                United States Court of Appeals
                          For the Eighth Circuit
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                              No. 16-4141
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John Morrison Raines, III, as Guardian of the Estate of John Morrison Raines IV

                              Plaintiff - Appellee

                                       v.

 Counseling Associates, Inc.; Janet Stannard, MD; Lauren Gates, MGR; Richard
Moore, EdD; Lou Strain, LPE; Mental Health Risk Retention Group, Inc; Conway
   Regional Medical System, Inc.; Continental Casualty Company; Rodger D.
                                 Langster, MD

                                  Defendants

 Andrew Burningham, Conway Police Officer; James Burroughs, Conway Police
              Officer; Steven Culliford, Conway Police Officer

                           Defendants - Appellants

John & Jane Does, I-X; City of Conway, Arkansas; Scottsdale Insurance Company

                                  Defendants
                                ____________

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

                        Submitted: December 14, 2017
                            Filed: March 5, 2018
                               ____________
Before SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges.
                              ____________

ERICKSON, Circuit Judge.

       In response to an emergency call from a male reporting he had been stabbed
inside his apartment and was hiding in the closet, police officers located John Raines
IV (“Raines”) standing outside on the sidewalk of the apartment building holding a
knife. During the encounter with Raines, which lasted less than two minutes, the
officers shot at Raines twenty-one times. Raines is paralyzed from the waist down
as a result of the encounter.

        John “Jack” Morrison Raines III brought this action in his capacity as guardian
of Raines’s estate. The claims are against three police officers claiming unreasonable
seizure and against the City of Conway, Arkansas, under 28 U.S.C. § 1983 for failure
to train the officers on how to interact with a mentally ill person; for negligence, gross
negligence, and willful and wanton conduct; and for violations of due process and the
right to be free from cruel and unusual punishment under the Arkansas Civil Rights
Act. The defendants moved for summary judgment. The district court1 denied the
motion on all claims except for the negligence and cruel and unusual punishment
claims. The officers appeal the denial of summary judgment based on qualified
immunity. We dismiss the appeal for lack of jurisdiction.

I.    BACKGROUND

     On March 10, 2013, police responded to an apartment complex in Conway,
Arkansas following a report of a stabbing victim hiding inside a closet and a robbery


      1
       The Honorable James M. Moody, Jr., United States District Judge for the
District of Minnesota.

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in progress inside the apartment. Officer Andrew Burningham was first to arrive on
scene. He approached Raines, who was standing outside on the sidewalk by the
apartment building with a knife in his hand. Officer Burningham ordered Raines to
drop the knife and then he drew his handgun. Raines began saying “fine, fine, fine”
and raised the knife to just above his shoulder level, waving it back and forth.
Approximately 20 seconds later, Officers Steven Culliford and James Burroughs
arrived at the scene. They drew their handguns and repeatedly directed Raines to
“Drop the knife!” Additional officers arrived on scene and formed a semi-circle
around Raines with their guns drawn. Raines continued waving the knife and shifting
his weight from foot to foot on the sidewalk. Officers Culliford and Burroughs told
Raines that he would be shot if he came towards them.

       When Officer Rachel Hanson arrived on the scene, she pointed her handgun
at Raines and instructed him to “Drop the knife!” She then re-holstered her weapon,
drew her taser, and moved towards Raines. Detective Jason Cameron, with his gun
drawn, positioned himself directly behind Officer Hanson in order to provide
protection and “cover” to Officer Hanson. The taser video camera confirmed that at
some point during Officer Hanson’s approach towards Raines, Officers Burningham,
Culliford, and Burroughs began firing their weapons at Raines. Detective Cameron
did not fire his weapon. In total, officers fired twenty-one shots. Raines was struck
four times – in the left arm, left face, left chest, and mid-back. As a result of the
encounter, Raines is paralyzed from the waist down.

       Officers Burningham, Burroughs, and Culliford moved for summary judgment
on the Fourth Amendment unreasonable seizure claim, arguing that their use of
deadly force against Raines was legally justified. In support of their argument that
Raines made an aggressive movement towards Officer Hanson while holding the
knife, the officers relied on deposition testimony from those at the scene as well as
two videos, one taken from a police vehicle dashboard camera and one taken from the
taser video camera. Raines contended that the videos contradict the officers’ version

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of events and that there remained a question as to whether Raines posed a threat when
he was shot by the officers.

       After studying the videos and considering the other evidence presented by the
parties, the district court held that Raines raised a genuine dispute as to whether the
officers had probable cause to suspect that Raines posed a significant threat of death
or serious physical injury to others. Accordingly, the district court denied summary
judgment on the issue of qualified immunity. This interlocutory appeal followed.

II.    DISCUSSION

        This Court reviews de novo the denial of qualified immunity. Rush v.
Perryman, 579 F.3d 908, 912 (8th Cir. 2009) (citing Duckworth v. St. Louis Metro.
Police Dep’t, 491 F.3d 401, 405 (8th Cir. 2007)). “[W]e will affirm if ‘there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.’” Estate of Morgan v. Cook, 686 F.3d 494, 496 (8th Cir. 2012)
(quoting Fed. R. Civ. P. 56(a)). “In determining whether an officer is entitled to
qualified immunity, we ask (1) ‘whether, taking the facts in the light most favorable
to the injured party, the alleged facts demonstrate that the official’s conduct violated
a constitutional right’; and (2) whether the asserted constitutional right is clearly
established.” Lee v. Driscoll, 871 F.3d 581, 584 (8th Cir. 2017) (quoting Wallingford
v. Olson, 592 F.3d 888, 892 (8th Cir. 2010)).

       Although an order denying qualified immunity is immediately appealable, “our
interlocutory jurisdiction is limited.” Mallak v. City of Baxter, 823 F.3d 441, 445-46
(8th Cir. 2016) (citing Cooper v. Martin, 634 F.3d 477, 479-80 (8th Cir. 2011) and
Johnson v. Jones, 515 U.S. 304, 319-20 (1995)). “[W]e have authority to decide the
purely legal issue of whether the facts alleged by the plaintiff are a violation of clearly
established law.” Franklin ex rel. Franklin v. Peterson, 878 F.3d 631, 635 (8th Cir.
2017) (citations omitted). We do not have jurisdiction over an interlocutory appeal

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from a district court’s denial of summary judgment based on qualified immunity when
the denial is premised on a determination that “the pretrial record sets forth a
‘genuine’ issue of fact for trial.” Mallak, 823 F.3d at 446 (quoting Johnson, 515 U.S.
at 319-20). An exception lies “where the record plainly forecloses the district court’s
finding of a material factual dispute.” Mallak, 823 F.3d at 446.

      The initial inquiry is whether the officers’ shooting of Raines amounted to a
Fourth Amendment violation. Estate of Morgan, 686 F.3d at 496. In making this
determination, we have said:

      The reasonableness of an officer’s use of force is evaluated by looking
      at 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 officers or others, and whether he is actively resisting arrest or
      attempting to evade by flight. The use of deadly force is not
      constitutionally unreasonable if an officer has probable cause to believe
      that the suspect poses a threat of serious physical harm, either to the
      officer or others.


Id. (quotations and citations omitted). “But where a person ‘poses no immediate
threat to the officer and no threat to others,’ deadly force is not justified.” Ellison v.
Lesher, 796 F.3d 910, 916 (8th Cir. 2015) (quoting Tennessee v. Garner, 471 U.S. 1,
11 (1985)).

      The officers testified that they all believed Raines aggressively advanced on
Officer Hanson just prior to the shots being fired. The defendants contend that their
testimony is supported by the taser video when played in slow motion. Raines
counters that the video evidence demonstrates that he was continuing to exhibit the
same movements as he had done during the minute before he was shot. Unlike in
Scott v. Harris, 550 U.S. 372, 379-80 (2007), where irrefutable video evidence
resolved any factual disputes regarding the parties’ conduct, the video evidence in

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this case is inconclusive as to whether or not Raines advanced on the officers in a
manner that posed a threat of serious physical harm to an officer.

      Whether the officers reasonably believed Raines posed a sufficient threat
depends on what occurred. The district court was unable to make this determination
based on the evidence presented. Having reviewed the evidence in the record, we
conclude that there is a key factual question in this case about whether Raines
advanced on Officer Hanson just before being shot, which is both material and
disputed, that precludes us from resolving the legal issue of whether the officers’
conduct constitutes a violation of clearly established law.

       While we have jurisdiction to determine whether conduct constitutes a
violation of clearly established law, “we lack jurisdiction to determine whether the
evidence could support a finding that particular conduct occurred at all.” Franklin,
878 F.3d at 638 (citing Behrens v. Pelletier, 516 U.S. 299, 313 (1996) and Johnson,
515 U.S. at 313-18). Accordingly, the court’s determination on the issue of qualified
immunity was not a final decision. Franklin, 878 F.3d at 638 (citing Johnson, 515
U.S. at 313).

III.   CONCLUSION

       The appeal is dismissed for lack of jurisdiction.
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