                   United States Court of Appeals
                               For the Eighth Circuit
                           ___________________________

                                   No. 16-4429
                           ___________________________

   Walter Louis Franklin, II, Trustee for the Estate of Terrance Terrell Franklin

                           lllllllllllllllllllll Plaintiff - Appellee

                                              v.

    Lucas Peterson, individually, and in his official capacity; Michael Meath,
 individually, and in his official capacity; Janee Harteau, Chief of Police for the
Minneapolis Police Department, individually and in her official capacity; City of Minneapolis

                        lllllllllllllllllllll Defendants - Appellants
                                         ____________

                       Appeal from United States District Court
                      for the District of Minnesota - Minneapolis
                                     ____________

                              Submitted: October 19, 2017
                               Filed: December 26, 2017
                                    ____________

Before LOKEN, BEAM, and COLLOTON, Circuit Judges.
                           ____________

BEAM, Circuit Judge.

      After the shooting death of Walter Louis Franklin, II, at the hands of
Minneapolis police officers, Franklin's estate ("the estate") brought this action against
two officers, the City of Minneapolis and the Chief of Police claiming excessive
force, wrongful death, and negligence. The defendants moved for summary
judgment, which the district court1 denied on all but the negligence claim. The
officers appeal the denial of summary judgment based on qualified immunity.2 We
dismiss the appeal for lack of jurisdiction.

I.    BACKGROUND

       Herein we recite the facts as stated by the district court. This case is unique in
that the bulk of the facts set forth by the district court are those advanced by the
moving party because Franklin is deceased and was the only other individual at the
scene with the officers.

        On May 10, 2013, police became involved with Franklin after being contacted
by a bystander who believed that Franklin was the person he had seen on security
footage from an apartment building that had been previously burglarized. Police
officers were dispatched to a parking lot where Franklin was located. Three officers
initially responded. After the officers arrived, Franklin fled the scene in a vehicle he
was driving and struck the door of one of the officers' squad cars as he did so.



      1
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
      2
        The Notice of Appeal states "All Defendants, in their official and individual
capacities" appeal the district court's order denying qualified immunity under 42
U.S.C. § 1983 on the excessive force claim. However, qualified immunity is a
personalized inquiry and courts are charged with evaluating the officials' conduct
individually. Wilson v. Northcutt, 441 F.3d 586, 591 (8th Cir. 2006) ("Liability for
damages for a federal constitutional tort is personal, so each defendant's conduct must
be independently assessed."). It is for this reason, we presume, that only Officers
Peterson and Meath are referenced in the briefing and counsel clarified at oral
argument that the appeal from the denial of qualified immunity necessarily only
involves the two officers. On remand the district court should properly address the
status of the City of Minneapolis and Chief Harteau in this action.

                                          -2-
       After fleeing from the parking lot, Franklin broke into a home and hid in the
basement. Officers from the Minneapolis Police Department located Franklin,
including Officers Peterson, Meath, Durand, Muro and Sergeant Stender with his K-9,
Nash. According to the officers, K-9 Nash located Franklin behind a water heater in
a small closet under the basement stairs in the home. K-9 Nash bit Franklin's clothing
and tried to pull Franklin out from behind the water heater. Sergeant Stender claims
that he ordered Franklin to "show his hands" several times but Franklin remained in
his hiding spot and did not show his hands. The officers claimed that in an effort to
compel Franklin to respond and comply with the officers' orders, Sergeant Stender
approached Franklin and struck him in the head with a closed fist, and, when Franklin
did not respond, Sergeant Stender hit Franklin with his flashlight. When Franklin
continued to refuse to show his hands, Sergeant Stender moved into the closet and
attempted to pull Franklin out by putting Franklin into a headlock. Sergeant Stender
stated that Franklin resisted.

      To assist, Officer Meath attempted to subdue Franklin by grabbing his
shoulders, pulling him backwards, and delivering two to three knee strikes to
Franklin's upper body. Officers Peterson and Durand stated that they heard Officer
Meath yell "are you grabbing for my gun?" Officer Meath claimed that Franklin then
forced his way out of the closet.

      Once out of the closet, Officer Peterson stated that Franklin punched Officer
Peterson in the face and that Officer Peterson grabbed Franklin's hair, ripping off
some of Franklin's dreadlocks. Franklin then turned and tackled Officer Durand,
driving him into the laundry room and to the floor. The officers claimed that as
Franklin and Officer Durand fell, Franklin grabbed the pistol grip of Officer Durand's
MP5 sub-machine gun and pulled the trigger twice. Officers Meath and Muro were
each hit by bullets.




                                         -3-
       Officer Durand stated that a struggle ensued with Franklin over the MP5,
during which the flashlight on the muzzle of the MP5 switched on and Officer
Durand yelled out "he's got a gun." Officer Peterson stated that he saw the struggle
over the firearm and that Franklin gained sufficient control of the firearm to point it
at Officer Peterson. Officer Peterson claimed that in response to this perceived threat,
he moved toward Franklin and Officer Durand, reached out in the darkness for
Franklin's head, aimed his handgun, and fired at Franklin five times. Officer Meath,
who had been shot by the MP5, claimed that he saw Franklin sitting on the ground,
with his arms extended, with Officer Peterson "basically kind of on top of" Franklin.
When he spotted a gap between Franklin and Officer Peterson, Officer Meath fired
his handgun. Franklin suffered gunshot wounds to the head and torso of his body and
was pronounced dead at the scene.

       The estate presented evidence to the district court in support of its contention
that there is a genuine dispute about the events that took place in that basement that
day. In support of this argument, the estate relied in part on evidence from a video
filmed by Jimmy Gaines ("the Gaines video") as well as a report from a proposed
expert witness who reviewed the Gaines video and offered an analysis. According
to the estate, the Gaines video and the accompanying analysis contradict the time line
and sequence of events set forth by the officers. The estate highlighted a seventy-
second gap of time between when the first shots were fired and the time the officers
fired on Franklin, which the estate argued supported a conclusion that the sequence
of events was not as presented by the officers and there remained a question as to
whether Franklin posed a threat when he was shot and killed.

       Too, the estate argued that the evidence gathered at the scene is inconsistent
with the officers' testimony, additionally creating an issue of material fact as to the
threat posed by Franklin when the events transpired. The estate pointed out that
neither Officer Muro nor Officer Meath observed the MP5 being discharged. The
estate additionally noted that the MP5 had no blood on it despite the officers'

                                          -4-
testimony that there was an ongoing struggle when Franklin was shot, and there was
ample amounts of blood on items in the laundry room and on Franklin himself. These
inconsistencies, according to the estate, call into doubt whether Franklin was engaged
in a struggle over the MP5 when he was shot and, more generally, whether he posed
a threat of serious physical harm to the officers.

       In its analysis the district court held that despite the officers' contention that the
use of deadly force was reasonable under the circumstances they faced, the estate
raised a genuine dispute as to whether the officers' story was true. The court
specifically highlighted the evidence presented by the estate regarding the time gap
and the absence of blood on the MP5 as circumstantial evidence that Franklin was not
in possession of the MP5 when Officers Peterson and Meath used deadly force
against him. Reviewing jurisprudence regarding the use of deadly force and the
significant threat of death or serious physical injury to the officer or others that must
exist when an officer uses deadly force, the court held that "a factual dispute exists
over whether such a situation was present at the time when the officers used deadly
force against Franklin." In the end, although the district court acknowledged the
credible evidence submitted by the officers laying out the circumstances facing the
officers at the time deadly force was used against Franklin, the court held the officers
failed to demonstrate that no genuine dispute of material fact remained. "Indeed, [the
estate's] evidence raises fact questions regarding the sequence of events leading to the
use of deadly force against Franklin, as well as the existence and nature of any threat
posed by Franklin when the officers shot him." Accordingly, the district court denied
summary judgment on the excessive force and wrongful death claims. This
interlocutory appeal followed.

II.    DISCUSSION

     This is an appeal from the denial of qualified immunity as to Officers Peterson
and Meath, a doctrine that "shields a government official from liability unless his

                                            -5-
conduct violates 'clearly established statutory or constitutional rights of which a
reasonable person would have known.'" Burns v. Eaton, 752 F.3d 1136, 1139 (8th
Cir. 2014) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified
immunity protects "all but the plainly incompetent or those who knowingly violate
the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Because it protects officials
from the burden of defending insubstantial claims, as well as from damage liability,
the Supreme Court has "stressed the importance of resolving immunity questions at
the earliest possible stage in litigation." Pearson v. Callahan, 555 U.S. 223, 232
(2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).

       We begin with jurisdiction, which is always our "first and fundamental
question." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (quoting
Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453 (1900)). In an interlocutory
appeal from an order denying qualified immunity, we have authority to decide the
purely legal issue of whether the facts alleged by the plaintiff are a violation of clearly
established law. Mitchell v. Forsyth, 472 U.S. 511, 528 n.9 (1985); Jackson v.
Gutzmer, 866 F.3d 969, 975 (8th Cir. 2017) ("The pretrial denial of qualified
immunity is an appealable final order to the extent it turns on an issue of law."). We
do not, however, have jurisdiction to review a district court's interlocutory summary
judgment order that "determines only a question of 'evidence sufficiency,' i.e., which
facts a party may, or may not, be able to prove at trial." Johnson v. Jones, 515 U.S.
304, 313 (1995).

       As to the excessive force claim, the Fourth Amendment requires us to ask, from
the perspective of a reasonable officer on the scene, "whether the officers' actions are
'objectively reasonable' in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation." Graham v. Connor, 490 U.S.
386, 397 (1989). Relevant here, "[t]he 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." Ellison v. Lesher, 796 F.3d 910, 916 (8th Cir. 2015)

                                           -6-
(quoting Loch v. City of 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." Id. (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)).

       On the claim that the officers unlawfully used deadly force against Franklin,
the officers argue that the district court accepted nearly all of the facts provided by
the officers as undisputed, including, importantly, that Franklin fought with the
officers, gained control of a sub-machine gun, shot two of them, and then struggled
with an officer over control of the firearm. According to the officers, "[n]one of this
was controverted below; all of it was assumed by the district court." In fact,
according to the officers, the district court accepted all of the facts presented and
focused on only two additional facts–the alleged time gap and the absence of blood
on the MP5–in its denial of qualified immunity. As to these facts, the officers argue
that they are either not material or are blatantly contradicted by the record. The
problem with this argument, however, is that the district court did not hold that the
facts relayed in its recitation were undisputed, and more importantly, we lack
jurisdiction to review the factual issues that abound in this appeal. See Johnson, 515
U.S. at 313-18.

        The officers argue that Franklin posed a threat of serious physical harm to each
officer and that the district court's recitation of the undisputed facts supported a
conclusion that the officers' actions were constitutional. However, merely stating the
facts known to the court for purposes of drafting its opinion and conducting its
analysis does not mean the district court found those facts undisputed. There is no
such finding by the district court and, in fact, the court was careful to note throughout
its recitation that the facts relayed were as advanced by the officers. The district court
repeatedly stated that the facts relayed were "[a]ccording to Defendants," or as
"Sergeant Stender claim[ed]," or as "Officers Peterson and Durand state[d]," and the
like. Also, the district court similarly recited the estate's evidence, stating "Plaintiff
contends," and "Plaintiff further argues," etc.

                                           -7-
       At no point did the district court deem particular facts undisputed, nor did it
conduct a legal analysis based upon assumed facts. What the district court did do is
plainly hold that the estate's evidence raised a genuine dispute as to whether the story
told by the officers is true. For example, the court held that there was at least
circumstantial evidence that Franklin was not in possession of the MP5 when Officers
Peterson and Meath used deadly force against him. This statement by the district
court, read in context, was not a determination that this precise moment was
determinative in the constitutional analysis, but rather that based on the evidence
presented by the estate, the court simply could not determine whether the evidence
presented supported a finding that the officers faced a threat of serious physical harm
when they used deadly force. This doubt informed by the evidence of the lapse in
time and the absence of blood, according to the district court, calls into dispute the
officers' version of the alleged struggle. Because the relevant legal inquiry is whether
the officers believed that Franklin posed a threat of serious physical harm, and there
was a question as to whether the version advanced by the officers was true, the
district court denied qualified immunity in this instance. As stated by the district
court, "[i]ndeed, [the estate's] evidence raises fact questions regarding the sequence
of events leading to the use of deadly force against Franklin, as well as the existence
and nature of any threat posed by Franklin when the officers shot him."

       The instant case stands in contrast to appeals from denials of qualified
immunity at summary judgment where this court does conduct a qualified immunity
analysis based on facts the district court assumed, or necessarily assumed, viewed in
the light most favorable to the nonmoving party. For example, in Wallace v. City of
Alexander, Ark., 843 F.3d 763 (8th Cir. 2016), an officer shot a suspect in the back
at or near her police vehicle during an arrest and claimed the shooting was
unintentional. Id. at 766. The district court held that a material fact remained in
dispute as to whether the officer intended to shoot the suspect and denied summary
judgment as to the officer. Id. On appeal in Wallace, this court held it lacked
jurisdiction to review the factual issue regarding intent, but went on to conduct the

                                          -8-
qualified immunity analysis, reviewing the purely legal arguments presented in light
of the undisputed or assumed facts. Id. at 766-67.

       The defending officer in Wallace additionally briefed and argued that even if
she intentionally shot the suspect, her conduct did not violate his Fourth Amendment
rights, a purely legal issue this court reviewed. Id. at 767; see also White v. Pauly,
137 S. Ct. 548, 550-52 (2017) (exercising jurisdiction in an appeal from the denial of
qualified immunity to decide the purely legal issue of whether an officer violated
clearly established law and reiterating that the legal inquiry must be particularized to
the facts of the case, accepting as true the plaintiffs' version of the facts advanced
below); Mullenix v. Luna, 136 S. Ct. 305, 308-11 (2015) (reviewing a denial of
qualified immunity, discussing the legal question of whether the violative nature of
particular conduct is clearly established, based upon the specific facts undisputed in
the record and viewed favorably to the nonmoving party); Jackson, 866 F.3d at 974,
976-77 (exercising jurisdiction in an interlocutory appeal from the denial of qualified
immunity, relying upon undisputed facts and facts viewed most favorably to the
plaintiff, to determine whether the plaintiff produced evidence from which a jury
could find the defendant's actions constituted excessive force in violation of the Cruel
and Unusual Punishment Clause); Ellison, 796 F.3d at 914-17 (exercising jurisdiction
in an interlocutory appeal from an order denying qualified immunity to decide the
purely legal issue whether the facts assumed by the district court entitled the officers
to qualified immunity in an excessive force claim in the shooting death of the victim,
and refusing to accept the contradictory facts offered by the officers because it would
require the court to examine a matter over which it lacked jurisdiction); Walton v.
Dawson, 752 F.3d 1109, 1116 (8th Cir. 2014) (exercising jurisdiction in an appeal
from the denial of qualified immunity at the summary judgment stage where the
officials argued that, accepting the district court's factual findings as true, the court
can decide the purely legal issue of a clearly established violation of federal law);
Kahle v. Leonard, 477 F.3d 544, 549-50 (8th Cir. 2007) (exercising jurisdiction in an
appeal from the denial of qualified immunity but careful to note that there was no

                                          -9-
jurisdiction to review issues related to whether an actor actually committed the act of
which he was accused).

        Unlike Wallace and other cases where this court exercised jurisdiction, what
is at issue here are the facts themselves. The officers here acknowledge that the
material issue is whether Officers Peterson and Meath reasonably believed that
Franklin posed a threat of serious bodily harm or death. To answer that question the
officers argue that the primary facts relied upon by the district court to deny qualified
immunity are either immaterial or blatantly contradicted by the record. Both claims
involve wholly factual issues we are without jurisdiction to review. Ellison, 796 F.3d
at 916 (concluding that an appellate court cannot accept the contention offered by a
defending officer because her advanced theory was premised on a set of facts not
assumed by the district court). These officers do not argue that even if inferences are
made in the estate's favor the use of deadly force was reasonable in this circumstance,
but rather they argue the inferences raised by the estate from the evidence presented
are not plausible–a factual dispute.3 "The Supreme Court made clear [in Johnson
that] we must eschew fact-intensive '[W]e didn't do it!' defenses and confine appellate
review to 'neat abstract issues of law.'" Heartland Acad. Cmty. Church v. Waddle,
595 F.3d 798, 807 (8th Cir. 2010) (alteration in original) (quoting Johnson, 515 U.S.
at 316-17).




      3
       We are bound by the Supreme Court's holding in Johnson on this factual issue.
515 U.S. at 313. The officers reference Williams v. Holley, 764 F.3d 976 (8th Cir.
2014) for the proposition that not only do we have jurisdiction to conduct a review
on the merits of the claim, but physical evidence is lacking in this case, thus defeating
any claim of a factual dispute. Williams did not address the jurisdictional issue,
however, and we are not bound by its analysis to the extent it contradicts Johnson.
"Questions which merely lurk in the record, neither brought to the attention of the
court nor ruled upon, are not to be considered as having been so decided as to
constitute precedents." Webster v. Fall, 266 U.S. 507, 511 (1925).

                                          -10-
       The district court did not make any legal determinations based upon facts
viewed in the light most favorable to the estate, it merely held that the factual dispute
at this stage prevents such an analysis. Whether each officer reasonably believed
Franklin posed a sufficient threat depends on what occurred–a determination the
district court held it could not make based on the evidence presented thus far. Ngo
v. Storlie, 495 F.3d 597, 601 (8th Cir. 2007) ("A denial of summary judgment based
on qualified immunity is immediately appealable [only] to the extent the appellant
seeks review of the purely legal determinations made by the district court." (quoting
Henderson v. Munn, 439 F.3d 497, 501 (8th Cir. 2006)). The district court's basic
conclusion that "it is not clear what happened or what the parties will prove" is not
appealable, as it is not a final order. Johnson, 515 U.S. at 313.

       While we have jurisdiction to determine whether conduct the district court
deemed sufficiently supported for purposes of summary judgment constitutes a
violation of clearly established law, we lack jurisdiction to determine whether the
evidence could support a finding that particular conduct occurred at all. Behrens v.
Pelletier, 516 U.S. 299, 313 (1996); Johnson, 515 U.S. at 313-18. It is the latter
situation we find ourselves in today. There are no facts the district court necessarily
assumed that would allow us to conduct a legal analysis, or at least none advanced by
the officers.4 The factual arguments made by the officers on appeal regarding
materiality and sufficiency should be made to a jury and do not run to a legal issue
on appeal. Accordingly, under Johnson, qualified immunity does not prevent suit
here because the precise question for trial is the factual question, an issue which is
inseparable from, and necessarily informs, the legal one. Johnson, 515 U.S. at 314-


      4
        This holds true, also, for the appeal of the denial of summary judgment on the
state law wrongful death claim. The district court denied summary judgment on the
state law claim given the factual disputes. However, having determined we lack
jurisdiction on the excessive force claim, we decline to exercise jurisdiction over this
state law claim. See Kincade v. City of Blue Springs, Mo., 64 F.3d 389, 394 (th Cir.
1995).

                                          -11-
18. Just as in Johnson, the district court determined that the summary judgment
record raised a genuine issue of fact concerning whether the officers faced a threat of
bodily injury sufficient to support the use of deadly force. Thus, the court's
determination was not a final decision. Id. at 313.

III.   CONCLUSION

       We dismiss the appeal for lack of jurisdiction.

LOKEN, Circuit Judge, dissenting.

       I respectfully dissent. When reviewing an interlocutory appeal from the denial
of qualified immunity, we have jurisdiction to determine whether “a given set of facts
violates clearly established law.” Johnson v. Jones 515 U.S. 304, 319 (1995). In
conducting this review, “the court of appeals can simply take, as given, the facts that
the district court assumed when it denied summary judgment for that (purely legal)
reason.” Id.

      In White v. Pauly, a recent case involving a police officer’s use of deadly force,
the Supreme Court in reversing the denial of qualified immunity observed:

              Today, it is again necessary to reiterate the longstanding principle
       that ‘clearly established law’ should not be defined ‘at a high level of
       generality.’ As this Court explained decades ago, the clearly established
       law must be ‘particularized’ to the facts of the case. . . . [The Court of
       Appeals] failed to identify a case where an officer acting under similar
       circumstances . . . was held to have violated the Fourth Amendment.

137 S. Ct. 548, 552 (2017). In Mullenix v. Luna, another deadly force case, the Court
reversed the denial of qualified immunity, explaining: “The relevant inquiry is
whether existing precedent placed the conclusion that [the officer] acted unreasonably

                                          -12-
in these circumstances ‘beyond debate.’ The general principle that deadly force
requires a sufficient threat hardly settles this matter.” 136 S. Ct. 305, 309 (2015).


       In this case, it is uncontroverted that police officers cornered Walter Franklin
hiding in the basement of a home he broke into while fleeing the police. Franklin
refused to surrender, and a violent struggle ensued. Franklin grabbed an officer’s gun
and fired, wounding two officers. Officer Durand continued to struggle with Franklin
and yelled, “he’s got a gun.” Officers Peterson and Meath fired their handguns,
mortally wounding Franklin.

       In denying qualified immunity, the district court stated the general principle
that it is clearly established a police officer may not use deadly force unless the
suspect poses a significant threat of death or serious physical injury to the officer or
others. The court then reasoned:

      While it is certainly true that Officers Peterson and Meath were faced
      with a situation that posed a significant threat of death or serious
      physical injury to them or others, a factual dispute exists over whether
      such a situation was present at the time when the officers used deadly
      force against Franklin.

The court’s basis for that factual dispute? The “Gaines video,” filmed from across
the street; a proposed expert’s opinion that the video established a twenty- to seventy-
second gap between the first shots and the shots that killed Franklin; and the fact that
no blood was found on Officer Durand’s MP5 when officers testified that Durand and
Franklin were struggling for the gun when they shot Franklin.

      In my view, accepting as true the alleged seventy-second gap between the shots
that wounded two officers and the shots that killed Franklin, and the lack of blood on
Durand’s MP5, there is no existing precedent establishing “beyond debate” that


                                         -13-
Officers Peterson and Meath acted unreasonably in using deadly force. Indeed,
numerous Eighth Circuit cases have held that officers acted in an objectively
reasonable manner when they employed deadly force in similar situations. For
example, in Aipperspach v. McInerney, 766 F.3d 803, 807 (8th Cir. 2014), we upheld
the grant of qualified immunity for the use of deadly force, explaining:

      The responding officers were confronted with a suspect who held what
      appeared to be a handgun, refused repeated commands to drop the gun,
      pointed it once at [an officer], and then waved it in the direction of
      officers deployed along the ridge line in an action they perceived as
      menacing.

In Aipperspach, the gun turned out to be a toy gun, and a video filmed from an
overhead news helicopter showed the suspect making movements that might have
been an attempt to surrender or an indication that he had lost his balance, rather than
threats to shoot at the officers. Id. at 805-06. But the video did not clearly contradict
the officers’ version of the incident and therefore “shed no material light” on whether
the officers who used deadly force reasonably feared for their lives or the lives of
fellow officers. Id. at 808. Here, of course, the officers were not dealing with a
suspect who was threatening serious injury. Two officers had already been shot.

       On this record, I conclude the district court erred in failing to rely on Supreme
Court and Eighth Circuit precedents demonstrating that the alleged unreasonable use
of deadly force was not beyond debate. Therefore, I would reverse the denial of
qualified immunity to Officers Peterson and Meath.
                        ______________________________




                                          -14-
