                                  _____________

                                  No. 95-2635EM
                                  _____________


Diane Gardner; Kermit Gardner;         *
Amy Gardner; Jesse Gardner;            *
Sarah Gardner, by and through          *
their next friend and natural          *
mother Diane Gardner,                  *
                                       *
           Appellants,                 *
                                       *
     v.                                *   On Appeal from the United
                                       *   States District Court
                                       *   for the Eastern District
Walter Buerger, "Buck" Sheriff         *   of Missouri.
of Jefferson County, Missouri,         *
as an individual and in his            *
official capacity; C. Partain,         *
Deputy Sheriff of Jefferson            *
County, Missouri, as an                *
individual and in his official         *
capacity,                              *
                                       *
           Appellees.                  *

                                  ___________

                   Submitted:      January 12, 1996

                         Filed:   April 29, 1996
                                  ___________

Before RICHARD S. ARNOLD, Chief Judge, JOHN R. GIBSON and BOWMAN, Circuit
      Judges.
                               ___________

RICHARD S. ARNOLD, Chief Judge.


     This is a civil-rights case.          Deputy Sheriff Charles Partain, a
Jefferson County, Missouri, police officer, shot and killed Charles Gardner
while serving an ex parte order of protection.        Mr. Gardner's wife, Diane
Gardner, sued Deputy Partain and Jefferson
County Sheriff Walter Buerger under 42 U.S.C. § 1983.       She claimed that
Deputy Partain used excessive force when he shot Mr. Gardner, and that
Sheriff Buerger failed to train Deputy Partain adequately.         After Ms.
Gardner presented her case to the jury, the District Court granted the
defendants' motion for judgment as a matter of law, Fed. R. Civ. P. 50(a),
citing Ms. Gardner's "failure of proof . . . as to what actually happened
at the precise time of the shooting."       Because we agree with Ms. Gardner
that she presented enough evidence to permit a reasonable jury to decide
that the defendants violated her husband's constitutional rights, we
reverse.


                                      I.


     Ms. Gardner built her case almost entirely on her own and Deputy
Partain's testimony.1      We assume, for now, that this testimony, and the
facts it tends to prove, are true.    One evening in February 1992, Mr. and
Ms. Gardner had a serious argument.    Mr. Gardner demanded that Ms. Gardner
leave the house, and she did.      The next day she applied for an ex parte
                       2
order of protection.       Deputy Partain was dispatched to serve the order
and, on the way, he picked up Ms. Gardner at a corner store near her house.
He asked her if there were any guns in the house, and she said there were
about 30, locked in a safe.      When Ms. Gardner and Deputy Partain arrived
at the Gardner home, she waited in the car while he went up to the house.
About two minutes later, Ms. Gardner heard a gunshot, and she ran into the
house.   Deputy Partain told her, "Lady, I had to shoot him.    He was going
to get a gun."   He also




     1
      Richard Webster, a volunteer firefighter, and Evan Steck, a
friend of Ms. Gardner's and a Jefferson County deputy sheriff, also
testified, but their testimony was brief and, for the most part,
unrelated to the question before us.
     2
      The order of protection required that Mr. Gardner not abuse,
threaten to abuse, or disturb the peace of Ms. Gardner, and that he
not enter the Gardners' house.

                                      -2-
told her he had shot her husband in the back of the head.


     Deputy Partain's testimony provides the only evidence about what
happened inside the house; again, we assume this testimony is true.   Deputy
Partain testified that he knocked on the Gardners' door and Mr. Gardner
cordially invited him in.   But after Deputy Partain explained his purpose,
and told Mr. Gardner he had to leave the house, Mr. Gardner became enraged
and threatened to get a gun.   Deputy Partain said something like, "You grab
the gun and I will kill you," and he then "went after [Mr. Gardner]."    The
two men ended up in the middle of the dining room floor, with Mr. Gardner
face down and Deputy Partain on top, gun drawn and pointed.   Deputy Partain
tried to use his handcuffs, but Mr. Gardner somehow got away.   Mr. Gardner
then tried to pick up a chair, but couldn't, because it was stuck under a
table.   Deputy Partain yelled, "Drop the chair" and "Don't do it.      I'll
shoot, I'll kill you."   Deputy Partain admitted that Mr. Gardner never had
or brandished a weapon, and that Mr. Gardner never hit him.           No one
testified about the shooting itself.       We know only, from Ms. Gardner's
testimony, that Deputy Partain shot Mr. Gardner in the back of the head.



     That was Ms. Gardner's whole case.3    After she rested, the defendants
moved for judgment as a matter of law because Ms. Gardner had presented no
evidence about the precise moment Deputy Partain killed Mr. Gardner.     The
defendants admitted Deputy Partain shot Mr. Gardner, but contended there
was no evidence from which the jury could conclude that Deputy Partain used
unreasonable and excessive force.   The defendants insisted that Ms. Gardner
was inviting the jury to "speculate" about how Mr. Gardner was killed, and
that Ms. Gardner could not rest her case on the mere hope that the jury
might disbelieve Deputy Partain.    The District Court,




     3
      Both parties went into more detail, fleshing out the events,
in their opening statements, but these statements are not evidence.


                                    -3-
citing Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993), granted the defendants'
motion for judgment, reasoning that "[it is not] sufficient simply to say
that Mr. Partain shot this man, killed this man, and was there to serve an
order of protection," because there was no evidence "from which the jury
could infer there was an excessive use of force . . .."     Ms. Gardner now
                           4
appeals, and we reverse.


                                    II.


     We review de novo the District Court's decision to grant judgment as
a matter of law.     Schulz v. Long, 44 F.3d 643, 647 (8th Cir. 1995).
Judgment as a matter of law is appropriate only when the nonmoving party
fails to present enough evidence to permit a reasonable jury to decide in
his favor.   We do not judge witnesses' credibility, we give the nonmoving
party the benefit of all reasonable inferences, and we look at the evidence
in the light most favorable to him.        Ibid.   The evidence must point
unswervingly to only one reasonable conclusion.     Johnson v. Cowell Steel
Structures, Inc., 991 F.2d 474, 478 (8th Cir. 1993).         This demanding
standard reflects our concern that, if misused, judgment as a matter of law
can invade the jury's rightful province.   See Boodoo v. Cary, 21 F.3d 1157,
1161 (D.C. Cir. 1994).




         4
         The District Court's decision necessarily mooted Ms.
Gardner's failure-to-train claim. The alleged failure to train
"would have been an issue . . . only had [there been] a submissible
case on the excessive use of force."       See Abbott v. City of
Crocker, Mo., 30 F.3d 994, 998 (8th Cir. 1994) (failure-to-train
claim fails if officer is not liable on underlying excessive-force
claim). Because we think Ms. Gardner presented enough evidence to
defeat the defendants' motion for judgment, we do not need to
address Ms. Gardner's failure-to-train claim here.

     Ms. Gardner's lawyer hints, in his brief, at another claim,
suggesting that the Court erred by "limiting the evidence that was
admitted . . ." to the "time of the shooting." But counsel has not
identified any particular objectionable evidentiary rulings, and we
agree with the defendants that this claim is so poorly developed
that we cannot review it meaningfully.

                                    -4-
     The Fourth Amendment forbids "unreasonable searches and seizures" by
police officers.      This prohibition protects not only our privacy and
property;     the   Fourth   Amendment    is   also   a   "primary   source[]   of
constitutional protection against physically abusive government conduct."
Graham v. Connor, 490 U.S. 386, 394 (1989).      For Fourth Amendment purposes,
a police officer "seizes" a person when he, by physical force or show of
authority, limits that person's liberty.       California v. Hodari D., 499 U.S.
621, 625-26 (1991).       Terms like "seizure" and "intrusive governmental
conduct," Graham, 490 U.S. at 395, cannot capture the facts of this case;
it is an unavoidable understatement to observe that the shooting was a
seizure.    Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995); Tennessee
v. Garner, 471 U.S. 1, 9 (1985) ("The intrusiveness of a seizure by means
of deadly force is unmatched.").     But even if the translation is imperfect,
we use the Fourth Amendment's objective-reasonableness standard to analyze
excessive-force claims.      Graham, 490 U.S. at 395; Schulz, 44 F.3d at 648.



     We are careful not to indulge in armchair quarterbacking or exploit
the benefits of hindsight when evaluating police officers' use of deadly
force.     It may appear, in the calm aftermath, that an officer could have
taken a different course, but we do not hold the police to such a demanding
standard.    See Cole, 993 F.2d at 1333-34.     Police officers have tough jobs,
and the "calculus of reasonableness must embody allowance for the fact that
police officers are often forced to make split-second judgments--in
circumstances that are tense, uncertain, and rapidly evolving . . .."
Graham, 490 U.S. at 396-97.


     When is a deadly-force seizure reasonable?            We apply the standard
provided in Tennessee v. Garner:          A seizure-by-shooting is objectively
reasonable when "the officer [using the force] has probable cause to
believe that the suspect poses a significant threat of death or serious
physical injury to the officer or others."       471 U.S. at 3; Ludwig, 54 F.3d
at 471; Schulz, 44 F.3d at




                                         -5-
649.    We must balance "the nature and quality of the intrusion on . . .
Fourth Amendment interests against the countervailing government interests
. . .."           Graham, 490 U.S. at 396 (citation and internal quotations
omitted).          And as the District Court correctly observed, our analysis
focuses on the reasonableness of the seizure itself - here, the shooting -
and not on the events leading up to it.                 See Ludwig, 54 F.3d at 471;
Schulz, 44 F.3d at 648-49; Cole, 993 F.2d at 1333.


        So, to defeat the defendants' motion for judgment as a matter of law,
Ms. Gardner needed to present enough evidence to permit a reasonable jury
to conclude that Deputy Partain's use of deadly force was objectively
unreasonable.        The District Court concluded that Ms. Gardner's case rested
on speculation and on an appeal to the jury to disbelieve Deputy Partain's
story, and held that Ms. Gardner's failure to introduce evidence about the
"seizure itself" required judgment as a matter of law.               We disagree.


        We do not agree that this was the right way to frame Ms. Gardner's
case, for two reasons.           First, this is not a case in which a plaintiff is
armed       with    only   the   hope   that   jurors   might   disbelieve   witnesses'
              5
testimony.         Quite the contrary, Ms. Gardner's case depends on the jury's
believing Deputy Partain's testimony - it's practically all she has.                Ms.
Gardner wants the jury to believe, and to draw inferences from, the
following




        5
      Radio City Music Hall Corp. v. United States, 135 F.2d 715
(2d Cir. 1943), is an example of such a case. In Radio City, a tax
case written by Judge Learned Hand, the trial court granted summary
judgment for the plaintiffs. The government apparently conceded
that, if the plaintiff's witnesses' depositions were true, there
was no issue for a jury. Judge Hand wrote that the government's
hope that the jury might disbelieve the witnesses' testimony, even
though it had fully cross-examined the witnesses and not shaken
their stories, was not enough to create a "genuine issue"
sufficient to defeat the motion for summary judgment. A party must
"specify some opposing evidence which it can adduce and which will
change the result." Id. at 718.

                                               -6-
evidence:   Deputy Partain went into the Gardners' house to serve an order
of protection and came out a few minutes later having shot Mr. Gardner
through the back of the head with a .357 Magnum.   Deputy Partain repeatedly
threatened to shoot Mr. Gardner.   Mr. Gardner never struck Deputy Partain,
and he never used or even had a weapon.   Finally, Ms. Gardner told Deputy
Partain that the guns in the house were in a safe.    Ms. Gardner wanted the
jury to use and reason from this evidence, not disbelieve it.


     Second, we do not think Ms. Gardner was asking the jurors to
"speculate" about what happened to Mr. Gardner.       Just as a party cannot
defeat a motion for judgment as a matter of law with speculation alone, a
party cannot win a motion for judgment by labelling as "speculation" those
reasonable inferences it would rather the jury not draw.     See McAnally v.
Gildersleeve, 16 F.3d 1493, 1497 (8th Cir. 1994) (noting difference between
conjecture and reasonable inference); City of Omaha Employees Betterment
Ass'n v. Omaha, 883 F.2d 650, 651 (8th Cir. 1989).6   Ms. Gardner definitely
presented a bare-bones case.    But we do not think she failed to present
evidence of the reasonableness of the shooting itself, even though she
never introduced testimony describing the




     6
      The Supreme Court has observed:

            It is no answer to say that the jury's verdict
            involved speculation and conjecture. Whenever
            facts are in dispute or evidence is such that
            fair-minded men may draw different inferences,
            a measure of speculation and conjecture is
            required on the part of those whose duty it is
            to settle the dispute by choosing what seems
            to   them   to    be   the   most   reasonable
            inference. . . . [It is] immaterial that the
            court might draw a contrary inference or feel
            that another conclusion is more reasonable.

Lavender v. Kurn, 327 U.S. 645, 653 (1946).

                                    -7-
moment Mr. Gardner was shot.7     True, unreasonable police behavior before
a shooting does not necessarily make the shooting unconstitutional; we
focus on the seizure itself - here, the shooting - and not on the events
leading up to it.      But this does not mean we should refuse to let juries
draw reasonable inferences from evidence about events surrounding and
leading up to the seizure.


      Our discussion in Krueger v. Fuhr, 991 F.2d 435 (8th Cir.), cert.
denied, 114 S. Ct. 386 (1993), is helpful here.            In Krueger, the parents
of a fleeing suspect who was shot and killed by a police officer brought
an excessive-force claim.       We reversed the District Court's denial of
summary judgment for the officer.       We noted, inter alia, that evidence the
deceased young man had been shot in the back was not relevant to the
reasonableness inquiry.       Because the suspect was, everyone admitted,
fleeing, it was not significant that he was shot in the back.          Id. at 439.
We contrasted the facts in that case with those in Samples on Behalf of
Samples v. Atlanta, 846 F.2d 1328, 1331-32 (11th Cir. 1988), a case in
which, we noted, it was relevant that the plaintiff's decedent had been
shot in the back.   In Samples, there were no witnesses to the killing other
than the defendant police officer, who claimed the victim was advancing on
him with a knife when he was shot.            The Court noted that the evidence
supported contradictory interpretations of the events, and held that
because the victim was shot in the back, a jury could reasonably infer that
the   shooting   was    unreasonable.         Therefore,   summary   judgment   was
inappropriate.




      7
      Ms. Gardner's lawyer said, at oral argument, that he decided
not to ask Deputy Partain about the moment of the shooting because
he knew he could not rebut the Deputy's testimony. Deputy Partain
is, of course, the only surviving witness to the shooting. This is
a common problem for plaintiffs in excessive-force cases. See,
e.g., Samples v. Atlanta, 846 F.2d 1328, 1331 (11th Cir. 1988)
("Because there were no witnesses to the incident, the only
available account of the event comes from [the officer] himself.").

                                        -8-
     We think Ms. Gardner's case is a lot like Samples.       She presented
evidence from which the jury could reasonably have concluded that the
shooting of Mr. Gardner was an unreasonable and excessive use of force.
The evidence permitted was relevant to such an inference, unlike the
evidence in Krueger.    Importantly, in both Krueger and Samples, the Court
recognized that the jury may answer the ultimate question - whether the use
of deadly force was reasonable - by drawing inferences from relevant
evidence about the surrounding circumstances.   See also Ludwig, 54 F.3d at
472-74 (discussing factors relevant to the reasonableness of police
officer's shooting, such as evidence of the victim's mental instability,
distance to the nearest bystander, the number and location of bystanders,
etc.).    In our view, Ms. Gardner simply asked the jury to reason; that is,
to draw the not extraordinary inference from uncontradicted testimony that
an unarmed man was shot in the back of the head to the conclusion that the
shooting was unreasonable.     This conclusion is, admittedly, not the only
                8
possible one.       Ms. Gardner may not yet have proved the "seizure" was
unreasonable, but she does not have to, at least not to us.      She needed
only to present enough evidence to permit a reasonable jury to infer that
Officer Partain used excessive force.


     The defendants rely on Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993),
and Schulz v. Long, 44 F.3d 643 (8th Cir. 1995).   In Cole, police officers
shot the driver of an eighteen-wheeler after a




     8
         In another context, the District of Columbia Circuit noted:

             "[T]here   is   no   requirement  that   the
             circumstances, to justify the inferences
             sought, negative every other positive or
             possible conclusion.     The law is not so
             exacting that it requires proof . . . by
             testimony so clear that it excludes every
             other speculative theory." Elliott v. James,
             Inc., 507 F.2d 1179, 1184 (D.C. Cir. 1974)
             (quotation omitted).


                                     -9-
dramatic high-speed chase on the interstate.         We held that, for Fourth
Amendment purposes, the "seizure" did not occur during pursuit, or when the
officers fired shots at the truck's tires, or even when the officers
unsuccessfully tried to stop Cole using a "rolling roadblock."        Instead,
Cole was seized when he was "struck by the shot of [the officer's]
revolver," 993 F.2d at 1332.      We examined "only the seizure itself, and not
the events leading up to the seizure, for reasonableness under the Fourth
Amendment."       Id. at 1333.   We concluded that, given the information the
officer had when he decided to shoot Cole, and given that Cole posed a
serious threat to the officers' and others' safety, it was not objectively
unreasonable for the officer to use deadly force.         Id. at 1333-34.   In
Schulz, a police officer shot the plaintiff, a paranoid schizophrenic who
had barricaded himself in his parents' basement.         At the moment he was
shot,       the plaintiff, armed and ready with a double-bladed axe, was
approaching an officer who was entangled in the flotsam barricade.          Mr.
Schulz claimed the officer used excessive force.       As in Cole, we examined
the seizure itself, and not its elaborate prelude.     Schulz, 44 F.3d at 647-
48.   We affirmed the District Court's decision to exclude evidence about
whether the officers had created the need to use force by mishandling the
stand-off because this evidence was not related to the reasonableness of
the seizure itself.


        Cole and Schulz do not help the defendants in this case.      We agree
with them that Mr. Gardner was "seized" when he was shot, not before,9 and
that Ms. Gardner must present evidence that the




        9
      Mr. Gardner was also seized once before the shooting, when
Officer Partain subdued him on the floor.       But if someone is
"seized," and then somehow gets away, as Mr. Gardner did, the first
seizure "does not continue during the `period of fugitivity,'"
Ludwig, 54 F.3d at 471 (quoting California v. Hodari D., 499 U.S.
621, 625 (1991)). Thus, several distinct seizures may occur during
a single course of events or encounter with the police.       Ibid.
Here, Ms. Gardner claims only that Mr. Gardner was unreasonably
seized when he was killed, not when he was subdued.

                                       -10-
seizure itself, not its prologue, was unreasonable before she can get to
a jury with her § 1983 claim.       But there was no evidence in either Cole or
Schulz that the shooting itself was unreasonable, or from which such
unreasonableness could permissibly have been inferred.          In Cole, an out-of-
control truck driver was barrelling down the interstate, creating grave
danger both to police officers and to other drivers.            And in Schulz, the
psychotic plaintiff was advancing on a police officer with a double-bladed
axe.    Given these facts, we found that the use of force was objectively
reasonable.     In this case, by contrast, we know that an unarmed man was
shot in the back of the head.         From this evidence, Ms. Gardner wants the
jury    to   infer   that   the   shooting   itself,   not   just   the   surrounding
circumstances, was unreasonable.        Unlike the evidence in Cole and Schulz,
the evidence in this case permits such an inference.


                                        III.


       We do not have to decide whether Deputy Partain violated the Fourth
Amendment; that is up to the jury.           While a party must produce more than
the    proverbial "mere scintilla" of evidence to defeat a motion for
judgment, see City of Omaha, 883 F.2d at 651, demonstrable certainty, or
a demonstration requiring no inferences, is not required.           We do not think
Ms. Gardner's evidence is speculation masking as substance, and because Ms.
Gardner presented enough evidence to defeat the defendants' motion for
judgment at the close of her case, the District Court's decision is
reversed, and the cause remanded for a new trial.


       It is so ordered.




                                        -11-
A true copy.


     Attest:


           CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                            -12-
