     Case: 12-60496   Document: 00512262133   Page: 1   Date Filed: 06/04/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                  FILED
                                                                 June 4, 2013

                               No. 12-60496                      Lyle W. Cayce
                                                                      Clerk

LYDIA BUCHANAN

                                         Plaintiff - Appellant
v.

GULFPORT POLICE DEPARTMENT; CITY OF GULFPORT; MAYOR
BRENT WARR, officially and in his individual capacity; CHIEF ALAN
WEATHERFORD, officially and in his individual capacity; GARY
HOLLIMON, City Council President, officially and in his individual capacity;
JOHN KELLY, Chief Administrative Officer, City of Gulfport, officially and
in his individual capacity; DETECTIVE LIEUTENANT CRAIG PETERSON,
officially and in his individual capacity; OFFICER PAUL PODLIN, officially
and in his individual capacity; OFFICER JOSEPH WUEST, officially and in
his individual capacity; OFFICER JASON BRANT, officially and in his
individual capacity; OFFICER RYAN STACHURA, officially and in his
individual capacity; JOHN AND JANE DOES, A-Z, also in their official and
individual capacities

                                         Defendants - Appellees



                Appeal from the United States District Court
                  for the Southern District of Mississippi
                          USDC No. 1:08-CV-1299
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                                       No. 12-60496


Before STEWART, Chief Judge, and BARKSDALE and HIGGINSON, Circuit
Judges.
PER CURIAM:*
       Lydia Buchanan, conservator of the person and estate of Robert Lee
Buchanan (Buchanan), appeals from the final judgment dismissing the
numerous federal and state-law claims in this action against numerous Gulfport,
Mississippi, police officers, city officials, and entities (Defendants). At issue,
however, is only the adverse summary judgment for excessive-force claims
against three police officers, filed pursuant to 42 U.S.C. § 1983. Re-stated,
although the complaint raised numerous other claims under both federal and
state law, all of which were dismissed pursuant to Defendants’ summary-
judgment motions, the dismissal of those other claims is not challenged on
appeal. AFFIRMED.
                                              I.
       In the late evening hours of 5 July 2007, Gulfport Police Officers Podlin,
Brandt, and Wuest were transporting prisoners in an unmarked police vehicle.
At an intersection in Gulfport, the Officers observed Buchanan standing on the
curb and swinging a baseball bat at passing vehicles. While Officer Brandt
remained in the vehicle with the prisoners, Officers Podlin and Wuest walked
toward Buchanan to investigate. The Officers wore polo shirts with sewn-on
cloth police badges; Officer Podlin drew his taser and approached Buchanan,
while Officer Wuest drew his service pistol to provide cover.
       With his taser pointed toward Buchanan, Officer Podlin ordered him
several times to drop the bat and threatened to tase him if he refused to do so.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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During this exchange, Officer Stachura arrived in a marked police vehicle in
response to Officer Brandt’s radio call for a marked vehicle. Officer Stachura
drew his taser upon observing Buchanan’s continuing failure to comply with
Officer Podlin’s commands. Shortly after Officer Stachura’s arrival, however,
Buchanan finally dropped the bat.
       Officers Podlin’s and Stachura’s tasers incorporated video cameras.
Officer Podlin’s taser camera began recording while he was ordering Buchanan
to drop the bat. The video from that camera depicts Officer Podlin’s five times
ordering Buchanan to drop the bat, and threatening to tase Buchanan if he
failed to comply. Officer Stachura’s taser camera began recording just as
Buchanan was placing the bat on the ground, and recorded the subsequent
events described below.
      After Buchanan released the bat, Officer Podlin ordered Buchanan to step
away from it. Buchanan was noncompliant; instead, he leaned slightly toward
the bat, as if to pick it up. Officer Podlin tased Buchanan in the chest, but he
was not subdued. He pulled the taser leads out of his body, which prompted
Officer Stachura to also tase him in an attempt to subdue him. This second
tasing also failed to subdue Buchanan; he again removed the leads and began
moving rapidly. He picked up the bat, raised it above his head, and charged at
Officer Podlin.
      In response, Officers Podlin and Wuest fired their pistols at Buchanan; he
was hit in the abdomen. Medics were called to the scene and took Buchanan to
the hospital. As noted, most of the incident was recorded by the tasers’ video
cameras.
      Buchanan was charged with disorderly conduct for swinging the bat at
passing traffic. MISS. CODE ANN. § 97-35-7(1). The Gulfport Municipal Court




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entered judgment against him and fined him $336.00; the judgment was later
overturned for procedural reasons.
      More germane to this appeal, and as discussed in Buchanan v. State, 84
So. 3d 812 (Miss. Ct. App. 2011) (en banc), Buchanan was also indicted for
aggravated assault on a peace officer. MISS. CODE ANN. § 97-3-7(2)(b). At his
state-court trial in 2010, the jury was instructed on the elements of the charged
offense, as well as the lesser-included offenses of simple assault on a peace
officer and misdemeanor simple assault, in that order. Buchanan, 84 So. 3d at
814. It was further instructed not to consider any lesser offense unless it failed
to find Buchanan guilty of the previous offense. The jury found Buchanan guilty
of misdemeanor simple assault, for which he received a six-month suspended
sentence. Id. In an en banc opinion, Mississippi’s intermediate appellate court
affirmed the conviction and sentence. Id. at 819.
      Buchanan filed this action in October 2008, prior to his criminal trial in
2010 (Lydia Buchanan was substituted as plaintiff in October 2011). Named as
defendants were: Officers Podlin, Wuest, Brandt (misspelled as “Brant”), and
Stachura; the Gulfport police chief; several Gulfport city officials; the City of
Gulfport and its police department; and John and Jane Does A - Z. Buchanan
claimed: excessive force for tasing and for shooting him, deliberate indifference
to medical needs, and related supervisor liability, all pursuant to 42 U.S.C.
§ 1983; conspiracy to interfere with civil rights, pursuant to 42 U.S.C. § 1985;
failure to prevent conspiracy, pursuant to 42 U.S.C. § 1986; failure to adequately
train and supervise officers, negligent hiring and retention, and failure to
discipline, all resulting in the claimed federal-law violations; and state-law
claims for battery, assault, civil conspiracy, breach of a non-delegable fiduciary
duty, the common-law tort of outrage, intentional infliction of emotional distress,
and slander.


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      In February 2011, the district court granted summary judgment against
the conspiracy and failure-to-prevent-conspiracy claims, which were pursuant
to 42 U.S.C. §§ 1985 and 1986, respectively. Buchanan v. Gulfport Police Dept.,
No. 1:08CV1299-LG-RHW, Order Partially Granting Mot. Summ. J. at 12 (S.D.
Miss. 3 Feb. 2011). In May 2012, the court granted summary judgment against
the remaining claims, Buchanan v. Gulfport Police Dept., No. 1:08CV1299-LG-
RHW, 2012 WL 1906523 (S.D. Miss. 25 May 2012), and entered a final judgment
that day, dismissing this action.
      Regarding the excessive-force claims, the court ruled in its comprehensive
and well-reasoned May 2012 opinion that a finding of excessive force against the
three Officers (the Officers) for either the tasing or the shooting would
necessarily call into question Buchanan’s simple-assault conviction. It reasoned
that, by his having been found guilty in the 2010 criminal trial, the jury had
determined implicitly that Buchanan was uncooperative with the Officers prior
to being tased, and he had threatened them with serious harm by charging them
with the upraised bat prior to being shot. Therefore, the court ruled that,
pursuant to the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994) (no recovery
for excessive force where such recovery would call into question a valid criminal
conviction), Buchanan’s excessive-force claims were barred. In the alternative,
the court ruled the Officers, in their individual capacity, were entitled to
qualified immunity against the excessive-force claims.
                                         II.
      Summary judgment is reviewed de novo, viewing the evidence in the light
most favorable to the nonmovant. E.g., Bush v. Strain, 513 F.3d 492, 497 (5th
Cir. 2008). Summary judgment is appropriate where there is “no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law”. FED. R. CIV. P. 56(a).


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      A dispute is “genuine” if “the evidence supporting its resolution in favor
of the party opposing summary judgment . . . would be sufficient to support a
verdict in favor of that party”. St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir.
1987) (quoting Prof’l Managers, Inc. v. Fawer, Brian, Hardy & Zatzkis, 799 F.2d
218, 222 (5th Cir. 1986)). A dispute is not genuine if “the evidence offered by
both the moving and opposing parties would support only one conclusion”, even
if all the nonmovant’s evidence was fully credited. Id. (quoting Prof’l Managers,
799 F.2d at 222).
      A fact is “material” if it “might affect the outcome of the suit under the
governing law”; it is not material, and therefore does not affect the summary-
judgment analysis, if it is “irrelevant or unnecessary”. Id. (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
      Here, two factors alter the normal procedure for summary judgment.
First, a qualified-immunity defense alters the summary-judgment burden:
“[o]nce a defendant invokes qualified immunity, the burden shifts to the plaintiff
to show that the defense is not available”. Kovacic v. Villareal, 628 F.3d 209,
211 (5th Cir. 2010). Second, “[a]lthough we review evidence in the light most
favorable to the nonmoving party, we assign greater weight, even at the
summary judgment stage, to the facts evident from video recordings taken at the
scene”; in other words, “[a] court of appeals need not rely on the plaintiff’s
description of the facts where the record discredits that description but should
instead consider the facts in the light depicted by the videotape”. Carnaby v.
City of Houston, 636 F.3d 183, 187 (5th Cir. 2011) (internal quotation marks and
citation omitted).
                                        A.
      For the reasons that follow, only the excessive-force claims are at issue on
appeal. Re-stated, although numerous other claims were raised in district court,


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                                  No. 12-60496


they are not raised here. Along that line, the district court fully analyzed each
claim before dismissing it on summary judgment. This is reflected in the final
judgment’s dismissing this action.
      In its February 2011 order, the court dismissed the 42 U.S.C. § 1985 claim
for conspiracy to interfere with civil rights because Buchanan failed to plead
adequately to state the claim. Buchanan v. Gulfport, Order Partially Granting
Mot. Summ. J. at 5-7. The 42 U.S.C. § 1986 claim for failure to prevent the
conspiracy was dismissed at the same time, because “the existence of a Section
1985 conspiracy is an element of the Section 1986 claim”. Id. at 7.
       In its May 2012 opinion, after addressing the excessive-force claims, the
district court addressed the remaining claims. It granted summary judgment
against the 42 U.S.C. § 1983 claim for deliberate indifference to medical needs
and related supervisor liability because no evidence had been presented to refute
the Officers’ evidence that medical assistance arrived on the scene within two
minutes of Buchanan’s being shot, and he was being treated in the hospital less
than half an hour later. Buchanan v. Gulfport, 2012 WL 1906523 at *11-12.
Because all of the federal claims against the Officers had been dismissed, the
court also dismissed the claims against the city, the police department, the police
chief, and other city officials for failure to train and supervise, negligent hiring
and retention, and failure to discipline. Id. at *12. Citing City of Los Angeles v.
Heller, 475 U.S. 796, 799 (1986), the court explained: “Where there is no
underlying constitutional violation, there can be no municipal liability”.
Buchanan v. Gulfport, 2012 WL 1906523 at *12.
      The district court then analyzed the state-law claims. It ruled the Officers
did not exhibit reckless disregard for Buchanan’s safety, making them immune
from suit for assault and battery under the Mississippi Tort Claims Act. Id. at
*12-14. It held the civil conspiracy claim was barred, inter alia, because


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Defendants’ underlying actions were not unlawful. Id. at *14. Because the claim
for breach of a non-delegable fiduciary duty arose from the same allegations as
those for the rejected claim for deliberate indifference to medical needs, the court
granted summary judgment against it for lack of a genuine dispute of material
fact. Id. at *11-12.      The court explained that Mississippi law considers
Buchanan’s common-law-tort-of-outrage claim equivalent to his intentional-
infliction-of-emotional-distress claim, and dismissed both claims because the
Officers’ actions were found justified under the circumstances and all
Defendants were immunized by the Mississippi Torts Claims Act. Id. at *12 n.6,
*15. Finally, the court dismissed the claim for slander, ruling Buchanan had
failed to present any evidence that Defendants made defamatory statements. Id.
at *15.
      As stated supra, Buchanan fails to challenge these non-excessive-force-
claims rulings. Therefore, the underlying claims have been abandoned. E.g.,
MacArthur v. Univ. of Tex. Health Ctr. at Tyler, 45 F.3d 890, 895 (5th Cir. 1995).
In other words, because the excessive-force rulings are the only ones challenged
and briefed on appeal, the underlying excessive-force claims are the only ones
at issue here. Id.; FED. R. APP. P. 28(a)(5) (appellant’s brief must state issues
presented for review).
                                        B.
      “We may affirm summary judgment on any basis raised [in district court]
and supported by the record.” QBE Ins. Corp. v. Brown & Mitchell, Inc., 591 F.3d
439, 443 (5th Cir. 2009). Because the Officers are entitled to qualified immunity
for the excessive-force claims for the tasing and the shooting, we need not
address whether the Heck doctrine also bars those claims.
      Qualified immunity serves to protect public officials, in their individual
capacity, “from liability for civil damages insofar as their conduct does not


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violate clearly established statutory or constitutional rights of which a
reasonable person would have known”. Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It balances the
need to hold officials accountable when they act irresponsibly with the need to
shield them from liability when they perform their duties reasonably. Id.
“Because qualified immunity is ‘an immunity from suit rather than a mere
defense to liability’”, it is important to resolve the issue at the earliest possible
stage of litigation. Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
       The well-established qualified-immunity analysis has two prongs. To
defeat summary judgment, Buchanan must show genuine disputes of material
fact for: whether the Officers violated his constitutional (Fourth Amendment)
right against excessive force; and whether their actions were objectively
unreasonable in the light of then clearly-established law. Poole v. City of
Shreveport, 691 F.3d 624, 627 (5th Cir. 2012). Courts may exercise their
discretion in determining which of the two prongs to address first. Pearson, 555
U.S. at 236. Because Buchanan fails to show a genuine dispute of material fact
for whether he suffered a constitutional violation, the second prong of the
analysis need not be addressed.
      For a Fourth Amendment excessive-force violation, plaintiff must show:
“(1) an injury, which (2) resulted directly and only from the use of force that was
clearly excessive to the need; and the excessiveness of which was (3) objectively
unreasonable”. Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996) (quotation
marks omitted). The third factor, objective reasonableness, is determined by
balancing “the amount of force used against the need for that force”, id. at 434,
taking the perspective of a reasonable officer on the scene without “the 20/20
vision of hindsight”, Graham v. Connor, 490 U.S. 386, 396 (1989).




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        Buchanan contends there are genuine disputes of material fact for whether
the Officers’ actions constituted excessive force, both when they tased him and
when they shot him. In that regard, Buchanan asserts: the Officers tased him
despite his having committed no crime up to that point; and it is disputed
whether he raised the bat over his head and charged Officer Podlin before being
shot.
        These contentions, however, are foreclosed by the jury’s findings in
Buchanan’s criminal trial: where a party has a full and fair opportunity to
litigate an issue in state court, even if it is a “state proceeding in which he would
rather not have been engaged at all”, the doctrine of collateral estoppel bars re-
litigation of the issue in federal court on a claim pursuant to 42 U.S.C. § 1983.
Allen v. McCurry, 449 U.S. 90, 103-05 (1980). The district court noted correctly
that Buchanan had the requisite full and fair opportunity to litigate these fact
issues in his criminal trial. Buchanan v. Gulfport, 2012 WL 1906523 at *6. He
was represented by the same attorneys who represent him in this action, and he
had ample incentive to defend the criminal charges against him, both to avoid
a criminal penalty and to preserve his claims in this action. Id. (Buchanan does
not brief collateral estoppel vel non, even though the point was addressed both
by the district court and in the brief here of the Officers and two other
defendants.)
        Pursuant to Allen, when a federal court applies collateral estoppel to a
claim under § 1983, it “must apply the res judicata principles of the law of the
state whose decision is set up as a bar to further litigation”. Hernandez v. City
of Lafayette, 699 F.2d 734, 736 (5th Cir. 1983). In Mississippi, collateral estoppel
bars re-litigation in a civil action of facts found beyond a reasonable doubt in an
earlier criminal matter. Jordan v. McKenna, 573 So. 2d 1371, 1376 (Miss. 1990).
As discussed infra, by finding Buchanan guilty, the jury in his criminal trial


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necessarily found: the Officers were justified in tasing him; and he charged
Officer Podlin with the bat in an attempt to cause serious bodily injury. Under
the first prong of qualified-immunity analysis, these facts, established under
collateral estoppel, compel the Officers’ being entitled to qualified immunity, as
discussed below.
                                          1.
      Concerning the tasing, the jury in the criminal trial was instructed: if it
found Buchanan attacked Officer Podlin with the bat, but did so in resisting an
unlawful arrest (i.e., the tasing was unjustified), it should find Buchanan not
guilty; and, to find him guilty of misdemeanor simple assault, it must find he
attempted to cause bodily harm to Officer Podlin “not in necessary self defense”.
Because the jury found Buchanan guilty of misdemeanor simple assault, it
necessarily found, beyond a reasonable doubt, that Buchanan was not suffering
an unlawful arrest that necessitated self defense when he was tased. Because
the jury found the Officers’ tasing him was part of a lawful arrest that did not
support a claim of self defense, it follows that the tasing was neither “clearly
excessive to the need”, nor “objectively unreasonable”, as discussed infra. Ikerd,
101 F.3d at 434.
      Along that line, even if collateral estoppel did not apply, review of the
taser videos would compel the same conclusion. They show Officer Podlin
warned Buchanan repeatedly that he would be tased if he failed to comply with
instructions. Nevertheless, after finally placing the bat on the ground, he leaned
toward it, as if to pick it up, rather than walking away from it as Officer Podlin
had instructed. These multiple warnings and Buchanan’s repeated failure to
comply with police instructions would be enough to overcome Buchanan’s claim
of excessive force for the tasing.




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      Applying the three-part excessive-force test to the facts surrounding the
tasing, it is arguable that Buchanan has not even created a genuine dispute of
material fact for the first requirement: that he suffer an injury. Ikerd, 101 F.3d
at 433. As the Mississippi intermediate appellate court acknowledged, and as the
videos show, Buchanan was not subdued by the tasing. Buchanan v. State, 84 So.
3d at 813-14. Rather, he was able twice to remove the taser leads from his body,
pick up the bat, and charge Officer Podlin. Id. at 814. Therefore, to the extent
Buchanan suffered any injury as a result of the tasing, it was de minimis and
arguably cannot support a claim of excessive force. See Williams v. Bramer, 180
F.3d 699, 703-04 (5th Cir. 1999).
      Even assuming Buchanan has created a genuine dispute of material fact
for whether he suffered an injury from being tased, he has not created such a
dispute for whether the tasing met the other two requirements for an excessive-
force claim: that the injury result from force “that was clearly excessive to the
need”; and, such excessiveness was “objectively unreasonable”. Ikerd, 101 F.3d
at 434. The Officers had observed Buchanan swinging a baseball bat toward
passing traffic, and their only order to him was to place the bat on the ground
and walk away from it. Given his failure to comply with these orders, and his
choice to lean toward the bat, instead of walking away from it, Buchanan has not
created a genuine dispute of material fact for whether Officer Podlin was acting
in a manner that was “clearly excessive to the need” and “objectively
unreasonable” when he attempted to subdue Buchanan by tasing him. See Ikerd,
101 F.3d at 434.
      Moreover, when Officer Podlin’s taser failed to subdue Buchanan, Officer
Stachura tased him. Buchanan has not created the requisite genuine dispute for
whether this second tasing was excessive to the need or objectively
unreasonable.


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      Several other circuits have determined similarly that, where a suspect
resists arrest or fails to follow police orders, officers do not violate his right
against excessive force by deploying their tasers to subdue him. See, e.g., Meyers
v. Baltimore Cnty., Md., 713 F.3d 723, 732-33 (4th Cir. 2013); Hagans v.
Franklin Cnty. Sheriff’s Office, 695 F.3d 505, 509 (6th Cir. 2012); McKenney v.
Harrison, 635 F.3d 354, 357-58 (8th Cir. 2011). For example, in McKenney, 635
F.3d at 357-58, two officers were executing an arrest warrant on a suspect
wanted for several misdemeanors. The suspect made a sudden move toward a
second-floor window, despite being warned he would be tased if he attempted to
escape. Id. at 360. Interpreting this movement as an attempt to evade arrest,
one of the officers tased the suspect. Id. The suspect continued out the window,
fell to the sidewalk, and later died of his injuries. Id. at 358. Notwithstanding
the tragic result, the fact that the officers had no reason to believe the suspect
was armed, and the relatively non-serious nature of the underlying offenses, the
Eighth Circuit held the tasing was a reasonable attempt to subdue a
noncompliant suspect. Id. at 360.
      As in McKenney, Officers Podlin and Stachura were required to make split-
second decisions in a tense situation. As stated, viewing the incident from the
requisite perspective of a reasonable officer on the scene, Buchanan has failed
to create the requisite genuine dispute for whether the two Officers’ tasing him
in order to subdue him were either excessive to the need or objectively
unreasonable. See Graham, 490 U.S. at 396.
                                        2.
      Concerning the shooting, Buchanan’s adverse criminal verdict forecloses
any contention that he did not charge Officer Podlin with the bat raised over his
head. The jury found him guilty of misdemeanor assault after being instructed
that, to do so, it must find Buchanan “knowingly, purposely or recklessly []


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attempt[ed] to cause bodily injury to [Officer] Podlin”. Buchanan v. State, 84 So.
3d at 816.    The only portion of the incident that could possibly fit that
description was Buchanan’s charging Officer Podlin with the bat raised over his
head; therefore, the jury found beyond a reasonable doubt that Buchanan
committed that act. See id. at 817. For the reasons presented supra, Buchanan
cannot re-litigate the fact question of whether he charged Officer Podlin with the
bat. Jordan, 573 So. 2d at 1376.
      With that fact established, Buchanan has failed to create a genuine
dispute of material fact for the excessive-force element of whether Officers
Podlin and Wuest acted objectively unreasonably when they shot Buchanan. See
Ikerd, 101 F.3d at 434. “Use of deadly force is not unreasonable when an officer
would have reason to believe that the suspect poses a threat of serious harm to
the officer or others.” Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003).
Buchanan has failed to create the requisite genuine dispute for whether his
attacking Officer Podlin with a metal baseball bat did not give the Officer a
reasonable belief that Buchanan posed such a threat.
      Once again viewing the situation from the requisite perspective of a
reasonable officer at the scene, forced to make a split-second decision, Buchanan
has failed to create a genuine dispute of material fact for whether Officer Podlin
was not justified in believing Buchanan posed a threat of serious harm and for
whether his use of deadly force was unreasonable. For the same reason,
Buchanan has failed to create the requisite genuine dispute for whether Officer
Wuest was unreasonable in simultaneously shooting Buchanan; as noted, deadly
force is permitted if an officer reasonably perceives a threat of serious harm to
himself or others. Id.
                                        III.
      For the foregoing reasons, the judgment is AFFIRMED.


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