                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                    October 23, 2008
                             FOR THE TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                       Clerk of Court

    ALICIA BECKETT-CRABTREE,
    as special administrator for the estate
    of Brett Crabtree, deceased,

                 Plaintiff-Appellant,

    v.                                                     No. 07-5181
                                              (D.C. No. 4:06-CV-00683-CVE-FHM)
    ROBERT HAIR, individually and in                       (N.D. Okla.)
    his official capacity; WASHINGTON
    COUNTY BOARD OF COUNTY
    COMMISSIONERS,

                 Defendants-Appellees.


                              ORDER AND JUDGMENT *


Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.



         Alicia Beckett-Crabtree filed a civil rights action under 42 U.S.C. § 1983

against deputy sheriff Robert Hair and the Washington County Board of County



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
Commissioners (Board) arising from the shooting death of her husband Brett

Crabtree. The district court granted summary judgment in favor of Deputy Hair

on the basis of qualified immunity and dismissed the claims against the Board. 1

We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and we AFFIRM.

      While patrolling a highway in Washington County, Oklahoma during a

night in 2005, Deputy Hair noticed a truck stopped on the shoulder of the

highway. Believing that the driver might need assistance, he pulled over and

turned on his emergency lights. He noticed that the vehicle did not have a license

plate and the driver’s side door was ajar. After notifying the dispatcher as to his

location, but before he could get out of his car, Mr. Crabtree started to get out of

the truck. Deputy Hair told him to remain in the vehicle. When he reached the

truck, Deputy Hair asked about the missing plate. According to Deputy Hair,

Mr. Crabtree was “behaving in a manner that I interpreted as possibly [being]

either . . . extremely stressed or under the influence[.]” Aplt. App. at 98. When

he peered inside the truck he saw a syringe on the console and an open knife on

the passenger seat.

      Next, Deputy Hair asked Mr. Crabtree to get out of the truck. He complied,

but without being asked, put his hands on the truck and assumed a position for a

pat-down search. Deputy Hair asked him to step away from the truck and raise


1
      The district court dismissed without prejudice plaintiff’s state law claim
against the Board.

                                         -2-
his hands for the pat-down, during which he found him “extremely tense,”

id. at 100, and “giving . . . signs that he may flee or fight.” Id. at 101. His

“assumption at this point [was] that [Mr. Crabtree was] under the influence of

methamphetamine.” Id. Deputy Hair “immediately told him . . . ‘I’m placing you

in handcuffs.’ I told him to turn around and place his . . . hands behind his back

and – and he took off, took off,” id. at 102, jumping a fence and running into a

field. Deputy Hair gave pursuit, yelling at him to stop – “I can’t remember what

path we took. The area was lots of weeds, kind of field woods. It was dark, a

little bit of fog.” Id. at 106.

       At some point, Mr. Crabtree stopped running and assumed a fighting

stance. Deputy Hair drew his Taser and ordered him several times to get on the

ground – instead, he took off running again, and an effort to stop him with the

Taser failed. Deputy Hair renewed the pursuit and eventually found Mr. Crabtree

crouched behind some weeds – “He st[ood] up immediately and I started . . . to

walk around, telling him to get on the ground[.]” Id. at 107. When he refused the

command, Deputy Hair drew his baton and tried to hit him in the thigh. The two

men scuffled and Deputy Hair dropped the baton when Mr. Crabtree wrestled him

to the ground. While Mr. Crabtree was on top of him, he grabbed at the flashlight

in Deputy Hair’s left hand. A few seconds later, Deputy Hair “fe[lt] his hand

around my gun.” Id. at 109. He rolled on his right side to prevent Mr. Crabtree

from getting the gun out of its holster. In the meantime, Mr. Crabtree wrested

                                          -3-
away Deputy Hair’s flashlight and struck him on the back of the head. He was

dazed and believed Mr. Crabtree would try to kill him – “I remember I was trying

to see and all I could see was . . . starbursts. I couldn’t see. It was just like

I was groggy. . . . [I]t was taking me a long time . . . to get my vision back[.]”

Id. at 116. “I was almost unconscious and I . . . didn’t know how bad I was hurt.

I thought he was going to kill me [with the flashlight]. I thought if I didn’t act or

if I lost consciousness . . . I was going to be dead.” Id. at 117.

      While he was still on the ground, Deputy Hair drew his gun and began

firing – one shot hit Mr. Crabtree in the right elbow and the fatal shot hit him in

the left side of the head. He remembers firing three shots, but in fact, four shots

were fired. 2 And although he could not say with certainty how far away

Mr. Crabtree was when he began shooting, he claims that a “muzzle flash,”

id. at 118, between the first and second shots provided sufficient illumination to

allow him to catch a “fleeting glimpse of a waist and a shirt or something that

looked like that in front of [him].” Id. The physician who later treated Deputy

Hair, diagnosed him with scalp and face contusions, an eight-centimeter scalp

laceration, and a concussion without loss of consciousness. He opined the blow

to the head would have “dazed,” id. at 149, and “temporarily incapacitated” him.

Id. at 152.


2
      Four shots fired in rapid succession can be heard on audiotape – however,
only three, closely-grouped shell casings were recovered at the scene.

                                           -4-
      As to the distance between Mr. Crabtree and Deputy Hair when he fired the

fourth and fatal shot, plaintiff’s ballistics expert explained that

      [t]he re-enactment of the position of [Deputy Hair] and firearm . . .
      would have resulted in the ejected fired cartridge cases traveling
      downward onto the ground immediately in front of the officer, and
      subsequently three fired cartridge cases are found very close
      together. It is my opinion that [Mr. Crabtree’s] head was at or near
      the ground when shot[.] . . . However, the position of the body as
      noted at the scene is such that the gunshot entry hole would be very
      difficult if not impossible to hit from the position of [Deputy] Hair
      on the ground near the three cartridge cases, and the track of the
      bullet through Mr. Crabtree’s brain would also be all but impossible
      to attain given the stated position of [Deputy] Hair. There is a fourth
      shot which is heard on the audiotape of the police unit, and the fired
      cartridge case from this shot has not been located[.] This fact infers
      the possibility that [Deputy] Hair . . . [had] moved to another
      position [when the fatal shot was fired].

Id. at 485-86. On the basis of the ballistics report, plaintiff’s law enforcement

expert theorized that “at the time [Deputy] Hair discharged his firearm,

[Mr.] Crabtree had ceased his aggression, was not posing any further

threat . . ., had distanced himself . . . and was possibly in the process of

attempting to escape,” id. at 498, and the use of deadly force was unreasonable.

      “We review a grant of summary judgment on the basis of qualified

immunity de novo.” Jiron v. City of Lakewood, 392 F.3d 410, 413-14 (10th Cir.

2004). Under Rule 56(c) of the Federal Rules of Civil Procedure, summary

judgment is proper if there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. “We construe the record in the

light most favorable to the non-moving party.” Jiron, 392 F.3d at 414. However,

                                           -5-
the mere existence of a factual dispute, which is neither genuine nor material,

“does not defeat an otherwise properly supported motion for summary judgment.”

Scott v. Harris, ___ U.S. ___, 127 S. Ct. 1769, 1776 (2007). “Once a defendant

invokes the defense of qualified immunity, the plaintiff must meet a two-part

burden to avoid summary judgment.” York v. City of Las Cruces, 523 F.3d 1205,

1209 (10th Cir. 2008). The plaintiff must prove that the defendant violated a

constitutional or statutory right that was clearly established at the time of the

defendant’s unlawful conduct. Id. “In resolving questions of qualified immunity,

courts are required to resolve a ‘threshold question: 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?’” Scott, 127 S. Ct. at 1774 (quoting

Saucier v. Katz, 533 U.S. 194, 201 (2001)). If there is no constitutional violation,

the inquiry ends. York, 523 F.3d at 1209.

      Plaintiff claims that Officer Hair’s use of deadly force violated her

husband’s Fourth Amendment rights. We disagree. “We treat excessive force

claims as seizures subject to the reasonableness requirement of the Fourth

Amendment.” Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1259

(10th Cir. 2008). A plaintiff can prove a constitutional violation by

demonstrating that the amount of force used was objectively unreasonable. Id.

“We assess objective reasonableness based on whether the totality of the

circumstances justified the use of force.” Id. at 1260 (quotation marks omitted).

                                          -6-
The amount of force used is “judged from the perspective of a reasonable officer

on the scene, rather than with the 20/20 vision of hindsight,” id. at 1259

(quotation marks omitted), taking into account that “police officers are often

forced to make split-second judgments [about the amount of force necessary] – in

circumstances that are tense, uncertain, and rapidly evolving.” Saucier, 533 U.S.

at 205 (quotation mark omitted). “Furthermore, officers are not required to use

alternative, less intrusive means if their conduct is objectively reasonable.”

Jiron, 392 F.3d at 414.

      “[D]eadly force is justified under the Fourth Amendment if a reasonable

officer in [Deputy Hair’s] position would have had probable cause to believe

that there was a threat of serious harm to [himself].” Id. at 415 (quotation marks

omitted). In the same vein, “[a]n officer’s use of deadly force in self defense

is not constitutionally unreasonable.” Romero v. Bd. of County Comm’rs, 60 F.3d

702, 704 (10th Cir. 1995). “In assessing the degree of threat facing officers . . .

we consider a number of non-exclusive factors . . . includ[ing] . . . the suspect’s

compliance with police commands[,] . . . whether any hostile motions were

made with [a] weapon[,] . . . the distance separating the officers and the

suspect[,] . . . and the manifest intentions of the suspect.” Estate of Larsen,

511 F.3d at 1260.

      Under the foregoing factors, it was not unreasonable for Deputy Hair to

use deadly force. During the foot chase, Mr. Crabtree failed to heed verbal

                                         -7-
commands. When a baton strike failed to subdue Mr. Crabtree, he wrestled

Deputy Hair to the ground and tried to take his gun. Finally, Mr. Crabtree

grabbed the flashlight and delivered a forceful blow that nearly rendered Deputy

Hair unconscious. As to the distance between Mr. Crabtree and Deputy Hair

when the fatal shot was fired, the district court viewed the evidence in the light

most favorable to the plaintiff and assumed it was twenty-one feet. Distance

alone, however, does not create a genuine issue of material fact that precludes

summary judgment. Instead, “[i]n assessing objective reasonableness, we employ

no bright line rules, and in a totality of the circumstances analysis, distance is but

one factor of many. Our cases decline to adopt a per se rule where distance alone

would create a fact question as a matter of law.” Id. at 1262.

      We agree with the district court that under the totality of the circumstances,

the undisputed facts establish that Deputy Hair’s use of deadly force was

objectively reasonable. As the court explained:

      [I]t was [Mr.] Crabtree that inflicted an injury that caused [Deputy]
      Hair to suffer vision loss and become disoriented. [He] believed that
      [Mr.] Crabtree still had possession of the flashlight and plaintiff’s
      expert states that [Mr.] Crabtree was about six feet away . . . at the
      time [Deputy] Hair fired his gun. This could cause a reasonable
      police officer to fear for his life, especially considering
      [Mr.] Crabtree’s erratic behavior and [Deputy] Hair’s observation
      that [he] was under the influence of an illegal substance. Even
      assuming that [Mr.] Crabtree ended up about 21 feet from [Deputy]
      Hair . . ., at the time [he] fired his gun he had a reasonable belief that
      he needed to use deadly force in self defense.

Aplt. App. at 567.

                                          -8-
      The district court addressed and correctly resolved the other issues plaintiff

again raises on appeal. First, she asserts that factual similarities between this

incident and the shooting in Carr v. Castle, 337 F.3d 1221 (10th Cir. 2003),

require the denial of summary judgment. For the reasons explained by the district

court, Carr is distinguishable, primarily because the plaintiff in that case

produced evidence on summary judgment that the victim “was shot [in the back]

when he no longer presented a threat of harm to police. . . . [He] no longer had

the [weapon] at the time he was shot and that he was trying to flee.” Aplt. App.

at 565. There is no such evidence here.

      Second, relying on unspecified policies and procedures, plaintiff asserts

that Deputy Hair’s decision to initiate a foot pursuit without waiting for help

recklessly created the need to use deadly force. Admittedly, “[t]he

reasonableness of the use of force depends not only on whether the officers were

in danger at the precise moment that they used force, but also on whether the

officers’ own reckless or deliberate conduct during the seizure unreasonably

created the need to use such force.” Jiron, 392 F.3d at 415 (quotation marks

omitted). However, even if Deputy Hair made an error in judgment in deciding to

pursue Mr. Crabtree, this is nothing more than negligence, which is not actionable

under § 1983. Sevier v. City of Lawrence, 60 F.3d 695, 699 n.7 (10th Cir. 1995).

      Next, plaintiff argues that questions of reasonableness must always be

determined by the finder of fact, citing Street v. Parham, 929 F.2d 537 (10th Cir.

                                          -9-
1991). Street concerned whether the district court erred in allowing the jury to

consider the defendants’ qualified immunity defense after the jury had found that

one defendant had used excessive force. Id. at 538. “[W]e h[e]ld that it was error

for the jury to be further instructed regarding a qualified immunity defense after it

found that the force used was in fact reasonable.” Id.

      Fourth, plaintiff claims that the district court impermissibly weighed the

evidence and made credibility determinations that favored Deputy Hair. More

particularly, she argues that the court improperly credited Deputy Hair’s

      after the fact subjective belief that he was in fear of his life and fired
      his gun in self-defense, which, of course, is making a credibility
      determination as to [his] subjective beliefs. The trial court did not
      consider that Deputy Hair, after getting hit in the head with his
      flashlight, shot [Mr.] Crabtree in retaliation and not because he was
      in danger of death or serious bodily injury.

Aplt. Op. Br. at 34 (quotation marks omitted). To the contrary, the court

“considered this argument, but determined that it was not a reasonable inference

based on the evidence presented by plaintiff.” Aplt. App. at 636. More to

the point, “speculation and conjecture . . . that [an officer] might have

overreacted . . . is insufficient to show a constitutional violation.” Estate of

Larsen, 511 F.3d at 1263-64; see also Meyer v. Bd. of County Comm’rs, 482 F.3d

1232, 1238 (10th Cir. 2007) (stating “[m]ere speculation about [an officer’s]

motives could not prevail in summary judgment proceedings.”) As the court

stated in Graham v. Connor, 490 U.S. 386, 399 (1989) (quotation marks omitted),


                                          -10-
“[t]he Fourth Amendment inquiry is one of objective reasonableness under the

circumstances, and subjective concepts like malice and sadism have no proper

place in that inquiry.”

      Finally, we conclude there is no merit to plaintiff’s claim against the Board.

There are many grounds on which this claim fails, but we address just one.

“[O]ur conclusion [that Deputy Hair’s conduct was not unconstitutional]

precludes the imposition of any liability against [the Board].” Graves v. Thomas,

450 F.3d 1215, 1225 (10th Cir. 2006).

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court


                                                    Wade Brorby
                                                    Senior Circuit Judge




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