Sailors v. US Marshals Service Dept. et al

Filing 105

MEMORANDUM AND ORDER - The plaintiff's motions to strike (Filing Nos. 87 , 88 , and 96 ) are denied as moot. The defendant's motion for summary judgment (Filing No. 79 ) is granted. This action is dismissed. A judgment of dismissal will issue. Ordered by Senior Judge Joseph F. Bataillon. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

THOMAS D. SAILORS,
Plaintiff,
vs.

8:18CV189

DANIEL KEYES, Special Administrator of
the Estate of Paul Keyes, US Marshal
#3483, in their individual capacities;
UNITED STATES OF AMERICA, UNITED
STATES
MARSHAL
SERVICE,
and
UNITED STATES ATTORNEY GENERAL,

MEMORANDUM AND ORDER

Defendants.

This matter is before the Court on the motion of defendant, Daniel Keyes, Special
Administrator of the Estate of Paul Keyes (“the Estate”), to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure or for a summary judgment of dismissal
under Rule 56(a) of the Federal Rules of Civil Procedure, Filing No. 79. Also, before the
Court are the plaintiff’s motions to strike portions of various witnesses’ affidavits. Filings
Nos. 87, 88, and 96.
I.

BACKGROUND
This is an action for deprivation of constitutional rights under 28 U.S.C. § 1983

and Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S.
388 (1971),1 in connection with an officer-involved shooting during the attempted arrest
of the plaintiff in Lincoln, Nebraska, on January 5, 2018. Sailors alleges that Deputy
United States Marshal (“Deputy Marshal”) Paul Keyes, who is now deceased, used
1

Bivens actions are implied causes of action for damages for constitutional violations against federal
government officials in their individual capacities. Carpenter’s Produce v. Arnold, 189 F.3d 686, 687 (8th
Cir. 1999). .

1

excessive force in attempting to arrest him. He alleges Keyes deprived him of the right
to be “free from the use of excessive force by law enforcement” under the Fourth
Amendment and subjected to “punishment without due process,” in violation of the Fifth
Amendment.
In his second amended complaint, the plaintiff alleges he was asleep in the
driver’s seat of a GMC Yukon SUV in a parking lot when Deputy Marshal Keyes shot
and wounded him.

He contends Deputy Marshal Keyes had no objective reason to

begin shooting and using deadly force in an attempt to apprehend Sailors, as he had
taken no action to place Deputy Marshal Keyes or any other officer in danger. He
states he was not aware that law enforcement officers were attempting to detain him
until after he had been shot. See Filing No. 60, Amended Complaint (Second) at 2-3.
The Estate first moves to dismiss Sailors’s due process claim, arguing that
excessive force claims must be brought under the Fourth Amendment, rather than the
Fifth Amendment.

The plaintiff agrees with that contention and the Court will

accordingly grant the defendant’s motion to dismiss the plaintiff’s Fifth Amendment
claim.
The defendant next argues it is entitled to a summary judgment of dismissal on
Sailors’s Fourth Amendment excessive force claim.

It argues that uncontroverted

evidence shows that Deputy Marshal Keyes entitled to qualified immunity. The Estate
argues that it is uncontroverted that on January 5, 2018, Sailors was wanted on a felony
warrant, had a significant history of evading law enforcement, and was thought by law
enforcement to be armed. It contends that when law enforcement officers attempted to
arrest Sailors, he used his vehicle as a deadly weapon, reversing at a high rate of

2

speed into a police cruiser and endangering the officers. It argues that Deputy Marshal
Keyes’s action in shooting at the SUV was objectively reasonable.
In support of its motion, the defendant submits affidavits and sets out sixty-seven
separately numbered paragraphs of material undisputed facts.2 The Estate also relies
on evidence, including a dash camera (“dash-cam”) video recording of the incident,
submitted in connection with a motion to dismiss or for summary judgment filed by
defendant Lincoln Police Department (“LPD”) Officers Maxwell Hubka and Cole
Jennings.3 Sailors moves to strike parts of the affidavits for lack of foundation and as
inadmissible hearsay. Specifically, he objects to parts of Officer Hubka’s affidavit and to
the transcript of an interview of Deputy Marshal Keyes, which is attached to the affidavit
of LPD Investigator Matthew Franken.

See Filing Nos. 87 and 96.4

The Estate

responds that the materials can be submitted in admissible form at trial.
In response to the Estate’s motion for summary judgment, Sailors contends that
there are genuine issues of material fact. He argues that reasonable persons viewing
the evidence, including a dash cam video recording of portions of the incident, could
come to different conclusions as to when the shooting began and whether the officers
were in imminent danger.

2

The plaintiff disputes eleven of those paragraphs (paragraphs 3, 5, 7, 12, 13, 27, 37, 46, 47, 48 and 57).
The challenged statements relate primarily to the officers’ motivations and perceptions. The Court did not
rely on any disputed factual statements. The dashcam video of the event is the best evidence of what
occurred and the Court relies primarily on that evidence.
3

Those def endants were later dismissed without prejudice on plaintiff’s motion. See Filing No. 100.

4

In Filing No. 88, the plaintiff moves to dismiss portions of the affidavit of LPD Investigator Jeremy
Schwartz. The defendant does not rely on Investigator Schwartz’s affidavit in its motion and the Court will
deny the motion to strike as moot.

3

II.

FACTS
The following facts are gleaned from the parties’ respective statements of

undisputed material facts. See Filing No. 81, Defendant’s Brief at 2-14; Filing No. 92,
Plaintiff’s Brief at 1.

The parties agree to the following. Paul Keyes was a Deputy

United States Marshal and was employed by the United States Marshals Service
(USMS) in that capacity for approximately 15 years.

Deputy Marshal Paul Keyes

passed away from cancer on February 12, 2018.
Beginning in November 2017, Deputy Marshal Keyes became familiar with
Sailors when Deputy Marshal Keyes was involved in a pursuit with a vehicle in which
Sailors was a passenger. On December 8, 2017, Sailors was charged with a felony
drug-related offense and a warrant was issued for his arrest in Gage County, Nebraska.
After the warrant was issued, law enforcement was attempting to take Sailors into
custody.
During the morning of January 5, 2018, law enforcement officials attempted to
apprehend Sailors by way of traffic stops.

On two separate occasions Sailors

successfully eluded law enforcement—at excessive speeds—in a stolen Yukon SUV.
Deputy Marshal Keyes learned that Sailors had evaded law enforcement approximately
6 times in the days prior to January 5, 2018, at extremely high rates of speeds and while
driving erratically.

On January 5, 2018, Deputy Marshal Keyes unsuccessfully

attempted to locate Sailors at various addresses in Lincoln, Nebraska, until
approximately 7:45 p.m.

On the evening of January 5, 2018, at approximately 8:00

p.m., Deputy Marshal Keyes located Sailors while driving in Lincoln, Nebraska, and
began to follow him. Deputy Marshal Keyes was driving a 2015 White Chevy Silverado
truck with a “grill guard” on the front.
4

At approximately 8:00 p.m. that evening, Deputy Marshal Keyes called LPD
Officer Maxwell Hubka and informed Officer Hubka that he had happened across
Sailors while driving in Lincoln, Nebraska, and was following him. Keys also informed
Hubka that Sailors was an individual whom the USMS had been attempting to
apprehend for a period of days and was wanted on a felony warrant. Deputy Marshal
Keyes informed Officer Hubka that Sailors was driving a stolen SUV—a GMC Yukon—
and requested assistance on executing a felony arrest warrant.
In the days leading up to January 5, 2018, and during LPD’s lineup in the
afternoon of January 5, 2018, Officer Hubka learned that the USMS had been
attempting to locate and/or apprehend Sailors but had been unsuccessful in doing so.
Officer Hubka also learned about Sailors’s criminal history. Officer Hubka also learned
that Sailors had an outstanding felony arrest warrant, had fled from law enforcement on
numerous occasions, at least 20 times, and was possibly armed with a firearm. The
information Officer Hubka received detailed the need for Sailors’s apprehension by law
enforcement.

Based on that information, Officer Hubka believed that Sailors was

wanted, dangerous, unlikely to cooperate with law enforcement officers, and likely to be
armed.
After receiving the 8:00 p.m. call from Deputy Marshal Keyes, Officer Hubka and
his partner, LPD Officer Cole Jennings, departed from LPD Headquarters in a marked
LPD Ford Explorer cruiser. Officer Hubka was the driver and Officer Jennings was in
the front passenger seat. While driving to assist Deputy Marshal Keyes, Officer Hubka
and Deputy Marshal Keyes were in telephone contact. Deputy Marshal Keyes provided
Officer Hubka updates on Sailors’s location and informed Officer Hubka that Sailors was
swerving and otherwise driving poorly, as if he were under the influence of drugs.
5

Eventually, Deputy Marshal Keyes told Officer Hubka that Sailors had pulled into
a parking lot between buildings near the intersection of South 17thStreet and Prospect
Street in Lincoln, Nebraska. The parking lot was adjacent to 1634 Prospect Street in
Lincoln, Nebraska. Deputy Marshal Keyes informed Officer Hubka that they were going
to utilize their vehicles to “box in” Sailors’s vehicle. Deputy Marshal Keyes was going to
use his vehicle to block the front of Sailors’s vehicle and requested Officer Hubka use
his vehicle to block the rear of Sailors’s vehicle in an attempt to prevent Sailors from
fleeing.

This is known as the “box in” technique.

Officer Hubka believes it was

appropriate to assist Deputy Marshal Keyes with the “box in” technique as it would
reduce the opportunity for Sailors to flee and because Sailors was known to have
previously fled from law enforcement multiple times and he was believed to be armed
and considered dangerous.
Portions of the arrest attempt, including the “box in” maneuver of Sailors’s SUV,
Sailors’s flight from arrest, and ensuing high speed chase is captured on a dash camera
that was recording in Officer Hubka’s patrol vehicle. As shown in Officer Hubka’s dash
camera video, after Deputy Marshal Keyes informed Officer Hubka that they were going
to “box in” Sailors’s SUV, Deputy Marshal Keyes continued northbound on South 17th
Street so that his vehicle would enter the alley allowing him to box in the front of
Sailors’s SUV. Officer Hubka turned westbound from South 17th Street onto Prospect
Street to box in the rear of Sailors’s SUV. The parking lot was fairly open with two
vehicles located near the southwestern portion of the lot. Sailors’s SUV was parked in
the middle of the parking lot at an angle with its brake lights on.
Just as Deputy Marshal Keyes’s truck is seen entering the screen on Officer
Hubka’s dash camera, the brake lights on Sailors’s SUV cycle off, then back on. Just
6

after Sailors’s brake lights turn off, then back on, Deputy Marshal Keyes activates his
emergency lights.

The emergency red and blue lights are clearly visible on Deputy

Marshal Keyes’s truck. After the initiation of Deputy Marshal Keyes’s emergency lights,
Sailors’s brake lights again turn off, then back on, then back off.

While this is occurring,

Officer Hubka parked his marked patrol vehicle within approximately one foot of the rear
of Sailors’s stolen SUV but was not making contact with Sailors’s vehicle.

While

Sailors’s SUV’s brake lights were off, Deputy Marshal Keyes’s vehicle makes contact
with the front of Sailors vehicle causing the brake lights to again cycle on, then off.
Sailors admitted he knew Deputy Marshal Keyes’s white truck. He knew it was
the “U.S. Marshals” and he had encountered the truck before in Beatrice, Nebraska.
After stopping his cruiser and placing it in park, Officer Hubka exited his cruiser and
stood in the area created between the open driver’s door and the cruiser. He drew his
weapon and began giving commands to Sailors to turn off his vehicle. Officer Hubka’s
weapon was outfitted with a tactical flashlight, which was operative. The tactical light on
Officer Hubka’s gun can be seen in the video on the left rear of Sailors’s vehicle.
Similarly, once Officer Hubka parked his cruiser, Officer Jennings exited the passenger
side of the cruiser, drew his weapon, and began to give commands to Sailors to exit the
vehicle.

Officer Hubka heard the engine of Sailors’s vehicle revving, sounding like it

was at full speed.
With Sailors’s vehicle pinned by Deputy Marshal Keyes’s truck at the front and
Officer Hubka’s patrol vehicle at the rear, Sailors’s brake lights repeatedly cycle on and
off until he suddenly revved his engine, placed the SUV into reverse, and sent his
vehicle speeding backwards and hitting Officer Hubka’s patrol vehicle.

7

Just as the

vehicle started in reverse, Officer Hubka activated his patrol vehicles’ overhead
emergency lights.
As Sailors’s vehicle was revving its engine and moving backwards, Officer Hubka
who was still outside his cruiser in the area between the door and the cruiser, heard
yelling and believed Deputy Marshal Keyes was yelling to him to “get out of there” or
“move.”

While Sailors’s vehicle was smashing the patrol vehicle and ramming it

backwards, Officer Hubka, who was now trapped between his door and the cruiser,
became off balance because his cruiser’s driver side door was hitting his legs. To avoid
being knocked to the ground and run over by Sailors’s vehicle, Officer Hubka was
forced to dive back into the driver’s seat of his cruiser and hold onto the seat. At this
point, his upper body was in his cruiser while his legs were dragging along the ground
on the outside of his cruiser.
completely into the cruiser.

Officer Hubka was eventually able to pull himself

Officer Hubka believed he was facing imminent serious

injury or death.
Simultaneously, at or near the time Sailors sped backwards hitting Officer
Hubka’s patrol vehicle and ramming it backwards, Deputy Marshal Keyes began
discharging his firearm at Sailors.

Neither Officer Hubka nor Officer Jennings

discharged their weapons. Sailors used the force of his SUV to push Officer Hubka’s
vehicle back approximately 15-20 feet and accelerated at a high rate of speed
eventually crashing into another vehicle parked in the lot and an apartment building
bedroom.

As depicted in a photo in evidence, these collisions caused significant

damage to both the car and apartment complex. See Filing No. 75-1, Ex. 2, Affidavit of
Maxwell Hubka (“Hubka Aff.”), Ex. B. Deputy Marshal Keyes continued to discharge his

8

firearm at Sailors as he was speeding in reverse, crashing into vehicles, and attempting
to evade arrest.
Officer Hubka was eventually able to gain control of his patrol vehicle, and
concerned that Sailors was armed, Officer Hubka moved his cruiser into a position that
would not be directly in front of Sailors SUV which was crashed and stuck inside the
apartment building. Once in this position, Officer Hubka again exited his cruiser, drew
his weapon, and radioed for additional police officers to assist. Officer Hubka was able
to see Sailors sitting in the driver’s seat of his vehicle which had crashed into the
apartment building, with his hands flailing about making frantic movements. Sailors was
screaming and was also revving the engine of the SUV, which sounded to be at full
speed.

Most of Sailors’s vehicle was backed into the bedroom of the apartment

building. Officer Hubka believed there was a high likelihood that Sailors would resort to
lethal force to again evade police in light of the fact that Sailors had rammed his police
cruiser and had attempted to run him over.
With Sailors’s vehicle crashed into the apartment building, Officer Hubka was
behind and to the right of Deputy Marshal Keyes. Officer Jennings was behind and to
the left of Deputy Marshal Keyes. They began advancing on Sailors. Officer Jennings
and Deputy Marshal Keyes were shouting for Sailors to exit the vehicle. As the officers
were advancing on Sailors’s vehicle, Deputy Marshal Keyes began to again discharge
his firearm.
Sailors was able to shift his vehicle into drive and fled from the scene causing
Officer Hubka, Officer Jennings, and Deputy Marshal Keyes to retreat to their vehicles
and engage in pursuit. Deputy Marshal Keyes was the primary pursuit officer. Officer
Hubka and Officer Jennings assisted in their damaged cruiser and another officer from
9

LPD also provided assistance. Sailors led law enforcement officers on a pursuit that
reached dangerous speeds on icy and snow-packed streets throughout the City of
Lincoln. Due to the damage on Sailors’s vehicle, he had no operative lights on the rear
of his SUV.

Because of the dangerous conditions of the pursuit created by Sailors’s

operation of the stolen Yukon, LPD ordered the pursuit terminated via broadcast over
the police radio. Upon receiving this broadcast, Officer Hubka immediately terminated
pursuit.
After Officer Hubka and Officer Jennings terminated the pursuit, they began
proceeding back towards the parking lot where Sailors initially evaded arrest. While
they were driving back, they were informed by police dispatch that Sailors’s SUV was at
the front entrance of Bryan West Medical Center in Lincoln, Nebraska. Officer Hubka
and Officer Jennings proceeded to the hospital. Upon arrival to the hospital, multiple
officers had surrounded Sailors in his now severely damaged SUV and ordered him out
of the vehicle. Sailors complied. LPD officers, including Officer Hubka, were able to
summon medical attention for Sailors and he was taken from the scene by medical
personnel.

As a result of his cruiser being rammed by Sailors and subsequently being

dragged, Officer Hubka sustained pain and an abrasion to his shin.
Deputy Marshal Keyes fired a total of approximately 19 shots with his personal
handgun, a Glock 30S. The entirety of the events in the parking lot took approximately
47 seconds.
Deputy Marshal Keyes’s use of a Glock 30S during the incident would be
authorized under USMS Policy Directive 14.11, subject to completion of qualifying
standards for the weapon’s use as a primary, secondary, or off -duty handgun.
Additionally, the Glock 30S has similar functionality as Deputy Marshal Keyes’s service
10

weapon, a Glock 22.

Deputy Marshal Keyes would have been permitted by USMS

policy to utilize a personally owned handgun in the course of his official duties as a
“secondary or off-duty handgun” provided he qualified on the handgun in accordance
with USMS policy.

Additionally, the policy permits the usage of certain personally

owned handguns as a primary weapon, provided a Deputy Marshal qualifies on the
weapon in accordance with Policy Directive 14.11. A failure to qualify a secondary or
off-duty handgun prior to use in the course of official duties would be a violation of
USMS Policy Directive 14.11(D)(2) and could lead to administrative sanction.
As a result of the actions for which Sailors now sues, he was criminally charged
with Second Degree Assault on an Officer, a Class 2 Felony; Use of a Deadly Weapon
to Commit a Felony, a Class 2 Felony; Theft by Unlawful Taking, $5,000 or more, a
Class 2A Felony, and Operate Motor Vehicle to Avoid Arrest, a Class 4 Felony. The
case was captioned as State of Nebraska v. Thomas Sailors, District Court of Lancaster
County, Nebraska, CR18-189.

On March 27, 2019, the State of Nebraska filed an

Amended Information charging Sailors with Third Degree Assault on an Officer, a Class
3A Felony; and Operate Motor Vehicle to Avoid Arrest, a Class 4 Felony. On March 27,
2019, Sailors pled no contest to the two counts in the Amended Information and was
found guilty by the Court of the two felony counts.

On April 30, 2019, Sailors was

sentenced to 3 years of imprisonment on the Third-Degree Assault of an Officer charge
and 2 years of imprisonment on the Operating a Motor Vehicle to Avoid Arrest charge.
The Court’s review of the record shows that Officer Hupka’s dashcam video
recorded the incident.

Filing No. 75-1, Ex. 2, Hubka Aff., Ex. A.

The Court has

reviewed the digital recording and finds that it conforms to the description of the episode
agreed to by the parties and set forth above.
11

III.

LAW
A.

Summary Judgment Standards

“At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.
Scott v. Harris, 550 U.S. 372, 380 (2007); see Fed. Rule Civ. Proc. 56(c). The Supreme
Court has emphasized, “[w]hen the moving party has carried its burden under Rule
56(c), its opponent must do more than simply show that there is some metaphysical
doubt as to the material facts . . . . Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’”
Scott, 550 U.S. at 380 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586–587 (1986) (footnote omitted)). “[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–248 (1986).
“Where the unresolved issues are primarily legal rather than factual, summary
judgment is particularly appropriate.” Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394,
396 (8th Cir. 2004).

Whether the evidence viewed in the light most favorable to the

plaintiff shows that a defendant violated a plaintiff’s clearly established rights under the
Fourth Amendment is purely a legal question. Kelsay v. Ernst, 933 F.3d 975, 979 (8th
Cir. 2019), cert. denied, No. 19-682, 2020 WL 2515455 (U.S. May 18, 2020). However,
“if there is a genuine dispute concerning predicate facts material to the qualified
immunity issue, there can be no summary judgment.” Turney v. Waterbury, 375 F.3d
756, 759-760 (8th Cir. 2004) (quotations omitted).

“When opposing parties tell two

different stories, one of which is blatantly contradicted by the record, so that no
12

reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Scott, 550 U.S. at 380 (finding
the lower court should not have relied on a version of the story told by the plaintiff, but
“should have viewed the facts in the light depicted by the videotape.”); see also Boude
v. City of Raymore, 855 F.3d 930, 933 (8th Cir. 2017) (stating that although the court
views the facts most favorably to the non-movant in deciding a motion for summary
judgment on qualified immunity grounds, “it need not adopt her factual allegations
where a video ‘blatantly contradicts’ her version of events”).
B.

Qualified Immunity

The law imposes civil liability on any person who “under color of any statute,
ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be
subjected, any citizen of the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws.”

42 U.S.C. § 1983.

However, state actors, such as police officers, are protected from § 1983 suits by the
affirmative defense of qualified immunity. Waters v. Madson, 921 F.3d 725, 734 (8th
Cir. 2019). The qualified immunity analysis is identical under either a Bivens cause of
action or a suit under § 1983. Wilson v. Layne, 526 U.S. 603, 609 (1999).
The principles of qualified immunity shield an officer from personal liability when
an officer reasonably believes that his or her conduct complies with the law. Pearson v.
Callahan, 555 U.S. 223, 244 (2009). “Qualified immunity shields a government official
from suit under § 1983 if his ‘conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Kelsay v. Ernst,
933 F.3d 975, 979–80 (8th Cir. 2019) (en banc), cert. denied, No. 19-682, 2020 WL
2515455 (U.S. May 18, 2020) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
13

“‘Because the focus is on whether the officer had fair notice that her conduct was
unlawful, reasonableness is judged against the backdrop of the law at the time of the
conduct.’”

Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (quoting

Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)).
Qualified immunity “is both a defense to liability and a limited ‘entitlement not to
stand trial or face the other burdens of litigation.’” Ashcroft v. Iqbal, 556 U.S. 662, 672
(2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

“Because qualified

immunity protects officers from suit, not merely from liability, courts should ‘resolv[e]
immunity questions at the earliest possible stage in litigation.’” Waters, 921 F.3d at 734
(quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)). The defense “is
usually raised by a motion for summary judgment after a limited amount of discovery
has been conducted to determine whether defendants acted objectively in a reasonable
manner and whether a plaintiff’s rights were clearly established at the time of the
alleged deprivation.”

Whisman v. Rinehart, 119 F.3d 1303, 1309 (8th Cir. 1997).

In determining whether an officer is entitled to qualified immunity, a court asks
(1) whether, taking the facts in the light most favorable to the injured party, the alleged
facts demonstrate that the official’s conduct violated a constitutional right; and (2)
whether the asserted constitutional right was clearly established at the time of the
defendant’s alleged misconduct. Raines v. Counseling Assocs., Inc., 883 F.3d 1071,
1074 (8th Cir. 2018), as corrected (Mar. 6, 2018), cert. denied sub nom. Burningham v.
Raines, 139 S. Ct. 787 (2019). For a right to be clearly established, ‘[t]he contours of
the right must be sufficiently clear that a reasonable official would understand that what
he is doing violates that right.’” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). “A right is ‘clearly established’ only if the violation was ‘beyond debate’ such
14

that only a plainly incompetent officer or a knowing lawbreaker would engage in the
alleged misconduct.” Johnson v. McCarver, 942 F.3d 405, 409 (8th Cir. 2019) (quoting
District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)).

In other words, the law at

the time of the events in question must have given the officer “fair warning” that his
conduct was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002).
The state of the law should not be examined at a high level of generality. Kelsay,
933 F.3d at 979. “‘The dispositive question is whether the violative nature of particular
conduct is clearly established.’”

Id. (quoting Mullenix v. Luna, 136 S. Ct. 305, 308

(2015) (per curiam) (internal quotation marks omitted)).

Specificity is especially

important in the Fourth Amendment context, where it is sometimes difficult for an officer
to determine how the relevant legal doctrine of excessive force will apply to the factual
situation the officer confronts. Id. at 979-80. “‘Use of excessive force is an area of the
law in which the result depends very much on the facts of each case, and thus police
officers are entitled to qualified immunity unless existing precedent squarely governs the
specific facts at issue.’” Id. at 980 (quoting Kisela,138 S. Ct. at 1153 (internal quotation
marks omitted)); see also City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019) (per
curiam) (stating the clearly established right must be defined with specificity).
An officer’s shooting of a person constitutes a seizure under the Fourth
Amendment. Estate of Morgan v. Cook, 686 F.3d 494, 496 (8th Cir. 2012). Claims of
excessive use of force implicate the Fourth Amendment’s protections against
unreasonable seizures and are analyzed under an “objective reasonableness standard.”
Sanders v. City of Minneapolis, 474 F.3d 523, 526 (8th Cir. 2007). An officer’s use of
force violates the Fourth Amendment if it is “objectively unreasonable.”
Robinson, 858 F.3d 544, 547 (8th Cir. 2017).
15

Tatum v.

The Court “examine[s] ‘whether the

officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them.”

Molina-Gomes v. Welinski, 676 F.3d 1149, 1152 (8th Cir. 2012)

(quoting Craighead v. Lee, 399 F.3d 954, 961 (8th Cir. 2005) (citation omitted)). “The
‘reasonableness' of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham
v. Connor, 490 U.S. 386, 396 (1989).
The reasonableness of an officer’s use of force is evaluated by looking at the
totality of the circumstances, including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and whether
he is actively resisting arrest or attempting to evade by flight. Raines, 883 F.3d at 1074;
see also Tatum, 858 F.3d at 547. Deadly force is not justified “where a person ‘poses
no immediate threat to the officer and no threat to others[.]’” Raines, 883 F.3d at 1074
(quoting Ellison v. Lesher, 796 F.3d 910, 916 (8th Cir. 2015)). “Where the officer has
probable cause to believe that the suspect poses a threat of serious physical harm,
either to the officer or to others, it is not constitutionally unreasonable to prevent escape
by using deadly force.” Tennessee v. Garner, 471 U.S. 1, 11 (1985).
Given a quickly evolving scenario, an officer’s actions in shooting at a vehicle in
an attempt to stop a suspect from injuring an officer in his path is objectively reasonable
and does not violate Fourth Amendment right to be free from unreasonable seizures.
Sanders, 474 F.3d at 526. Reckless driving in an attempt to escape can be a danger to
the arresting police officers and to any drivers on the roadway. Molina-Gomes, 676
F.3d at 1152-53 (holding an officer’s decision to fire on driver without warning was
objectively reasonable where driver sped backwards, dragging another officer along and
knocking him to the ground); see also Scott, 550 U.S. at 381 (finding it objectively
16

reasonable for a law enforcement officer to terminate a car chase by ramming his
bumper into fleeing suspect’s vehicle because the suspect “posed an actual and
imminent threat to the lives of any pedestrians who might have been present, to other
civilian motorists, and to the officers involved in the chase”). The inquiry for the Court in
evaluating use of deadly force is to “specifically identify[ ] the plaintiff-friendly version of
the disputed facts, rather than . . . simply recite the parties' general allegations” and
then to evaluate whether the officer, in light of all of the information available to him at
the moment, violated clearly established law when he shot the plaintiff. N.S. v. Kansas
City Bd. of Police Comm’rs, 933 F.3d 967, 970 (8th Cir. 2019); see also Kisela, 138 S.
Ct. at 1152–53.
III.

DISCUSSION
As a threshold matter, the Court first finds that the plaintiff’s motions to strike

need not be addressed.

Notwithstanding that the defendant has shown that the

challenged statements could likely be presented in admissible form at trial, the Court did
not rely on any evidence that the plaintiff moved to strike. 5 The Court’s resolution of this
matter is based on the facts agreed to by the parties and the Court’s review of the dash
cam video. Accordingly, the motions to strike will be denied as moot.
The record shows that Deputy Marshal Keyes was aware that Sailors had been
charged with a felony drug offense and had eluded law enforcement six times, at high
speeds and while driving erratically, in the days immediately preceding the incident.

“An af f idavit or declaration used to support or oppose a motion [for summary judgment] must be made
on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). If a party objects under
Federal Rule of Civil Procedure 56(c)(2), contending that the material cited to support a fact cannot be
presented in a form that would be admissible in evidence, “the burden is on the p roponent of the evidence
to show that the material is admissible as presented or to explain the admissible form that is anticipated.”
Gannon Int’l Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012) (citation omitted).
5

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Sailors was driving a stolen vehicle and was swerving and otherwise driving poorly as if
under the influence of drugs.

He was known to have previously fled from law

enforcement and he was believed to be armed and dangerous. Sailors admitted he
knew Deputy Marshal Keyes’s unmarked USMS truck—he had encountered it before in
Beatrice, Nebraska. The record shows the LPD officers and Deputy Marshal Keyes had
agreed to use a box-in technique to apprehend Sailors.
Officer Hupke’s dashcam recorded Deputy Marshal Keyes following Sailors up
until shortly before the incident. The video recording shows the SUV taillights flash just
as the Deputy Marshal comes around the corner and as the LPD cruiser is coming up
behind the SUV. Deputy Marshal Keyes does not turn on his flashing lights until he is
directly in front of Sailors’s vehicle, and just before his truck bumps into the front of the
SUV.

The LPD cruiser does not activate its lights until after the bump and Sailors starts

to back up. The sound on the video begins at the same time as the LPD cruiser’s lights,
which is when Sailors starts backing up.
Deputy Marshal Keyes is shooting as Sailors rams the cruiser and pushes it
back.

The shots are audible as Sailors rams the cruiser.

After Sailors clears the

cruiser, he rams other parked cars with the SUV and crashes through the brick wall of
an apartment building. Deputy Marshal Keyes stops shooting as Sailors’s SUV is in the
line of fire between Deputy Marshal Keyes and the LPD cruiser. Deputy Marshal Keyes
had

emptied

his

9-round

magazine

and

one

chambered

round

during the

ramming. After Sailors’s vehicle breaks through the wall of the apartment building,
Deputy Marshal Keyes reloads. As Sailors’s SUV speeds from the apartment building
through the demolished wall, Deputy Marshal Keyes shoots again at the vehicle,
emptying his second magazine.

The parties agree that 19 shots were fired in total.
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Sailors then led the officers on a high-speed pursuit on somewhat icy residential streets
through the City of Lincoln.
The video shows that shortly after Deputy Marshal Keyes activated his lights and
bumped the SUV, Sailors revved the engine and reversed at a high-speed, crashing into
the LPD cruiser. The video does not support Sailors version of events, that is, that he
was sleeping and woke up to being shot. The video demonstrates that Sailors was not
asleep because his taillights were intermittently lighting up, which is consistent with
repeatedly applying the brakes and later shifting into reverse.

If Sailors had been

sleeping, he would have awoken when his truck was bumped. As the video clearly
demonstrates, after the bump Sailors would have seen police lights in front and behind.
Then, as he has consistently done, he decided to flee the scene regardless of the risk to
the officers or the public.
forty-seven seconds.

The entire parking-lot episode took place in the course of

The video shows Deputy Marshal Keyes is shooting as Sailors

reverses at high speed into the LPD cruiser. The photographic evidence confirms that
Sailors then crashes into at least one other vehicle and demolishes the wall of an
apartment building.

Under these circumstances, it was objectively reasonable to

believe that Sailors posed a danger to the arresting cruiser officers and the public.
Based on the undisputed facts, Deputy Marshal Keyes had probable cause to
believe that Sailors posed a threat of serious physical harm to the officers at the scene
and the general public, specifically anyone living on the ground floor of the apartment
building.

Nothing supports the plaintiff’s bald allegation that he was asleep when

Deputy Marshal Keyes shot him, in fact, that contention is belied by the evidence in the
video. The video clearly depicts a situationally alert plaintiff and shows him driving in
such a fashion as to endanger human life. Sailors’s version of events is discredited by
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the record and no jury could believe his allegations.

There is no “genuine” dispute

about the facts.
Under the circumstances, Deputy Marshal Keyes’s use of force was not
objectively unreasonable. A warrant had been issued for Sailors’s arrest for a serious
felony offense, he actively attempted to evade arrest by crashing into a police cruiser
with an officer next to it, crashed into another car and a building while fleeing, and led
officers on a dangerous chase. He clearly posed an immediate threat to the safety of
officers and the public.
At the time of the incident in 2018, it had long been clearly established, in the
context of reckless use of a vehicle to escape, as a weapon, or in a high speed chase,
that where the officer has probable cause to believe that the suspect poses a threat of
serious physical harm, either to the officer or to others, it is not constitutionally
unreasonable to prevent escape by using potentially deadly force. See, e.g., Garner,
471 U.S. at 1; Scott, 550 U.S. at 381; Sanders, 474 F.3d at 526; and Molina-Gomes,
676 F.3d at 1152-53. Because the record shows Deputy Marshal Keyes had probable
cause to believe Sailors posed a threat of serious physical harm to the officers or
others, he did not violate clearly established law by shooting at Sailors’s stolen vehicle
as it was reversing at high speed into Officer Hubke’s cruiser, or as it was recklessly
fleeing the scene.

Accordingly, the Estate has shown that Deputy Marshal Keyes is

entitled to qualified immunity from suit and the Estate is not liable to the plaintiff.
Accordingly,
IT IS ORDERED that:
1.

The plaintiff’s motions to strike (Filing Nos. 87, 88, and 96) are
denied as moot.
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2.

The defendant’s motion for summary judgment (Filing No. 79) is
granted.

3.

This action is dismissed.

4.

A judgment of dismissal will issue.

Dated this 25th day of June, 2020.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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