Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 98-1243-C-Y/F--Richard L. Young, Judge.
Before Cudahy, Coffey, and Williams, Circuit Judges.
The opinion of the court was delivered by: Coffey, Circuit Judge
This is a 42 U.S.C. § 1983 case in which the plaintiffs claim that police officer Lawrence Wheeler used excessive force against Alexis Garvin when he shot and killed Garvin during the course of a burglary investigation. On October 4, 2000, Judge S. Hugh Dillin *fn1 denied Officer Wheeler's motion for summary judgment, ruling that there was a genuine issue of material fact regarding Officer Wheeler's credibility, which precluded summary judgment. Over ten months after Judge Dillin ruled on Officer Wheeler's summary judgment motion, Officer Wheeler filed a four-page motion before Judge Young, requesting leave to renew his summary judgment motion. Judge Young denied the defendant's motion and Wheeler appeals from that denial.
On August 29, 1996, at approximately 1:05 a.m., Indianapolis Police Department (IPD) Officer Ronald Mills received a radio call that there was a burglary at Hart's Automotive in Indianapolis, Indiana. Officer Mills responded almost immediately to the call and was the first officer to arrive at the automotive shop. Once Mills arrived at Hart's, he observed that a panel had been removed from one of the building's garage doors. Officer Mills informed the dispatch operator that a burglary had occurred and, the operator, in turn, apprised assisting units of the situation.
Shortly after Mills confirmed that a burglary had occurred, Officer Wheeler responded to the dispatch operator's call and was approaching Hart's from the west on 26th street, allowing him to intercept any suspects fleeing eastbound from the scene. As he approached the site of the burglary, Wheeler spotted Alexis Garvin, walking alone at a normal rate of speed. According to Wheeler, Garvin was walking eastbound on 26th street (away from the scene of the crime) and was not carrying anything in his hands. Wheeler drove his marked police vehicle to within 10-15 feet of Garvin and turned on the vehicle's "alley lights" so that the area in which Garvin was walking was illuminated. As he exited the vehicle, Wheeler shined his flashlight at Garvin and asked what he was doing there, but failed to identify himself as a police officer. When Wheeler shined the flashlight upon Garvin, Garvin began to flee.
At this point, the parties's versions of events sharply diverged. According to Wheeler, he prevented Garvin's flight by grabbing his shirt, but as Garvin turned to face Wheeler, Wheeler claimed that he observed Garvin reach for a gun in his waistband. Wheeler claimed that he and Garvin struggled for control of the gun, whereby they both fell to the ground. Wheeler contended that when Garvin began to gain control of the weapon, Wheeler (who was on top of Garvin on the ground) "rocked back, drew his [own] firearm and fired four successive shots at [Garvin]."
The plaintiffs tell a different story. According to plaintiffs, no struggle ever took place and Garvin never drew a gun--and thus Wheeler's use of deadly force was not justified. In support of their claims, plaintiffs question the credibility of Wheeler. They pointed out that his deposition testimony differed from that of Officers Mills and Toliver. Both Mills and Toliver claimed to have heard Wheeler report that he was pursuing a suspect, contrary to Wheeler's deposition testimony that he never radioed that he was pursuing a fleeing suspect. Further, both Mills and Toliver reported hearing Wheeler describe the suspect as running westbound towards the burglary site, as opposed to the easterly direction Wheeler claimed to have observed Garvin heading. Second, and far less trivial than the discrepancies in Wheeler's deposition testimony, the plaintiffs pointed out that the IPD's forensic analysis of the weapon Wheeler claimed that Garvin aimed at him revealed no latent fingerprints, despite the fact that Wheeler claimed the weapon never left Garvin's hand during the struggle.
Not quite two years after the shooting, on August 25, 1998, the plaintiffs filed suit in the Marion County, Indiana, Circuit Court, alleging that Officer Lawrence Wheeler violated Alexis Garvin's civil rights under 42 U.S.C. § 1983, when he used excessive force in fatally shooting Garvin during a burglary investigation. Officer Wheeler promptly removed the suit to the federal court for the Southern District of Indiana under the court's federal question jurisdiction, 28 U.S.C. §§ 1441 & 1446.
On May 18, 2000, Officer Wheeler moved for summary judgment, asserting the affirmative defense of qualified immunity. According to Wheeler, his use of deadly force was justified because he faced a potentially life-threatening situation. Before the trial court, the parties hotly contested the series of events that led to the tragic death of Alexis Garvin and the district court viewed them, as it was required to do in reviewing a motion for summary judgment, in the light most favorable to the nonmoving party, the Garvins. The plaintiffs pointed out the inconsistences referred to above and argued that the lack of fingerprints on the gun and the inconsistencies in Wheeler's story called into question his credibility. Because of Wheeler's lack of credibility, the plaintiffs argued that there was a genuine issue of material fact regarding whether any struggle actually occurred, thus precluding summary judgment. After reviewing the record, we agree with the trial court's determination that Wheeler was less than truthful in his recitation of the facts leading up to Alexis Garvin's death.
After being presented the conflicting versions of events, Judge Dillin denied Officer Wheeler's motion for summary judgment on October 4, 2000. *fn2 The trial judge noted that "[u]nder [Officer Wheeler's] set of facts, the Supreme Court's decision in [Tennessee v. Garner, 471 U.S. 1 (1985)] entails a finding that Officer Wheeler's use of deadly force was reasonable." But the trial judge went on to note that because Officer Wheeler is the only surviving witness to the series of events leading to Garvin's death, that the officer's credibility was "crucial to the case . . . [and] should the finder of fact believe Officer Wheeler and find his testimony credible, no violation of the Fourth Amendment has occurred. However, if the finder of fact believes that no struggle took place and that [Garvin] never drew a gun, the reasonableness of Officer Wheeler's use of deadly force becomes questionable." The trial judge found Wheeler's version of events to be less than credible and went on to conclude that, based on the inconsistencies in Officer Wheeler's deposition testimony and the absence of any of Garvin's fingerprints on the gun he allegedly aimed at Wheeler, there was a genuine issue of fact as to Wheeler's credibility. Thus Judge Dillin ruled that summary judgment was inappropriate.
Wheeler never did file a notice of appeal from Judge Dillin's October 4, 2000, denial of qualified immunity, and discovery in the case proceeded. During that additional discovery, plaintiffs deposed David Brundage, a supervising forensic scientist for the Indianapolis-Marion County Forensic Services Agency. In that deposition of Wheeler's own expert witness, Brundage testified that the entry and exit wounds on Garvin's body were not consistent with Wheeler's testimony with regard to how the shooting took place, thus further calling into question Wheeler's version of events.
On August 7, 2001, nearly ten months after the trial court had previously denied qualified immunity, Wheeler filed a four-paragraph motion for leave to file renewed motion for summary judgment. Defendant's motion asserted that a case decided by the Supreme Court two months earlier, Saucier v. Katz, 533 U.S. 194 (June 18, 2001), demonstrated that Judge Dillin's denial of summary judgment was in error. Judge Young denied defendant leave to renew his summary judgment motion, ruling that Saucier did ...