                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-1126
                         ___________________________

 Ivan Swearingen, Administrator of the Estate of Ryan James Swearingen; Ronda
       Swearingen, Administrator of the Estate of Ryan James Swearingen,

                       lllllllllllllllllllllPlaintiffs - Appellants,

                                            v.

  Karl Judd, Individually, and in his Official Capacity as a Police Officer for the
                            City of Fort Madison, Iowa,

                       lllllllllllllllllllllDefendant - Appellee.
                                      ____________

                     Appeal from United States District Court
                   for the Southern District of Iowa - Davenport
                                  ____________

                            Submitted: January 14, 2019
                               Filed: July 18, 2019
                                  ____________

Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.
                              ____________

COLLOTON, Circuit Judge.

      This case arises from a police shooting in which a suspect was killed. The
administrators of the decedent’s estate sued the police officer who fired the fatal
shots, alleging that he violated the decedent’s constitutional rights by using
unreasonable force. The district court1 concluded that the officer’s use of force was
objectively reasonable and granted summary judgment for the officer. We conclude
that the officer is entitled to qualified immunity, and therefore affirm the judgment.

                                          I.

      During the summer of 2014, Ryan Swearingen, aged 27, and his three children
attended a family cookout at the home of his parents, Ivan and Ronda Swearingen,
in Fort Madison, Iowa. Ryan and his children planned to spend the night at his
parents’ home on August 2.

       Around 1:16 a.m. on August 3, Fort Madison police captain James Carle spoke
with his girlfriend by cell phone while he worked the night shift. Carle’s girlfriend
reported seeing a man walking outside the house that she shared with Carle. She
described him walking into their backyard and then into a back alleyway, where he
started slashing the tires of several parked vehicles with a knife.

       Carle drove his patrol car to the alleyway and saw a male bent over the rear
driver’s side tire of Carle’s personal vehicle. Upon seeing Carle, the man ran down
the alleyway in the opposite direction. Carle pursued the man by car and then on foot.
During the pursuit, Carle used his radio to request assistance from other officers.

      Around 1:46 a.m., Carle saw the suspect enter the Swearingen residence and
lock the back door. Carle notified police dispatch that he was at the Swearingen
residence, and he started pounding on the back door demanding that the suspect
unlock it.



      1
      The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.

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      Within minutes, several officers arrived at the home. Officers Smajlovic and
Riggs moved to the front of the house to prevent anyone from escaping. Carle
maintained his position at the back entrance, where he was joined by Officer Karl
Judd and Officer Hartman.

       Awakened by the barking of the family dog, Ivan went to the back laundry
room and saw uniformed police officers banging on the door and pointing their
firearms at him. Ronda, also awakened, went to the kitchen. Both Ivan and Ronda
saw Ryan holding at least one knife as he moved around the first floor of the house.
Through the window in the back door, officers also could see Ryan holding at least
one knife. They yelled at Ryan to put the knife down, but he did not.

        Smajlovic and Riggs eventually entered the unlocked front door and made their
way through the front living room and into the dining room, which opened into the
kitchen. Once in the dining room, Smajlovic could see through the kitchen and
laundry room to the back entrance, where Carle and the other officers were pounding
on the door. Smajlovic saw Ryan holding a green-handled knife and standing to the
left of the back door. He unholstered his pistol, pointed it at Ryan, and yelled, “Drop
the knife.” Ryan did not acknowledge Smajlovic’s order. As Smajlovic and Riggs
entered the kitchen, Ivan blocked their path. Seeing that Ivan was unarmed,
Smajlovic holstered his pistol and used an empty-hand maneuver to engage with him.

      As Ivan blocked Smajlovic’s advance, Ryan walked through the kitchen and
into a side bedroom. There, he entered an adjoining walkthrough closet, which
connected back to the laundry room near the back door. Meanwhile, the officers at
the back entrance gained entry by breaking the window in the door and opening it
from within.

      Carle entered the house first, followed by Judd and Hartman. Carle and Judd
each had their service pistols unholstered, and Hartman drew his taser. As Judd

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moved through the laundry room and toward the kitchen, he noticed the closet door
to his right move and saw that it was cracked open. At the same time, Riggs pointed
his taser’s laser sight toward the opening and called out, “The door moved.
Somebody is in behind that door.”

       Judd opened the closet door with his right hand as he held his pistol in his left.
Ryan was standing behind the closet door with a knife. Judd quickly stepped back
and fired three shots that struck Ryan in his left arm and lower back. Ryan and Judd
were about two to three feet apart when Judd fired.

       Accounts differ as to Ryan’s position within the closet at the time of the
shooting. Judd alleges that Ryan held the knife in a “dagger position” at the right side
of his face and took a step toward Judd, as if to lunge at him. Hartman caught sight
of Ryan as he came from behind Judd, with his taser’s laser sight focused on Ryan’s
left shoulder. Hartman later testified that Ryan was holding the knife at his side in
a reverse grip, with the blade pointed toward his elbow as he fell to the ground. Ivan
describes seeing the left side of Ryan’s torso facing the kitchen as the closet door
opened, but he could not see Ryan’s right hand. After the shooting, Riggs
approached the closet and saw a green-handled knife underneath Ryan’s arm, with the
blade pointed toward his body.

      Ryan died at a local hospital. Medical reports found that the three bullets
followed a left-to-right, back-to-front trajectory when they entered Ryan’s body.

       As administrators of Ryan’s estate, Ivan and Ronda Swearingen sued police
officers Judd and Carle, and the City of Fort Madison, under 42 U.S.C. § 1983,
alleging constitutional violations during the incident. The only claim at issue on this
appeal is an allegation that Judd used unreasonable force in violation of the Fourth
and Fourteenth Amendments when he shot Ryan. The district court, citing Smith v.
City of Brooklyn Park, 757 F.3d 765, 772-75 (8th Cir. 2014) (per curiam), and Estate

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of Morgan v. Cook, 686 F.3d 494, 496-98 (8th Cir. 2012), ruled that Judd’s use of
force was reasonable under the circumstances, given the threat that Ryan posed to
Judd and others in the house. The court therefore granted summary judgment for the
officer and dismissed the claim.

                                           II.

       Qualified immunity protects government officials from suit under § 1983 if
their “conduct does 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). To prevail against a claim of qualified immunity, a plaintiff must
show (1) that the facts alleged or shown by the plaintiff make out a constitutional
violation, and (2) that the constitutional right allegedly violated was “clearly
established.” Pearson v. Callahan, 555 U.S. 223, 232 (2009).

       For a right to be “clearly established,” the law must have been sufficiently clear
that every reasonable official would have understood that his actions violated that
right. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). A plaintiff need not always
identify “a case directly on point,” but “controlling authority” or “a robust ‘consensus
of cases of persuasive authority’” must put “the statutory or constitutional question
beyond debate.” Id. at 741-42 (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)).
“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)
(internal quotation omitted). This “demanding standard” shields the conduct of “all
but the plainly incompetent or those who knowingly violate the law.” District of
Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Malley v. Briggs, 475 U.S.
335, 341 (1986)).

      The Swearingens allege that Judd’s discharge of his firearm violated Ryan’s
Fourth Amendment right to be free from an unreasonable seizure accomplished by an

                                          -5-
excessive use of force. We need not decide whether Judd’s use of force was
objectively reasonable because, at a minimum, Judd did not violate a clearly
established right under the Fourth Amendment. It was not clearly established in
August 2014 that an officer was forbidden to discharge his firearm when suddenly
confronted in close quarters by a noncompliant suspect armed with a knife.

       “The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989). The court must pay
“careful attention to the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Id. “The calculus of reasonableness must
embody allowance for the fact that police officers are often forced to make split-
second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation.” Id.
at 396-97.

       The Swearingens argue that the facts and circumstances here show that Judd’s
use of force was unreasonable, and that previous judicial decisions made the
unreasonableness clear. They emphasize that when the facts are taken in the light
most favorable to the plaintiffs, Ryan was suspected only of slashing tires (not of a
violent offense against persons), Judd was accompanied in the home by several armed
officers, Ryan held the knife down at his side with the blade pointing toward his
elbow, Ryan did not lunge toward Judd, and Judd discharged his weapon without
issuing a command to Ryan after locating him in the closet. As supporting authority,
they cite this court’s statement in Nance v. Sammis, 586 F.3d 604 (8th Cir. 2009), that
“[g]eneral statements of the law are capable of giving clear and fair warnings to
officers even where the very circumstances confronting the officers [have] not
previously been addressed.” Id. at 611 (first alteration in original) (internal quotation

                                          -6-
omitted). And they point to this court’s observation that at least since Tennessee v.
Garner, 471 U.S. 1 (1985), “officers have been on notice that they may not use deadly
force unless the suspect poses a significant threat of death or serious physical injury
to the officer or others.” Craighead v. Lee, 399 F.3d 954, 962 (8th Cir. 2005).

       We conclude that these facts and authorities are insufficient to establish the
violation of a clearly established right. Although general propositions about use of
deadly force were clearly established, and a plaintiff need not cite a prior decision
with identical facts, “the clearly established law must be particularized to the facts of
the case” and not “defined at a high level of generality.” White v. Pauly, 137 S. Ct.
548, 552 (2017) (per curiam) (internal quotation omitted). While the Swearingens
identify some factors militating against a need for deadly force in this instance, it
remains undisputed that Judd was suddenly confronted, at a distance of only three
feet, with a suspect who was armed with a knife after ignoring multiple commands
to drop it. Accepting for purposes of summary judgment that Ryan was neither
advancing toward Judd nor holding the knife with the blade directed at the officer,
the suspect still had been noncompliant and could have caused serious injury or death
in a matter of seconds by repositioning himself and the knife. The situation is fairly
described as tense and rapidly evolving. Even if Judd should have attempted to
apprehend Ryan without firing his weapon, the officer’s actions sit along the “hazy
border between excessive and acceptable force.” Saucier v. Katz, 533 U.S. 194, 206
(2001) (internal quotation marks omitted). Under these circumstances, we cannot say
that Judd’s use of deadly force, even if just over the line of reasonableness, violated
a clearly established right. Cf. Parks v. Pomeroy, 387 F.3d 949, 957-58 (8th Cir.
2004).

      The judgment of the district court is affirmed.




                                          -7-
ERICKSON, Circuit Judge, concurring in the judgment.

       Viewing the evidence in the light most favorable to the Swearingens, I believe
Judd’s mistaken perception or belief that Ryan posed a threat of serious physical harm
to Judd or any of the other officers was objectively reasonable in this particular case
due to the close proximity between the officers and Ryan, and because the positioning
of the knife was such that it that could have been readily modified to pose an
imminent threat to the officers. See Estate of Morgan v. Cook, 686 F.3d 494, 497-98
(8th Cir. 2002). I, therefore, concur in the judgment.
                        ______________________________




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