Judge, concurring. Cudahy, Circuit Judge, with whom Cummings, Circuit Judge, joins, concurring.
Plaintiff Larry Ford appeals the district court's denial of his motion for a new trial following the court's grant of a directed verdict in favor of the defendants at the close of plaintiff's case in chief. The suit, brought under 42 U.S.C. § 1983, alleged that the plaintiff's Fourth and Fourteenth Amendment rights were violated when the defendant police officer shot Ford as he was fleeing from the scene of an armed bank robbery. The plaintiff's lawsuit also contended that the defendant police department and municipality are liable since their policies and training dealing with the use of deadly force were inadequate. Consistent with today's en banc decision in Sherrod v. Berry, 856 F.2d 802 (7th Cir. 1988), we affirm.
In the early evening of January 13, 1984, police officer David Childers responded to a silent holdup alarm at the First National Bank in Taylorville, Illinois. Childers arrived at the scene, positioned himself next to a window of the building where he could observe, and looked inside. From his vantage point, Childers was able to see several people in the bank with their arms raised above their heads. A masked individual was standing with his arm extended toward them. However, a pillar or wall partially obstructed Childers' vision, and he was unable to detect what object, if any, was in the masked man's hand. After reporting these facts to the police control room by radio, Officer Childers and his partner moved and stationed themselves behind a car parked near the bank. Childers next observed the suspect run out of the bank carrying a bag in his hand. Although Childers testified that on two separate occasions he called out, "Halt, police," to the fleeing suspect, the plaintiff Ford claimed not to have heard anything. When these verbal warnings went unanswered and the suspect continued to flee, the officers each fired shots at the suspect. Despite the gun fire, the suspect continued to run and turned onto another street. A short time thereafter, the suspect was captured and identified as the plaintiff, Larry Ford. At this point, Officer Childers discovered that the plaintiff had been shot in the back. Due to the seriousness and location of the gunshot wound, Ford was conveyed to a hospital and confined for 20 days. Subsequently Ford was charged and pleaded guilty to armed robbery and was sentenced to a period of seven years' imprisonment.
Ford initiated this action pursuant to 42 U.S.C. § 1983, alleging that the officers' use of their weapons under the circumstances violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution. He also charged Police Chief Jones and the City of Taylorville, Illinois, with failing to adequately train Officer Childers regarding the proper use of his service revolver. In their answer the defendants denied the allegations and further raised the affirmative defenses of qualified immunity and justifiable use of force under Illinois law.
The plaintiff's expert witness (in a deposition read to the jury) opined that both the Taylorville police manual and the City's training procedures inadequately deal with the question of when the use of deadly force is appropriate. The witness rendered his opinion of the inadequacy of the training program after reviewing the content of the materials submitted to him, including Officer Childers' statement that his actions comported with the training he had received.*fn1 The expert also testified that Officer Childers' use of deadly force under the circumstances violated Illinois' "deadly force" statute,*fn2 the Taylorville Police Department Duty Manual, and generally accepted police practices. In support of this opinion, the expert noted that (1) the arresting officers had improperly positioned themselves at the corner of the bank building (rather than the front); and (2) the officers were too quick to resort to the use of deadly force (as opposed to giving chase on foot or calling in reinforcements). The district court granted the defendant's motion for a directed verdict at the close of plaintiff's case in chief.*fn3 The court's subsequent denial of plaintiff's motion for a new trial, 650 F. Supp. 110, resulted in this appeal.
The principal issue in this case is whether the district court properly granted the defendant's motion for directed verdict with respect to Ford's claim of the officer's use of excessive force. In reviewing the trial court's decision to grant a directed verdict under Fed. R. Civ. P. 50(a), we examine the evidence in a light most favorable to the non-moving party, Davis v. Lane, 814 F.2d 397 (7th Cir. 1987), resolving all conflicts in the evidence in favor of the nonmovant. Yarbrough v. Tower Oldsmobile, Inc., 789 F.2d 508, 511-12 n.5 (7th Cir. 1986). If reasonable persons could differ on the conclusions to be drawn from the evidence, a verdict should not be directed. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Pliska v. City of Stevens Point, 823 F.2d 1168, 1174 (7th Cir. 1987).*fn4 Thus,
"in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed."
Anderson, 477 U.S. at 251 (quoting Improvement Company v. Munson, 81 U.S. (14 Wall.) 442, 448, 20 L. Ed. 867 (1872) (emphasis in original)); Richardson v. City of Indianapolis, 658 F.2d 494, 498 (7th Cir. 1981), cert. denied, 455 U.S. 945, 71 L. Ed. 2d 657, 102 S. Ct. 1442 (1982). Since Ford bears the burden of persuasion, he has the duty of demonstrating the existence of a material conflict in the evidence or that the inferences to be drawn therefrom are sufficient to justify submission to a jury on the issue. Richardson, 658 F.2d at 498 (citing Krivo Industrial Supply Company v. National Distillers & Chemical Corp., 483 F.2d 1098, 1102 (5th Cir. 1973)).
Today's decision in Sherrod v. Berry, 856 F.2d 802 (7th Cir. 1988) (en banc), applied an "objective reasonableness" standard to fourth amendment excessive force and arrest claims. In Sherrod, we held that under the Supreme Court's decision in Tennessee v. Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985), and this circuit's opinion in Lester v. City of Chicago, 830 F.2d 706 (7th Cir. 1987), the "objective reasonableness" standard requires the trier of fact to weigh the totality of the facts and circumstances known to the officer at the time of his actions in determining whether those actions were "objectively reasonable." According to the Supreme Court, while the use of deadly force is unreasonable if intended merely to prevent a felon's escape, such force is reasonable if, based on the facts and circumstances known to the officer at the time, the officer has "probable cause" to believe that the suspect poses a threat of serious physical harm to the officer or to others and, if feasible, warns the suspect:
"Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to ...