CA8: Negative patdown didn’t remove threat when ptf reached for waistband and was shot

Plaintiff was patted down (it appears more of a full search incident) and then fled and reached for his waistband and was shot. A gun was overlooked in the patdown. “We therefore conclude that Officer Ashcraft is entitled to summary judgment because it is not clearly established that after observing a pat down that removes nothing from a suspect who an officer reasonably believed to be armed and dangerous, an officer cannot use lethal force against that suspect when he flees and moves as though he is reaching for a weapon. Nor do we think this is the ‘rare obvious case’ in which ‘the unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent does not address similar circumstances.’ District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (quotation omitted).” Goffin v. Ashcraft, 2020 U.S. App. LEXIS 32529 (8th Cir. Oct. 15, 2020).*

Plaintiff’s arrest was based on probable cause that she had possession of a stolen cell phone presented in a Sprint store for activation. Thus, her claim is barred by qualified immunity. Deherrera v. Eddy, 2020 U.S. App. LEXIS 32347 (10th Cir. Oct. 14, 2020).*

The § 1983 statute of limitations in Idaho is two years. Where the Fourth Amendment claims are barred by limitations, the supplemental jurisdiction claims with five year limitations also must fail. Byerly v. Bandit Task Force, 2020 U.S. Dist. LEXIS 189735 (D. Idaho Oct. 13, 2020).*

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