## F I L E D United States Court of Appeals Tenth Circuit 

### September 2, 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BLAIN PHILLIPS and LISA PHILLIPS, Plaintiffs-Appellants,

v. BRAD JAMES; SALEM CITY; UTAH COUNTY; and JAMES ADAMSON, personal representative of the estate of Shaun Adamson, Defendants-Appellees. No. 03-4272

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH (D.C. No. 2:01-CV-1000-C)

Ryan D. Tenney (Jackson Howard, D. David Lambert, L eslie W. Slaugh, and Kenneth Parkinson with him on the briefs) of Howard , Lewis & Petersen, P.C., Provo, Utah, for Plaintiffs-Appellants. Kurt M. Frankenburg of Williams & Hunt, Salt Lake C ity, Utah (Carolyn Stevens Jensen of Williams & Hunt, with him on the brief fo r Defendants-Appellees Brad James and Salem City; Peter Stirba and Gary R. Guel ker of Stirba & Associates, Salt Lake City, Utah, on the brief for Defendants-Appellees), for DefendantsAppellees.

Before LUCERO , McKAY , and MURPHY , Circuit Judges.-2-

McKAY , Circuit Judge.

This case began as a call for help. On August 12, 2001, Mr. and Mrs. Phillips had a marital dispute which ended with Mr. Phillips entering his bedroom alone stating, “You started this and I’ll finish it .” Aplt. App., Vol. I, at 146. Fearing that her husband might hurt himself, Mrs. P hillips called 911. Before speaking with anyone at 911, however, she hung up t he telephone because she saw Mr. Phillips leave the bedroom. A dispatch officer called Mrs. Phillips back. Mrs. Phillips told the officer that the problem was resolved, and that there was n o need to send over assistance. The officer informed Mrs. Phillips that it was rout ine procedure to send an officer to her house and that such procedure would be follo wed. After Mrs. Phillips hung up the phone this time, Mr. Phillips discerned from the caller ID that 911 had been contacted. He then barricaded himself in his bedroom. Shortly thereafter, officers arrived from the Salem City Police Department; Mrs. Phillips let the officers into the house so th ey could discuss the problems that had occurred earlier. As a result of this dis cussion, the officers learned that Mr. Phillips was upset (according to Mrs. Phillips, she and her husband had been fighting for a few days), that there was a consider able amount of firearms in the house, and that he had threatened to harm himself. The officers attempted to talk-3-

to Mr. Phillips through the bedroom door. Despite the officers’ repeated requests, Mr. Philli ps refused to leave the bedroom. To the officers, Mr. Phillips appeared ag itated. At one point during their discussion, an officer believed that he heard the sound of shotgun rounds being loaded into a shotgun. Thereafter, in an eff ort to determine if the door was locked, an officer began to turn the doorknob on th e bedroom door. When he saw the doorknob turning, Mr. Phillips exclaimed to the officers that if anybody tried to come through the bedroom door, they would be sor ry. After this exchange, the officers determined that t hey needed further assistance in assessing the situation and decided t o call in the Salem City Police Chief, Brad James (“Chief James”). Chief James ask ed Mr. Phillips if he could talk to him. Mr. Phillips vehemently denied Chief James’ request and told him to leave. In addition, Mr. Phillips threatened Chief James indicating that if his bedroom door moved an inch, he would fire five shot gun shells into the door. Chief James told Mr. Phillips that he would not leave until Mr. Phillips came out of his room and assured them that the situation was nonthreatening. After Mr. Phillips repeatedly failed to comply with his reque sts, Chief James called the
SWAT team. The SWAT team arrived and set up around the perimet er of the home. Sergeant Shaun Adamson (“Sgt. Adamson”), as part of the SWAT team, set up1 Based on his position at the scene, Sgt. Adamson wa s responsible for the

safety of the other officers.

2 Although the SWAT team members, including Sgt. Adam son, were stationed around the perimeter of the house, they w ere kept abreast of new information arising from Lt. Carter’s conversation via radios that were tuned into a specific police frequency. Aplt. App., Vol. II, at 323. -4- post in a tree near the room where Mr. Phillips was located. 1 Lieutenant Scott Carter (“Lt. Carter”), a trained hostage negotiatorwith the Utah County Sheriff’s Department, attempted to contact Mr. Phillips by ph one. 2 After several attempts, Lt. Carter finally contacted Mr. Phillips on the ph one and, for over an hour, tried to convince him to come of out the house. During t he course of the conversation, Mr. Phillips became more and more agitated and made repeated references to his “guns.” For example, Mr. Phillips stated, “I got 3 0 guns, and I got [sic] more ammo. I can hold up in here for an hour.” Aplt. App., Vol. III, at 354. He also informed Lt. Carter about his violent history with police officers: “I pulled a gun on a Wasatch County Sheriff and he pissed his pants and I loved to see it. . . . I shoved the gun right up his nose and he pissed his pants.” Id. at 359. He then warned Lt. Carter not to send any officers into the house: “Yeah, just don’t try to come in the house. Just thought I’d tell ya. Come through the back door, 20 gauge is gonna go off; come up to the front door, a410’s gonna go off.” Id. at 363. When asked whether he had been drinking, Mr. Phillips responded, “Just as much as I can.” Id. Mr. Phillips again told Mr. Carter what would happe n if he-5-

tried to go inside his home: MR. PHILLIPS: There’s a gun (inaudible) house. I checked the whole house, nobody’s in the house. LT. CARTER: Good. MR. PHILLIPS: Let the dogs in the house (inaudible ) they’ll chew whoever comes in the house. LT. CARTER: Okay, I see. MR. PHILLIPS: Okay. I put a gun (inaudible) that door come own [sic], it goes off. Put a gun on the back door, be tween – two doors in the back door. . . . Okay. I got a 20 gauge on th at one. Anybody opens that door, boom, it goes off. Next door, aga in, it will go off. My door, I got a 12 gauge, a (Inaudible) 500 Browni ng automatic five shell, or six counting one in the barrel. Id. at 365-66. As this conversation continued, Mr. Phillips became convinced that someone had altered the temperature in his house. In an effort to remedy the situation, he left the house. For reasons known on ly to him, he was armed when he went outside. While outside, the officers repeatedly asked Mr. Phillips to drop his weapon. He refused to comply with their reques ts. Instead, Mr. Phillips took this opportunity to take note of the officers’ location in the surrounding area, looking directly at the officers in the trees, incl uding Sgt. Adamson. Mr. Phillips, still armed, then went back into his house. Inside his room again, Mr. Phillips slid open a window and propped it up with a cup. S gt. Adamson believed Mr. Phillips was preparing to shoot at the SWAT team th rough the window. While Mr. Phillips continued to talk with Lt. Carte r, other officers attempted to disconnect the power to Mr. Phillips’ residence. Mr. Phillips-6-

apparently spotted one of the officers and yelled, “hey a**hole, get away from there.” Id. at 374. Mr. Phillips continued yelling, “Tell tho se guys in the backyard – the back screens are off so I got a CLEAN shot.” Id. (emphasis added). Immediately upon hearing of Mr. Phillips’ clean shot opportunity, Sgt. Adamson shot Mr. Phillips. Based on the foregoing events, Mr. Phillips broughtsuit pursuant to 42 U.S.C. § 1983 against Sgt. Adamson, Chief James, Ut ah County, and Salem City alleging excessive use of force. Mrs. Phillips joi ned the suit claiming emotional damages. After protracted litigation, Defendants b rought motions for summary judgment. The district court granted Defendants’ s ummary judgment motions concluding that Chief James and Sgt. Adamson were e ntitled to qualified immunity because Mr. Phillips did not suffer a cons titutional injury. Correspondingly, the district court held that theirrespective employers, Salem City and Utah County were also entitled to summary judgment; dismissal of all the claims hinged on issues addressed by the qualif ied immunity inquiry. Plaintiffs now appeal and raise the following four issues: (1) whether Mr. Phillips was unreasonably seized, (2) whether the d ecision to deploy the SWAT team was reasonable, (3) whether it was reasonable for Sgt. Adamson to shoot Mr. Phillips, and (4) whether interview statements of Sgt. Adamson are admissible hearsay.-7-

We review de novo the grant of a summary judgment motion based on a qualified immunity defense. Lawmaster v. Ward, 125 F.3d 1341, 1346 (10th Cir. 1997). Qualified immunity “protects ‘all but the p lainly incompetent or those who knowingly violate the law.’” Gross v. Pirtle , 245 F.3d 1151, 1155 (10th Cir. 2001) (quoting Malley v. Briggs , 475 U.S. 335, 341 (1986)). In the summary judgment setting, when a defendant raises a qualifi ed immunity defense, a heavy two-part burden must be overcome by the plaintiff. Medina v. Cram , 252 F.3d 1124, 1128 (10th Cir. 2001). Plaintiff must first establish that “the facts alleged [taken in the light most favorable to the nonmoving party] show the officer's conduct violated a constitutional right.” Saucier v. Katz , 533 U.S. 194, 201 (2001); Medina , 252 F.3d at 1128. Second, Plaintiff must demonst rate that the right was clearly established. Id. In this case, the district court did not address th e second inquiry because it ruled that Plaintiffs had not established the firstpart of the qualified immunity inquiry that Defendants violated the Phillips’ cons titutional rights. Aplt. App., Vol. XI, at 1851, 1856; see also Holland v. Overdorff , 268 F.3d 1179, 1186 (10th Cir. 2001) (explaining that a plaintiff’s failure t o establish the first prong is sufficient grounds for granting qualified immunity) . The parties’ arguments focus this court’s attention solely to the first qualifie d immunity question. Following the parties’ lead, we only address whether the offi cers’ conduct violated the-8-

Fourth Amendment. Saucier , 533 U.S. at 201. To be constitutionally permissible, an officer’s us e of force must be reasonable, which is measured “from the perspective of a reasonable officer on the scene,” recognizing that officers are sometimes “forced to make split-second judgments” in uncertain and dangerous circumstances

. Graham v. Connor , 490 U.S. 386, 395, 396-97 (1989). What may later appea r to be unnecessary when reviewed from the comfort of a judge’s chambers may nonetheless be reasonable under the circumstances presented to the officer atthe time. Id. at 396. In making the reasonableness determination, we mustcarefully balance “the nature and quality of the intrusion on the individu al’s Fourth Amendment interests against the countervailing governmental i nterests at stake.” Id. (internal quotation marks omitted). There is not a precise f ormula to apply, but relevant factors to consider include “the severity of the cr ime at issue, whether the suspect poses an immediate threat to the safety of the offi cers or others, and whether he is actively resisting arrest or attempting to evade ar rest by flight.” Id. As with all reasonableness inquiries, the touchstone is the tot ality of the circumstances. Id. We first note that neither party takes issue with t he district court’s assumption that Defendants seized Mr. Phillips. Ne ither will we. See Foote v. Spiegel , 118 F.3d 1416, 1422 (10th Cir. 1997) (explaining that we only have jurisdiction to address issues raised in the notice of appeal). Plaintiffs’ first3 The fact that Mrs. Phillips did not hear this chamb ering is insufficient to

create a genuine issue because she was not in the s ame location as the officers when this allegedly took place. -9- contention is that the seizure was unreasonable at its inception in light of Mr. Phillips’ assurances to the officers through the be droom door that he was alright. The district court concluded that the officers’ des ire to personally observe Mr. Phillips before leaving the premises was reasonable considering: (1) Mr. Phillips’ irrational response to the office rs’ requests that he come out of his bedroom; (2) Mr. Phillips’ decisionto barricade himself in his bedroom, where he had weapons and am munition; (3) Ms. Phillips’ statement that Mr. Phillips was on an tidepressant medication; (4) Mrs. Phillips expressed concern that Mr. Phillips would hurt himself; and (5) the officers’ knowledge that Mr. Phillips had been drinking. Aplt. App., Vol. XI, at 1848. Plaintiffs claim that each of these facts is disputed, rendering summary judgment inappropriate. After th oroughly reviewing Plaintiffs’ contentions, we disagree. Other than disagreeing with the adjective used to d escribe Mr. Phillips’ initial response, “irrational,” Plaintiffs do not d ispute the fact that Mr. Phillips chose not to exit his bedroom and talk with the off icers when they requested that he do so. Neither do they dispute that the officer s heard a noise come from Mr. Phillips’ bedroom, what they believed to be the cha mbering of a shotgun shell. 3 These, and other, responses to the officers’ reques ts are both relevant to the analysis and not disputed.-10-

Plaintiffs also failed to cite to record evidence c ontradictory to the clear evidence that Defendant barricaded himself in his r oom. Plaintiffs instead argue that it was not illegal for him to do so. The lega lity of Mr. Phillips’ actions is irrelevant to our inquiry. There is not a genuine issue of fact as to whether Mr. Phillips barricaded himself in his room. Although we disagree with Plaintiffs that Mr. Phill ips’ use of antidepressant medication is somehow not part of th e totality of the circumstances we are to consider in a reasonableness inquiry, we agree that the only factors that can reasonably be considered are those known to the officers prior to making the disputed decision (i.e., to seize a person, to use force, etc.). However, Plaintiffs do not direct us to the location in the voluminous record where we can find support for their proposition that Defendants did n ot know about Mr. Phillips’ use of antidepressants before they seized him. Absent such, we will not sift through the record to find support for this argument. SEC v. Thomas , 965 F.2d 825, 827 (10th Cir. 1992). In light of this omission, we do not consider this issue. See 10th Cir. R. 28.2(C)(1). Therefore, for purposes o f this appeal, we cannot say that the district court erred in considering Mr. Ph illips’ use of antidepressant medication as part of the totality of the circumsta nces presented to the officers in deciding to seize Mr. Phillips. Turning to the alleged factual dispute over Mrs. Ph illips’ comments that-11-

she feared for her husband’s safety, Mrs. Phillips argues that her subsequent recanting of her original call and later claims are sufficient to demonstrate a genuine issue. We note that Mrs. Phillips first expressed concern about the situation as a whole when she dialed 911. The factthat she told the officers thereafter that everything was okay does not alter the initial fact that something was amiss between Mr. and Mrs. Phillips sufficient for her to call for help. There are a number of reasons why someone in Mrs. Phillip s’ shoes would say, after initially dialing 911 and later when the officers a rrived, that the situation was resolved. Numerous circumstances could have made h er change her story (threats could have been made, weapons drawn, etc.). That i s why we give great latitude to police officers when presented with domestic dis turbance scenarios. See Hiibel v. Sixth Judicial Dist. Ct. of Nev. , 542 U.S. 177, 124 S. Ct. 2451, 2458 (2004). In further support of this fact, Mrs. Phillips stated that, prior to entering his room alone, Mr. Phillips stated, “You started this and I ’ll finish it.” Aplt. App., Vol. I, at 146. That Mrs. Phillips expressed concern aboutMr. Phillips’ safety is not in dispute. Finally, Plaintiffs allege a factual dispute exists surrounding the officer’s knowledge about Mr. Phillips’ alcohol consumption. To support this argument, Plaintiffs refer the court to Mr. Phillips’ deposit ion testimony wherein he states that he did not begin drinking until after the offi cers arrived. Aplt. App., Vol. II,-12-

at 197. This evidence is insufficient to demonstrate a genuine issue of material fact as to the officers’ knowledge. When he began drinking and whether he began drinking is irrelevant. We are only concerned with what the officers knew, which is based on what Mr. Phillips told the officers, no t with what he actually did. Plaintiffs have failed to counter the factual assertions proffered by Defendants to demonstrate a genuine issue of materi al fact. Therefore, despite belief that material facts are in dispute, the dist rict court did not err in concluding that the initial seizure of Mr. Phillips was reason able. Plaintiffs next contend that Chief James’ decision to employ the assistance of the SWAT team rendered the seizure unreasonable. Each decision made by the officers that changes the circumstances during Mr. Phillips’ seizure is subject to “reasonableness” scrutiny. See Holland, 268 F.3d at 1193. We have previously noted that the decision to deploy a SWAT team can, in certain situations, involve “an overwhelming show of force – force far greater than that normally applied in police encounters with citizens.” Id. at 1190. Our decision in Holland addressed the “decision to employ a SWAT team to make an arre st on a misdemeanor warrant and to conduct a search of a residence.” Id. at 1189. We are presented with a very different situation in this case. Holland is therefore inapposite. In this case, the SWAT team was not requested to ex ecute an arrest of Mr. Phillips or to search his residence; the SWAT team in this instance was called in-13-

as back up and performed the more passive role of s ecuring the perimeter. It is important to note that the initial purpose for whic h the officers came to Mr. Phillips’ house was based on Mrs. Phillips’ 911 cal l related to an apparent domestic disturbance. The Supreme Court has commen ted on the latitude given to police officers in responding to domestic-disturban ce calls: “Officers called to investigate domestic disputes need to know whom the y are dealing with in order to assess the situation, the threat to their own sa fety, and possible danger to the potential victim.” Hiibel , 124 S. Ct. at 2458. In this case, while attempting to “assess the situation,” Officer Dibble learned from Mrs. Phillips that her husband was barricaded in a room filled with weapons and that he had threatened to hurt himself. In talking with Mr. Phillips, Officer Dibble also thought he heard Mr. Phillips c hamber a shotgun shell. Chief James was called in to assess the situation. When he checked to see if the door was locked, Mr. Phillips threatened to fire five sh otgun shells into the door, which was directly in front of Chief James. Armed with this information, coupled with the violent threats made by Mr. Phillips and h is clearly unstable condition, Chief James was not unreasonable in requesting the passive assistance of the
SWAT team. Finally, we address Plaintiffs’ argument that Sgt. Adamson’s use of deadly4 We do not address Plaintiffs’ “evidentiary issue” b ecause consideration of

that issue would not affect the ultimate outcome of this appeal. See Griffin v. Davies , 929 F.2d 550, 554 (10th Cir. 1991) (The court “wi ll not undertake to decide issues that do not affect the outcome of a d ispute.”); see also United States v. Torres , 182 F.3d 1156, 1164 n.2 (10th Cir. 1999) (“[P]rin ciples of judicial restraint” require us not to issue “an opinion thatis unnecessary and meaningless as applied to the [parties] in this case.”). -14- force violated the Fourth Amendment. 4 Specifically, Plaintiffs argue that Sgt. Adamson’s decision to shoot Mr. Phillips was unreas onable. The use of deadly force is justified under the Fourth Amendment “if areasonable officer in the Defendant’s position would have had probable cause to believe that there was a threat of serious physical harm to themselves or to others.” Sevier v. City of
Lawrence , 60 F.3d 695, 699 (10th Cir. 1995). Again, this d etermination turns on the totality of the circumstances. Graham , 490 U.S. at 396. Critical ingredients in the totality of the circumstances’ inquiry in th is case include “whether the officers were in danger at the precise moment that they used force and . . . whether Defendants’ own reckless or deliberate cond uct [footnote omitted] during the seizure unreasonably created the need to use su ch force.” Sevier , 60 F.3d at
699. Plaintiffs’ argument relies heavily on the “precise moment” factor. Specifically, Plaintiffs argue that Sgt. Adamson wa s not in danger of serious bodily injury immediately prior to the time when he shot Mr. Phillips. Strict reliance on just one factor when the totality must be considered is inappropriate.-15-

See Florida v. Bostick, 501 U.S. 429, 437 (1991). In addition, although the precise moment before Sgt. Adamson shot is a critic al factor, the events leading up to that moment are also extremely relevant. Whe n considered in the totality of the circumstances, Sgt. Adamson’s decision to shootMr. Phillips was not unreasonable. In addition to the circumstances noted above, the s ituation presented to Sgt. Adamson had escalated considerably from the point w hen Chief James requested the assistance of the SWAT team. When the SWAT tea m arrived, Lt. Carter, the hostage negotiator, spoke with Mr. Phillips for ove r an hour. SWAT team members learned of the status of these negotiations by radio. They learned that “Mr. Phillips (1) was acting aggressively, (2) poss essed a number of firearms that were located in the residence, including a high pow ered rifle, (3) had stated that he was willing to wait things out for however long they took, (4) had stated he was agitated by the number of law enforcement perso nnel surrounding the residence, (5) was possibly intoxicated, and (6) ha d stated he would shoot any officers who tried to remove him from the home.” Aplt. App., Vol. II, at 323; Vol. III, at 378-79. In addition, SWAT team members also personally saw Mr. Phillips exit his home carrying a handgun. Mr. Phillips repeatedly r efused to cooperate with the officers when they requested that he put down his w eapon. Id. , Vol. II., at 324;-16-

Vol. III, at 379. Instead, Mr. Phillips looked dir ectly at Sgt. Adamson who was positioned in the tree. Id. , Vol. III, at 379. After he went back inside his house, Mr. Phillips opened a small window and propped it up with a cup. Id. at 379. Mr. Phillips then threatened officers who were atte mpting to shut off the power to his house: “Hey, a**holes, get away from there . . . I’m gonna shoot his f***ing arm off.” Id. , Vol, II, at 324; Vol. III, at 380. Mr. Phillips then knocked the screen out of the small window, and an officer thou ght he saw him holding a gun in his other hand. Id. , Vol. III, at 380. Mr. Phillips yelled through th e window that he could “take somebody’s arm off” and that “t he back screen[ was] off so [he had] a CLEAN shot.” Id. (emphasis in original). Immediately after exclaiming that he had a CLEAN shot, Sgt. Adamson s hot Mr. Phillips. The situation presented to Officer Adamson was clea rly a tense, uncertain, and rapidly evolving situation that we do not like to second-guess using the 20/20 hindsight found in the comfort of a judge’s chamber s. See Graham , 490 U.S. 386, 396-97. There was no reason for Sgt. Adamson to have to wait to be shot at or even to see Mr. Phillips raise a gun and point i t at him before it would be reasonable for him, under these circumstances, to s hoot Mr. Phillips. From the beginning Mr. Phillips’ actions were unreasonable. He had the power to defuse the situation by coming out of his bedroom and talk ing to the officers to allow5 Although Mr. Phillips was willing to talk to some e xtent with the officers

through his bedroom door, the officers were reasonable, as discussed above, in their insistence that they communicate face-to-face in order to appropriately assess the situation in light of the purpose for wh ich they were there. See Hiibel , 124 S. Ct. at 2458 (recognizing the wide latitude o fficers have in responding to domestic disturbance calls). -17- them to reasonably assess the situation. 5 The officers’ requests for him to do so were certainly reasonable. See Hiibel , 124 S. Ct. at 2458. He repeatedly refused to do so. Mr. Phillips made the situation worse bycontinually threatening the officers with a high degree of physical force as th ey attempted to perform their job in a reasonable manner. This conduct coupled with the increasing threats of violence gave Sgt. Adamson probable cause to believe that he was being threatened with serious bodily harm. See Sevier , 60 F.3d at 699. Therefore, Sgt. Adamson acted reasonably in shooting Mr. Phillips. For the foregoing reasons, we agree with the distri ct court that the officers were reasonable in their treatment of Mr. Phillips and, therefore, Plaintiffs could not establish a violation of their constitutional r ights rendering summary judgment proper.
AFFIRMED

.