DeLuna, Martha v. v. City Rockford IL , 447 F.3d 1008 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1337
MARTHA V. DELUNA, individually and
as Administrator for the Estate of Luis
Roberto DeLuna, deceased, and as next
friend of her minor children Martha
Virydiana, Alejandra and Luis Roberto,
Plaintiff-Appellant,
v.
CITY OF ROCKFORD, ILLINOIS, RANDALL
PERAZA, LIEUTENANT SALMONE, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 00 C 50040—Philip G. Reinhard, Judge.
____________
ARGUED JANUARY 17, 2006—DECIDED MAY 18, 2006
____________
Before BAUER, ROVNER, and SYKES, Circuit Judges.
ROVNER, Circuit Judge. On March 21, 1998, officer
Randall Peraza responded to a report of a domestic distur-
bance, and his subsequent encounter with Luis Roberto
DeLuna culminated in the fatal shooting of DeLuna by
Peraza. DeLuna’s widow, on behalf of herself and her minor
children, filed this action pursuant to 42 U.S.C. § 1983 and
2 No. 05-1337
Illinois law against Peraza, alleging Fourth Amendment
and wrongful death claims. The plaintiff also raised chal-
lenges to the actions of other officers following the shooting
who took the statement of herself and her daughter,
arguing that their actions violated the Fourth and First
Amendments. Mrs. DeLuna reverted to her maiden name,
Martha Lopez, following the death of her husband, and will
be referred to by that name throughout this opinion.
The district court granted summary judgment in favor
of the defendants, and Lopez appeals. Therefore, we must
consider the facts including reasonable inferences there-
from, in the light most favorable to Lopez. Fisher v. Lovejoy,
414 F.3d 659, 661 (7th Cir. 2005).
We first consider Lopez’s Fourth Amendment and wrong-
ful death claims arising out of the death of DeLuna. The
Fourth Amendment is implicated because a police officer’s
use of deadly force constitutes a seizure within the meaning
of that amendment and therefore is constitutional only if it
is reasonable. Tennessee v. Garner, 471 U.S. 1, 7, 11 (1985);
Scott v. Edinburg, 346 F.3d 752, 755-56 (7th Cir. 2003).
Reasonableness is not based on hindsight, but rather is
determined considering the perspective of the officer on the
scene, allowing “for the fact that police officers are often
forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the
amount of force that is necessary in a particular situation.”
Graham v. Connor, 490 U.S. 386, 396-97 (1989); Scott, 346
F.3d at 756. The focus is on whether the actions of the
officer are objectively reasonable. Id. If an officer believes
that the suspect’s actions place him, or others in the
immediate vicinity, in imminent danger of death or serious
bodily injury, deadly force can reasonably be used. Scott,
346 F.3d at 756; Muhammed v. City of Chicago, 316 F.3d
680, 683 (7th Cir. 2002).
The facts undisputed by Lopez are themselves sufficient
to establish imminent danger to Peraza so as to render
No. 05-1337 3
deadly force reasonable. At approximately 4:14 on the
morning of March 29, 1998, Peraza received a dispatch
regarding a domestic disturbance at Lopez’s residence. This
was not Peraza’s first call to that home. In fact, eight days
earlier, Peraza had responded to a similar call from that
residence. On that occasion, Peraza perceived that DeLuna
was intoxicated and was yelling at Lopez. Lopez informed
Peraza that DeLuna was known to be very violent. He
was also aware from that experience that Lopez had a
daughter who was a minor. DeLuna was arrested at that
time and placed in a holding cell. Peraza was subsequently
told by other officers that in the holding cell, DeLuna
became very violent, punching and slamming his head
against the cement walls.1 At the time of this incident,
Peraza observed that DeLuna had an extensive arrest
history, and Lopez told him that DeLuna was known to
carry weapons. That was consistent with an earlier experi-
ence in which Peraza recorded a written statement from a
person who stated that he had purchased guns from
DeLuna.
With the knowledge gained from that earlier exposure to
DeLuna and Lopez, Peraza responded to the 911 call in the
early morning hours of March 29, arriving at the house
approximately a minute after receiving the dispatch and
advising dispatch that he was at the scene. From inside the
squad car, he could not see the suspect, DeLuna. His main
concern as he arrived was whether DeLuna was in the
house. He was aware that children had been present in the
house the week prior, and that Lopez had told him that she
had been battered badly before. Peraza exited his vehicle
and walked toward the front of it. Lopez saw Peraza from
1
This statement was not agreed to by Lopez, although her
objection was not to the substance but that it was inadmissible
hearsay. That objection would not impact its use in establishing
Peraza’s state of mind, rather than for the truth of the matter.
4 No. 05-1337
the kitchen window, and she continued to yell to him
outside the entire time after Peraza left his squad car. As
Peraza was proceeding to the front of his vehicle, something
caught his attention from the right side. He saw movement
in the dark, and then recognized DeLuna standing at the
northwest corner of the house. DeLuna had no shirt on even
though it was 4:14 a.m. on that Spring day, and he did
not appear to be cold. Peraza said “Hey Concepcion,
Concepcion” a couple of times to get DeLuna’s attention,
asking “What’s going on?”2
DeLuna responded: “I’ve got something for you. You are
going to have to kill me.” Peraza had his gun drawn, and
told DeLuna to raise his hands. DeLuna did not raise his
hands, but began walking towards DeLuna with his arms
extended out to his sides. Peraza and DeLuna were facing
each other, and therefore Peraza would not have been able
to see whether DeLuna possessed any weapon in his back
waistband. As DeLuna walked toward Peraza, Peraza began
to walk backward, maintaining a distance between the two.
As Peraza and DeLuna turned to move southward along the
east side of the house, Peraza continued to back away from
DeLuna. As DeLuna moved along the east side of the house
toward the back-pedaling Peraza, DeLuna told Peraza “If
you are going to shoot me, shoot me here,” pointing to his
chest with his right hand. Lopez was yelling out the window
as the scene unfolded. In the course of yelling, she told
Peraza not to shoot, stating that DeLuna had nothing in his
hands. At some point, Lopez could no longer see or hear
Peraza and DeLuna from the back window, and she moved
to the east side kitchen door.
Because Peraza was walking backward and looking at
DeLuna the entire time, he did not know what was behind
2
All of the conversations between Peraza and DeLuna on this
night were in Spanish, but will be set forth in English in this
opinion.
No. 05-1337 5
him. He told DeLuna to “stop,” but DeLuna disregarded him
and continued walking toward him. There was a dirt hole
in the driveway and a black plastic pipe in the dirt that was
hooked up to a downspout from the roof. Peraza stumbled
at that point and struggled to maintain his balance. In the
meantime, Lopez’s houseguest was pulling Lopez into the
kitchen away from the door, and pulled her to the floor.
When Lopez hit the floor, she heard a shot fired. Before she
heard that shot, 2-3 seconds had passed when she was
unable to see what was happening outside.
All of that is conceded by Lopez. In addition to that,
Peraza stated that DeLuna lunged toward him as he
stumbled, and that he feared DeLuna was either reaching
for a weapon behind his back or attempting to reach
Peraza’s weapon. At that time, he fired the shot. Lopez
disputes that statement, arguing that Peraza should not
be believed because he provided differing explanations as to
what he feared. What is uncontested, however, is that
DeLuna was disregarding Peraza’s order to stop and to
raise his hands, and that Peraza continued to back up
before and after killing DeLuna, with his momentum
carrying him out of the mud hole. Also undisputed is that
Peraza was only on the scene for 1 minute, 25 seconds
before shooting DeLuna, and backed up 40-50 feet over that
period of time. Finally, Lopez acknowledges the expert
testimony presented by Peraza, that to a reasonable degree
of medical, forensic, and scientific certainty, at the time of
the bullet entry, DeLuna had a flexed forward torso, which
is one in which the person is leaning forward at the waist.
The expert further attested that the bullet angle would be
consistent with the suspect making a lunging motion
towards the officer. The expert opinion was premised upon
the hypothetical that: Peraza fired one shot which struck
DeLuna; Peraza fired his weapon using his left hand while
moving backward in a slightly crouching position; Peraza
and DeLuna were anywhere from 5-15 feet apart when the
6 No. 05-1337
shot was fired; the height difference between Peraza and
DeLuna was within 1-2"; DeLuna was on his feet when
struck by the bullet; and Peraza and DeLuna were on level
terrain within plus or minus 5 inches of elevation. Lopez
did not provide any evidence disputing the premise of the
hypothetical.
The undisputed facts in the record demonstrate that
Peraza acted reasonably in firing the shot. At the time of
the shooting, Peraza was presented with a suspect who had
a history of violence, and who was known to both carry and
sell weapons. Peraza could not know whether DeLuna
possessed a weapon in the back of his waistband. DeLuna
was acting in an irrational manner, appearing shirtless and
disregarding repeated instructions to raise his hands and to
stop. DeLuna’s refusal to heed those demands and his
continued approach towards Peraza posed a danger to
Peraza. The potential danger inherent in that situation was
escalated by the threat made by DeLuna when he first saw
Peraza that he “had something for” Peraza and that Peraza
was going to have to kill him. His subsequent statement
that if Peraza was going to shoot him, he should shoot him
in the chest further indicated that this was a dangerous
situation, both in its anticipation of violence and in its
implication that the shot had better be fatal. The combina-
tion of those undisputed statements at a minimum estab-
lished an unstable situation with an uncooperative person
who had a history of violence and weapons possession. After
backing up 40-50 feet in less than a minute and a half,
Peraza stumbled, and fired a shot at DeLuna. The uncon-
tradicted expert testimony was that DeLuna was leaning
forward at the waist towards Peraza at the time of the shot,
which is consistent with Peraza’s testimony that DeLuna
lunged towards him as he stumbled. Lopez has presented
nothing contradicting that testimony. Regardless of
whether Peraza saw a gun or believed DeLuna was reach-
ing for Peraza’s weapon, the action of DeLuna lunging
No. 05-1337 7
towards him after the threats and bizarre conduct, estab-
lished the real danger of imminent serious bodily injury
should DeLuna succeed in reaching Peraza. Peraza need not
wait until there is a physical struggle for control of his
weapon before a situation presents an imminent danger of
serious physical injury.
This case is similar to a situation addressed recently by
the Tenth Circuit in Blossom v. Yarbrough, 429 F.3d 963(10th Cir. 2005), in which the court concluded that the use
of deadly force was reasonable. In Blossom, the court was
presented with similar facts of a confrontational person
advancing on an officer, with the suspect eventually shot by
that officer. Contrary to our case, the officer in Blossom had
actually pursued the suspect, who had been accused of
refusing to leave someone’s car but had attempted to walk
away from the confrontation once the officer arrived. Id. at
965-66. Ultimately, however, the suspect became confronta-
tional, continuing his approach towards the officer who
attempted to maintain distance from him by walking
backward, and disregarding the officer’s instructions to get
on the ground. Id. The evidence was in dispute as to
whether the suspect in Blossom lunged towards the officer
before being shot, but it was clear that the suspect was
advancing on the officer in what reasonably appeared to be
an effort to get his weapon, and that was sufficient for the
court to determine that deadly force was reasonable to
address the immediate threat to the officer’s safety.
DeLuna’s conduct in this case similarly presented an
immediate threat to the officer’s safety, and the district
court properly granted summary judgment to the defen-
dants on this ground.
Lopez asserts, however, that even if the § 1983 standard
is not met, she can still establish wrongful death under
state law, and that the district court erred in treating the
two as synonymous. It is true that the district court did not
address separately the standards of wrongful death under
8 No. 05-1337
Illinois law, and that the two are not necessarily cotermi-
nous. In fact, in Carter v. Chicago Police Officers, 165 F.3d
1071, 1081 (7th Cir. 1998), we recognized that a court may
find conduct to be unreasonable for Fourth Amendment
purposes, but not willful and wanton so as to violate Illinois
law. Lopez, however, seeks the opposite result; she seeks a
determination that conduct which is a reasonable response
under the Fourth Amendment nevertheless can constitute
willful and wanton conduct under state law. The difficulties
of such a quest are apparent.
Lopez argues that in the wrongful death claim, in con-
trast to the § 1983 claim, the court must determine whether
Peraza’s alleged reckless actions caused the situation to
escalate, creating an unreasonably dangerous situation. She
argues that Peraza failed to follow department policy that
would have required him to wait for backup unless the
situation demanded immediate action. It is questionable
whether one could actually characterize an officer’s conduct
to be in reckless disregard for the safety of others when,
knowing that a violent, potentially-armed man could be in
a house with minor children and that the occupants have
sought police aid, he decides not to wait by the car before
attempting to help or at least further assess the situation.
We need not decide that issue, however, because the
sequence of events conceded by Lopez do not reveal any
such conduct. The undisputed facts are only that Peraza
was walking toward the front of his car when he perceived
movement from the corner of his eye and recognized
DeLuna. He had not yet had the opportunity to approach
the house or otherwise intervene without the assistance of
backup officers. Once he observed DeLuna, he simply called
to DeLuna and asked what was going on. DeLuna’s re-
sponse that he “had something” for Peraza and that Peraza
was going to have to kill him, as well as DeLuna’s action in
walking toward Peraza, escalated the encounter, not any
action by Peraza. Thus, Lopez has failed to allege facts that
No. 05-1337 9
Peraza was acting in a reckless manner that created the
dangerous situation, and therefore we need not consider
whether Illinois would recognize such a claim; it has not
been established here in any case. Accordingly, the district
court did not err in granting summary judgment on these
claims. Because we uphold summary judgment on the
claims, we need not consider the plaintiff’s First Amend-
ment claim that was expressly conditioned on success on
the claims relating to the death.
Lopez also asserts a Fourth Amendment claim on behalf
of herself and her 13-year-old daughter, based on the
conduct of the police following the shooting. Shortly after
the shooting, the police transported Lopez and her daugh-
ter, Martha DeLuna, to the police station to take their
statements regarding the events that had transpired. Lopez
claims that the police questioning of her and her daughter
following the shooting constituted an unreasonable seizure
under the Fourth Amendment.
A person is “seized” for Fourth Amendment purposes
“only if, in view of all of the circumstances surrounding
the incident, a reasonable person [in the subject’s posi-
tion] would have believed that he was not free to leave.”
United States v. Mendenhall, 446 U.S. 544, 554 (1980). We
have described the type of circumstances in which a
reasonable person might believe that he was not free to
leave. For instance,
[t]he Supreme Court has noted that a reasonable person
might not believe he was free to leave when faced with
“the threatening presence of several officers, the display
of a weapon by an officer, some physical touching of the
person of the citizen, or the use of language or tone of
voice indicating that compliance with the officer’s
request might be compelled.” Mendenhall, 446 U.S. at
554. Furthermore, this court has noted some other
factors that might influence a reasonable individual to
10 No. 05-1337
believe that he was not free to leave: “whether the
encounter occurred in a public or private place; whether
the suspect was informed that he was . . . free to
leave; . . . whether there was physical touching, display
of weapons, or other threatening conduct; and whether
the suspect eventually departed the area without
hindrance.” United States v. Scheets, 188 F.3d 829, 836-
37 (7th Cir. 1999), cert. denied, 528 U.S. 1096 (2000).
Leaf v. Shelnutt, 400 F.3d 1070, 1089-90 (7th Cir. 2005).
Lopez has failed to present any evidence of coercion or
conduct that would lead a reasonable person to believe that
she was not free to leave. In fact, the record belies any such
belief. One of the undisputed statements of fact is that
Martha DeLuna “agreed” to go to the police station to
provide a statement. In the statement of undisputed facts,
the plaintiff further acknowledges that the officers had
a legitimate interest in interviewing them shortly after
the incident, that it was reasonable for them to be inter-
viewed separately, and that Lopez was never searched or
handcuffed, and no one grabbed her arms or hands to lead
her along when she walked to the police car. Significantly,
in her deposition when describing her time at the police
station, Lopez acknowledged “I could probably have left or
tried to get out,” but stated that she did not do so because
she trusted that the police would take her to the hospital as
soon as possible to see her husband. That is inconsistent
with a belief that she was not free to leave. The plaintiff did
not present any evidence of police conduct that was coercive
or threatening, or otherwise establishing that they were not
in fact free to leave. The closest that Lopez comes is a
statement that the police brought her to a room and told
her to stay there, but she later characterized the statement
as simply telling her to wait there. That is inadequate to
establish a reasonable belief that she was not free to leave.
Nor does Lopez’s own conduct indicate that she was intimi-
dated by the police authority. Although it took hours for the
No. 05-1337 11
police to finish preparing her statement, much of that delay
was because the police provided an interpreter for Lopez,
and because the statement was redone three times when
Lopez told the officers that information was missing from
the statement, and requested that it be retyped to include
that information. At most, Lopez has demonstrated that the
officers wanted to interview them after the shooting, and
that the officers facilitated that interview by providing
transportation to the police station and promising to
transport them to the hospital when the statements were
completed. The officers mere desire to interview them
promptly does not equate with coercion, and Lopez has
provided nothing more in this record. Accordingly, the
district court properly granted summary judgment on this
claim as well. The decision of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-18-06