1The Honorable Harry F. Barnes, United States District Judge for the Western

District of Arkansas, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 00-2505

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Doris Thompson; Thomas Thompson, *

Jr.; Ashley Thompson, By and Through *

Her Mother and Next Friend, Grace *

Jackson, *

* Appeal from the United States

Appellants, * District Court for the

* Eastern District of Missouri.

v. *

*

Bryan Hubbard; Michael Washington; *

City of Pine Lawn, *

*

Appellees. *

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Submitted: May 17, 2001

Filed: July 30, 2001

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Before WOLLMAN, Chief Judge, HANSEN, Circuit Judge, and BARNES,1

District Judge.

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WOLLMAN, Chief Judge.

After Ravone Thompson was shot and killed by police officer Bryan Hubbard,

his parents and his daughter brought an action for damages under 42 U.S.C. § 1983
2The Honorable Lawrence O. Davis, United States Magistrate Judge for the

Eastern District of Missouri, hearing the case by consent of the parties pursuant to 28

U.S.C. §636(c).

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against Hubbard, Michael Washington, who is Hubbard’s supervisor, and the city of

Pine Lawn, alleging excessive use of force in violation of Thompson’s civil rights. The

district court2 granted summary judgment for the defendants. We affirm.

I.

Responding to a report of shots fired and two suspects fleeing on foot from the

scene of an armed robbery in Pine Lawn, Missouri, Hubbard approached Thompson

as he was getting into his car. Thompson fit the description of one of the robbery

suspects, a black man wearing a blue and gold jacket, and was in an area where, based

on the direction of their flight, Hubbard believed the suspects might be. Thompson

initially appeared to surrender, but then turned to flee. Hubbard attempted to grab him,

but succeeded only in pulling off his jacket. 

A foot chase ensued, ending when Thompson ran into the space between two

buildings and climbed over a short fence. According to Hubbard, Thompson got up

from the ground, looked over his shoulder at Hubbard, and moved his arms as though

reaching for a weapon at waist level. Thompson’s back remained turned toward

Hubbard and obscured his hands from Hubbard’s view. Hubbard yelled, “stop,” and

when Thompson’s arms continued to move, he fired a single shot into Thompson’s

back just below his right shoulder blade. Thompson died from the wound. No weapon

was found on his body. Officer Marvin Berry, who had followed most of the foot

chase in a patrol car, stated that he attempted to look down the space between the two

buildings where he had seen Thompson and Hubbard run, but that he neither saw nor

heard the shooting, leaving Hubbard as the lone surviving witness to the shooting.
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We review the district court’s grant of summary judgment de novo, applying the

same standard as that court applied, and viewing the evidence in the light most

favorable to the plaintiffs. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).

Summary judgment is appropriate where there is no genuine issue as to any material

fact such that the moving party is entitled to judgment as a matter of law. Id. at 469-70.

“In essence, we must inquire ‘whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that one party must prevail

as a matter of law.’” Id. at 470 (quoting Anderson v. Liberty Lobby, 477 U.S. 242,

251-52 (1986)).

The § 1983 claims will not lie against either Hubbard and Washington

individually or against the city unless plaintiffs can prove an underlying violation of

Thompson’s Fourth Amendment rights. See Krueger v. Fuhr, 991 F.2d 435, 440

(1993). We analyze a claim of excessive force in apprehending a suspect in the light

of the Fourth Amendment’s prohibition against unreasonable seizures. Graham v.

Connor, 490 U.S. 386, 394 (1989). “The ‘reasonableness’ of a particular use of force

must be judged from the perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight.” Id. at 396. “[T]he question is whether the officer’s

actions are ‘objectively reasonable’ in light of the facts and circumstances confronting

them, without regard to their underlying intent or motivation.” Id. at 397. We have

held that deadly force is justified where the totality of the circumstances give the officer

probable cause to believe that a fleeing suspect poses a threat of serious physical harm

to the officer or to others. Nelson v. County of Wright, 162 F.3d 986, 990 (8th Cir.

1998). 

Thus, to defeat the motion for summary judgment, the plaintiffs needed to

present enough evidence to permit a reasonable jury to conclude that Hubbard’s use of

deadly force was objectively unreasonable. See Gardner v. Buerger, 82 F.3d 248, 252

(8th Cir. 1996). We conclude that summary judgment was appropriate in this case

because Hubbard’s use of force, as he describes it, was within the bounds of the Fourth
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Amendment, and all of the evidence presented to the district court is consistent with

that account. Compare Krueger, 991 F.2d at 439 (summary judgment against plaintiffs

appropriate despite the fact that the suspect was shot in the back where such a shot was

consistent with the reasonable use of force described by the officer) with Gardner, 83

F.3d at 253 (summary judgment inappropriate where officer’s own account of shooting

raised genuine issue as to its reasonableness). The plaintiffs may not stave off

summary judgment “armed with only the hope that the jury might disbelieve witnesses’

testimony.” Gardner, 82 F.3d at 252. 

We disagree with the plaintiffs’ contention that if, as Hubbard maintains,

Thompson turned and looked at him while the two were in close proximity and moved

as though reaching for a weapon, a jury could conclude that Hubbard’s use of deadly

force was objectively unreasonable because Hubbard should have considered the fact

that the waistband of Thompson’s sweat pants may not have been strong enough to

hold a gun. An officer is not constitutionally required to wait until he sets eyes upon

the weapon before employing deadly force to protect himself against a fleeing suspect

who turns and moves as though to draw a gun. See Ryder v. City of Topeka, 814 F.2d

1412, 1419 n.16 (10th Cir. 1987) (concluding that, because a requirement that a

suspect actually have a weapon would place police in “a dangerous and unreasonable

situation . . . whether a particular seizure is reasonable is dependent on the ‘totality of

the circumstances,’ and not simply on whether the suspect was actually armed”). “The

calculus of reasonableness must embody allowance 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, 490 U.S. at 396-97. Moreover, neither the plaintiffs’ attacks on

Officer Berry’s credibility nor anything else in the record undermines Hubbard’s

credibility. The evidence adduced by the plaintiffs is simply insufficient to support

even an inference that Hubbard is lying, nor is it sufficient to satisfy the plaintiffs’

burden of proving that his actions were not objectively reasonable. However tragic
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Thompson’s death, plaintiffs have failed to come forward with sufficient evidence to

justify submitting their case to a jury. 

The judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.