Eighth Circuit advances lawsuit to jury trial over fatal police shooting
An Ark. officer’s actions come under legal scrutiny as the Eighth Circuit Court revives a lawsuit concerning the 2016 shooting of a suicidal teenager
On October 17, 2016, the Benton (Arkansas) Police Department (BPD) received a call from the mother of Keagan Schweikle. She stated that her teenage son had gone into the woods with a gun and was threatening suicide. Three BPD officers responded to the call. Detective Speer and Sergeant Davidson found Schweikle alone by a riverbank. Officer Ellison, located about 45 feet from Schweikle, had the only clear view of him.
Schweikle was partially turned away from Ellison and Ellison commanded him to show his hands. Schweikle turned to face Ellison and held a gun at his side in his right hand. Ellison drew his firearm and screamed at Schweikle to drop the gun. Instead, he brought the gun to his temple. Ellison continued his commands to drop the gun. When Schweikle moved the gun, Ellison fired and killed him.
The civil rights lawsuit
Schweikle’s parents sued the city and the involved officers in their official and personal capacities pursuant to 42 U.S.C. § 1983 and alleged excessive force in violation of the Fourth Amendment. 
The Eighth Circuit reported that “[a]fter discovery, defendants moved for summary judgment. Citing officer testimony, they claimed that Schweikle pointed the gun at Ellison the moment before he was shot. The parents, citing a forensic expert, claimed that Schweikle never pointed the gun at Officer Ellison. The district court granted defendants’ motion for summary judgment” and dismissed the lawsuit.
The district court ruled that plaintiffs failed to produce evidence to support their contention that Schweikle didn’t point the muzzle of his weapon toward the officers. The parents filed an appeal to the Eighth Circuit Court of Appeals. The Eighth Circuit reversed in a 2-1 decision and remanded the case for trial.
The majority decision
The Eighth Circuit observed that “[a] forensic pathologist, … found it highly unlikely that Schweikle pointed his gun at the officers before being shot. Dr. Wecht testified that, based on Schweikle’s autopsy, pointing his gun at the officers would have required ‘a very awkward, highly atypical, unnatural twisting of the wrist.’ While Schweikle’s pointing his gun at the officers may have been ‘anatomically possible,’ it would have required ‘a very abnormal movement.’”
Because the officers claimed that Schweikle pointed the gun at them, the court concluded that given this factual dispute between the parties, it would be up to a jury to decide whether Schweikle pointed his firearm at the officers. The court explained, “A jury could conclude, based on Dr. Wecht’s testimony, that Schweikle ‘never pointed the gun at the officers’ but instead ‘moved his gun in compliance with commands to drop his gun.’”
The dissenting judge observed that “In characterizing the issue as ‘whether Schweikle pointed his gun at the officers’ and nothing more, the majority sets the bar too high. Our cases do not require an armed individual to take direct aim before officers can reasonably use deadly force. Instead, a ‘menacing action’ with a firearm is sufficient so long as such action provides probable cause to believe that the suspect poses an immediate deadly threat.”
The court observed that in their opinion, the majority asserted that in pretrial discovery “’[a]ll three officers pantomimed Schweikle pointing the gun at them.’ The record shows otherwise. In fact, both Officers Davidson and Speer pantomimed Schweikle moving the gun toward them in a menacing fashion but not pointing it directly at them. Only Officer Ellison arguably pantomimed Schweikle pointing the gun directly at the officers. But Ellison stated immediately thereafter that he did not know exactly how far Schweikle had lowered his hand.”
The dissent concluded that the majority was incorrect in creating a material factual dispute  by finding that the officers believed that Schweikle pointed his gun directly at them while the plaintiff’s expert concluded that this would have been very difficult to accomplish. Instead, the dissent noted that two officers only believed that Schweikle moved the gun toward them and a third was not certain how far Schweikle’s hand was lowered.
A fair reading of the dissent leads to the inescapable conclusion that the dissenting judge believes that any movement of the gun toward the officers by Schweikle is a “menacing action” that would justify an officer firing response. The judge concluded that the shooting of Schweikle was objectively reasonable and not a violation of the Fourth Amendment.
Points to consider
In this case, the position of the dissenting judge is the correct one. He correctly observes that any forward movement of the gun toward the officers is a “menacing action” and presents a life-threatening situation for the officers.
Although not mentioned in the opinion, a scientific study conducted by Dr. J. Pete Blair, Professor of Criminal Justice at Texas State University, disclosed that a person holding a firearm to their head can lower, point and fire a handgun at a police officer in an average time of .40 of one second. 
In the Blair study, the involved officer, with gun raised and pointed before an exchange of gunfire, was able to respond and fire in an average time of .40 of a second. Thus, even any slight forward movement of the gun by the suicidal subject toward the officer would amount to an even greater life-threatening disadvantage for an officer.
In this case, the better course of action could have involved the following:
- An attempt to employ de-escalation techniques, to include responding officers separating themselves further away from the subject, placing themselves behind solid cover, and maintaining sight on the subject from a safer location.
- Speaking with the subject with subdued and moderate rhetoric, while avoiding harsh commands that are likely to escalate the danger to all parties, including the emotionally challenged subject.
- Calling for additional help, including the response of one or more Crisis Intervention Trained (CIT) officers and mental health professionals, if available.
- Requesting additional officers to set up a safety perimeter in the area behind and around the communicating officers and the subject.
- Slowing down the entire process with the goal of leading to a successful outcome and a peaceful resolution for all parties.
1. Partridge v. City of Benton, Arkansas et. al, 70 F 4th 489 (8th Cir. 2023).
2. A material factual dispute between the parties can only be resolved by a jury.
3. See, John Michael Callahan, Lethal Force and the Objectively Reasonable Officer, pages 136-137, Looseleaf Law Publications, 2015.