                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-2086
                        ___________________________

        Dean Birkeland, as trustee for the next of kin of John O. Birkeland

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

John Edward Jorgensen, individually and acting in their official capacities as City
of Roseville Police Officers; Kyle Eckert, individually and acting in their official
        capacities as City of Roseville Police Officers; City of Roseville

                      lllllllllllllllllllllDefendants - Appellants

Joseph Robert Adams, individually and acting in their official capacities as City of
                           Roseville Police Officers

                           lllllllllllllllllllllDefendant
                        ___________________________

                                No. 19-2172
                        ___________________________

        Dean Birkeland, as trustee for the next of kin of John O. Birkeland

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

John Edward Jorgensen, individually and acting in their official capacities as City
of Roseville Police Officers; Kyle Eckert, individually and acting in their official
 capacities as City of Roseville Police Officers; City of Roseville; Joseph Robert
  Adams, individually and acting in their official capacities as City of Roseville
                                  Police Officers

                       lllllllllllllllllllllDefendants - Appellees
                                        ____________

                     Appeals from United States District Court
                           for the District of Minnesota
                                   ____________

                              Submitted: June 17, 2020
                               Filed: August 20, 2020
                                   ____________

Before KELLY, ERICKSON, and STRAS, Circuit Judges.
                           ____________

ERICKSON, Circuit Judge.

       At approximately 10:30 p.m. on February 10, 2016, Officers John Edward
Jorgensen and Kyle Eckert shot and killed John O. Birkeland (“Birkeland”) in his
home. Dean Birkeland, as trustee for the next-of-kin, brought this wrongful death
action against Officers Jorgensen and Eckert as well as Sergeant Joseph Robert
Adams and the City of Roseville. The district court granted summary judgment in
favor of the officers and the City on all claims except the use of deadly force and
“associated state-law claims.” Both sides appeal. We grant the motion to dismiss the
cross-appeal because we lack jurisdiction to review the grant of qualified immunity
or the grant of official immunity under Minnesota state law. We reverse the district
court on the denial of qualified immunity on the deadly force claim and also on the
denial of official immunity on the state-law claims related to the use of deadly force.




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I.    Background

       Birkeland lived in a one-bedroom apartment in Roseville, Minnesota. At
approximately 9:55 p.m. on February 10, 2016, each of his next door neighbors called
911, nearly simultaneously, to report a disturbance in Birkeland’s apartment. The
neighbors made nearly identical reports of the sounds emanating from Birkeland’s
apartment: yelling, throwing things, and the sound of breaking glass. Each noted
similar disturbances in the past and noted that Birkeland might have mental health
issues.

       Dispatch records reflect that at 10:00 p.m. City of Roseville police officers
were dispatched to the apartment to perform a welfare check. En route, the officers
were informed that while Birkeland had a misdemeanor warrant for his arrest, the
warrant did not allow for an arrest in his home after 10:00 p.m. When Officers
Mitchell Christensen and Haivy Vang arrived at the apartment building, they were
met at the security door by the reporting neighbors. While stationed outside
Birkeland’s apartment door, Officer Christensen turned on his body cam audio and
video. After about 30 seconds, the audio recorder picked up what sounded like the
occupant in the apartment saying, “Give me my fucking (unintelligible) please.” By
the tone, the occupant–later confirmed to be Birkeland–sounded upset or distraught.

       Officer Vang then knocked loudly on the door. After receiving no response,
Officer Vang shouted “John, it’s the police. Open the door.” Over the next minute
or so, the officers asked Birkeland eight times to open the door. The first five times
Birkeland responded, stating “No” followed by an assertion that he was “okay,”
“fine,” or “good.” The last response the officers received from Birkeland was when
he said, “No, I am fine (unintelligible) I’m trying to find my billfold and I got robbed
again.”




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       Over the course of the next fifteen to sixteen minutes, the officers attempted
to re-engage Birkeland through the door by repeatedly telling Birkeland they could
not leave until they knew he was okay. The officers repeatedly told Birkeland they
did not want to, but would, forcibly enter if he continued to refuse to respond.
Birkeland did not respond. Sergeant Adams arrived on the scene and he suggested
they get a phone number for Birkeland and try to make contact with him by
telephone. The phone numbers dispatch had were old and went unanswered.

       After standing outside Birkeland’s door for just over eighteen minutes, the
officers decided to enter the apartment. Sergeant Adams used a battering ram to force
open the door. By this time, Officer Jorgensen and his K-9 (Otis, a Belgian
Shepherd) had arrived on scene. Once the door was opened, the officers stood
outside the apartment for nearly five minutes, commanding Birkeland to come
towards the door with his hands up. At one point, the officers informed Birkeland
that they had a warrant and he was “under arrest.” With Otis barking, Officer
Jorgensen hollered into the apartment three times in close succession that he was
going to send his dog into the apartment and warned that “the dog will find you and
bite you.” After receiving no response to any of these warnings or the other officers’
commands to come towards the door, some of the officers entered the apartment.
Otis, while leashed, assisted the officers in clearing the bathroom and kitchen. When
Otis entered Birkeland’s bedroom, he alerted to the closed sliding doors to a closet
that was 2’6” wide and 7’5” long.

       Officers Jorgensen and Eckert stood outside the closed closet with Otis.
Officer Christensen and Sergeant Adams stood by the doorway at the entrance of the
bedroom. Officer Jorgensen instructed Birkeland to, “Come out of the closet. You
are going to get bit.” When Birkeland did not comply, Officer Jorgensen slid open
the left closet door and saw a person crouched in the closet. Officer Jorgensen
described Birkeland’s position as “crouched, ambushed-type position, leaning



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forward.” He testified that he could not (1) ascertain if there was another person in
the closet; (2) tell if there was a weapon in the closet; or (3) see Birkeland’s hands.

       Otis was sent into the closet and Officer Jorgensen yelled, “Dog’s on. Dog’s
on.” Otis bit Birkeland’s right knee, causing several linear cuts and ten puncture
wounds. Birkeland responded by stabbing the left side of Otis’s face with a knife,
causing Otis to yelp. Officer Jorgensen ordered Birkeland to, “Let go of that knife!
Let go! Let go! Let go now!” Within seconds, Officer Jorgensen fired three shots and
Officer Eckert fired once at Birkeland. Birkeland was hit twice in the chest and once
in the neck. The other shot went into the back wall of the closet. The shots were
fired during the commotion of Officer Jorgensen attempting to pull Otis out of the
closet after being stabbed, with Otis either still attached to Birkeland’s knee or trying
to bite Birkeland again. The parties dispute, and the video does not show, whether
Birkeland started to come out of the closet on his own accord or because he was being
pulled out by Otis.

       Both Officers Jorgensen and Eckert testified then when they shot at Birkeland,
they feared for their safety and the safety of the other officers. The trustee asserted
that the officers’ entry into the apartment was unlawful, that deploying the police dog
was objectively unreasonable for a welfare check, and that Birkeland had a right to
defend himself against the objectively unreasonably force used by the officers.

       The district court granted summary judgment in favor of the officers and the
City on all claims except for the reasonableness of the use of deadly force and related
state-law claims. On appeal, the officers identified three issues: (1) Are Officers
Jorgensen and Eckert entitled to qualified immunity on their use of deadly force; (2)
Are Officers Jorgensen and Eckert entitled to official immunity on the state-law
claims for assault, battery, wrongful death, and vicarious liability; and (3) Is the City
of Roseville entitled to vicarious official immunity with regard to the state-law claims
for assault, battery, wrongful death, and vicarious liability. The trustee’s cross-appeal

                                          -5-
seeks review of (1) the grant of qualified immunity as to the forcible entry into the
apartment, the officers’ decision to deploy a police dog to seize a suspect during a
welfare check, and on the failure-to-supervise claim; (2) the grant of official
immunity to Officers Jorgensen and Eckert on some of the state-law claims; and (3)
the grant of vicarious official immunity to the City of Roseville on some of the state-
law claims.

II.   Discussion

       We first address the scope of our jurisdiction. “Ordinarily, this court lacks
jurisdiction over a denial of summary judgment ‘because such an order is not a final
decision.’” Morgan v. Robinson, 920 F.3d 521, 523 (8th Cir. 2019) (en banc)
(quoting Div. of Emp’t Sec. v. Bd. of Police Comm’rs, 864 F.3d 974, 978 (8th Cir.
2017)). We have limited jurisdiction, however, to review the denial of summary
judgment based on qualified immunity “to the extent that it turns on an issue of law.”
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We do not have jurisdiction “when
a party complains that the district court should not have granted summary judgment
based on qualified immunity.” Mitchell v. Shearrer, 729 F.3d 1070, 1073 (8th Cir.
2013) (quoting Coleman v. Parkman, 349 F.3d 534, 537 (8th Cir. 2003)).

       We may review other claims to the extent they are “inextricably intertwined”
with an issue we have jurisdiction to review. Roberts v. City of Omaha, 723 F.3d
966, 975 (8th Cir. 2013) (quoting Lockridge v. Bd. of Trustees of Univ. of Ark., 315
F.3d 1015, 1012 (8th Cir. 2003) (en banc)). “An issue is inextricably intertwined
with properly presented issues only when the appellate resolution of the collateral
appeal necessarily resolves the pendent claims as well.” Id. For example, we have
jurisdiction over a municipal liability claim pursuant to 42 U.S.C. § 1983 if the
plaintiff has failed to demonstrate a constitutional violation because that conclusion
“necessarily resolves” the city’s liability. Muir v. Decatur Cty., Iowa, 917 F.3d 1015,
1054 (8th Cir. 2019). Our court has also determined that because official immunity

                                         -6-
under Minnesota law provides immunity from suit, we have jurisdiction to review
issues of law related to the denial of official immunity. Johnson v. City of
Minneapolis, 901 F.3d 963, 972 (8th Cir. 2018); See Sok Kong Tr. for Map Kong v.
City of Burnsville, 960 F.3d 985, 996 (8th Cir. 2020) (reviewing denial of official and
vicarious immunity when there was no genuine issue of fact); Thompson v. Dill, 930
F.3d 1008, 1013 (8th Cir. 2019) (analyzing our jurisdiction in case involving
Missouri doctrine of official immunity).

       Accordingly, we have jurisdiction to review issues of law pertaining to the
denial of qualified immunity on the deadly force claim as well as issues of law
regarding the denial of official immunity on the state-law claims related to the use of
deadly force. We do not have jurisdiction to review the district court’s grant of
qualified immunity or its grant of official immunity.

        Turning to the first issue–whether the facts, taken in the light most favorable
to Birkeland, support a finding that Officers Jorgensen and Eckert violated
Birkeland’s clearly established constitutional rights when they shot and killed
him–our precedent compels the conclusion that the officers’ use of deadly force in
this situation was not a violation of a clearly established right. Swearingen v. Judd,
930 F.3d 983, 988 (8th Cir. 2019). Regardless of whether Birkeland’s movement
toward the officers was voluntary, in light of the close proximity between the officers
and Birkeland’s location in the closet, Birkeland’s failure to comply with Officer
Jorgensen’s commands to drop the knife, and Birkeland’s stabbing of the police dog
in the face with a knife, Birkeland posed a threat of serious physical harm to the
officers and we cannot say that their “use of deadly force, even if just over the line
of reasonableness, violated a clearly established right.” Id. The district court erred
in denying the officers qualified immunity on the deadly force claim.




                                         -7-
       As to state-law official immunity, we “review a summary judgment of official
immunity based on facts the district court found adequately supported or likely
assumed.” Sok Kong, 960 F.3d at 996. “In Minnesota ‘[t]he official immunity
doctrine provides that a public official charged by law with duties which call for the
exercise of his judgment or discretion is not personally liable to an individual for
damages unless he is guilty of a willful or malicious wrong.’” Hassan v. City of
Minneapolis, Minn., 489 F.3d 914, 920 (8th Cir. 2007) (quoting Elwood v. Cty of
Rice, 423 N.W.2d 671, 677 (Minn. 1988)). A law enforcement officer’s decision to
use deadly force is a discretionary decision for which official immunity applies absent
a showing of a willful or malicious wrong. Id. (citing Maras v. City of Brainerd, 502
N.W.2d 69, 77 (Minn. Ct. App. 1993)). Malice under Minnesota law means an
intentional act that a public official “had reason to believe is prohibited.” Johnson,
901 F.3d at 972 (quoting State by Beaulieu v. City of Mounds View, 518 N.W.2d
567, 571 (Minn. 1984)).

       Taking the trustee’s allegations as true, a reasonable fact finder could not
conclude the officers’ conduct in this case was willful or malicious. As in Hassan,
the facts in this record demonstrate that the officers had reason to believe they were
in danger such that the use of deadly force against Birkeland was reasonable to
protect themselves. 489 F.3d at 920. The undisputed facts establish that Birkeland
was in possession of a knife, he refused to comply with the officer’s commands to
drop the knife, he was in a confined area in close proximity to the officers, and he
used the knife to stab a police dog in the face. While the question of willful or
malicious conduct is typically a jury question, Brown v. City of Golden Valley, 574
F.3d 491, 500 (8th Cir. 2009), under these undisputed facts, we conclude there is no
genuine issue of material fact for a jury to decide and the officers are entitled to
official immunity as a matter of law.




                                         -8-
        Because the officers’ discretionary decisions are entitled to official immunity,
the City of Roseville has no vicarious liability. Hayek v. City of St. Paul, 488 F.3d
1049, 1057 (8th Cir. 2007). Vicarious official immunity protects the City from
liability arising from the officers’ use of deadly force.

III.   Conclusion

       The district court erred in denying the officers qualified immunity and official
immunity on the claims related to the use of deadly force. Because the officers are
entitled to official immunity on the state-law claims, the City is entitled to vicarious
official immunity.

       We dismiss for lack of jurisdiction the cross-appeal challenging the district
court’s grant of qualified immunity and grant of official immunity, reverse the district
court’s decision that the officers were not entitled to qualified immunity on the deadly
force claim, reverse the district court’s decision denying official immunity on the
state-law claims pertaining to the use of deadly force, and remand for further
proceedings consistent with this opinion.

KELLY, Circuit Judge, concurring in part and dissenting in part.

       The court concludes the defendant officers did not violate Birkeland’s clearly
established rights when they shot and killed him in his home after they arrived for a
welfare check. Because I believe questions of fact preclude our drawing this
conclusion, I respectfully dissent.1

      The officers argue they reasonably feared for their safety after Birkeland
stabbed Otis, the police K9. “The ‘reasonableness’ of a particular use of force must


       1
           I agree that we do not have jurisdiction to hear the cross-appeal.

                                            -9-
be judged from the perspective of a reasonable officer on the scene.” Graham v.
Connor, 490 U.S. 386, 396 (1989). There is “extensive case law setting forth the
requirement that an officer must have probable cause to believe the suspect poses a
threat of serious physical harm before using deadly force.” Nance v. Sammis, 586
F.3d 604, 611 (8th Cir. 2009) (cleaned up). We view the facts in the light most
favorable to the Trustee. See Chambers v. Pennycook, 641 F.3d 989, 904 (8th Cir.
2011).

       When Jorgensen slid open the closet door, he saw Birkeland crouched on the
ground. The closet was full of clothes, boxes, and other belongings. Birkeland did
not come out of the closet when ordered, and Jorgensen saw him move his hand
behind his back. Jorgensen said he was concerned that Birkeland might be reaching
for a weapon. Jorgensen then sent Otis “to make a physical apprehension,” in other
words, “to bite.” Otis bit Birkeland: the autopsy shows Birkeland suffered a wound
deep enough to expose the bone. In response, Birkeland stabbed Otis with a knife.
Jorgensen looked at Otis and saw no visible injuries.

       Jorgensen yelled at Birkeland to “let go” or “put down” the knife. As the court
acknowledges, “[t]he parties dispute, and the video does not show, whether Birkeland
[then] started to come out of the closet on his own accord or because he was being
pulled out by Otis.” Ante at 5. The district court found that Otis was between the
officers and Birkeland when the officers fired their shots. Eckert testified that he only
fired one shot in part because he did not want to hit Otis.

       These facts present a jury question as to whether the officers’ stated fear for
their safety was reasonable. Because “the parties dispute, and the video does not
show” crucial moments before the officers killed Birkeland, a jury must determine the
facts and weigh the officers’ credibility. Birkeland was not suspected of a crime and
had made no effort to actively resist arrest or flee the apartment; in fact, he had closed
himself in his closet with no other exit. See Shannon v. Koehler, 616 F.3d 855,

                                          -10-
862–63 (8th Cir. 2010) (affirming the denial of qualified immunity where the plaintiff
was not fleeing, threatening officers, resisting arrest, or suspected of a serious crime).
Although Birkeland had a knife, he was crouched in a closet and separated from the
officers by a re-engaging police dog. A reasonable jury could question whether it was
reasonable for an officer at the scene to believe “the totality of the circumstances
justifie[d]” shooting and killing Birkeland in his closet. Foster v. Metro. Airports
Comm’n, 914 F.2d 1076, 1081 (8th Cir. 1990).

      I agree with the district court that “fact issues preclude a determination that, as
a matter of law, the use of deadly force was reasonable” and so I respectfully dissent.
                        ______________________________




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