                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 06-2771
                                  ___________

Duy Ngo,                                 *
                                         *
             Plaintiff - Appellee,       *
                                         *
      v.                                 *
                                         *
Charles Storlie, in his individual       *
capacity as an officer of the            *
Minneapolis Police Department,           *    Appeal from the United States
                                         *    District Court for District of
             Defendant - Appellant,      *    Minnesota.
                                         *
John Doe, in his supervisory capacity    *
as ranking Minneapolis Police Officer; *
Richard Roe, in his supervisory capacity *
as ranking Minneapolis Police Officer; *
City of Minneapolis, Minnesota,          *
                                         *
             Defendants.                 *
                                   ___________

                          Submitted: January 12, 2007
                              Filed: July 26, 2007
                                 ___________

Before WOLLMAN and MELLOY, Circuit Judges, and NANGLE, District
      Judge.1
                         ___________


      1
        The Honorable John F. Nangle, United States District Judge for the Eastern
District of Missouri, sitting by designation.
MELLOY, Circuit Judge.

       Former Minneapolis Police Officer Duy Ngo brought this action under 42
U.S.C. § 1983 against Charles Storlie, an officer with the Minneapolis Police
Department (“MPD”), as well as the City of Minneapolis and two unnamed MPD
supervisors (collectively, “the City”). Ngo alleged that Storlie used excessive force
in violation of Ngo’s Fourth Amendment rights during an incident in which Storlie
shot Ngo with an MP5 semi-automatic machine gun while Ngo was working as an
undercover police officer. Ngo also brought failure to train and unconstitutional
custom claims against the City. The City moved for summary judgment, and the
district court2 granted the City’s motion. Ngo does not appeal the grant of summary
judgment to the City. Storlie also moved for summary judgment, arguing that
qualified immunity applied. The district court denied Storlie’s motion, and Storlie
appeals. In response, Ngo filed a motion to dismiss Storlie’s interlocutory appeal
based on lack of jurisdiction. For the following reasons, we deny Ngo’s motion to
dismiss, and we affirm the district court’s denial of Storlie’s motion for summary
judgment on the issue of qualified immunity.

I.    Background

      For purposes of summary judgment, we view the evidence in the light most
favorable to Ngo, the non-moving party. Scott v. Harris, 127 S. Ct. 1769, 1774
(2007); Henderson v. Munn, 439 F.3d 497, 503 (8th Cir. 2006). Storlie does not
dispute Ngo’s version of the facts for purposes of summary judgment.




      2
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

                                         -2-
      In the early morning hours of February 25, 2003, Ngo was conducting
plainclothes surveillance for the Minnesota Gang Strike Force (“Strike Force”) in
Minneapolis. Ngo was driving an unmarked green Buick. He was wearing a black
hooded sweatshirt with a zip-up front, light blue jeans, brown boots, and a wig. Under
his sweatshirt, Ngo was wearing a bullet-proof police vest with his police badge and
portable microphone attached. Ngo’s vest had “POLICE” written on the front and
back. His badge was on the upper-left side of his vest.

      At 12:59 a.m., Ngo called the MPD dispatcher and told the dispatcher that he
was going to be working in the vicinity of East 36th Street and 3rd Avenue South.
The police dispatcher sent out a text message to all squad cars, stating: “GANG 115
DOING SURVEILLANCE IN GRN BUICK. AREA OF 36 ST/3 AV. S. WILL
CALL CH. 1 WHEN DONE.” Metro Gang 115 was Ngo’s Strike Force call number.

       Approximately one hour later, Ngo was parked in an alley north of 36th Street
between Clinton Avenue and 3rd Avenue. The driver’s side window was open. Ngo
saw the figure of a person, identified as a black male over six feet tall, appear in his
rearview mirror walking southbound toward the rear of Ngo’s car. The man walked
up to the driver’s side of Ngo’s car and asked Ngo what he wanted. Ngo told him to
“Get the fuck out of here.” The man then produced a pistol and pointed it in Ngo’s
face. Ngo attempted to wrestle it away. During the struggle, the man shot Ngo in the
left abdomen, but the bullet was stopped by the bullet-proof vest. The man fired
several more times, putting four bullet holes through the passenger door. The man
then pulled away and took off running southbound across 36th Street into the next
alley. Ngo rolled out of his car, ripped open his hooded sweatshirt, and pulled it down
from his shoulders. Ngo’s sweatshirt was completely off his shoulders.

      At this point, Ngo sent out a broadcast stating, “Metro Gang 115, Emergency.
Officer shot 36th and 36th and 3rd. Suspect running south, southbound in the alley.”
An alert tone sounded for a citywide broadcast and the dispatcher broadcasted “All

                                          -3-
cars officer needs help 36th and 3rd. Officer down. All cars officer detail 36th and
3rd come to channel one.”

       As he was broadcasting, Ngo took a 9 millimeter Beretta pistol out of the
holster on his right hip. He began running after the suspect and repeatedly fired at
him. Mid-block in the alley between 36th and 37th Streets, the suspect turned and ran
eastbound between two houses. Ngo then drew a second pistol, a laser-sighted 9
millimeter Beretta. He held the first pistol in his right hand and the second in his left
hand. At this time, still standing mid-block in the alley between 36th and 37th Streets,
Ngo made a second broadcast, “Metro Gang 115 the suspect cut eastbound, black
male, black male, black jacket, be advised I’m plainclothes. Black male, black jacket,
white tennis shoes.” Ngo then dropped his radio microphone and “let it hang.” For
purposes of this appeal, Storlie acknowledges receiving the dispatcher’s text message,
the dispatcher’s citywide broadcast, and both of Ngo’s radio transmissions in their
entirety.

       Ngo came out of the alley onto the southernmost lane of 36th Street, where he
saw a squad car coming eastbound on 36th Street. Ngo was directly under a street
lamp. With a pistol still in each hand, he waved his arms over his head, attempting
to flag down the squad car. The squad car passed within three or four feet of Ngo, but
did not see him and drove past.

        Meanwhile, after hearing the radio transmissions, Storlie and fellow officer
James Conway activated their squad car’s siren and headed toward the area detailed
in the transmission. Conway, who was driving, headed north on Highway 35W at a
speed of approximately 100 m.p.h. He exited the highway at 36th Street. While
Conway drove, Storlie loaded an MP5 semi-automatic machine gun before arriving
at the scene. When the squad car exited the highway, the siren and lights were shut
off. Conway then drove eastbound on 36th Street, which is an eastbound one-way
street.

                                          -4-
        After failing to attract the attention of the first squad car, Ngo felt an intense
pain in his abdomen. He dropped the pistol he had been holding in his left hand, and
it fell behind him to his left. He kept the other pistol in his right hand. Ngo then fell
to his knees. While on his knees, and with the pistol still in his right hand, Ngo began
waving his arms over his head in an attempt to flag down the next squad car he saw.
Storlie and Conway were in this car. Ngo continued to wave his arms over his head,
with a pistol in his right hand, until “right before they stopped.”

       About mid-block between Second and Third Avenues, Conway first observed
an individual just out of the alley in the southernmost lane of 36th Street. Before
stopping the car, Conway said, “There he is.” Conway stopped the squad car
approximately nine to twelve feet from Ngo. “Almost immediately” after Ngo got the
attention of the officers in the squad car, he fell forward from his kneeling position.
As he fell forward, he dropped the pistol he had been holding in his right hand on the
ground. His left hand never touched the ground. At that point, Ngo’s right hand was
on the blacktop near the pistol and his left hand was clutching his left side where he
had been shot by the suspect. From the moment Ngo saw the car until the time he was
shot, Ngo never attempted to stand up. His radio microphone was hanging out
through the front of his unzipped hooded sweatshirt. While he had pulled his
sweatshirt down off his shoulders, it is unclear whether the officers could see the
“POLICE” written on the front of his bullet-proof vest or the police badge that was
attached to his vest. Ngo fell forward and dropped the pistol that was in his right hand
“pretty much simultaneously” with the stopping of Conway and Storlie’s squad car.
Ngo’s head was up and he was looking at the officers.

        After the squad car came to a stop, both Conway and Storlie exited the squad
car and Storlie fired his MP5 semi-automatic machine gun at Ngo a split-second later.
Ngo did not have enough time to say anything. Ngo was hit several times, through his
left side, arm, groin, and leg area. Ngo suffered six independent gunshot wounds
related to shots fired by Storlie.

                                           -5-
       Following the incident, Ngo commenced this action for damages under 42
U.S.C. § 1983 against Storlie and the City, alleging that: (1) Ngo’s Fourth
Amendment rights were violated by Storlie’s use of deadly force in such
circumstances; (2) the City failed to provide training on identifying plainclothes
officers in the field; and (3) the City’s custom or practice of allowing officers to use
excessive force was unconstitutional. Storlie and the City both moved for summary
judgment.

       The district court granted the City’s motion for summary judgment on Ngo’s
failure to train and unconstitutional custom claims. However, after looking at the
evidence in the light most favorable to Ngo, the district court concluded that Storlie
was not entitled to summary judgment on the basis of qualified immunity. Storlie then
filed this interlocutory appeal, asserting that he is entitled to qualified immunity
because he did not violate Ngo’s constitutional rights, and, even if Ngo’s
constitutional rights were violated, Storlie’s actions were objectively reasonable in
light of clearly established law.

       Ngo filed a motion to dismiss Storlie’s interlocutory appeal, which we consider
here along with the merits.

II.   Analysis

      A.     Motion to Dismiss

       “A denial of summary judgment based on qualified immunity is immediately
appealable to the extent the appellant seeks review of the purely legal determinations
made by the district court.” Henderson, 439 F.3d at 501. “We have jurisdiction to
review whether an official is entitled to immunity to the extent the question turns on
an issue of law, but we may not review a district court’s conclusion that the pretrial
record presents a sufficient factual dispute requiring a trial.” Craighead v. Lee, 399

                                          -6-
F.3d 954, 960 (8th Cir. 2005). Storlie accepts all of Ngo’s alleged facts as true for
purposes of summary judgment. Therefore, we have jurisdiction to review the legal
issues of whether Ngo’s constitutional rights were violated and whether those rights
were clearly established. We deny Ngo’s motion to dismiss.

      B.     Motion for Summary Judgment

       We review de novo the district court’s denial of a motion for summary
judgment on the issue of qualified immunity. Henderson, 439 F.3d at 501. We will
affirm a denial of summary judgment on the issue of qualified immunity “if a genuine
issue of material fact exists as to whether a reasonable officer could have believed his
actions to be lawful.” Craighead, 399 F.3d at 960-61.

       The threshold question we ask in resolving whether an officer is entitled to
qualified immunity is whether the facts alleged, taken in the light most favorable to
the injured party, show that the officer’s conduct violated a constitutional right.
Saucier v. Katz, 533 U.S. 194, 201 (2001). Then, if we find a violation of a
constitutional right, we determine whether the constitutional right was clearly
established. Id. “This second step is a fact-intensive inquiry and must be undertaken
in light of the specific context of the case, not as a broad general proposition.”
Samuelson v. City of New Ulm, 455 F.3d 871, 875 (8th Cir. 2006) (internal quotations
omitted). The “dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Saucier, 533 U.S. at 202.

       Ngo claims Storlie violated his Fourth Amendment right to be free from
excessive force. We analyze this claim under the Fourth Amendment’s objective
reasonableness standard. Graham v. Connor, 490 U.S. 386, 395 (1989). In doing so,
we ask “whether the amount of force used was objectively reasonable under the
particular circumstances.” Henderson, 439 F.3d at 502 (internal quotation omitted).

                                          -7-
In assessing the reasonableness of the officer’s conduct, we look at the totality of the
circumstances, Tennessee v. Garner, 471 U.S. 1, 8-9 (1985), focusing on factors such
as “the severity of the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether [the suspect] is actively resisting
arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. We examine
the reasonableness of the use of force “from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight.” Id.

       We agree with the district court that Ngo presented sufficient evidence in
support of his claim to allow a reasonable jury to find the degree of force used against
him was not “objectively reasonable.” Before arriving at the scene, Storlie received
a text message that an undercover Strike Force member was doing surveillance in the
area of 36th Street and Third Avenue. An hour later, Storlie heard Ngo say, “Metro
Gang 115, Emergency. Officer shot 36th and 36th and 3rd. Suspect running south,
southbound in the alley.” Storlie then heard a citywide alert tone and heard the
dispatcher say, “All cars officer needs help 36th and 3rd. Officer down. All cars
officer detail 36th and 3rd come to channel one.” A few moments later, Storlie heard
Ngo say, “Metro Gang 115 the suspect cut eastbound, black male, black male, black
jacket, be advised I’m plainclothes. Black male, black jacket, white tennis shoes.”
Thus, a reasonable officer arriving at the scene would have known there was a
plainclothes officer near the scene of the shooting. A reasonable officer would also
know that the suspect was an African-American male in black clothing with white
shoes.

       Upon arriving at the scene, a reasonable officer would have seen Ngo, an Asian-
American man, kneeling in the street, directly under a stop light, waving his arms
above his head. There was a pistol in his right hand. Ngo’s black hooded sweatshirt
was pulled down off his shoulders, partially revealing his bullet-proof vest. A
microphone hung down from the vest. As the squad car stopped, the reasonable
officer would have seen Ngo fall forward, dropping the pistol on the ground near his

                                          -8-
right hand. His left hand clutched his chest. His head was up and he was looking
directly at the squad car. There was no one besides Ngo and the responding officers
in the vicinity.

       The totality of the circumstances show that Storlie’s actions were not
objectively reasonable. First, even though Storlie was responding to a severe
crime—a fellow officer had been shot—a reasonable officer arriving at the scene
would have recognized that Ngo did not pose an immediate threat to the officers’
safety or the safety of others. Ngo had dropped his weapon. He was not pointing a
pistol at the officers, nor was he reaching for one. Further, Ngo was not actively
resisting arrest or attempting to evade such arrest by flight. As Storlie and Conway
spotted Ngo, he was kneeling in the street under a street light by himself, waving his
arms above his head and trying to attract the attention of the squad car. Once the
squad car stopped, Ngo fell to his hands and knees, looking up at the officers.

       Additionally, Storlie did not attempt to give Ngo any commands or warnings
before firing at Ngo. Storlie exited the squad car and immediately opened fire on
Ngo, despite the fact that he knew that there was or had been a plainclothes police
officer near the scene of the shooting and despite the fact that Ngo did not match the
description of the suspect. A warning under these circumstances was feasible and the
failure to take an extra moment to assess the situation adds to the unreasonabless of
Storlie’s actions under the circumstances.

       Storlie cites several cases in which we granted qualified immunity to officers
who shot unarmed suspects. We find these cases to be distinguishable. Unlike the
suspects in these cases, Ngo was not fleeing the scene, officers did not give Ngo any
warnings to keep his hands where the officers could see them, to stop resisting, or to
drop a weapon, and Ngo made no move toward a weapon or what would appear to be
a weapon. Cf. Seiner v. Drenon, 304 F.3d 810, 811 (8th Cir. 2002) (stating that the
officer “repeatedly ordered [the suspect] to show his hands” and to drop whatever was

                                         -9-
in his hands); Billingsley v. City of Omaha, 227 F.3d 990, 992 (8th Cir. 2002) (stating
that the suspect ran from the officer after being told three times to “halt,” and that the
suspect “moved his arms as though reaching for a weapon at waist level”); Thompson
v. Hubbard, 257 F.3d 896, 898 (8th Cir. 2001) (stating that the suspect and the officer
were involved in “[a] foot chase,” that the suspect “moved his arms as though
reaching for a weapon,” and that the officer yelled “‘stop’ when [the suspect’s] arms
continued to move); Krueger v. Fuhr, 991 F.2d 435, 437 (8th Cir. 1993) (stating that
the officer ordered the suspect to “freeze” several times during a chase and that the
officer saw the suspect “reach to the area of his right hip,” to pull out a knife). Ngo
was alone in the street on his knees, and he was actively disarming as the squad car
stopped. It is true that “[a]n officer is not constitutionally required to wait until he sets
eyes upon the weapon before employing deadly force.” Thompson, 257 F.3d at 899.
However, it is clear from Thompson that this rule applies when an officer is trying to
“protect himself against a fleeing suspect” who is armed or reaching for what appears
to be a weapon. Id. Looking at the situation in the totality of the circumstances, it
was objectively unreasonable for Storlie to shoot Ngo with a semi-automatic machine
gun a split-second after arriving at the scene. A reasonable jury could conclude that
Storlie’s use of excessive force resulted in a violation of Ngo’s Fourth Amendment
right to be free from an unreasonable seizure.

       The second inquiry is more difficult. Here, we must ask whether Ngo’s right
to be free from excessive force is clearly established. To do this, we determine
whether “a reasonable officer would understand” Storlie’s conduct in this situation to
violate Ngo’s right to be free from excessive force. Henderson, 439 F.3d at 503.
Storlie must demonstrate that he “‘acted reasonably under settled law in the
circumstances.’” Henderson, 439 F.3d at 503 (quoting Cross v. City of Des Moines,
965 F.2d 629, 632 (8th Cir. 1992)). In other words, if Storlie made a reasonable
mistake as to the legality of his actions in the factual situation he confronted, he “is
entitled to the immunity defense.” Saucier, 533 U.S. at 205.



                                            -10-
        “The right to be free from excessive force in the context of an arrest is a clearly
established right under the Fourth Amendment’s prohibition against unreasonable
seizures.” Samuelson, 455 F.3d at 877 (internal quotation and alteration omitted).
The use of deadly force is justified, however, “where the totality of the circumstances
give the officer probable cause to believe that a fleeing suspect poses a threat of
serious physical harm to the officer or to others.” Thompson, 257 F.3d at 899; see
Garner, 471 U.S. at 11-12 (“[I]f the suspect threatens the officer with a weapon or
there is probable cause to believe that he has committed a crime involving the
infliction or threatened infliction of serious physical harm, deadly force may be used
if necessary to prevent escape, and if, where feasible, some warning has been given.”).

       Applying these principles, we agree with the district court that genuine issues
of material fact exist as to whether a reasonable officer faced with these circumstances
would have believed that his conduct was legal. Storlie exited his squad car and
opened fire with a semi-automatic machine gun on a kneeling, unarmed man. He fired
within a “split-second” of exiting the squad car, without giving any warnings or
attempting to determine whether Ngo was, in fact, the suspect described on the radio
transmission. Further, Storlie knew there was a plainclothes officer somewhere in the
area. Thus, it was unreasonable for Storlie to fire on the first person he saw without
first making the determination of who that person was.

       Again, Storlie cites several cases for the proposition that his actions were
objectively legally reasonable. Storlie, however, ignores the fact that these cases
involve either a violent struggle between the officer and the suspect, or a perception
by the officer that the suspect is reaching for a weapon. See Parks v. Pomeroy, 387
F.3d 949, 957-58 (8th Cir. 2004) (describing “the physical struggle” between the
officer and the suspect as “hostile and intense”); Willingham v. Loughnan, 321 F.3d
1299, 1304 (11th Cir. 2003) (stating that the suspect had “attempted to kill one officer
and assaulted another” before being shot); Anderson v. Russell, 247 F.3d 125, 128
(4th Cir. 2001) (stating that officers shot the suspect after the suspect lowered his

                                           -11-
hands to his back left pocket after officers had instructed him to raise his hands and
get down on his knees); Sigman v. Town of Chapel Hill, 161 F.3d 782, 785 (4th Cir.
1998) (describing the suspect, who was in a stand-off with officers, as “highly
volatile,” and “enraged”). Ngo was not a threat to the officers or anyone else at the
time Storlie shot him. A reasonable officer would have known that using deadly force
against Ngo, who did not “present an immediate threat of serious physical injury or
death” would violate Ngo’s constitutional rights. See Craighead, 399 F.3d at 962; id.
at 962-63 (collecting cases that “put officers on notice . . . that they may not use
deadly force under circumstances in which they should know that the suspect does not
present an immediate threat of serious physical injury or harm”). The district court
properly denied Storlie’s motion for summary judgment on the basis of qualified
immunity.

III.   Conclusion

       For the foregoing reasons, we deny Ngo’s motion to dismiss and we affirm the
District Court’s denial of summary judgment based on qualified immunity.
                        ______________________________




                                        -12-
