by David Reutter

The U.S. Court of Appeals for the Eighth Circuit reversed the grant of summary judgment on an excessive force claim in which police officers shot a man 10 times, killing him.

On March 29, 2013, Kansas City, Missouri police officers Megan Gates and Kevin Colhour responded to a call about a disturbance at Waylen Wealot’s residence. When they arrived, Kelsie Rosewicz, Waylen’s girlfriend, and Waylen’s brother, Fred, were standing outside. They told the officers that no one there called police, but they suspected some neighbor who they had been feuding with made the call. During the conversation, Waylen came outside and began yelling at the officers. At Rosewicz’s command, Waylen went back into the house.

The officers were talking to other neighbors as one of the feuding neighbors pulled up in a minivan with a group of people who got out and began shouting at Waylen, Fred, and Rosewicz. The driver got back in the minivan and drove it toward Rosewicz, jumping the curb. Waylen grabbed his gun and fired multiple times towards the minivan before taking off running toward his back yard.

Officers Gates and Colhour gave chase, with Gates in the lead. When Gates was about four-to-six feet behind Waylen, he turned, and Gates began to shoot. Gates shot Waylen eight times, continuing as he fell to the ground. She fired her last shot when she was only three-to-four feet away. Colhour shot Waylen twice. Waylen’s gun was found five-to-seven feet away from his body.

Waylen’s mother filed a federal lawsuit alleging excessive force in violation of the Fourth Amendment. The district court found that “in the very brief ten seconds at issue, neither officer observed Waylen drop his gun.” Accordingly, the court granted the defendants’ motion for summary judgment, concluding that the officers were entitled to qualified immunity because no reasonable jury could find their use of force was objectively unreasonable.

The Eighth Circuit determined that the district court’s finding that neither officer saw Waylen drop his gun was an impermissible inference of fact on an issue that was critical in determining whether the officers’ actions were reasonable.

It noted that Gates testified she never saw Waylen drop his gun and she never lost sight of him during the chase. However, Fred testified she must have seen the gun drop because when she was done shooting, she pointed out the exact spot of its location to Colhour. It was also undisputed that Waylen was turning with his arms bent at his side.

The Eighth Circuit reversed the district court’s grant of summary judgment, finding material facts as to (1) whether the officers saw Waylen throw his gun and therefore knew he was unarmed and (2) whether Waylen was turning around with his hand raised to surrender must be resolved. The Court remanded to the district court for further proceedings consistent with its opinion. See: Wealot v. Brooks, 865 F.3d 1119 (8th Cir. 2017). 

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