                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-3504
                                    ___________

Shukri Hassan, as the trustee of       *
the Estate of Abu Kassim Jeilani,      *
Decedent,                              *
                                       *
              Appellant,               *
                                       *    Appeal from the United States
      v.                               *    District Court for the
                                       *    District of Minnesota.
City of Minneapolis, Minnesota;        *
James R. Jensen, Officer,              *
Badge No. 3282; Michael McCarthy,      *
Officer, Badge No. 4520; Hein Dinh,    *
Officer, Badge No. 1551; Justin        *
Merten, Officer, Badge No. 4752;       *
Vicki Karmiki, Officer; Joel Kimmerle, *
Corporal, all personally, individually *
and in their capacities as Minneapolis *
Police Officers; Richard Roe and Jane *
Doe, Unknown and Unnamed               *
Minneapolis Police Officers,           *
personally, individually, and in their *
capacities as Minneapolis Police       *
Officers; William McManus, Chief,      *
as successor to Chief Robert Olson,    *
Chief of Police, personally,           *
individually, and in his official      *
capacity; Robert K. Olson, Chief of    *
Police, personally, individually,      *
and in his official capacity,          *
                                       *
              Appellees.               *
                                      __________

                               Submitted: April 2, 2007
                                  Filed: May 31, 2007
                                   ___________

Before LOKEN, Chief Judge, BEAM, and RILEY, Circuit Judges.
                              ___________

RILEY, Circuit Judge.

       After Minneapolis police officers shot and killed Abu Kassim Jeilani (Jeilani),
Shukri Hassan (Hassan), the trustee of Jeilani’s estate, filed a civil rights action under
42 U.S.C. § 1983,1 as well as state law tort claims based on negligence, including a
wrongful death claim, against the City of Minneapolis (City) and the involved police
officers (individual defendants). All defendants filed a motion for summary judgment,
claiming qualified, official, and statutory immunity, as well as claiming Hassan failed
to show any violation of a constitutional right. The district court,2 as a matter of law,
found no constitutional violation and granted defendants’ motion. Hassan appeals the
summary judgment in favor of the individual defendants.3 We affirm.

I.    BACKGROUND
      On March 10, 2002, at approximately 2:00 p.m., Minneapolis Police Officer
Joel Kimmerle (Officer Kimmerle) responded to a call from Sergeant Todd Gross
(Sergeant Gross) for assistance. Upon arriving, Officer Kimmerle observed a black


        1
       In the district court, Hassan also brought a claim under 42 U.S.C. § 1985. On
appeal, Hassan does not argue a § 1985 claim.
        2
      The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.
        3
         On appeal, Hassan does not expressly challenge the summary judgment for the
City.

                                           -2-
man, later identified as Jeilani, a Somalian, walking down the middle of the street
carrying a machete and a tire iron. Sergeant Gross and Officer Kimmerle followed
Jeilani in their squad cars. Officer Kimmerle, using the squad car’s public address
system, commanded Jeilani to drop his weapons, but Jeilani ignored the officer’s
commands and continued walking.

       Officers Hien Dinh (Officer Dinh), Justin Merten (Officer Merten), Michael
McCarthy (Officer McCarthy), Linda Chaplin (Officer Chaplin), and James Jensen
(Officer Jensen) also responded to Sergeant Gross’s call and arrived at the scene.
Officer Jensen was a member of the Crisis Intervention Team (CIT) and, as part of
that training, knew how to deploy a taser (electroshock weapon which generally
incapacitates the person).

        Officer Jensen pulled his squad car up alongside Jeilani and asked Jeilani “how
can we help you out today.” Jeilani turned around, waived the machete in Officer
Jensen’s direction and said something in a language other than English. Officer
Jensen noticed there were pedestrians in the direction Jeilani was headed. As a result,
Officer Jensen deployed his taser through the squad-car window and hit Jeilani.
Jeilani fell to the ground, dropping his weapons. Jeilani then got up, picked up his
weapons, and said “that ain’t enough.” Jeilani continued walking, and Officer Jensen
hit Jeilani with his taser a second time, but Jeilani pulled free.

        Jeilani then ran into the parking lot of a strip mall with the machete raised
toward Officer McCarthy. Officer McCarthy drew his weapon and, while
backpedaling, repeatedly told Jeilani to stop. Jeilani came within ten feet of Officer
McCarthy and stopped. Suddenly, Jeilani focused his attention on Officer Chaplin
(Officer McCarthy’s partner) and ran toward her. Officer Chaplin retreated to her
squad car. Jeilani paced and swung the machete at shoulder height. Officer Jensen
hit Jeilani a third time with his taser. This time, Officer Jensen observed both prongs
of the taser hit Jeilani, but Jeilani exhibited no reaction.

                                         -3-
       By this time, Officer Vicki Karnik (Officer Karnik), also a trained member of
the CIT, arrived at the scene. Sergeant Gross ordered Officer Karnik to deploy her
taser, which she did, hitting Jeilani twice. Jeilani did not react to the first hit. Officer
Kimmerle testified he heard Jeilani state “it ain’t working.” Jeilani ran toward Officer
Karnik, who retreated while reloading taser cartridges. Officer Karnik hit Jeilani
again with the taser. This time, Officer Karnik heard the electricity working in
Jeilani’s body. However, Jeilani again broke free from the taser. Officer Jensen then
asked Jeilani, “what do we got to do to get you to put your weapons down.” Jeilani
responded by hitting a light pole with his machete. Officer Karnik commanded Jeilani
to drop his weapons, but Jeilani ignored her and shifted his focus to Officer Dinh’s
squad car.

       As Jeilani approached Officer Dinh, the officer took cover behind the passenger
door, drew out his weapon, and ordered Jeilani to put his weapons down. Jeilani
moved toward Officer Dinh, who then took cover inside the squad car. Jeilani struck
the hood of Officer Dinh’s squad car with the machete. Officer Dinh told Jeilani to
back up or he would shoot him, and Jeilani backed up. At that time, Officer Dinh
exited the car and joined Officer Jensen, who was close to the trunk of Officer Dinh’s
squad car. Jeilani moved toward the officers making slashing motions with his
machete and hit the trunk of the squad car with his machete. Now, there was nothing
between Jeilani and Officers Jensen, Dinh, and Kimmerle. The officers pointed their
guns at Jeilani and again ordered him to put down his weapons. Jeilani, however,
refused and the officers fired their guns, killing Jeilani.

       Officers Jensen, Dinh, and Kimmerle each testified they thought their lives were
in danger when Jeilani moved toward them. Officers McCarthy, Karnik, and Merten,
who were covering the other officers and also fired their weapons, testified they feared
for the lives of their fellow officers. The entire altercation lasted approximately
eleven minutes.



                                            -4-
       Hassan, as the administrator of Jeilani’s estate, filed a lawsuit alleging claims
under §1983, as well as state law negligence claims for negligent training, supervising,
hiring and retention, and for wrongful death. The City and the individual defendants
filed a motion for summary judgment, claiming qualified immunity on the §1983
claim, and official and statutory immunity on the state law negligence claims. The
district court granted the individual defendants’ motion. This appeal followed.

II.    DISCUSSION
       We review de novo a grant of summary judgment. Pope v. ESA Servs., Inc.,
406 F.3d 1001, 1006 (8th Cir. 2005). Summary judgment is proper if, after viewing
the evidence and drawing all reasonable inferences in the light most favorable to the
nonmovant, no genuine issues of material fact exist and the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Pope, 406 F.3d at 1006.

       A.     Section 1983 Claim
       Section 1983 prohibits government officials from depriving other persons of
“rights, privileges, or immunities secured by the Constitution.” 42 U.S.C. § 1983.
However, government officials are entitled to dismissal “if their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Sanders v. City of Minneapolis, Minn., 474 F.3d 523,
526 (8th Cir. 2007) (internal quotation marks omitted). “Qualified immunity is not
just a defense to liability, it constitutes immunity from suit.” Hanig v. Lee, 415 F.3d
822, 824 (8th Cir. 2005). “In addressing an officer’s claimed entitlement to qualified
immunity, the court must first determine whether the allegations amount to a
constitutional violation, and then, whether that right was clearly established.”
Sanders, 474 F.3d at 526 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).

      Because Hassan’s case presents an issue of whether the officers used excessive
force, we must analyze the case under the Fourth Amendment’s objective
reasonableness standard. See Craighead v. Lee, 399 F.3d 954, 961 (8th Cir. 2005)


                                          -5-
(internal quotation marks omitted). “[T]he question is whether the officers’ actions
are ‘objectively reasonable’ in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.” Id. (quoting Graham v.
Connor, 490 U.S. 386, 397 (1989)). “Apprehension by the use of deadly force is a
seizure subject to the reasonableness requirement of the Fourth Amendment.” Id.
(citing Tennessee v. Garner, 471 U.S. 1, 7 (1985)). “Hence, ‘[w]here the suspect
poses no immediate threat to the officer and no threat to others, the harm resulting
from failing to apprehend him does not justify the use of deadly force to do so.’” Id.
(quoting Garner, 471 U.S. at 11). However, “[w]here the officer has probable cause
to believe that the suspect poses a threat of serious physical harm, either to the officer
or to others, it is not constitutionally unreasonable to prevent escape by using deadly
force.” Brosseau v. Haugen, 543 U.S. 194, 197-98 (2004).

        Here, the facts viewed in the light most favorable to Hassan, show the use of
deadly force was not constitutionally unreasonable. Jeilani posed a significant and
immediate threat of death or serious physical injury to the officers and to the public.
Jeilani aggressively brandished a machete and a tire iron while approaching officers
in a threatening manner and did not slow down, although the officers repeatedly asked
Jeilani to put down his weapons and deployed tasers against him a total of five times.
The encounters occurred on a public street and in a shopping mall parking lot.
Citizens were in the vicinity and Jeilani moved toward the citizens more than once.
Under the circumstances of this case, deadly force was reasonably necessary. The
officers’ actions were objectively reasonable and did not violate Jeilani’s Fourth
Amendment right to be free from unreasonable seizures.

       Hassan argues the officers should have known Jeilani’s behavior indicated he
was mentally ill, and thus, their conduct was unreasonable. However, even if Jeilani
were mentally ill, Jeilani’s mental state does not change the fact he posed a deadly
threat to the officers and the public. “Knowledge of a person’s disability simply
cannot foreclose officers from protecting themselves, the disabled person, and the
general public when faced with threatening conduct by the disabled individual.”
                                          -6-
Sanders, 474 F.3d at 527 (citing Bates ex rel. Johns v. Chesterfield County, Va., 216
F.3d 367, 372 (4th Cir. 2000)).

        Hassan also claims the City’s failure to (1) train its officers properly how to
approach individuals with mental illnesses, and (2) provide someone who could speak
Somalian, contributed to the escalation of the situation to the point of needing to use
deadly force. However, Jeilani’s death is not the result of the City’s failure to train
its officers or provide a Somalian translator (the record indicates Jeilani spoke some
English). Jeilani is dead because of his own aggressive behavior in threatening, and
then attempting to attack, police officers by using a machete and a tire iron. Here, the
officers had every reason to believe Jeilani could have killed or seriously injured any
one of them or a citizen nearby, and thus, it was not constitutionally unreasonable to
use deadly force. “Without a constitutional violation by the individual officers, there
can be no § 1983 or Monell4 failure to train municipal liability.” Sanders, 474 F.3d
at 527 (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam)).

       No constitutional violation occurred, and the individual defendants are entitled
to be dismissed. See Ambrose v. Young, 474 F.3d 1070, 1077 & n.3 (8th Cir. 2007)
Summary judgment in favor of the individual defendants was properly granted with
respect to Hassan’s § 1983 claim.

       B.    State Law Claims
       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.” Elwood v. County of Rice, 423 N.W.2d 671, 677 (Minn. 1988)
(internal quotation marks omitted). Also under Minnesota law, the decision to use
deadly force is a discretionary decision entitling a police officer to official immunity
absent a willful or malicious wrong. Maras v. City of Brainerd, 502 N.W.2d 69, 77

      4
       Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
                                     -7-
(Minn. Ct. App. 1993). Official immunity also generally protects governmental
entities from vicarious liability for actions that are entitled to immunity. Wiederholt
v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998). “In determining whether
an official has committed a malicious wrong, we consider whether the official has
intentionally committed an act that he or she had reason to believe is prohibited.”
State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571-72 (Minn. 1994).
This “contemplates less of a subjective inquiry into malice, which was traditionally
favored at common law, and more of an objective inquiry into the legal
reasonableness of an official’s actions.” Id. at 571.

       Because the facts establish the officers’ use of deadly force was reasonable, a
reasonable fact finder could not conclude the officers’ conduct was willful or
malicious. Here, the facts reflect the officers had every reason to believe they and the
public were in danger, and that using deadly force against Jeilani to protect themselves
and bystanders was reasonable. Thus, the officers are entitled to a dismissal of
Hassan’s wrongful death claim. Furthermore, because hiring, supervising, and
training police officers are policy-level activities, the City, by statute, has
discretionary immunity from any tort liability based on negligence. Minn. Stat.
§ 466.03, subd. 6; Fear v. Indep. Sch. Dist., 911, 634 N.W.2d 204, 212 (Minn. Ct.
App. 2001) (holding that decisions of hiring, supervising, training, and retaining are
considered policy-level activities protected by statutory immunity); Watson by
Hanson v. Metropolitan Transit Com’n., 553 N.W.2d 406, 413 (Minn. 1996)
(concluding the training of city bus drivers is a policy-level decision protected by
statutory immunity); Maras, 502 N.W.2d at 78 (stating “the training a city provides
to its police officers is a policy decision” protected by discretionary immunity).
Summary judgment was properly granted in favor of the City and its officers.5


      5
        On appeal, Hassan also alleges the individual defendants are not entitled to
official immunity because they discriminated against Jeilani by not providing a
Somalian interpreter and mental health resources during the encounter. Hassan also
argues official immunity does not apply because the officers were disorganized and
                                        -8-
III.   CONCLUSION
       We affirm the judgment of the district court.
                       ______________________________




their tasers did not function properly. However, as previously stated, nothing in the
record suggests the officers engaged in any willful or malicious acts. Rather, the
undisputed evidence in this case shows the officers were only trying to protect
themselves and others from a dangerous man brandishing a machete and tire iron on
a public street and then in the parking lot of a strip mall. Furthermore, Hassan does
not indicate how the individual defendants’ handling of the situation or their conduct
was so different from expected conduct that discrimination was the probable
explanation. Beaulieu, 518 N.W.2d at 572 (holding official immunity is available in
claims of discrimination if plaintiff fails to establish his treatment by defendants “was
so at variance with what would reasonably be anticipated, absent racial discrimination
that racial discrimination is the probable explanation”) (internal quotation marks and
alterations omitted). Hassan’s unsupported allegations of discrimination cannot
survive summary judgment.
                                             -9-
