Defendant's Attorney: Not available.

Description: Kansas City, Kansas civil rights lawyer represented the Plaintiff who sued the Defendants on civil rights violation theories.

Maria Varnas sued Conner Thompson claiming he used excessive force when he shot and killed Brandon Lynch, age 27, in 2022.

Following the tragic death of her son, Plaintiff Maria Varnas filed this lawsuit, pursuant to 42 U.S.C. § 1983, as Special Administrator of the Estate of her son, Brandon S. Lynch, against the City of Olathe, Kansas (“the City”) and Olathe Police Officer Conner Thompson (“Officer Thompson”), in his individual and official capacity. Plaintiff alleges that Officer Thompson used excessive force against Lynch in violation of Lynch's Fourth and Fourteenth Amendment rights and that the City maintained policies that were the moving force behind Defendants' constitutional violations. This matter is now before the Court on Defendants' Motion to Dismiss (Doc. 9) for failure to state a claim under Fed.R.Civ.P. 12(b)(6). The motion is fully briefed, and the Court is prepared to rule. For the reasons stated below, the Court grants the motion in part and denies the motion in part.

To succeed in a civil rights excessive force case, the Plaintiff plaintiff must show both that a “seizure” occurred and that the seizure was “unreasonable under the Fourth Amendment.

"In addition to the Graham . . . factors, [courts] must also consider whether an officer's ‘reckless or deliberate conduct during the seizure unreasonably created the need to use such force.'” Although courts applying the Fourth Amendment reasonableness standard “scrutinize only the seizure itself, [and] not the events leading to the seizure, . . . ‘events immediately connected with the actual seizure are taken into account.'” “The mentally ill or disturbed condition of the suspect is a relevant factor in determining reasonableness of an officer's responses to a situation.”

The first Graham factor, the severity of the crime at issue, weighs in Plaintiff's favor. Defendants argue that the genesis of M.L.'s 911 call was an assault and battery-a violent crime. However, as Defendants concede, the Complaint alleges that M.L.'s 911 call was for a “welfare check.” The Complaint makes clear that “M.L. called 911 to get help for her brother” and “reported to the dispatcher that [Lynch] had a history of schizophrenia, paranoia, and was in crisis.

“The second Graham factor, ‘whether the suspect pose[d] an immediate threat to the safety of the officers or others,' is undoubtedly the ‘most important' and fact intensive factor in determining the objective reasonableness of an officer's use of force.” In assessing this Graham factor, courts consider the non-exclusive so-called Larsen factors: “(1) whether the officers ordered the suspect to drop his weapon, and the suspect's compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect.” After considering the Larsen factors, the third Graham factor also weighs in favor of Plaintiff. In fact, three of the four Larsen factors are in Plaintiff's favor.

Officer Thompson recklessly or deliberately brought about the need to use deadly force.

Plaintiff's factual allegations and the body camera videos viewed in the light most favorable to Plaintiff sufficiently demonstrate that Officer Thompson used excessive force in violation of Lynch's Fourth Amendment rights.

Although the Court has determined that Plaintiff's factual allegations and the body camera videos viewed in the light most favorable to Plaintiff demonstrate that Officer Thompson violated a constitutional right, Officer Thompson raises the defense of qualified immunity. “The doctrine of qualified immunity shields public officials . . . from damages actions unless their conduct was unreasonable in light of clearly established law.” “[T]his affirmative defense ‘creates a presumption that [the defendant is] immune from suit.'” To overcome this presumption, the plaintiff carries the burden of establishing: “(1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct.” Because the Court has already determined that Plaintiff sufficiently alleged the violation of a constitutional right, the Court must determine whether that constitutional right was clearly established.
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Here, the Court agrees with Plaintiff that under Tenorio v. Pitzer, Officer Thompson's constitutional violation was clearly established at the time of Lynch's death. In Tenorio, the Tenth Circuit agreed with the district court that a reasonable jury could find that Tenorio's constitutional rights were violated. Specifically, when Tenorio was fatally shot by the defendant officer, he displayed diminished mental capacity, held a small knife and made no aggressive move toward the officers with the knife, was not charging the officer and instead took three steps toward the officer, was in the same living room with the officer but not within striking distance, and refused the officers' orders to drop the knife. All of these facts are similarly alleged by Plaintiff and not clearly contradicted by the body camera videos.

Thus, the Court denies Defendants' motion to dismiss Count I against Officer Thompson in his individual capacity. Plaintiff has met her burden of establishing that Officer Thompson violated Lynch's constitutional right and that the right was clearly established; therefore, Officer Thompson is not entitled to qualified immunity.

A municipality may not be held liable under § 1983 simply because it employs a person who is liable under § 1983.

In Count II, Plaintiff alleges that the City maintained policies, procedures, practices, and customs that were the moving force behind Lynch's constitutional deprivations. Specifically, Plaintiff alleges that the City failed to adequately train its officers.


In Kentucky v. Graham, the Supreme Court explained that a suit against an individual in his official capacity is really “only another way of pleading an action against an entity of which an officer is an agent.” “As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Applying Graham, courts in this district have routinely dismissed official capacity claims against a state official when plaintiffs also name the local public entity of which the officer is an agent, such as the city or police department, as a defendant.

Outcome: IT IS THEREFORE ORDERED BY THE COURT that Defendants' Motion to Dismiss (Doc. 9) is granted in part and denied in part. The motion is granted with respect to Count I as against Defendant Officer Thompson in his official capacity. The motion is otherwise denied.

Plaintiff's Experts:

Defendant's Experts:

Comments: Editor's Note: Excessive force cases are difficult to make.