                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-1430
                         ___________________________

                                    Davdrin Goffin

                         lllllllllllllllllllllPlaintiff - Appellant

                                            v.

 Robbie K. Ashcraft, Individually and Official capacity as Police Officer, Warren,
AR; Randy Peek, Individually and Official capacity as Chief of Police, Warren, AR;
Bryan Martin, Individually and Official capacity as Mayor, Warren, AR; John Doe,
                         1-10; Warren, Arkansas, City of

                        lllllllllllllllllllllDefendants - Appellees
                                         ____________

                      Appeal from United States District Court
                  for the Western District of Arkansas - El Dorado
                                   ____________

                              Submitted: April 18, 2019
                                Filed: April 24, 2020
                                   ____________

Before SMITH, Chief Judge, KELLY and KOBES, Circuit Judges.
                              ____________

KOBES, Circuit Judge.

      Officer Robbie Ashcraft tried to arrest Davdrin Goffin for burglary and stealing
handguns, bullets, and prescription pain medication. Prior to the arrest, multiple
witnesses told her that Goffin was armed, possibly intoxicated, and dangerous. When
Goffin broke free from arrest, fled toward a group of bystanders, and moved as though
he was reaching into his waistband, she shot him once in the back.

       This would be a relatively straightforward qualified immunity case if those were
all the facts. An officer may constitutionally use deadly force when she reasonably
believes a fleeing suspect poses a threat of serious harm to herself or others. But
Goffin claims (and Officer Ashcraft disputes) that he was patted down by another
officer just before he fled. The pat down removed nothing from Goffin and was later
shown to have been unusually ineffective; the officer failed to discover that Goffin was
carrying a loaded magazine and extra bullets.

      We conclude that Officer Ashcraft is entitled to qualified immunity on these facts
because it was not clearly established at the time of the shooting that a pat down that
removes nothing from a suspect eliminates an officer’s probable cause that the suspect
poses a threat of serious physical harm.

                                            I.

       We construe the facts in Goffin’s favor. In September 2012, Goffin’s uncle,
Tommy Reddick, reported to Officer Ashcraft and Officer Aaron Hines that his home
had been burgled—and he suspected Goffin was responsible for stealing two handguns,
a box of bullets, and a bottle of painkillers. Reddick told the officers that earlier that
day Goffin came to his house and asked for a gun, explaining that he lost his own pistol
fleeing from the police. Reddick refused and left the house. When he returned, he saw
Goffin was still nearby, arguing with a man in a black pickup truck. Once inside his
house, he discovered that someone had snuck in through a back window, broken down
a bedroom door, and stolen guns, ammunition, and pills. Reddick warned Officer
Ashcraft, “This dude is out of control!” and, “Y’all better be ready to fight when you
find him.”


                                           -2-
       When the officers started searching for Goffin, Officer Ashcraft stopped a black
truck that looked like the one Reddick had described. The driver, Dewayne Moore,
told her that earlier Goffin had asked him for a ride. Moore initially told Goffin no, but
Goffin threatened him, saying “take me to the goddamn car wash” and then displayed
two guns that matched the descriptions of Reddick’s stolen pistols. Frightened, Moore
gave Goffin a ride. He too warned Officer Ashcraft about Goffin, telling her that
Goffin was drunk and that Moore was scared he would rob him. After the shooting,
he recounted to police that Goffin looked like he “was going to do something stupid,”
like he didn’t “give a damn . . . like, I’m going to take you out or whatever.”

       After Officer Ashcraft interviewed Moore, Officer Hines called her and told her
that Goffin was at a nearby body shop. The officers arrived separately but then walked
together toward a crowd of people in the parking lot. Officer Ashcraft asked where
Goffin was and the owner of the body shop directed them toward the garage. In front
of the garage, the officers found Goffin sitting in a car talking on a Bluetooth headset.
Both officers approached the vehicle with guns drawn, but before they got there Officer
Hines holstered his pistol and drew a taser.

       The officers demanded that Goffin exit with his hands raised, which he did.
They then escorted him to the back of the car and Officer Ashcraft claims she saw
something “bumping in [Goffin’s] right front pocket.” Goffin denies anything was in
that pocket. At the back of the vehicle, Goffin says that Officer Hines patted him down
and “searched every part of [his] body,” including feeling for items in his pockets and
around his waist. Goffin admits Officer Hines “didn’t go into [his] pockets” and did
not remove anything from his body.

       Officer Hines started to place Goffin in handcuffs, but before he could finish,
Goffin pushed off the car and fled toward a group of seven or eight bystanders. With
his back to the officers, he raised his right shoulder, which Officer Ashcraft interpreted
as a reach for something in his pocket or his waistband. She then shot him once in the
back.

                                           -3-
       The shooting occurred in a “split second.” Goffin says he took no more than two
steps and Officer Ashcraft agrees he made it only “a very short distance” before she
fired. After he was shot, officers discovered that the patdown had missed a loaded
9mm pistol magazine and several loose bullets. The stolen guns were discovered
within reach of where Goffin had been sitting in the car, but Goffin did not have a
weapon on him.

       Goffin survived the gunshot wound and brought a 1983 action against Officer
Ashcraft, the city, and several other municipal employees, claiming that Officer
Ashcraft used excessive force against him and that the other defendants had failed to
properly train and supervise her. The district court1 granted summary judgment to the
defendants, finding that Officer Ashcraft was entitled to qualified immunity because her
actions were objectively reasonable as a matter of law. Because the underlying
excessive force claim failed, so did Goffin’s claims against the other defendants. After
dismissing all federal claims, the district court declined to exercise supplemental
jurisdiction over the remaining state-law claims. Goffin timely appealed and we have
jurisdiction. 28 U.S.C. § 1291.

                                           II.

       We review the grant of summary judgment on the basis of qualified immunity de
novo. Michael v. Trevena, 899 F.3d 528, 531 (8th Cir. 2018). “Summary judgment
is appropriate if the evidence, viewed in the light most favorable to [Goffin] and giving
him the benefit of all reasonable inferences, shows there is no genuine issue of material
fact.” Morgan v. A.G. Edwards, 486 F.3d 1034, 1039 (8th Cir. 2007). We avoid
judging an officer’s split-second decision (made with imperfect information) against
one we would make with a complete record and the benefit of hindsight. Plumhoff v.
Rickard, 572 U.S. 765, 775 (2014).

      1
       The Honorable Susan O. Hickey, Chief Judge, United States District Court for
the Western District of Arkansas.

                                          -4-
       We analyze cases involving the use of deadly force against a fleeing suspect
under the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1, 7 (1985). An
officer’s actions are justified when they are “objectively reasonable in light of the facts
and circumstances confronting [the officer], without regard to [the officer’s] underlying
intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989); see also Capps
v. Olson, 780 F.3d 879, 884 (8th Cir. 2015). An officer is justified in using lethal force
when she “has probable cause to believe that the suspect poses a threat of serious
physical harm to the officer or others.” Garner, 471 U.S. at 11.

       Officer Ashcraft is entitled to qualified immunity if her conduct did not “violate
clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We do “not define
clearly established law at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S.
731, 742 (2011). “The dispositive question is whether the violative nature of
particular conduct is clearly established.” Mullenix v. Luna, 136 S. Ct. 305, 308
(2015) (per curiam) (citation omitted).

       Goffin must identify “either ‘controlling authority’ or ‘a robust consensus of
cases of persuasive authority’ that ‘placed the statutory or constitutional question
beyond debate’ at the time of the alleged violation.” Kelsay v. Ernst, 933 F.3d 975,
979 (8th Cir. 2019) (en banc) (quoting Ashcroft, 563 U.S. at 741–42). “A plaintiff’s
failure to identify a case where an officer acting under similar circumstances was held
to have violated the Fourth Amendment is often fatal to a claim outside of obvious
cases.” K. W. P. v. Kansas City Public Schools, 931 F.3d 813, 828 (8th Cir. 2019)
(cleaned up).




                                           -5-
       By the time that she confronted Goffin at the body shop, Officer Ashcraft
objectively and reasonably believed that Goffin was dangerous.2 Capps, 780 F.3d at
884–85. She knew that he had lost a gun while fleeing from the police and had strong
evidence that he had recently stolen two more. Moore told her Goffin was drunk and
that he had threatened him with the stolen guns. And to top it off, Goffin’s uncle had
warned her that Goffin was spoiling for a fight.

       The case turns on whether the pat down changes our analysis.3 Goffin argues
that the pat down creates an issue of material fact because, if it occurred, then Officer
Ashcraft must have known he was unarmed, or at least that there is an issue of material
fact as to whether she knew he was unarmed. But whether probable cause exists is a
legal question, not a factual one. See United States v. Kelley, 329 F.3d 624, 628 (8th
Cir. 2003). He must therefore provide a case clearly establishing that a pat
down that recovered nothing4 eliminated Officer Ashcraft’s objectively reasonable
belief that he was armed and dangerous.

      2
        The dissent suggests this a question for the jury. But “whether [an] officer[’s]
actions were objectively reasonable in light of clearly established law” is a legal
question for the courts. Littrell v. Franklin, 388 F.3d 578, 586 (8th Cir. 2004); see
Scott v. Harris, 550 U.S. 372, 381 n.8 (2007) (“[T]he reasonableness of Scott’s
actions—or, in Justice Stevens’ parlance, ‘[w]hether [respondent’s] actions have risen
to a level warranting deadly force,’—is a pure question of law.”) (citation omitted).
      3
         We refer to the search as a “pat down” because that is the language the parties
use and it describes how Goffin alleges he was searched. But the search was not a
limited Terry-style stop, as the dissent suggests. Rather, it appears to have been the
first step in a full search incident to arrest.
      4
        In addition to recovering nothing, the record demonstrates that this was an
unusually ineffective pat down that missed items that should have been discovered.
Because Goffin nevertheless insists that the pat down covered “every part of his body,”
and because determining the exact quality of the pat down is not necessary to our
conclusion, we disregard this factual oddity and construe the pat down in the light most
favorable to Goffin.

                                          -6-
       Goffin fails to point to such a case. He relies on Tennessee v. Garner, but that
case stands for a general proposition and cannot clearly establish the rule in most cases.
See Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam). His reliance on
Wealot v. Brooks, 865 F.3d 1119 (8th Cir. 2017), is similarly misplaced. In Wealot,
the parties disputed whether an officer had seen the suspect throw down his gun and
raise his hands in surrender. We reversed because the district court had improperly
construed the record in favor of the officer moving for summary judgment. Id. at
1125–26. The district court did not make that mistake here and it is undisputed that
Officer Ashcraft never saw any items removed from Goffin. And even if Wealot were
factually analogous, it cannot have put Officer Ashcraft on notice that her conduct was
illegal because it was decided four years after Goffin was shot. See Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985) (clearly established law must predate the alleged
violation).

       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).     The district court is affirmed.

KELLY, Circuit judge, dissenting.

       Officer Ashcraft never saw Goffin with a weapon, and she watched a fellow
officer conduct a pat down that revealed no weapons. Yet Ashcraft shot Goffin in the
back, in “a split-second,” after he took “no more than two steps.” Because I believe
that the relevant law is clearly established—a question for the court to decide—and that

                                           -7-
a reasonable jury could find that Ashcraft’s use of deadly force was objectively
unreasonable, I respectfully dissent.

       Police officers are not entitled to qualified immunity if “(1) they violated a
federal statutory or constitutional right, and (2) the unlawfulness of their conduct was
clearly established at the time.” District of Columbia v. Wesby, 138 S. Ct. 577, 589
(2018) (cleaned up). Goffin argues Ashcraft violated his clearly established Fourth
Amendment right to be free from excessive force. In assessing an excessive force
claim, we ask whether the officer’s actions were “‘objectively reasonable’ in light of
the facts and circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397
(1989). Reasonableness must be judged “from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396. “The use of
deadly force is reasonable where an officer has probable cause to believe that a suspect
poses a threat of serious physical harm to the officer or others.”5 Loch v. City of


      5
        To the extent that a probable cause analysis is required here, we have not
applied it under the clearly established prong and have only addressed it to determine
whether an officer’s actions were objectively reasonable. See Malone v. Hinman, 847
F.3d 949, 954 (8th Cir. 2017) (identifying the relevant question as “whether Officer
Hinman’s use of deadly force against Malone was objectively reasonable under the
circumstances,” and specifically whether the officer “had probable cause to believe”
that Malone posed a threat of serious physical harm, but not explicitly finding that
probable cause existed); Partlow v. Stadler, 774 F.3d 497, 503 (8th Cir. 2014)
(determining that a reasonable officer would have had probable cause when analyzing
objective reasonableness); Aipperspach v. McInerney, 766 F.3d 803, 807 (8th Cir.
2014) (finding that “objectively reasonable officers had probable cause” to believe that
suspect posed a threat of serious physical harm to the officers); Ribbey v. Cox, 222
F.3d 1040, 1043 (8th Cir. 2000) (“A shooting is objectively reasonable when the
officer has probable cause to believe that the suspect poses a significant threat of death
or serious physical harm to the officer or others.”). Cf. Wallace v. City of Alexander,
843 F.3d 763,768–69 (8th Cir. 2016) (determining that the officer’s actions were
objectively unreasonable without addressing probable cause); Ellison v. Lesher, 796
F.3d 910, 916 (8th Cir. 2015) (mentioning probable cause when addressing objective

                                           -8-
Litchfield, 689 F.3d 961, 965 (8th Cir. 2012). “But where a person ‘poses no
immediate threat to the officer and no threat to others,’ deadly force is not justified.”
Ellison v. Lesher, 796 F.3d 910, 916 (8th Cir. 2015) (quoting Tennessee v. Garner, 471
U.S. 1, 11 (1985)). “Before employing deadly force, an officer should give some
warning when it is feasible to do so.” Loch, 689 F.3d at 967 (cleaned up).

        Viewing the facts in the light most favorable to Goffin and giving him the benefit
of all reasonable inferences, a jury could find that a reasonable officer would not have
believed Goffin posed a threat of serious physical harm to the officer or others. See
Morgan v. A.G. Edwards & Sons, Inc., 486 F.3d 1034, 1039 (8th Cir. 2007) (summary
judgment standard). Ashcraft heard from two witnesses that Goffin had two guns and
ammunition in his possession. But after she arrived at the auto body shop, she never
saw a gun in Goffin’s possession. He was not holding a gun when he was in the car,
or when he exited the car. At the back of the car, Hines patted Goffin down and
“searched every part of [his] body,” including feeling for items in his pockets and
around his waist.6 Ashcraft saw the pat down revealed no weapons of any kind. Then,


reasonableness but not reaching the question of whether the officer had probable
cause).
      6
        The district court and the parties characterize this as a pat down, and the court
here finds it “unusually ineffective.” But the purpose of a pat down is “to determine
whether the person is in fact carrying a weapon.” Minnesota v. Dickerson, 508 U.S.
366, 373 (1993) (citing Terry v. Ohio, 392 U.S. 1, 24 (1968)). It is not to discover
every item a person may be carrying. See id. (“The purpose of this limited search is
not to discover evidence of crime, but to allow the officer to pursue his investigation
without fear of violence.”); United States v. Murphy, 261 F.3d 741, 743 (8th Cir. 2001)
(“The justification for a pat-down search is to ensure the safety of a law enforcement
officer.”). The pat down “must be strictly limited to that which is necessary for the
discovery of weapons which might be used to harm the officer or others nearby.”
Dickerson, 508 U.S. at 373. The pat down here would only be unsuccessful if Goffin
had a weapon that the pat down failed to reveal. Neither party argues, and the court
does not contend, that the loose bullets and loaded magazine found in Goffin’s pocket

                                           -9-
in a “split second,” she shot him in the back—without warning—after he took “no
more than two steps.” She thought Goffin might have been reaching for a weapon.
“An act taken based on a mistaken perception or belief” that a suspect is armed does
not necessarily violate the Fourth Amendment, but only “if objectively reasonable.”
Loch, 689 F.3d at 966. In my view, based on these facts, a jury could find that Officer
Ashcraft’s actions were not objectively reasonable.

        In addition, the law is clearly established even if no prior case contained the
exact factual circumstance here: a pat down before the suspect fled. The Supreme
Court has long rejected the notion that “an official action is protected by qualified
immunity unless the very action in question has previously been held unlawful.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). Officials can be on notice that their
conduct violates established law “even in novel factual circumstances.” Hope v.
Pelzer, 536 U.S. 730, 741 (2002). Although existing precedent must have placed the
statutory or constitutional question beyond debate, “general statements of the law are
not inherently incapable of giving fair and clear warning to officers.” Kisela v. Hughes,
138 S. Ct. 1148, 1153 (2018). This is because, at its core, “clearly established” boils
down to “whether the officer had fair notice that her conduct was unlawful.” Brosseau
v. Haugen, 543 U.S. 194, 198 (2004) (per curiam).

       Officer Ashcroft had “fair notice” that her conduct was unlawful. It is
undisputed that “[s]ince 1985, it has been established by the Supreme Court that the
use of deadly force against a fleeing suspect who does not pose a significant threat of


are considered weapons.

        Even assuming the pat down was somehow ineffective, however, its
ineffectiveness would have no bearing on the qualified immunity analysis. The relevant
inquiry here is whether an officer reasonably conducted herself based on the facts she
had at the time of the shooting. And at the time of the shooting, Ashcraft did not know
that items would later be found in Goffin’s pocket.

                                          -10-
death or serious physical injury to the officer or others is not permitted.” Moore v.
Indehar, 514 F.3d 756, 763 (8th Cir. 2008) (determining that a jury could find the
officer’s use of deadly force against an unarmed person fleeing the scene of a shooting
objectively unreasonable). We have concluded that “an officer violate[s] Garner by
using deadly force to seize an individual who did not possess a weapon and was
attempting to flee the scene of a potentially violent crime.” Wallace v. City of
Alexander, 843 F.3d 763, 769 (8th Cir. 2016) (citing Moore, 514 F.3d at 763) (finding
that a jury could determine the officer’s use of deadly force on a fleeing, unarmed
suspect objectively unreasonable, even though the officer had previously seen the
suspect hold a gun); see also Ellison, 796 F.3d at 917 (acknowledging that “the precise
scenario” of the case, shooting an armed person for standing in his apartment and
refusing to lie down on the ground, does not appear in a reported decision but still
finding that the officers were “on fair notice that the use of deadly force would not be
reasonable”).

       The court relies on the precise scenario of a suspect fleeing after a pat down that
revealed no weapons to conclude that Ashcraft violated no clearly established law. But
the pat down is a novel fact that does not render inapplicable the clearly established law
that officers “may not use deadly force unless the suspect poses a significant threat of
death or serious physical injury to the officer or others.” Ellison, 976 F.3d at 917
(quotation omitted). And here, although the novel factual circumstance of a pat down
may impact whether a reasonable jury finds Ashcraft’s actions objectively reasonable,
it does not render inapplicable the clearly established law that she cannot use deadly
force unless a suspect poses a significant threat of death or serious physical injury to
her or others.

      I would reverse the grant of qualified immunity.
                       ______________________________




                                          -11-
