                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 18-1537
                       ___________________________

N.S., Only child of decedent, Ryan Stokes, by and through her natural mother and
                     next friend, Brittany Lee; Narene James

                                      Plaintiffs - Appellees

                                          v.

  Kansas City Board of Police Commissioners; Michael Rader; Leland Shurin;
    Angela Wasson-Hunt; Alvin Brooks; Mayor Sly James; David Kenner

                            lllllllllllllllllllllDefendants

                               William Thompson

                      lllllllllllllllllllllDefendant - Appellant

                                    Darryl Forte

                            lllllllllllllllllllllDefendant
                                   ____________

                    Appeal from United States District Court
               for the Western District of Missouri - Kansas City
                                ____________

                            Submitted: April 16, 2019
                             Filed: August 12, 2019
                                 ____________

Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.
                         ____________
STRAS, Circuit Judge.

     Officer William Thompson shot and killed Ryan Stokes during a police chase.
The district court ruled that Thompson was not entitled to official or qualified
immunity. We vacate and remand for reconsideration.

                                         I.

        While on patrol early one morning, Thompson and his partner received a radio
message that other officers were pursuing two men suspected of theft. Just seconds
later, Thompson spotted Stokes, who matched the description of one of the suspects,
running into a parking lot. Stokes headed toward the driver’s side of a parked car
and briefly opened the door. He then quickly turned and moved in the direction of
a pursuing officer, who by that point was “very close” to him. Thompson fired at
Stokes three times, hitting him twice in the back. Stokes died shortly thereafter.

      Beyond these basic facts, the parties’ accounts differ. Thompson claims that
he saw Stokes with a gun when he entered the parking lot and believed that he
intended to ambush the pursuing officer. Stokes’s family argues that Stokes never
possessed a gun and was attempting to surrender when he was shot. The parties also
dispute whether Thompson said anything to Stokes before firing.

      Some evidence supports Thompson’s account. The police discovered a
handgun on the driver’s seat of the car, which could mean that Stokes was armed
when he entered the parking lot but then tossed the gun into the car. And witnesses
who saw Stokes running said that he appeared to be “holding up his pants as he ran,”
which is arguably consistent with Thompson’s perception that Stokes was holding a
gun. Finally, Thompson’s partner claims to have heard Thompson order Stokes to
“get on the ground.”



                                        -2-
       Other evidence supports the family’s account. No one besides Thompson
observed Stokes with a gun, nor was any gun found on or near his body. The car’s
owner, who was Stokes’s friend, claimed that the gun recovered from the car
belonged to him and that it had been there all night. Moreover, some officers did
not recall hearing Thompson shout anything during the encounter, and at least one
officer thought Stokes was trying to surrender when Thompson shot him.

      Stokes’s family sued Thompson for excessive force, see 42 U.S.C. § 1983,
and wrongful death, see Mo. Rev. Stat. § 537.080. Thompson moved for summary
judgment, claiming qualified immunity from the federal claim and official immunity
from the state claim. In its order, the court recounted the parties’ general allegations
and then denied both forms of immunity.

                                           II.

       Cases in which a district court denies qualified immunity at the summary-
judgment stage typically follow one of two paths on appeal. First, we may affirm,
but only when it is apparent that, if the plaintiff’s version of the facts is right, the
officer violated a clearly established right. See Raines v. Counseling Assocs., Inc.,
883 F.3d 1071, 1074 (8th Cir. 2018). Second, we may reverse because, even under
the plaintiff-friendly version of the facts, there was no constitutional violation or the
underlying right was not clearly established. See id. (“We have authority to decide
the purely legal issue of whether the facts alleged by the plaintiff are a violation of
clearly established law.” (brackets and citation omitted)). This case falls into a third
category.

       Here, the district court fell short in its threshold duty to make “a thorough
determination of [Thompson’s] claim of qualified immunity.” Robbins v. Becker,
715 F.3d 691, 694–95 (8th Cir. 2013) (citation omitted). In its summary-judgment
order, the court did little more than summarize the parties’ allegations and decide
that the combination of a “general . . . right to be free from excessive force” and the

                                          -3-
presence of “genuine issues of material fact[]” precluded summary judgment.
(Emphasis added).

       Yet the Supreme Court has warned courts not to “define clearly established
law at [such] a high level of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018) (per curiam) (citation omitted); see also City of Escondido v. Emmons, 139
S. Ct. 500, 502–04 (2019) (per curiam). Although there need not be “a case directly
on point for a right to be clearly established, existing precedent must have placed the
statutory or constitutional question beyond debate,” or else “officers are entitled to
qualified immunity.” Kisela, 138 S. Ct. at 1152–53 (emphasis added) (citations
omitted). “[O]utside [of] an obvious case,” the Court has explained, it is not enough
“to state that an officer may not use unreasonable and excessive force, deny qualified
immunity, and then remit the case for a trial on the question of reasonableness.” Id.
at 1153 (internal quotation marks and citation omitted).

       The district court did no more than that here, so the case needs to go back for
a second look. 1 See Robbins, 715 F.3d at 694–95. On remand, the court should
begin by specifically identifying the plaintiff-friendly version of the disputed facts,
rather than, as it did before, simply reciting the parties’ general allegations. See id.;
cf. Kisela, 138 S. Ct. at 1152–53 (“Use of excessive force is an area of the law in
which the result depends very much on the facts of each case . . . .” (internal

      1
        The district court made at least two other errors in its summary-judgment
order. First, it was mistaken in its belief that it had to decide whether Thompson’s
actions amounted to a constitutional violation before it could address whether the
underlying right was clearly established. Although addressing the steps in this order
was once mandatory, see Saucier v. Katz, 533 U.S. 194, 200–01 (2001), it is not any
longer, see Pearson v. Callahan, 555 U.S. 223, 236 (2009). Second, it suggested
that if Stokes subjectively believed that he was not fleeing from the officers, then
Thompson should not have concluded that he was resisting arrest. Even assuming
that this is a provable fact, it is completely irrelevant to the qualified-immunity
analysis, which considers only the facts actually available to the officer at the time.
See Hernandez v. Mesa, 137 S. Ct. 2003, 2007 (2017) (per curiam).
                                          -4-
quotation marks and citation omitted)). It must then evaluate whether Thompson, in
light of all of the information available to him at the moment, violated clearly
established law when he shot Stokes. See Kisela, 138 S. Ct. at 1152–53; Hernandez
v. Mesa, 137 S. Ct. 2003, 2007 (2017) (per curiam). Only if the answer is “yes” may
the court once again deny qualified immunity.

                                          III.

      We also remand for reconsideration of Thompson’s claim to official
immunity. Official immunity, like qualified immunity, is a threshold issue and
subject to interlocutory appellate review. See Div. of Emp’t Sec. v. Bd. of Police
Comm’rs, 864 F.3d 974, 978 (8th Cir. 2017); cf. State ex rel. Barthelette v. Sanders,
756 S.W.2d 536, 539 (Mo. banc 1988); State ex rel. Mo. Dep’t of Agric. v. McHenry,
687 S.W.2d 178, 181 (Mo. banc 1985). But the similarities largely end there.

       Official immunity, for example, is available unless the officer acted “in bad
faith or with malice,” which requires “more than [just] bad judgment or negligence.”
Wealot v. Brooks, 865 F.3d 1119, 1129 (8th Cir. 2017) (citations omitted). Qualified
immunity, on the other hand, asks a different question: were the officer’s actions
“unreasonable” under clearly established law? See id. at 1125–28. Different
questions can produce different answers. See, e.g., id. at 1125–29 (holding that
officers were entitled to official but not qualified immunity).

       Yet the district court treated the two inquiries as interchangeable, explaining
that “[t]he same factual disputes as to whether . . . Stokes posed a threat[] or resisted
arrest preclude[d it] from determining if . . . Thompson acted maliciously in his use
of force.” In fact, nowhere did the court say which facts would allow a reasonable
jury to “conclude [that Thompson] acted with malice or in bad faith.” Id. at 1129;
cf. Schmidt v. City of Bella Villa, 557 F.3d 564, 575 (8th Cir. 2009) (noting that
neither “innuendo regarding [a defendant’s] mindset” nor “speculation and
conjecture” can defeat official immunity). Though the facts may justify denying

                                          -5-
both kinds of immunity in some cases, see, e.g., Div. of Emp’t Sec., 864 F.3d at 979–
80, the analysis is too cursory for us to say whether they do here.

                                        IV.

      We accordingly vacate the district court’s decision and remand for
reconsideration of Thompson’s motion for summary judgment.
                      ______________________________




                                         -6-
