                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-2045
                         ___________________________

  Antoinette Liggins, individually and on behalf of B.C., a minor; B.C., a minor,
                          next friend Antoinette Liggins,

                       lllllllllllllllllllllPlaintiffs - Appellees,

                                           v.

                       Officer Michael Cohen, individually,

                                      Appellant,

                                   ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                            Submitted: January 15, 2020
                              Filed: August 21, 2020
                                  ____________

Before COLLOTON, SHEPHERD, and ERICKSON, Circuit Judges.
                         ____________

COLLOTON, Circuit Judge.

      Antoinette Liggins, on behalf of herself and her minor son, sued police officer
Michael Cohen under 42 U.S.C. § 1983, alleging that he used excessive force in
seizing the son, whose initials are B.C. The case involves a shooting: Cohen, in the
line of duty, shot B.C., who was carrying a stolen gun, on July 11, 2015. B.C.
sustained serious injuries and is paralyzed below the waist. The question is whether
Cohen’s use of force was reasonable or, if not, whether he is entitled to qualified
immunity. The district court, describing it as “a close case,” denied Cohen’s motion
for summary judgment. Cohen brings an interlocutory appeal, and we conclude that
the seizure was not unreasonable, so we reverse.

                                           I.

       The incident occurred after a citizen called 911 and reported to police that
B.C.’s brother, whose initials are A.C., had stolen her .40 caliber pistol the night
before. A.C. was fifteen years old; B.C. was sixteen. The caller reported that A.C.
possessed the stolen weapon at an apartment complex located on Hodiamont Avenue
in St. Louis. She said that A.C. was wearing a red hoodie and blue shorts and was
standing in the breezeway of one of the apartment buildings at the complex.1

       The apartment building included a breezeway between the front and back of
the property. In the rear, a sidewalk led straight out from the breezeway. On the left
of the sidewalk was a parking lot; on the right was a playground. In the distance,
forward and behind the playground, was a fence. There was a hole in the fence large
enough for a person to pass through.

      Cohen was one of five officers who responded to the call. Cohen knew of A.C.
and B.C. from a recent carjacking investigation during which he saw surveillance
video of the brothers occupying the stolen vehicle. He also was familiar with the
apartment complex and what the district court described as “a history of violent

      1
        The caller also told the 911 operator that when her friend attempted to retrieve
the gun from A.C. after he stole it, A.C. pointed the gun at the friend and tried to
shoot him. The record on appeal, however, does not show that the officers received
this information before responding to the call.

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activity” there. He knew that it was common for people to flee when police arrived
at the complex, and he was aware that some used the hole in the fence behind the
buildings to evade the cops.

      Based on this information, the officers decided that two of them would
approach the front of the complex, and that Cohen and two others would drive to the
back. The officers behind the building would seek to prevent the subject with the gun
from escaping through the hole in the rear fence.

       When police arrived, it was B.C. who possessed the stolen firearm. He was
wearing a white t-shirt with dark sleeves and standing in the breezeway talking with
a companion. He carried the gun in an over-the-shoulder bag. When the officers
arrived, onlookers began to shout “Police! Police!” B.C. began running, first through
the breezeway to the area in front of the building. But when he saw a police car
arrive on the street, he quickly turned around and ran back through the breezeway to
the area behind the building.

       What happened next is disputed, but in this procedural posture, we accept the
facts as assumed by the district court in the light most favorable to the plaintiffs. As
B.C. ran through the breezeway, he pulled the gun out of his bag. By B.C.’s account,
he was holding the gun by the barrel and pointing it down in his right hand. Because
he was running fast, his hands moved at least slightly. B.C. testified that the gun did
not rise above his waist.

      Cohen had just arrived in the parking lot behind the complex when he saw B.C.
emerge from the breezeway with a gun in his hand. Cohen promptly exited his
vehicle and moved quickly around a truck that was parked between him and the
sidewalk leading out from the breezeway. Two seconds after leaving his vehicle, and
almost immediately after rounding the back of the truck, Cohen fired four shots at
B.C. According to B.C., Cohen gave no warning before shooting.

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      The first shot missed, and the next three struck B.C. B.C. says that he dropped
the gun after Cohen’s first discharge, but the shots were fired in rapid succession.
Video evidence shows that B.C. came to rest in the playground area between the
sidewalk on his left and playground equipment to his right. B.C. enters the video
frame while sliding to the ground three seconds after Cohen exited his squad car.

       The district court denied Cohen’s motion for summary judgment, saying that
there were genuine disputes of material fact bearing on whether Cohen’s use of force
was objectively reasonable. The court cited three disputes: “(1) whether a reasonable
officer in Cohen’s position would have perceived that B.C. was running toward the
officer immediately before the first shot; (2) whether Cohen gave any warning before
firing a shot; and (3) if no warning was given, whether it was feasible for Cohen to
give a warning.”

       Excessive force claims under the Constitution are governed by the Fourth
Amendment’s right of the people to be secure against unreasonable seizures. Graham
v. Connor, 490 U.S. 386, 394 (1989). The reasonableness of a use of force turns on
whether the officer’s actions were objectively reasonable in light of the facts and
circumstances confronting him. Loch v. City of Litchfield, 689 F.3d 961, 965 (8th
Cir. 2012). The issue is whether the totality of the circumstances—including the
severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officer or others, and whether the suspect is actively fleeing or resisting
arrest—justifies a particular sort of seizure. Tennessee v. Garner, 471 U.S. 1, 8-9
(1985); Loch, 689 F.3d at 965. The use of deadly force is reasonable where an officer
has “probable cause to believe that the suspect poses a threat of serious physical
harm, either to the officer or to others.” Garner, 471 U.S. at 11. If feasible, an
officer should give a warning before using deadly force. Id. at 11-12.

      The district court thought there were genuine disputes of fact about whether a
reasonable officer in Cohen’s position “would have perceived” that B.C. was running

                                          -4-
toward the officer before he fired and whether it was feasible for the officer to give
a warning before shooting. The implication is that if Cohen reasonably perceived that
B.C. was running toward him, and a warning was not feasible, then it may have been
reasonable to discharge the firearm. We agree that these are important questions, but
they are not questions of fact for a jury. Once the court has assumed a particular set
of facts about where and how B.C. was running in relation to Cohen’s position,
whether B.C.’s actions rose to a level warranting Cohen’s use of force is a question
of law for the court, not a question of fact. Scott v. Harris, 550 U.S. 372, 381 n.8
(2009).

       The undisputed facts are that B.C. had run through the breezeway to the back
of the building. The evidence shows that he was positioned to the right of the
sidewalk that led straight out from the breezeway, and was moving toward the back
of the property. Cohen was to the left of the sidewalk in the parking lot. But Cohen
was still in front of B.C. at an acute angle to the left, so B.C. was running in Cohen’s
general direction, even if not directly at him. B.C. was carrying in his right hand a
gun that moved while he ran. The officers were investigating a report of a stolen
firearm, and B.C. was fleeing from police who had arrived at the front of the building.

        Under those circumstances, we conclude that a reasonable officer was justified
in discharging his firearm. With only a second or two to react as he rounded the
parked truck, Cohen had reasonable grounds to believe that the fleeing subject who
was running toward the back of the property could raise the gun and shoot. It would
take only an instant to do so if the person were ready to fire. The young man was
fleeing with gun in hand, and the officers presented an obstacle to his escape. This
was a split-second decision for the officer. It was not practical in that moment for
Cohen to discern whether B.C. was carrying the gun in an unusual manner or to shout
a warning and wait for him to react. There was simply no time. “When the hesitation
involved in giving a warning could readily cause such a warning to be the officer’s
last, then a warning is not feasible.” Hicks v. Scott, 958 F.3d 421, 437 (6th Cir. 2020)

                                          -5-
(internal quotation and alteration omitted). In dangerous situations where an officer
has reasonable grounds to believe that there is an imminent threat of serious harm, the
officer may be justified in using a firearm before a subject actually points a weapon
at the officer or others. Malone v. Hinman, 847 F.3d 949, 954-55 (8th Cir. 2017);
Thompson v. Hubbard, 257 F.3d 896, 899 (8th Cir. 2001). Given the convergence
of events, it was not unreasonable for the officer to use force as he did.

       We do not accept the appellees’ suggestion that Cohen acted unreasonably
because he created the danger. It is true that the officers anticipated that a subject
might flee to the rear of the building if he encountered police in the front. But police
officers investigating a stolen firearm reasonably may position themselves in a way
that facilitates apprehension of a suspect. If, as B.C. asserts, he took the stolen gun
from his brother with the intention of returning it to the owner, then the outcome is
all the more tragic. But B.C. chose to remove the firearm from the bag and flee,
rather than carry it away in the bag, stay put and say nothing, or surrender the firearm
to police with an explanation. The officer had no way to know B.C.’s subjective
intentions, and our analysis must consider only what a reasonable officer on the scene
would have perceived. See Partlow v. Stadler, 774 F.3d 497, 502 (8th Cir. 2014).
The appellees also suggest that the crime under investigation was not serious, but it
involved a dangerous weapon, and it is well known that stolen firearms “are used
disproportionately in the commission of crimes.” United States v. Bates, 584 F.3d
1105, 1109 (8th Cir. 2009) (internal quotation omitted).

        This situation is not comparable to Nance v. Sammis, 586 F.3d 604 (8th Cir.
2009), which held it unreasonable for officers, without identifying themselves as
police, to shoot without warning a twelve-year-old boy who had a toy gun tucked into
his waistband while he was trying to comply with an order to get on the ground. Nor
is it like Craighead v. Lee, 399 F.3d 954 (8th Cir. 2005), where a police officer
encountered an assault victim struggling with a perpetrator over a gun that was
pointed in the air, and without warning fired a shotgun blast that killed the innocent

                                          -6-
victim. Also distinguishable is Wealot v. Brooks, 865 F.3d 1119 (8th Cir. 2017),
where police allegedly shot a man who was unarmed and turning around with his
hands up to surrender. The confluence of circumstances here—the stolen firearm, the
fleeing suspect with a gun moving in his hand, and the need for an officer at an acute
angle in front of the subject to make an instant decision about using force—does not
match any of our prior decisions. Allowing, as we must, “for the fact that police
officers are often forced to make split-second judgments . . . in circumstances that are
tense, uncertain, and rapidly evolving,” Graham, 490 U.S. at 396-97, we conclude
that the force used in this particular situation was not unconstitutional.

      The order of the district court denying summary judgment is reversed.
                      ______________________________




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