DAWNE A. SANZONE, Personal Representative of the Supervised Estate of Keith R.… v. James Gray , in his official and individual capacities

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2103
DAWNE A. S ANZONE, Personal Representative of the
Supervised Estate of Keith R. Koster, Deceased,
Plaintiff-Appellee,
v.
JAMES GRAY , in his official and individual capacities,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:15-cv-01301-TWP-TAB — Tanya Walton Pratt, Judge.
____________________
A RGUED F EBRUARY 27, 2018 — DECIDED M ARCH 8, 2018
____________________
Before W OOD, Chief Judge, and BAUER and BARRETT, Circuit
Judges.
PER C URIAM . Indianapolis police officer James Gray fatally
shot an agitated Keith Koster when Koster threatened to fire
a “warning shot” and then pointed his gun at police officers
gathered in the doorway of his apartment. Koster’s sister sued
on behalf of his estate, claiming that Gray violated the Fourth
Amendment by using excessive force. The district court

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denied Gray’s motion for summary judgment based on
qualified immunity. Because Gray acted reasonably when
Koster pointed a gun at him and fellow officers, he did not
violate the Fourth Amendment and is entitled to qualified
immunity. We therefore reverse the district court’s decision
and remand with instructions to enter judgment for Gray.
Background
None of the following was disputed at summary
judgment: In January 2014, Timothy Bess called the
Indianapolis Metropolitan Police Department, requesting
that it send staff to check on his friend, Keith Koster. Bess
reported that Koster suffered from chronic fatigue and
digestive system issues, and that he was vomiting and having
trouble breathing.
Emergency personnel responded to Bess’s call. Sarah
Hunt, Koster’s apartment-complex manager, gave them the
keys to Koster’s apartment in case Koster could not answer
the door. Once Officer Billy Murphy unlocked the door, the
situation escalated quickly. Koster yelled repeatedly: “Don’t
come in!” Hunt heard firefighter Ben Holton say, “We’re here
to help you.” But Koster shouted, “If you enter my apartment
I will shoot you.” Hunt and Holton warned the others about
seeing a gun in Koster’s right hand, and then they left the
scene.
From the doorway, Murphy took control. He saw Koster
sitting up in bed with a gun in his right hand, swallowing
several pills. Murphy talked with Koster, trying to convince
him to put down the gun. Then SWAT members (including
Sergeant Steve Walters and defendant James Gray) arrived
and changed places with Murphy.

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No. 17-2103 3
A hostage negotiator, Officer Daniel Rosenberg, began
discussions with Koster. Koster asked to speak with his
medical advocate, but Rosenberg said that would be too
dangerous while Koster still held the gun. Koster also asked
for his brother, an Indianapolis officer, so someone called and
left a voicemail for Koster’s brother. Koster still refused to put
down the gun.
Koster’s agitation grew, and he declared that he would
“fire a warning shot.” Walters told the officers in front of him
to stay down, because “If [Koster] comes up, [Walters would]
fire less-lethal rounds,” and Walters did not want to hit the
back of an officer’s head. Rosenberg saw Koster move his
right arm up and point his gun, and so Rosenberg ducked
behind the SWAT ballistics shields.
Two SWAT members fired their weapons when they saw
Koster’s movement. Walters said that he saw Koster point the
gun “right at our face[s].” So he fired one beanbag round.
Gray, who had the priority of shot (he occupied the position
with the best viewpoint to shoot), said that he saw Koster’s
arm come “essentially to full extension. It was pointed out
towards us.” Immediately following Walters’s shot, Gray
fired three bullets at Koster’s head; two hit him. Emergency
personnel transported Koster to the closest trauma center,
where he died.
On behalf of Koster’s estate, Dawne Sanzone, Koster’s
sister, brought this suit under 42 U.S.C. § 1983, against officers
Murphy and Gray, among others. She asserted various
claims, including false arrest and excessive force.
After discovery, the defendants moved for summary
judgment. They all raised a qualified-immunity defense,

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4 No. 17-2103
arguing that they did not violate any clearly established
constitutional right. Koster was not falsely arrested, they
argued, because the officers had probable cause to arrest him,
and the use of deadly force was not excessive because “Koster
had his gun raised and pointed directly at Officer Gray and
the other officers.”
The Estate responded that questions of fact precluded
summary judgment based upon qualified immunity. There
were facts suggesting that Koster’s statement that he would
fire a warning shot was not a “threat,” the Estate asserted.
And the Estate’s response cited an expert witness’s opinion
that Gray’s use of force was unreasonable. That response,
however, not only failed to dispute the defendants’ proposed
undisputed fact that Koster pointed his gun at the officers, but
it also specifically set forth as a fact Gray’s Internal Affairs
statement that Koster raised his gun and pointed it directly at
the officers.
The district judge granted the defendants’ motion for
summary judgment as to Murphy but not Gray. The judge
concluded that a reasonable officer would have believed that
Koster’s immediate detention was necessary in order for him
to receive medical attention and assistance, and so Murphy
and the other officers were entitled to qualified immunity for
the seizure. As for Gray, the judge stated as an undisputed
fact that Koster pointed his gun at the officers. Nevertheless,
the judge decided that Gray used greater force than was
reasonable because he did not take cover or wait for the less-
lethal option before shooting. And so, citing only the general
standard found in Graham v. Connor, 490 U.S. 386 (1989), the
judge concluded that Gray violated Koster’s clearly
established right to be free from excessive force. Accordingly,

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No. 17-2103 5
the judge denied the motion for summary judgment as to
Gray’s alleged use of excessive force and the related assault,
battery, and wrongful death claims. Gray now appeals the
decision that he is not entitled to qualified immunity.
Analysis
As a threshold matter, the Estate argues that this court
lacks jurisdiction over this appeal. A district court’s denial of
summary judgment is typically an “unappealable
interlocutory order.” White v. Gerardot, 509 F.3d 829, 832–33
(7th Cir. 2007) (quoting Matterhorn Inc. v. NCR Corp., 727 F.2d
629, 633 (7th Cir. 1984)). But there is an exception for denials
of qualified immunity that turn on issues of law. Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985). In such appeals, this court
may review the decision if it accepts as true “the facts that the
district court assumed when it denied summary judgment for
that (purely legal) reason.” Johnson v. Jones, 515 U.S. 304, 319
(1995); Leaf v. Shelnutt, 400 F.3d 1070, 1078 (7th Cir. 2005).
That exception applies here. The Estate argues that the
district judge denied Gray’s motion because there were
material facts in dispute, rather than purely legal reason, and
that those disputes “destroy” this court’s jurisdiction.
Specifically, the Estate asserts that the fact that Koster pointed
a gun at the officers is “conspicuously absent” from the
district court order and so the fact was not assumed to be true.
But that is incorrect. In reality, the judge said: “Koster became
more agitated when the officers refused to leave and
informed the officers that he intended to ‘fire a warning shot.’
… he began to raise up his arm that was holding the handgun
… Koster’s arm came to a full extension.” To support those
facts, the judge cited Gray’s deposition testimony in which
Gray said, “Koster’s arm came essentially to full extension. It

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6 No. 17-2103
was pointed out towards us.” The judge assumed that Koster
raised his hand and pointed his gun at Gray and the other
officers in the doorway.
The Estate nevertheless insists throughout its appellate
brief that Koster did not point a gun at the officers, and it cites
inconsistencies in the officers’ testimony as evidence.
Regardless of those inconsistencies, at summary judgment the
Estate never disputed the defendants’ assertion, supported by
evidence, that “Koster brought his arm to full extension and
pointed his gun directly at the officers.” Moreover, in its
response, the Estate included Gray’s statement that Koster
pointed the gun, and then did not dispute it. The Estate
therefore admitted the fact, see S.D. I ND. L.R. 56.1(f)(A), and
cannot dispute it for the first time on appeal. See Homoky v.
Ogden, 816 F.3d 448, 455 (7th Cir. 2016) (citing Hannemann v.
S. Door Cty. Sch. Dist., 673 F.3d 746, 754 (7th Cir. 2012)). This
court has jurisdiction to resolve the purely legal issue of
whether qualified immunity applies.
To decide whether Gray is entitled to qualified immunity,
this court must ask: (1) whether his conduct violated Koster’s
Fourth Amendment right; and (2) whether the right was
clearly established at the time of the alleged violation.
See Saucier v. Katz, 533 U.S. 194, 201 (2001); Becker v. Elfreich,
821 F.3d 920, 925 (7th Cir. 2016).
This court analyzes claims of excessive force, including
deadly force, under the Fourth Amendment’s objective
reasonableness standard. Graham, 490 U.S. at 388–89. A
suspect has a fundamental interest in his own life. Tennessee
v. Garner, 471 U.S. 1, 9 (1985). When addressing the use of
deadly force, the court considers whether a reasonable officer
in the circumstances would have probable cause to believe

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No. 17-2103 7
that the suspect poses an immediate threat to the safety of the
officers or others. Weinmann v. McClone, 787 F.3d 444, 450 (7th
Cir. 2015). If the suspect threatens the officer with a weapon,
deadly force may be used. Id. at 449–50; Plakas v. Drinski, 19
F.3d 1143, 1146, 1150 (7th Cir. 1994). At that point, the risk of
serious physical harm to the officer or others has been shown.
Scott v. Edinburg, 346 F.3d 752, 756 n.2 (7th Cir. 2003).
Gray did not violate Koster’s Fourth Amendment right by
defending himself and other officers once Koster pointed a
gun at them. A visibly agitated Koster threatened that he
would “fire a warning shot,” and then raised his arm, gun in
hand. While the Estate contends that Koster’s warning shot
would have been fired straight up in the air, we will not
assume that. Koster could easily have meant that he intended
to attempt firing a bullet that would whiz past Gray’s ear.
Gray did not need to wait and hope that Koster was a skilled
marksman before taking action to shut down Koster’s threat.
Indeed, these circumstances place this case handily among
others in which the court has sanctioned the use of deadly
force. See, e.g., Weinmann, 787 F.3d at 449–50 (7th Cir. 2015)
(“[I]f [the suspect] had the gun raised to his shoulder and
pointed at [the officer], then [the officer] would have been
justified in using deadly force and hence entitled to qualified
immunity”); Estate of Escobedo v. Martin, 702 F.3d 388, 410–411
(7th Cir. 2012) (officer entitled to qualified immunity for
shooting suspect who pointed gun at officers while trapped
in an apartment); Muhammed v. City of Chicago, 316 F.3d 680,
683 (7th Cir. 2002) (officer received qualified immunity for
shooting suspect who aimed gun at officers).
The cases that the Estate cites to the contrary are
distinguishable because they involve suspects who did not

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pose a threat of bodily harm. See, e.g., Williams v. Ind. State
Police Dep't, 797 F.3d 468, 482–83 (7th Cir. 2015) (because of
fact dispute, the court could not credit officers’ testimony that
suspect threatened them with knife); Wallace v. Estate of
Davies, 676 N.E.2d 422 (Ind. Ct. App. 1997) (suspect did not
point gun at officers). Although the Estate contends that
Koster was passively resisting arrest, and therefore posed no
threat, the facts show otherwise: Koster threatened the
officers when he pointed a gun at them. See Muhammed, 316
F.3d at 683–84. Accordingly, Gray did not act unreasonably
when he responded with deadly force.
The Estate’s other arguments fail. The Estate contends that
Gray impermissibly escalated the situation before shooting by
not taking cover. But the law does not establish that such
conduct is relevant to an excessive-force analysis, let alone
that an officer may be liable based on actions before the
shooting that might have led to the use of force. See Williams,
797 F.3d at 482–83 (collecting cases). And the Estate contends
that Gray should have used a less deadly method before
shooting, but Graham makes it clear that the Fourth
Amendment does not require the use of alternatives before
deadly force in a situation such as this when there is “no
time.” See Bell v. Irwin, 321 F.3d 637, 640 (7th Cir. 2003); Plakas,
19 F.3d at 1149.
Gray did not violate the Fourth Amendment, and so there
is no need to assess whether a “clearly established” right was
at stake. Were it necessary, the Estate would be on shaky
ground; the Estate admits that it cannot point to an analogous
case decided before January 2014 that would put Gray on
notice that his conduct was unreasonable. And the Estate’s
reliance on the general standard for excessive force “is not

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No. 17-2103 9
enough” because the right must be “’clearly established’ in a
more particularized, and hence more relevant, sense.” See
Saucier, 533 U.S. at 201–02 (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)).
We therefore REVERSE the district court’s judgment and
REMAND with instructions to enter judgment for Gray on the
excessive-force claim.

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