Jerry Capps; Jaylene Capps, in their individual capacities and as Personal Representatives of the Estate of Christopher Capps, Plaintiffs - Appellees
David Olson, in his individual capacity; Pennington County, a political subdivision of the State of South Dakota, Defendants - Appellants
Submitted November 12, 2014
[Copyrighted Material Omitted]
Appeal from United States District Court for the District of South Dakota - Rapid City.
For Jerry Capps, Jaylene Capps, in their individual capacities and as Personal Representatives of the Estate of Christopher Capps, Plaintiffs - Appellees: Sarah Elizabeth Baron Houy, Michael Martin Hickey, Terry L. Hofer, Eric J. Pickar, Terry G. Westergaard, Attorney, Bangs & Mccullen, Rapid City, SD.
For David Olson, in his individual capacity, Pennington County, a political subdivision of the State of South Dakota, Defendants - Appellants: Jeffrey Robert Connolly, Rebecca L. Mann, James S. Nelson, Gunderson & Palmer, Rapid City, SD.
Before MURPHY, MELLOY, and BENTON, Circuit Judges.
MELLOY, Circuit Judge.
Sheriff's Deputy David Olson shot and killed Christopher Capps (Capps). Capps's parents, Jerry and Jaylene Capps, sued Deputy Olson for using excessive force against their son in violation of 42 U.S.C. § 1983. Deputy Olson alleges Capps was charging towards him with a weapon at the time of the shooting. Capps's parents allege Deputy Olson shot Capps in the back when Capps was unarmed. Deputy Olson moved for summary judgment based on qualified immunity. The district court denied Deputy Olson's motion, holding that outstanding questions of fact precluded a grant of qualified immunity. For the reasons stated below, we affirm.
On May 2, 2010, Deputy Olson received a report from dispatch regarding a belated assault--one that is not in progress and occurred before dispatch received the report. Deputy Olson was in the area, so he responded to the call. Dispatch reported that a Native American male pushed a juvenile off of his bike and assaulted him. Dispatch also reported that the victim was having trouble breathing.
When Deputy Olson arrived at the scene, he came upon Tammy Scribner. Tammy Scribner informed Deputy Olson that her husband, David Scribner (Scribner), was in pursuit of the suspect, Capps. Deputy Olson chased Scribner and Capps over a barbed-wire fence and through a wooded area. Deputy Olson was not able to see Scribner and Capps until after he exited the wooded area and came to the top of a rise in the ground. From this location, Deputy Olson saw Scribner and Capps approximately 200 to 300 yards away. Capps was running away from Scribner ...