FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                           July 12, 2010
                         UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                           Clerk of Court
                                      TENTH CIRCUIT


 THE ESTATE OF JESSE TURNBOW &
 JACINDA SCRUGGS,

           Plaintiffs - Appellants,
                                                            No. 09-4071
 v.
                                                     D.C. No. 1:07-CV-00114-TC
                                                              (D. Utah)
 OGDEN CITY, OFFICER ED MAHON,
 OFFICER JOHN SATTELMAIR,
 OFFICER DEREK DRAPER, JOHN
 DOES 1-20,

           Defendants - Appellees.


                                 ORDER AND JUDGMENT*


Before LUCERO, HOLLOWAY, and HOLMES, Circuit Judges.



       This appeal is from a grant of summary judgment in defendants’ favor in a civil

rights action pursuant to 42 U.S.C. § 1983, alleging police officers used excessive force in

the fatal shooting of Jesse Turnbow.1 The District Court held plaintiff failed to show a

       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       1
       Ms. Jacinda Scruggs is the named plaintiff in the complaint. She sued Officers Ed
Mahon, John Sattelmair, Derek Draper, and Ogden City on her own behalf and as a
representative of Mr. Turnbow’s Estate. Ms. Scruggs subsequently acknowledged she
only had standing to sue in her representative and not personal capacity. R., Vol. V, at
1123, n.1. Therefore, all references to the plaintiff will be singular.
genuine dispute of material fact as to whether the officers had violated Mr. Turnbow’s

constitutional rights. As such, the officers were entitled to qualified immunity and

summary judgment was appropriate. We exercise jurisdiction pursuant to 28 U.S.C. §

1291.2 Because the facts, even when viewed in the light most favorable to the plaintiff,

do not support a finding that defendant officers violated Mr. Turnbow’s constitutional

rights, we AFFIRM.

                                      BACKGROUND

       The facts of this case are tragic. The altercation can be described in three phases:

the facts of the first phase are not in dispute but the facts of the second and third phases

are disputed by the parties.

       Phase I: On December 18, 2006, Ogden City Police received reports of a man

firing a shotgun in a residential neighborhood. Defendant Ed Mahon was the first police

officer on the scene, arriving shortly before 6:00 p.m. Officer Mahon saw Mr. Turnbow,

who matched the previously given description of the man carrying the shotgun. The

officer exited his vehicle and approached. Mr. Turnbow pulled a sawed-off shotgun from

under his coat and stepped behind a small tree. Officer Mahon called to Mr. Turnbow to

drop the gun. In response Mr. Turnbow fired at the officer, shattering the police cruiser’s

windshield. Officer Mahon repeated his command and retreated to the rear of his vehicle.

Officer Mahon returned fire, shooting Mr. Turnbow in the leg, buttocks, or hip.

       Phase II: Mr. Turnbow came around from behind the tree and Officer Mahon

       2
           The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

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repeated his command to drop the gun. In response, Mr. Turnbow fired another shot at

the officer. Officer Mahon fired again, hitting Mr. Turnbow and causing him to fall down

on the ground with the shotgun in or near his lap. At this point, the two other defendants,

Officers John Sattelmair and Derek Draper, arrived. Both officers approached Mr.

Turnbow from different angles in order to disarm him, both firing their weapons at him.

       Phase III: The officers and several of the additional fourteen eyewitnesses

testified Mr. Turnbow grabbed the gun from his lap and attempted to point it at the

officers. When Officer Draper approached to retrieve the shotgun, Mr. Turnbow again

attempted to raise the gun at the officers and all three fired on Mr. Turnbow until he fell

back. Mr. Turnbow died at the scene, having been shot about twenty-one times. Police

investigators found fifty expended rounds that had been fired by the officers and eight

spent shotgun shells belonging to Mr. Turnbow.

       Plaintiff relied on the deposition testimony of three eyewitnesses who testified that

in the final moments Mr. Turnbow was not attempting to raise the gun and point it at the

officers but attempting to raise his hands and was gasping for air. All three confirmed

that while Mr. Turnbow did not have his gun in his hands, it was within arms’ reach and

his hands were moving. Two of the three described the officers yelling at Mr. Turnbow

to “freeze” but he did not because, as they opined, he was dying at the time.

       Plaintiff additionally deposed two expert witnesses, both of whom testified that it

was possible Mr. Turnbow was reaching for his gun when the officers fired their final

shots and if the officers believed he was doing so then the shooting would have been

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justified.

       Plaintiff also asserted state law claims for negligence and intentional infliction of

emotional distress. The District Court declined to exercise supplemental jurisdiction over

Plaintiff’s state law claims. No issue is raised on appeal concerning state law.

       The finding and conclusions on summary judgment were stated by Judge

Campbell in her Order and Memorandum Decision of March 18, 2009. Viewing the

evidence in the light most favorable to the Plaintiff, inter alia the District Court found

that when the officers fired their final shots, Mr. Turnbow was still moving and his gun

was within arms’ reach. The court held it was objectively reasonable for an officer in that

particular situation to have believed Mr. Turnbow could have been reaching for his gun

and that the officers were in danger of serious bodily harm. Therefore, the court refused

to find Mr. Turnbow’s constitutional rights had been violated and thus Ogden City and

the officers were entitled to the protection of qualified immunity. Summary judgment for

the Defendants was granted.

                                        ANALYSIS

       When a defendant moves for summary judgment and argues he is entitled to

qualified immunity, it becomes the plaintiff’s burden to establish that the defendant

violated a constitutional right. Saucier v. Katz, 

, 201 (2001). There are two

parts to the qualified immunity inquiry: first, “taken in the light most favorable to the

party asserting the injury, do the facts alleged show the officer’s conduct violated a

constitutional right?” 

constitutional right was violated, the second inquiry is

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whether that constitutional right was clearly established at that time. 

may consider these factors in whichever order they choose, in a fact-driven analysis, the

traditional order is most effective. Pearson v. Callahan, 

, 821 (2009). We

review de novo the grant of summary judgment based on a qualified immunity defense.

Phillips v. James, 

, 1080 (10th Cir. 2005).

       The District Court granted summary judgment in favor of defendants, holding the

plaintiff failed to establish the officers had violated Mr. Turnbow’s constitutional rights.

R., Vol. V, at 1124; see Holland v. Overdorff, 

, 1186 (10th Cir. 2001)

(explaining plaintiff’s failure to establish a violation of constitutional rights is sufficient

grounds to grant summary judgment on the basis of qualified immunity). On appeal,

plaintiff asserts the District Court erred by: 1) holding there was no genuine factual

dispute as to whether Mr. Turnbow’s constitutional rights had been violated; 2) making

credibility determinations, thereby holding the officers did not violate Mr. Turnbow’s

clearly established right to be free from excessive force; and 3) refusing to hold Ogden

City liable for the conduct of its officers.

       Because we find the District Court correctly determined there was no violation of

Mr. Turnbow’s constitutional rights, the other two issues need not be reached. See

(“If no constitutional right would have been violated were the

allegations established, there is no necessity for further inquiries concerning qualified

immunity.”); Thomson v. Salt Lake County, 

, 1309 (10th Cir. 2009)

(concluding “Plaintiffs have not met their burden of demonstrating a constitutional

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violation . . . . It was therefore appropriate to grant summary judgment . . . on the basis of

qualified immunity. Because Plaintiffs have not proven a constitutional violation, their . .

. claim against the County also must fail.”).

       Excessive force claims are evaluated using the Fourth Amendment’s standard of

objective reasonableness, which is judged from the perspective of a reasonable officer on

the scene. Graham v. Connor, 

, 396-97 (1989). “The use of deadly force is

justified under the Fourth Amendment if a reasonable officer in the Defendant’s position

would have had probable cause to believe that there was a threat of serious physical harm

to themselves or to others.” 

(quotation omitted); Jiron v. City

of Lakewood, 

, 419 n.8 (10th Cir. 2004) (“[W]hen a finding of qualified

immunity is based on a conclusion that the officer has committed no constitutional

violation - i.e., the first step of the qualified immunity analysis - a finding of qualified

immunity does preclude the imposition of municipal liability.”).

       “Because 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, the reasonableness of the officer’s belief as to

the appropriate level of force should be judged from that on-scene perspective.” 

. “What may later appear to be unnecessary when reviewed from the

comfort of a judge’s chambers may nonetheless be reasonable under the circumstances

presented to the officer at the time.” 

.

       The totality of the circumstances should be used when evaluating an excessive

                                              -6-
force claim, including whether the officers were in danger. 

“Among the

factors to consider are the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether the suspect is actively

resisting arrest or attempting to evade arrest by flight.” 

. The

officers are not required to be correct in their assessment of the danger presented by the

situation, only that their assessment be objectively reasonable. 

see also

(“If the officer’s mistake as to what the law requires is

reasonable, however, the officer is entitled to the immunity defense.”).

       Even when viewing the evidence in the light most favorable to plaintiff, it was

objectively reasonable for the officers to believe Mr. Turnbow posed a serious threat of

physical harm to the officers or others and that deadly force was necessary to stop him.

While it is regrettable and tragic that Mr. Turnbow was shot so many times, the facts are

not to be viewed with the benefit of the “20/20 vision of hindsight” but from the

perspective of a reasonable officer knowing the available facts at the time of the incident.

See 

.

       The officers were faced with an armed and violent individual who had already

fired at least two shotgun blasts at them. While Mr. Turnbow’s shotgun may not have

been in his hands at the moment the last few shots were fired, he was moving his hands

and the gun was within arms’ reach. See 

(“[A]lthough the

precise moment before [the final shots were fired] is a critical factor, the events leading

up to that moment are also extremely relevant.”).

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       The totality of the circumstances made it objectively reasonable for the officers to

believe Mr. Turnbow presented a serious threat of physical harm. Mr. Turnbow was

refusing to freeze despite the officers’ repeated orders. He was acting in an irrational and

unpredictable manner by initially firing the weapon while walking down the street, the

behavior which triggered Officer Mahon’s arrival. Mr. Turnbow gave the officers no

indication he had any intention to surrender. The danger presented by Mr. Turnbow had

escalated considerably from the point when Officer Mahon initially approached Mr.

Turnbow to speak with him. It was unnecessary for the officers to have to wait for Mr.

Turnbow to once again raise his shotgun and fire at the officers before it would be

reasonable for them to shoot Mr. Turnbow.

       Since the officers were acting in an objectively reasonable manner there was no

constitutional violation and thus they are shielded by qualified immunity. 

. Because the officers cannot be held liable, neither can Ogden City. 

. Therefore, the District Court properly granted defendants’ motion for

summary judgment.

                                     CONCLUSION

       The District Court’s grant of summary judgment in defendants’ favor is

AFFIRMED and defendants’ request for costs on appeal pursuant to Federal Rules of




                                            -8-
Appellate Procedure 39(a)(2) is GRANTED.



                                            Entered for the Court



                                            William J. Holloway, Jr.
                                            Circuit Judge




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