                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-2250
                         ___________________________

Robin Thompson, as Personal Representative of the Estate of Jermell Thompson, deceased

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

          James “Clint” Murray, individually and in his official capacity

                       lllllllllllllllllllll Defendant - Appellant

    Dustin Caudell, individually and in his official capacity; City of Morrilton,
                            Arkansas, a municipality

                             lllllllllllllllllllll Defendants

         Norbert Gunderman, Jr., individually and in his official capacity

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

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

                              Submitted: April 17, 2015
                              Filed: September 2, 2015
                                   ____________
Before WOLLMAN and GRUENDER, Circuit Judges, and GRITZNER, District
Judge.1
                        ____________

WOLLMAN, Circuit Judge.

       Following a police pursuit, Officer James “Clint” Murray shot Jermell
Thompson (Jermell) through the windshield and side window of Jermell’s vehicle.
Jermell died from the gunshot wounds. Robin Thompson (Thompson), Jermell’s
mother and the personal representative of his estate, brought suit against Murray,
Officer Dustin Caudell, Chief of Police Norbert Gunderman, Jr., and the City of
Morrilton (the city) (collectively, Defendants). Thompson alleged claims of
excessive force, supervisory liability, and municipal liability under the federal Civil
Rights Act, 42 U.S.C. § 1983, and claims under Arkansas law. Murray, Caudell,
Gunderman, and the city moved for summary judgment. The district court2 granted
Caudell’s motion, denied the city’s motion, granted Defendants’ motion as it
pertained to Thompson’s duplicative official-capacity claims against Murray and
Gunderman, and denied Murray’s motion for summary judgment based on qualified
immunity. Murray and Gunderman bring this interlocutory appeal. We dismiss
Murray’s appeal for lack of jurisdiction, and because the district court did not address
or rule on Thompson’s claims against Gunderman in his individual capacity, we
dismiss Gunderman’s appeal for want of a reviewable order.




      1
      The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa, sitting by designation.
      2
       The Honorable Billy Roy Wilson, United States District Judge for the Eastern
District of Arkansas.

                                          -2-
                                          I.

       On the afternoon of November 29, 2008, an employee of the Number 9 liquor
store in Morrilton, Arkansas, called 911 to report the theft of a half gallon of Crown
Royal whiskey. The caller described the suspect as a black man, reported that he
might be intoxicated, stated that the man had left driving a maroon car, and gave the
license plate number. Murray and Caudell of the Morrilton Police Department
responded in separate police cruisers. Caudell located the vehicle—a 1992 Chevy
Corsica—first and began following it, activating his blue lights and siren. Murray
quickly caught up and followed behind Caudell’s police cruiser. Jermell, who was
driving the Corsica, continued on his course in a manner that did not respond to the
blue lights and sirens. Both Caudell’s and Murray’s dashboard cameras recorded the
incident. The footage shows that Jermell stayed in his lane throughout the pursuit and
was not driving erratically.

        When Jermell reached a red light, he stopped or slowed his vehicle and did not
proceed through the intersection. The dashboard cameras show that other cars at the
intersection had also come to a stop or were slowing to a stop. To Jermell’s left was
a left-turn lane. Caudell and Murray attempted to “box in” Jermell’s vehicle. Caudell
pulled to the shoulder, stopping to the right of Jermell’s car, and Murray drove around
to the left of Jermell’s vehicle and stopped just in front of Jermell’s vehicle at an
angle that blocked Jermell’s path. The footage from Caudell’s dashboard camera
shows that the other vehicles at the intersection were stopped or slowing to a stop and
that Jermell began backing up his vehicle until it was out of view of the camera.

        The subsequent events occurred within a few seconds. The parties agree that
Murray exited his vehicle and positioned himself near the rear of his cruiser.
Defendants suggest that Murray positioned himself near the back right quarter panel
of his vehicle, while Thompson contends that Murray was positioned near the back
left of his vehicle. An expert opinion and the timing of events offer some support for

                                         -3-
Thompson’s theory. The parties agree that Jermell stopped backing up and began
moving forward, but Thompson argues that Jermell was moving forward at a speed
as low as two miles per hour, while Defendants claim that Jermell’s vehicle began
accelerating forward, rapidly reaching a speed of approximately twenty miles per
hour or more. The parties also dispute in which direction Jermell’s car moved
forward. Thompson claims that Jermell was moving forward and to the left, into the
left turn lane and around Murray and Murray’s police cruiser. Thompson’s theory has
support in the fact that Jermell’s vehicle ultimately did circumvent Murray’s police
car, going around Murray’s car on the left.3 Defendants contend that Jermell was
moving in Murray’s direction and appeared to be attempting to run over Murray.
Several witnesses also stated that it appeared that Jermell was attempting to run over
Murray or that Jermell’s vehicle would hit Murray.

      When Jermell’s vehicle began moving forward, Murray began firing at it.
Murray moved to his right, claiming that he did so to avoid being hit by Jermell’s car.
Thompson suggested below, however, that Murray’s movement to the right actually
placed him in the path of Jermell’s car. Caudell fired several shots at Jermell’s tires.
Murray’s shots went through the front windshield and driver’s side window of the
vehicle; Caudell’s shots missed their target. Jermell’s vehicle went left of and around
Murray’s cruiser, then veered to the right, across the intersection, and into a ditch.
Jermell died from gunshots to his face and chest.

       The district court noted that Murray’s entitlement to qualified immunity
depended on whether it was reasonable for Murray to believe that Jermell posed a
threat of serious physical harm to Murray or to others at the time of the shooting. The


      3
        In addition, several witnesses gave statements supporting the notion that
Jermell’s vehicle was moving forward slowly and was headed around the police car.
These statements were offered in opposition to summary judgment and appeared only
in the report of one of Thompson’s experts, rather than in the form of affidavits.

                                          -4-
district court determined that the answer to that inquiry depended on a number of
disputed issues, including: (1) where Murray was standing when Jermell’s vehicle
began moving forward, (2) how far away Jermell’s vehicle was from Murray, (3)
which direction Jermell’s vehicle was moving, (4) how fast Jermell’s vehicle was
moving, (5) where Murray was standing when he began firing at Jermell, (6) how
many shots Murray fired, (7) where Murray was standing when he fired shots through
the side window, and (8) whether it was reasonable for Murray to believe that Jermell
still posed a threat when he fired shots through the side window.

                                          II.

       The “first and fundamental question” in an appeal from a denial of qualified
immunity is that of jurisdiction. Walton v. Dawson, 752 F.3d 1109, 1115 (8th Cir.
2014) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)). An
order denying qualified immunity is immediately appealable “to the extent that it
turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). In an
interlocutory appeal from such an order, our jurisdiction is limited to resolving
abstract questions of law related to the qualified-immunity determination—typically,
whether the allegedly infringed federal right was clearly established. Behrens v.
Pelletier, 516 U.S. 299, 313 (1996). We lack jurisdiction to review the district court’s
determination regarding evidence sufficiency—i.e., what facts a party may or may not
be able to prove at trial. Johnson v. Jones, 515 U.S. 304, 313 (1995). We do not have
jurisdiction to review whether a factual dispute is “genuine,” but we do have
jurisdiction to review the purely legal question whether a dispute identified by the
district court is material. See, e.g., Kovacic v. Villarreal, 628 F.3d 209, 211 n.1 (5th
Cir. 2010).

       Because our jurisdiction is limited in an interlocutory appeal from an order
denying qualified immunity, we are constrained by the version of the facts that the
district court assumed or likely assumed in reaching its decision, see Ellison v.

                                          -5-
Lesher, No. 13-3371, slip op. at 2-3, 2015 WL 4645667, at *1 (8th Cir. Aug. 6, 2015),
to the extent that version is not “blatantly contradicted by the record,” Walton, 752
F.3d at 1116 (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). Typically, if the
district court did not state which facts it found were adequately supported, we must
determine which facts it likely assumed by viewing the record in the light most
favorable to the plaintiff. See Lockridge v. Bd. of Trs. of the Univ. of Ark., 315 F.3d
1005, 1008 (8th Cir. 2003) (en banc).

        Here, the district court’s list of disputed issues allows us to deduce which facts
it likely assumed in reaching its decision. We can infer, for example, that the district
court likely assumed that when Jermell’s vehicle began moving forward at the
intersection, it was accelerating at a slow rate, rather than quickly accelerating to
approximately twenty miles per hour, as Defendants claim. We can also infer that the
district court likely assumed that as Jermell’s car began to move forward, Murray was
standing near the back left of his police cruiser—the location where Thompson claims
Murray stood and which arguably offered more protection from Jermell’s vehicle than
the area near the back right quarter panel of the cruiser. The district court also likely
assumed that Murray was not standing either directly in the path of Jermell’s car or
near enough to Jermell’s car for the slow-moving vehicle to constitute an immediate
threat.

       The record does not blatantly contradict the version of the facts that the district
court likely assumed. See Walton, 752 F.3d at 1116. This version of the facts has
at least some support in the forensic evidence, camera footage, the opinions of
Thompson’s experts, and common sense. Defendants argue that the facts were
undisputedly otherwise, but this argument challenges the district court’s conclusions
regarding evidence sufficiency and the genuineness of factual disputes—conclusions
that we have no jurisdiction to review.




                                           -6-
       Murray is entitled to qualified immunity unless the above-described facts
demonstrate that he violated a clearly established constitutional or statutory right of
which a reasonable person would have known. See Richmond v. City of Brooklyn
Ctr., 490 F.3d 1002, 1006 (8th Cir. 2007). An 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. Capps v. Olson, 780 F.3d
879, 886 (8th Cir. 2015); see also Tennessee v. Garner, 471 U.S. 1, 11 (1985). This
general standard can be sufficient to clearly establish a fleeing suspect’s rights in a
case where they have obviously been infringed. Brosseau v. Haugen, 543 U.S. 194,
199 (2004).

       Defendants argue that in a more particularized sense, “there is no case law
clearly establishing that the use of deadly force is inappropriate” against a suspect
who is “bearing down on” an officer and who is “driving into oncoming traffic
through a heavily trafficked intersection while running a red light after being chased
by police and refusing to stop even when guns are aimed at him.” Although this
argument is framed to pose the purely legal question whether Jermell’s right to be free
from the use of deadly force was clearly established, it is founded on facts not
assumed by the district court—for example, that, at the time of the shooting, Jermell’s
vehicle was moving toward Murray, who was in an unprotected position, or toward
the slowed or stopped oncoming traffic, and at a high enough speed to pose an
immediate and significant risk of serious injury. At bottom, this is an argument about
the sufficiency of the evidence, a question we lack jurisdiction to review, however
inventively it is structured as an abstract legal argument. See Mahamed v. Anderson,
612 F.3d 1084, 1086-87 (8th Cir. 2010).

      Defendants also contend that even assuming that Thompson is correct that
Murray was not in immediate danger when Jermell’s car began moving forward,
Murray’s mistaken belief that he was in danger was reasonable because it accorded
with what several witnesses believed. These witnesses’ versions of events, however,

                                         -7-
were not likely assumed by the district court, and so we lack jurisdiction to weigh the
sufficiency and credibility of the evidence supporting Thompson’s version of the
facts against the relative credibility of these witnesses.

       Defendants’ remaining challenges are similarly premised on facts that the
district court did not likely assume—including that Jermell’s vehicle was moving
toward Murray and that it was close enough and accelerated quickly enough to pose
a significant and immediate threat at the time of the shooting. Defendants’ arguments
about the district court’s denial of qualified immunity to Murray essentially challenge
the district court’s determination that there were genuine disputes over issues of
material fact. We thus lack jurisdiction over Murray’s interlocutory appeal.

        With respect to Gunderman’s appeal, the district court addressed Gunderman’s
role while considering the city’s motion for summary judgment on municipal liability.
It did not address Thompson’s claims against Gunderman in his individual capacity,
however, and did not enter an order denying Gunderman qualified immunity, or
otherwise resolving Gunderman’s motion for summary judgment on the individual-
capacity claims against him.4

                                         III.

      Murray’s appeal is dismissed for lack of jurisdiction. Gunderman’s appeal is
dismissed for want of a reviewable order
                      ______________________________

      4
       Although the parties make arguments in their briefs regarding the city’s
municipal liability, the city was not listed in the notice of appeal. Even if the city
were an appellant, the city’s municipal liability is not inextricably intertwined with
any qualified-immunity appeal over which we have jurisdiction. Kincade v. City of
Blue Springs, 64 F.3d 389, 394 (8th Cir. 1995) (noting that the exercise of pendent
appellate jurisdiction may be appropriate if an otherwise unappealable decision is
“inextricably intertwined” with an appealable one).

                                         -8-
