               United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 15-3279
                      ___________________________

      Jacquelyn Wallace, Individually and as Administratrix and Personal
             Representative for the Estate of Carleton J. Wallace

                      lllllllllllllllllllll Plaintiff - Appellee

                                         v.

                City of Alexander, Arkansas; Horace Walters

                          lllllllllllllllllllll Defendants

           Nancy Cummings, In her official and individual capacity

                    lllllllllllllllllllll Defendant - Appellant
                                    ____________

                   Appeal from United States District Court
               for the Eastern District of Arkansas - Little Rock
                                ____________

                         Submitted: September 22, 2016
                            Filed: December 9, 2016
                                 ____________

Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
                             ____________

MURPHY, Circuit Judge.
       Carleton J. Wallace was fatally shot by a police officer in Alexander, Arkansas.
Wallace's estate brought this action under 42 U.S.C. § 1983 against that officer, the
chief of police, and the city, alleging excessive force in violation of the Fourth
Amendment. The district court1 denied the officer summary judgment on the basis
of qualified immunity, but granted summary judgment to the chief of police and the
city. The officer appeals, and we affirm.


                                          I.


       In September 2012 officer Nancy Cummings observed Carleton Wallace
obstructing traffic as he walked down the street in Alexander, Arkansas. Cummings
was on patrol by herself, but her 25 year old daughter, Angel Johnson, was also in the
patrol car on an approved ride along. Cummings stopped to investigate, got out of
her patrol car, and told Wallace to take his hands out of his pockets. As Wallace did
so, he also removed a gun from his waistband. Cummings pulled out her own firearm
and told Wallace to drop his. Wallace tossed his gun out of reach into the woods at
the side of the road.


      Cummings subsequently attempted to seize and handcuff Wallace. She told
Wallace to get on the ground and he failed to respond, although he did not move
toward his gun or act in a threatening manner. With her gun drawn, Cummings
approached Wallace, grabbed his arm, and took him to her patrol car where he put his
hands on the car hood. According to Cummings she continued to hold her gun with
one hand, but two eyewitnesses reported that she had either placed her gun on the car
hood or in its holster. The parties agree that after Cummings grabbed Wallace's arm
to handcuff him, her gun discharged as he attempted to break free of her grip.
Wallace was shot in the back as he moved away from Cummings and her patrol car.

      1
       The Honorable Billy Roy Wilson, United States District Judge for the Eastern
District of Arkansas.

                                         -2-
       According to Cummings, her gun had fired when Wallace pushed her off
balance. Two eyewitnesses reported, however, that she had grabbed her gun with
both hands and shot Wallace in the back after he turned away from the patrol car.
Wallace continued to move away from Cummings after he was shot, taking a few
steps and then falling down. From there he crawled to the side of the road where he
died. Investigators concluded that his first blood drop had fallen on the ground three
feet eight inches in front of Cummings' patrol car. The medical examiner found
stippling, or gunpowder particles, surrounding the hole where the bullet entered
Wallace's body. According to the examiner, the stippling pattern was consistent with
a close range gunshot wound. The medical examiner also found amphetamines,
benzodiazepines, and cannabinoids in Wallace's system.


       Wallace's estate brought this § 1983 action against Cummings, police chief
Horace Walters, and the city of Alexander. The estate alleged that the defendants
violated Wallace's Fourth and Fourteenth Amendment rights to be free from excessive
force. The estate also alleged violations of Arkansas law. The defendants moved for
summary judgment, and Cummings argued that she was entitled to qualified
immunity because she had shot Wallace unintentionally. In support of her argument
she provided an expert report concluding that her gun had discharged three to four
inches from Wallace's back. The district court granted summary judgment to Walters
and the city of Alexander, but not to Cummings because "a material fact remain[ed]
in dispute as to whether [she] intended to shoot Mr. Wallace." Cummings appeals.


                                         II.


      The estate argues that our court lacks jurisdiction over this interlocutory
appeal. Appellate courts have limited jurisdiction over interlocutory appeals brought
by public officials asserting qualified immunity. Johnson v. Jones, 515 U.S. 304, 313
(1995). Orders denying a public official qualified immunity may be appealed under


                                         -3-
the collateral order doctrine, but only "to the extent that [the appeal] turns on an issue
of law." Thompson v. Murray, 800 F.3d 979, 982 (8th Cir. 2015) (quoting Mitchell
v. Forsyth, 472 U.S. 511, 530 (1985)); see also 28 U.S.C. § 1291. Therefore, issues
such as "the existence, or nonexistence, of a triable issue of fact" are not reviewable.
Johnson, 515 U.S. at 316.


       Cummings raises both legal and factual issues on appeal. We have jurisdiction
to review her purely legal arguments, such as whether the undisputed or assumed
facts would establish a constitutional violation and whether the right at issue was
clearly established. See Ngo v. Storlie, 495 F.3d 597, 601 (8th Cir. 2007).
Cummings also challenges the district court's determination that the record presents
a genuine dispute as to whether she intentionally shot Wallace. Like most questions
of intent, Cummings' argument that there was insufficient evidence that she intended
to shoot Wallace is a factual one that we lack jurisdiction to review on interlocutory
appeal. Johnson, 515 U.S. at 316. There is one exception to such a jurisdictional
limitation on our review: we may reject the district court's factual findings to the
extent that they are "blatantly contradicted by the record." Walton v. Dawson, 752
F.3d 1109, 1116 (8th Cir. 2014) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).
This exception is to be narrowly construed to prevent interlocutory appeals in
constitutional tort actions from creating "additional, and unnecessary, appellate court
work." See Johnson, 515 U.S. at 309, 315–16.


      The evidence Cummings has cited does not rise to the level of "blatantly
contradict[ing]" the district court's determination that there is a material dispute as to
whether she intentionally shot Wallace. Cummings relies on two pieces of physical
evidence to bolster her argument that she unintentionally shot Wallace: the location
of his first blood drop and the stippling pattern on his back.2 Neither piece of


      2
        We do not address the estate's objections to the expert evidence on
interlocutory appeal as it falls beyond the reach of our limited review. See Mohawk

                                           -4-
physical evidence is "entirely inconsistent with" the estate's theory of the case,
however. See Born v Osendorf, 329 F.2d 669, 672 (8th Cir. 1964). The physical
evidence supports Cummings' argument that she shot Wallace at close range, but it
is plausible that this occurred only after he had turned around and begun to move
away. Wallace may also have been moving slowly because of the amphetamines,
benzodiazepines, and cannabinoids found in his system by the medical examiner.


       Cummings also concedes that she was holding her gun when it discharged, that
it contained a safety mechanism, and that it had not malfunctioned. These
concessions may suggest that she intentionally applied force to the gun's trigger
mechanism, and she thus has not met her heavy burden of establishing that the record
blatantly contradicts the district court's factual findings. See Thompson, 800 F.3d at
983 (relying on "common sense" when reviewing the district court's factual findings).
At this stage we accept those "findings as true and decide whether those facts, as a
'purely legal issue,' involve a clearly established violation of federal law."3 Walton,
752 F.3d at 1116 (quoting Johnson, 515 U.S. at 313).




Indus., Inc. v. Carpenter, 558 U.S. 100, 107–08 (2009).
      3
        Cummings argues that an unintentional shooting would not violate the Fourth
Amendment, but we need not address this argument in light of the district court
findings from which we assume for the purposes of this appeal that Cummings
intentionally shot Wallace. There is a circuit split on whether unintentional conduct
can ever lead to Fourth Amendment liability. See Stamps v. Town of Framingham,
813 F.3d 27, 37–39 (1st Cir. 2016) (collecting cases). Our court has thus far declined
to reach this issue. See McCoy v. City of Monticello, 342 F.3d 842, 847 n.3 (8th Cir.
2003).

                                         -5-
                                           III.


       Cummings argues that even if she intentionally shot Wallace, her conduct did
not violate Wallace's Fourth Amendment right to be free from unreasonable seizures.
We review the district court's denial of summary judgment on the basis of qualified
immunity de novo, "viewing the facts in the light most favorable to [the estate] and
drawing all reasonable inferences in [the estate's] favor." Nance v. Sammis, 586 F.3d
604, 609 (8th Cir. 2009). A government official is entitled to qualified immunity
unless (1) the official violated a plaintiff's constitutional right and (2) that right was
clearly established at the time of the violation. Pearson v. Callahan, 555 U.S. 223,
232 (2009). We address each question in turn.


                                           A.


       The estate argues that Cummings seized Wallace with excessive deadly force
in violation of both the Fourth and Fourteenth Amendments. Claims that an officer
seized a person with excessive force "are properly analyzed under the Fourth
Amendment's objective reasonableness standard." Graham v. Connor, 490 U.S. 386,
388 (1989) (internal quotation marks omitted). Whether the use of deadly force is
reasonable turns on "the totality of the circumstances, including [1] the severity of the
crime at issue, [2] whether the suspect poses an immediate threat to the safety of the
officer or others, and [3] whether the suspect is actively fleeing or resisting arrest."
Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012); see Tennessee v.
Garner, 471 U.S. 1, 11–12 (1985). Our review of the reasonableness of Cummings'
use of deadly force is "constrained by the version of the facts that the district court
assumed or likely assumed in reaching its decision." Thompson, 800 F.3d at 983.
Here, the district court did not specify which factors were adequately supported by
the record, if any. In these circumstances "we must determine which facts [the district
court] likely assumed by viewing the record in the light most favorable" to the estate.


                                           -6-
Id. Based on the record before the district court, none of the three factors supported
Cummings' use of deadly force as a matter of law.


       The record does not conclusively demonstrate that Wallace committed the
"violent felony" of aggravated assault as alleged by Cummings. See United States v.
Graham, 394 Fed. App'x 354, 355 (8th Cir. 2010) (per curiam) (discussing Ark. Code
Ann. § 5-13-204). In Arkansas, a person may commit felony aggravated assault by
displaying "a firearm in such a manner that creates a substantial danger of death or
serious physical injury to another person." Ark. Code Ann. § 5-13-204(a)(2). Merely
drawing a gun, however, without "presenting or pointing it at another has been held
not to constitute an [aggravated] assault." Wooten v. State, 799 S.W.2d 560, 561
(Ark. Ct. App. 1990) (internal quotation marks omitted).


       Viewing the evidence in the light most favorable to the estate, Wallace drew
his gun without "pointing it" at Cummings. Cummings told an investigator
immediately after the incident that Wallace had "grabbed the gun like he was going
to point [it] towards [her]." Johnson signed a statement stating that Wallace had been
facing Cummings with his gun pointed in her general direction. It was only later that
both Cummings and Johnson said that Wallace had pointed his gun directly at
Cummings as he removed it from his waistband. A fact finder could credit their first
statements over the subsequent versions and conclude that Wallace had not
committed a violent felony before he himself was seized with deadly force.


       The record also does not establish as a matter of law that Wallace posed a
significant immediate threat to the safety of Cummings or other bystanders. To
determine whether a person is an immediate threat, an officer may consider both the
person's present and prior conduct. See Garner, 471 U.S. at 11–12. At the time of the
seizure, Wallace had thrown his gun out of reach and had "made no move toward a
weapon or what would appear to be a weapon." See Ngo, 495 F.3d at 603. Two


                                         -7-
eyewitnesses had also reported that Cummings had not shot Wallace until he was
facing away from her which was supported by the location of his gunshot wound. A
reasonable fact finder could thus conclude that Wallace was fleeing arrest at the time
that he was shot rather than engaging in a "hostile and intense" physical struggle. See
Parks v. Pomeroy, 387 F.3d 949, 957–58 (8th Cir. 2004). Wallace's conduct prior to
the seizure also does not necessarily support Cummings' use of deadly force. As
discussed above, a reasonable fact finder could conclude that Wallace had not
committed the violent felony of aggravated assault.


       Finally, the use of deadly force was not justified by the third factor alone. Both
the Supreme Court and our court have repeatedly stated that "[a]n officer may not use
deadly force against a fleeing suspect unless the suspect poses an immediate and
significant threat of serious injury or death to the officer or to bystanders."
Thompson, 800 F.3d at 983 (emphasis added); see Garner, 471 U.S. at 11–12. Given
the record before the district court, a fact finder could reasonably conclude that
Wallace no longer posed a significant threat after he had discarded the gun and begun
to flee. Officers may not seize such "unarmed, nondangerous suspect[s] by shooting
[them] dead." Garner, 471 U.S. at 11. Considering the totality of the circumstances,
in particular the three factors discussed above, the record does not establish that
Cummings' use of deadly force was reasonable as a matter of law.


                                           B.


       Cummings also argues that even if she unreasonably seized Wallace with
deadly force, the contours of that Fourth Amendment right were not clearly
established given the particular facts of this case. We disagree. A right is clearly
established if, at the time of the challenged conduct, "every reasonable official would
have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 563
U.S. 731, 741 (2011) (citation omitted) (internal quotation marks omitted). That


                                          -8-
inquiry "must be undertaken in light of the specific context of the case, not as a broad
general proposition." Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)
(quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)). There does not need to be
"a case directly on point, but existing precedent must have placed the statutory or
constitutional question beyond debate." Al-Kidd, 563 U.S. at 741.


        Since the Supreme Court decided Tennesse v. Garner in 1985, it has been
clearly established "that the use of deadly force against a fleeing suspect who does
not pose a significant threat of death or serious physical injury to the officer or others
is not permitted." Moore v. Indehar, 514 F.3d 756, 763 (8th Cir. 2008). Further, such
a threat must be "immediate." Garner, 471 U.S. at 11. We have thus concluded that
an officer violated 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.
See, e.g., Moore, 514 F.3d at 763. Here, viewing the evidence in the light most
favorable to the estate, Wallace did not pose an immediate and significant threat of
serious injury to Cummings or bystanders because he may not have committed any
violent felony, the physical struggle was minimal, and he was not "holding a firearm"
when he attempted to flee. See id. Viewing the facts in the light most favorable to
the estate, a reasonable fact finder could thus conclude that the seizure violated a
clearly established constitutional right.


                                           IV.


      Accordingly, the district court's order denying Cummings summary judgment
on the basis of qualified immunity is affirmed.


                        _____________________________




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