In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2592

TRENT MARION,

Plaintiff-Appellant,

v.

THE CITY OF CORYDON, INDIANA and JOHN DOE #1,

Unknown Police Officers of the City of Corydon,

THE COUNTY OF HARRISON, INDIANA and JOHN DOE #2,

Unknown Police Officers of the County of Harrison,

ROY WISEMAN, BRUCE LAHUE, KEVIN TAYLOR, JAMES

SADLER, TODD STINSON, THE CITY OF LOUISVILLE,

KENTUCKY and JOHN DOE #3, Unknown Police Officers

of the Louisville Metropolitan Police Department,

THE CITY OF NEW ALBANY, INDIANA and JOHN DOE #4,

Unknown Police Officers of the City of New Albany,

JOHN DOE #5, Unknown Police Officers of the

Indiana State Police,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Indiana, New Albany Division.

No. 4:07-cv-0003-DFH-WGH—David F. Hamilton, Chief Judge.

ARGUED FEBRUARY 19, 2009—DECIDED MARCH 23, 2009
2 No. 08-2592

Of the Northern District of Illinois, sitting by designation. 1

Before FLAUM and WILLIAMS, Circuit Judges, and

KAPALA, District Judge. 

1

FLAUM, Circuit Judge. Plaintiff Trent Marion brought

this action under 42 U.S.C. § 1983 against the City of

Louisville, the City of Corydon, the City of New Albany,

the County of Harrison, and several officers from those

jurisdictions and from the Indiana State Police. He

alleged that the law enforcement officers and government entities violated his Fourth Amendment rights by

using excessive force against him in connection with a

police pursuit and subsequent shooting. All defendants,

except the City of Louisville and its unknown officers,

filed motions for summary judgment. Defendants supported their motions with affidavits and with video and

audio recordings. Marion offered no counter-affidavit

and pointed to no evidence that would call into question

defendants’ submissions. Finding no triable issue of fact,

the district court granted summary judgment for all

named defendants. Marion appealed, and we now affirm

the district court’s grant of summary judgment.

I. Background

A. Facts

The facts presented here are taken from the affidavits

of law enforcement officers and other witnesses to the

police chase, as well as from video and audio evidence

of the chase.
No. 08-2592 3

On January 20, 2006, police officers approached Marion

on suspicion of shoplifting as he was leaving a Kroger

grocery in Louisville, Kentucky. When approached,

Marion admitted that he had hidden grocery items in

and around a baby in an infant seat that Marion had

placed in the grocery cart he was pushing. As officers

escorted Marion to the store’s loss prevention office, he

grabbed the infant seat, pushed one officer aside, and

bolted out of the store.

The police officers and store personnel followed Marion

outside to the parking lot, where Marion ran to a red

1993 Ford Explorer. After tossing the baby seat, with the

baby in it, into the front seat on the passenger side, Marion

attempted to enter and start the vehicle. A scuffle ensued

between Marion and the Louisville police officers on the

scene. During the scuffle, a Kroger employee managed

to grab the baby seat and remove the baby from the

vehicle.

Louisville Police Officer Michael Alvey attempted to

use his taser to subdue Marion, but Marion reached out

and twisted the taser cartridge so that it would not fire.

He backed his vehicle out of the parking space with a

door open, collided with another vehicle, and fled. As

Marion fled the parking lot, Alvey pursued immediately

in his police car. Marion led Alvey and other Louisville

police units on a high speed chase through the streets

of Louisville to Interstate 64.

Marion continued on I-64 into Indiana. As he entered

Indiana, Louisville dispatchers alerted law enforcement

agencies in Indiana to the chase. New Albany, Indiana
4 No. 08-2592

Police Captain Rick Denny received a radio dispatch

alert that Louisville police were pursuing an armed

robbery suspect westbound on I-64. Denny pulled into

a turn-around area in the median near mile marker 120.

Almost immediately, he observed Marion in his Ford

Explorer traveling west in excess of 80 miles per hour. He

observed several Louisville police cars in pursuit with

emergency lights and sirens activated. Denny joined the

chase. Because he was the first Indiana officer to join,

Denny eventually took over the lead car position in the

pursuit. Other officers from Corydon and Harrison

County joined in the pursuit, and the Louisville officers

dropped back. The video taken with a camera mounted

on the dashboard of Denny’s police cruiser shows

Marion’s reckless driving at high speed. As the miles

ticked by, Marion’s vehicle started to emit smoke.

At approximately mile marker 113, a Harrison County

Sheriff’s deputy in the highway median deployed

“stop sticks” in an effort to deflate the tires on Marion’s

Explorer. Marion swerved to try to avoid them. The

stop sticks damaged and deflated three tires, but Marion

continued to drive. He slowed from approximately 80

miles per hour to about 40 miles per hour and swerved

from one side of the highway to the other, eventually

returning to the left lane. Debris from the shredding tires

and from the Explorer began falling in the path of the

pursuing police units. Different police cars pulled to the

side of Marion to observe him and, in at least one

instance, to signal him to pull over. The police maneuvered to block Marion from taking any exit he passed.
No. 08-2592 5

As the pursuit approached mile marker 105 and the

Corydon exit, officers attempted to deflate the one rear

tire that had survived the first set of stop sticks. Several

law enforcement vehicles were parked in the median

with officers outside their cars, weapons drawn and

stop sticks deployed. As Marion approached the stop

sticks, he swerved and drove toward several of the

officers in the median area and then back into the left

lane, avoiding the stop sticks. Soon thereafter, Louisville

police officers pulled completely out of the chase and

headed back to Kentucky.

Denny, who still was the lead pursuing officer, then

coordinated over the radio a rolling roadblock on

Marion. One police vehicle pulled ahead of Marion

(driven by Officer James Sadler) and another pulled

alongside him in the other lane (driven by Captain

Brad Shepard) in an attempt to “box in” the Explorer

and gradually force it off the road. For a minute or so,

Marion attempted numerous maneuvers to avoid the

rolling roadblock. He tried to pass between the police

vehicles and swung his Explorer back toward Denny,

making some contact. Eventually, he tried to pull around

Sadler on the shoulder to Sadler’s left. Sadler stuck his

rifle out the driver’s window of his vehicle and fired

four shots at Marion’s vehicle in a further effort to

disable it.

Near mile marker 103, Marion slowed and then suddenly turned hard to the left into the grass median toward

the eastbound lanes of the interstate, where traffic was

slowing or stopped. The highway median was wet and
6 No. 08-2592

muddy, but Marion continued to drive his Explorer toward

the eastbound lanes. The Explorer slowed as he tried to

cross. Officers moved on foot to surround the Explorer,

and they fired their initial shots at Marion. Just as the

muddy median and initial shots seemed to be bringing

Marion’s vehicle to a halt, he put the Explorer into

reverse and revved the engine, causing the tires to spray

mud, and the Explorer moved back several feet. This

maneuver scattered the officers who were approaching

the Explorer from the rear. Officer Kevin Taylor, a

Harrison County Sheriff’s Deputy, was behind the Explorer. He and other officers yelled for Marion to stop.

When Marion did not stop, Taylor fired six rounds at the

Explorer as it backed toward him. As more officers approached and demanded that Marion stop and raise his

hands, Marion shifted back into a forward gear and

continued revving the engine to move forward. Lieutenant

Roy Wiseman of the Harrison County Sheriff’s Department and other officers were positioned directly in front

of the Explorer. They began firing at it when it moved

toward them and toward the eastbound lanes of the

interstate.

All affidavits from officers who fired their weapons

when Marion was in the median testified that they did so

in fear of lethal danger to themselves or to others. All

testified that at no point did they see any sign that

Marion was trying to surrender or was stopping his

attempts to flee. All of the officer and civilian affidavits

indicated that it appeared that Marion intended to

drive his vehicle through the median and into the eastbound lanes of the highway.
No. 08-2592 7

After Marion stopped revving the engine and the shooting stopped, he was pulled from the vehicle and given

medical attention. He had suffered significant gunshot

wounds. As a result of his wounds, Marion lost his

right eyeball, resulting in permanent vision loss on the

right side, and he suffered severe damage to his left

hand. The officers discovered that Marion was not

actually armed. The law enforcement officers who submitted affidavits have all stated that they believed

Marion was armed, based on radio transmissions and,

in some instances, from the manner in which he was

reaching around in his vehicle while driving, as though

attempting to locate a firearm.

B. District Court Proceedings

Marion filed suit under § 1983 on January 5, 2007. He

claimed that defendants violated his Fourth Amendment

rights and that the officials were not entitled to qualified

immunity. He sued for $21.5 million in total damages,

including requests for compensatory and punitive damages. On May 11, 2007, the district court entered a case

management plan which set out certain deadlines, including discovery and dispositive motions. On November 14, 2007, the City of New Albany filed its motion

for summary judgment. The City of Corydon, the County

of Harrison, Roy Wiseman, Bruce Lahue, Kevin Taylor,

James Sadler, and Todd Stinson followed with similar

motions. Marion opposed all motions for summary judgment, yet he did not file or otherwise rely upon an

affidavit or sworn testimony of his own to oppose any of

the pending motions.
8 No. 08-2592

On March 20, 2008, the district court granted defendants’

motions for summary judgment. The court concluded

that defendants’ evidence showed it was reasonable for

the officers to fire their weapons at Marion after he had

endangered the officers and innocent civilians over the

course of a long high-speed chase; after less drastic measures had repeatedly failed to stop Marion’s attempt to

flee; and as Marion was revving his engine, moving the

Explorer, and trying to gain traction in the median to

continue his flight. The court noted the arguments of

plaintiff’s counsel could not substitute for evidence, and

without contradictory evidence, there were not triable

issues of fact. The court ordered Marion to show cause

why it should not grant summary judgment in favor of

all other defendants.

On April 16, 2008, Marion filed a motion to reconsider

summary judgment. He included new evidence in the

form of his own belated affidavit. In the affidavit, Marion

stated that he turned his vehicle into the median in an

attempt to surrender. At the time, he said, his vehicle

was overheating, had three flat tires, and was stuck in

the mud. He claimed that while he was trying to surrender, the pursuing officers shot at him without warning.

On June 3, 2008, the district court denied Marion’s

motion to reconsider summary judgment. The court

concluded that Marion’s belated testimony was not

properly before the court, and thus it could not consider

the testimony. The court entered summary judgment

in favor of any and all named defendants.
No. 08-2592 9

II. Analysis

Marion appealed from the district court’s grant of

summary judgment. Our review is de novo, and we

construe all facts and reasonable inferences in favor of

the nonmoving party. Tomanovich v. City of Indianapolis,

457 F.3d 656, 662 (7th Cir. 2006).

As a preliminary matter, Marion does not properly

argue on appeal that we should consider his affidavit

that he submitted as part of his motion to reconsider the

grants of summary judgment, and we conclude that we

cannot consider his affidavit. It is well-established that

we can only consider such an affidavit if it consists of

newly discovered evidence that the party could not

have introduced during the pendency of the summary

judgment motion. Feliberty v. Kemper Corp., 98 F.3d 274, 279

n.1 (7th Cir. 1996); Publishers Res., Inc. v. Walker-Davis

Publ’ns, Inc., 762 F.2d 557, 561 (7th Cir. 1985). The evidence that Marion submitted cannot be construed as

newly discovered evidence; the affidavit simply consists

of his version of the events at issue.

Marion argues that the officers that shot him used

potentially deadly excessive force in violation of his

Fourth Amendment rights. He continues that use of such

force was unreasonable and unconstitutional under the

circumstances, and that disputed factual issues bar summary judgment in this matter. Defendants respond that,

under the circumstances, use of potentially deadly

force was reasonable as a matter of law; the officers are

entitled to qualified immunity; and the municipalities

and county cannot be held liable absent an underlying

constitutional violation.
10 No. 08-2592

An officer conducting a search is entitled to qualified

immunity where clearly established law does not show that

the search violated constitutional rights. Pearson v.

Callahan, 129 S. Ct. 808, 822 (2009) (citing Anderson v.

Creighton, 483 U.S. 635, 641 (1987)). We use the Fourth

Amendment, which prohibits unreasonable seizures, to

analyze claims that law enforcement officers used excessive force. Graham v. Connor, 490 U.S. 386, 394-95 (1989).

Pre-seizure police conduct cannot serve as a basis for

liability under the Fourth Amendment; we limit our

analysis to force used when a seizure occurs. “A Fourth

Amendment seizure [occurs] . . . when there is a governmental termination of freedom of movement through

means intentionally applied.” Scott v. Harris, 127 S. Ct.

1769, 1776 (2007) (citing Brower v. County of Inyo, 489

U.S. 593, 596-97 (1989)).

Whether the force used to effect a seizure is excessive

depends on the totality of circumstances under an objective reasonableness standard. “[T]he question is whether

the officers’ actions are ‘objectively reasonable’ in light

of the facts and circumstances confronting them, without

regard to their underlying intent or motivation.” Graham,

490 U.S. at 397. The Supreme Court further has counseled that it is reasonable for a law enforcement officer

to use deadly force if an objectively reasonable officer

in the same circumstances would conclude that the

suspect posed a threat of death or serious physical

injury to the officer or to others. Tennessee v. Gardner, 471

U.S. 1, 11-12 (1985).

The Supreme Court recently decided a § 1983 police

pursuit case, Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769
No. 08-2592 11

(2007). In Scott, a police officer attempted to pull Victor

Harris over for speeding. Harris fled in his vehicle, initiating a high-speed car chase. Deputy Timothy Scott attempted to end the chase by ramming Harris’s vehicle

with his police cruiser. Harris crashed and was rendered

a quadriplegic. 127 S. Ct. at 1772-73. Harris sued Scott,

claiming that Scott had used excessive force in violation

of his Fourth Amendment rights. The Court ruled that

Scott’s actions were reasonable and did not violate the

Fourth Amendment. The Court relied on a videotape

of the chase to hold that “it is clear . . . that [Harris]

posed an actual and imminent threat to the lives of any

pedestrians who might have been present, to other

civilian motorists, and to the officers involved in the

chase.” Id. at 1778. The opinion weighed the need to

prevent the harm Harris could have caused against the

probability that Scott’s use of force would harm Harris

himself. The Court concluded: “A police officer’s attempt

to terminate a dangerous high speed car chase that threatens the lives of innocent bystanders does not violate the

Fourth Amendment, even when it places the fleeing

motorist at risk of serious injury or death.” Id. at 1779.

In this case, the government seizure occurred in the

highway median, when law enforcement officers finally

terminated Marion’s freedom of movement. While evidence demonstrates that throughout the chase Marion

had very little regard for the safety of officers or innocent bystanders, we limit our analysis to whether Marion

posed a serious danger to officers or innocent bystanders

once he was in the median.
12 No. 08-2592

The evidence clearly demonstrates that, once in the

median, Marion attempted to regain traction and drive

toward the eastbound lanes of the highway, where

many innocent bystanders were present. There is no

question that he would have run over officers to reach

the eastbound lanes and continue his flight eastbound, if

he had the capability to do so.

The key question, though, is whether it was objectively

reasonable for officers to conclude that Marion posed an

actual threat to officers or innocent bystanders once he

reached the median. Marion claims that his vehicle was

stuck in the mud, had three flat tires, was overheating,

and that an objectively reasonable officer in the same

circumstances as defendants would conclude that he

did not pose a danger to anyone at that time.

Despite Marion’s contentions, it was reasonable for

the officers to determine that he did actually pose a

threat to the safety of officers and of innocent bystanders.

While three of Marion’s tires were flat, he had been able

to travel on three flat tires at fairly high speeds for a

significant stretch of time. Even after he entered the

median and officers on foot surrounded his vehicle, the

video evidence shows that Marion’s vehicle continued to

move forward significantly. Later, after he revved his

engine, he was able to drive the vehicle backward as

well. A reasonable officer would have concluded that,

absent police intervention, Marion had the capability to

run over officers and/or to reach the eastbound lanes of the

highway. Moreover, a reasonable officer would have

determined that, if he did reach the eastbound lanes, there
No. 08-2592 13

was a significant possibility that Marion would have

rammed one or more bystander’s vehicles or caused an

accident between bystanders’ vehicles, posing a substantial risk of serious injury or loss of life.

We conclude that, under the totality of the circumstances, it was reasonable for the officers to think that

Marion seriously endangered officers and innocent bystanders, and it was reasonable for the officers to discharge their firearms in Marion’s direction to stop him.

Thus, there was no Fourth Amendment violation. Because

there was no deprivation of a constitutional right in

this case, the police officers are immune from liability.

Pearson, 129 S. Ct. at 816; Akande v. Grounds, ___ F.3d ___,

2009 WL 291186 (7th Cir. Feb. 9, 2009) (“If it is clear that

there has been no constitutional injury, . . . the officials

are entitled to immunity”) (citing Saucier v. Katz, 533 U.S.

194, 201 (2001)). The district court correctly granted

summary judgment in favor of all officers.

Furthermore, municipalities or counties cannot be

liable under § 1983 absent an underlying constitutional

violation by one or more of their officers. City of Los

Angeles v. Heller, 475 U.S. 796, 799 (1986)). Because we

find no constitutional violation by the police officers, the

district court correctly dismissed Marion’s claims against

the named municipalities and against the County of

Harrison.

III. Conclusion

Because we find that the officers’ actions were objectively reasonable, we AFFIRM the district court’s grant
14 No. 08-2592

of summary judgment in favor of any and all named

defendants.

3-23-09