                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-3358
                         ___________________________

Crystal Thompson; Z.T., by and through his next friend Crystal Thompson; Tyler
 Hutson; G.T., III, by and through his next friend Marinda Hayden; S.T., by and
 through her next friend Marinda Hayden; T.T., by and through her next friend
               Marinda Hayden; Gerald Thompson; Mary Estrada

                        lllllllllllllllllllllPlaintiffs - Appellees

                                            v.

                                     Andrew Dill

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
             for the Western District of Missouri - Southern Division
                                 ____________

                          Submitted: November 14, 2018
                              Filed: July 23, 2019
                                 ____________

Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
                          ____________

GRASZ, Circuit Judge.

       This interlocutory appeal is about whether Trooper Andrew Dill of the
Missouri Highway Patrol is immune from a lawsuit filed against him for shooting and
killing Gerry Thompson during Dill’s response to a serious domestic disturbance.
The district court denied Dill’s motion for summary judgment, concluding there were
genuine issues of material fact in dispute preventing it from concluding Dill was
entitled to his asserted immunity defenses. Because Dill’s appeal turns on disputed
issues of fact as to what occurred before the shooting, we lack jurisdiction and
dismiss.

                                   I. Background1

      On May 4, 2016, law enforcement officers were dispatched to Gerry and
Crystal Thompson’s residence. The radio dispatcher reported that a male had
assaulted Crystal and was now holding her and a small child against their will. The
dispatcher reported the man — who was later identified as Crystal’s husband Gerry
— threatened to kill Crystal if police came to the house. Dill and other law
enforcement officers from various departments responded to the call.

        Dill arrived at the residence and stationed himself in a neighboring yard to the
east of the Thompson residence. The record reveals that another officer, Dallas
County Deputy Sheriff Darren Cheek, conversed with Gerry at the front door
entryway and ultimately employed his taser against Gerry. The taser did not subdue
Gerry, and Gerry tried to push Cheek out of the entryway and close the door. Dill
testified the sound of the taser combined with the fact Cheek staggered backward led
Dill to believe Gerry had shot the officer. Dill then observed Cheek and several other
officers forcibly enter the home.




      1
       We recite the background facts primarily as set forth in the district court’s
summary judgment opinion. See Riggs v. Gibbs, 923 F.3d 518, 521 (8th Cir. 2019)
(explaining we must accept as true the facts the district court found were adequately
supported unless they are blatantly contradicted by the record). Certain additional
undisputed facts are gleaned from the record.

                                          -2-
       While Gerry and the officers were inside, Dill walked toward the residence and
looked in the front door, where he observed Crystal, with blood on her face, holding
a child. Dill heard screaming, yelling, and banging inside the house and concluded
Gerry was not under police control and that Crystal and her child were in danger.

      Gerry soon charged out a separate door. Almost immediately and without
giving any warning to Gerry, Dill discharged his firearm a single time, fatally
shooting Gerry in his right side. Dill testified he saw Gerry move his hands toward
his waistband and turn back toward the door, which Dill said caused him to believe
Gerry was reaching for a gun to possibly shoot into the house. Gerry was actually
unarmed. A video taken by Deputy Cheek’s body camera inside the house showed
Gerry rushing out of the house and slamming the door shut. Although the door
prevented recording video of the actual shooting, the audio of the shooting was
recorded.

       Gerry’s children and parents and Crystal sued Dill in federal court. The
complaint alleged excessive force in violation of 42 U.S.C. § 1983 and a Missouri
state law claim of battery.

       After discovery, Dill filed a motion for summary judgment, claiming he was
entitled to qualified immunity on the excessive force claim and official immunity on
the battery claim. The essence of Dill’s argument was that his decision to use deadly
force was reasonable under the circumstances involved, including because Dill
believed Gerry posed a threat to others considering he “disobeyed commands and fled
from officers, only to immediately turn back toward them, while reaching to his
waistband.”

      The district court denied Dill’s motion for summary judgment, concluding a
genuine issue of material fact was in dispute as to whether Gerry acted in a way that
made it objectively reasonable to believe he posed an immediate threat to officers or

                                         -3-
others at the scene. The district court explained the body-camera video “shows only
the view from inside the residence, such that the shooting at issue and the actions of
Dill and [Gerry] occurred on the other side of an opaque door.” Thus, the district
court reasoned it could not “conclude that [Gerry] reached for his waist, or otherwise
behaved in a manner that would have justified the perception that [Gerry] was
behaving in a threatening manner.”

       As for the battery claim, the district court denied Dill official immunity. The
district court credited the Plaintiffs’ arguments that there were open fact questions as
to whether Dill acted maliciously since Dill shot Gerry almost immediately upon
leaving the house and, contrary to his officer training, without first giving Gerry any
verbal warning.

       Dill filed a timely interlocutory appeal, challenging the district court’s denial
of his motion for summary judgment on both the § 1983 excessive force claim and
the Missouri battery claim.

                                     II. Analysis

       Summary judgment is proper if a party “shows that there is no genuine dispute
as to any material fact and [he] is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). When engaging in this analysis, “the nonmoving party is given the
benefit of all reasonable inferences.” Morgan v. Cook, 686 F.3d 494, 496 (8th Cir.
2012).

       In cases where a government official seeks summary judgment on the basis of
qualified immunity, the court must engage in a two-step inquiry. See id. A
government official is entitled to qualified immunity on a § 1983 claim unless (1) “the
facts shown by the plaintiff make out a violation of a constitutional or statutory



                                          -4-
right,” and (2) the “right was clearly established at the time of the defendant’s alleged
misconduct.” Id.

       Typically, we do not have jurisdiction over a district court’s denial of summary
judgment. When the denial is based on qualified immunity, however, we have limited
jurisdiction to decide the purely legal issue of whether the alleged facts support a
claim of violation of clearly established law. See Raines v. Counseling Assocs. Inc.,
883 F.3d 1071, 1074 (8th Cir. 2018). The standard of review to reach that particular
question is de novo. See id.

       Our jurisdiction does not extend to the issue of “whether or not the pretrial
record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304,
320 (1995). Consequently, we generally do not have jurisdiction to review a district
court’s denial of qualified immunity at the summary judgment stage simply because
we disagree with the district court as to whether there is sufficient evidence to
conclude a material fact is genuinely in dispute. See Riggs v. Gibbs, 923 F.3d 518,
523 (8th Cir. 2019). Jurisdiction is thus typically lacking where there is a dispute of
fact “at the heart of the argument.” Id. (quoting Austin v. Long, 779 F.3d 522, 524
(8th Cir. 2015)).

       There is an exception to this rule. Reversal of a denial of qualified immunity
is warranted “where the record plainly forecloses the district court’s finding of a
material factual dispute.” Raines, 883 F.3d at 1074; see also Scott v. Harris, 550 U.S.
372, 380 (2007) (“When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes of ruling on a motion for
summary judgment.”).

       Similarly, we have limited jurisdiction to review issues of law related to the
district court’s denial of summary judgment based on Dill’s official immunity

                                          -5-
defense. See Div. of Emp’t Sec., Mo. v. Bd. of Police Comm’rs, 864 F.3d 974, 978
(8th Cir. 2017) (recognizing the “scope of review is limited to issues of law,” which
are reviewed de novo, as to denials of claims of qualified immunity, sovereign
immunity, and official immunity).

                      A. Section 1983 Excessive Force Claim

       With our jurisdictional limitations in mind, we first consider the district court’s
denial of qualified immunity to Dill on the § 1983 excessive force claim. An
excessive force claim “is governed by the Fourth Amendment’s prohibition against
unreasonable seizures.” Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012).
In deciding whether an officer’s use of force amounts to a constitutional violation, the
question turns on whether, under the totality of the circumstances, the officer’s
conduct was reasonable. See Graham v. Connor, 490 U.S. 386, 395–96 (1989);
Raines, 883 F.3d at 1074.

       “The calculus of reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments — in circumstances that are
tense, uncertain, and rapidly evolving — about the amount of force that is necessary
in a particular situation.” Graham, 490 U.S. at 396–97. Courts therefore must not
make immunity conditional on the government officer’s “pursu[ing] the most prudent
course of conduct as judged by 20/20 hindsight vision.” Morgan, 686 F.3d at 497.

       We have identified certain factors as relevant to determine if an officer’s use
of force was objectively unreasonable:




                                           -6-
      the relationship between the need for the use of force and the amount of
      force used; the extent of the plaintiff’s injury; any effort made by the
      officer to temper or to limit the amount of force; the severity of the
      security problem at issue; the threat reasonably perceived by the officer;
      and whether the plaintiff was actively resisting.

Zubrod v. Hoch, 907 F.3d 568, 577 (8th Cir. 2018).

       Our jurisprudence on the use of deadly force is particularly relevant here. We
have held it is not constitutionally unreasonable to use deadly force “if an officer has
probable cause to believe that the suspect poses a threat of serious physical harm,
either to the officer or others.” Morgan, 686 F.3d at 497. This is true even if the
officer’s objectively reasonable belief or perception about the threat turns out to be
mistaken. See Loch, 689 F.3d at 966. So “[e]ven if a suspect is ultimately ‘found to
be unarmed, a police officer can still employ deadly force if objectively reasonable.’”
Id. (quoting Billingsley v. City of Omaha, 277 F.3d 990, 995 (8th Cir. 2002)). But
where it is not objectively reasonable for an officer to believe a suspect poses an
immediate threat to the officer or others, “deadly force is not justified.” See Raines,
883 F.3d at 1074 (quoting Ellison v. Lesher, 796 F.3d 910, 916 (8th Cir. 2015)).

        Since there is no dispute Gerry was unarmed when Dill shot and killed him, the
critical question is this: viewing the evidence in the light most favorable to the
Plaintiffs, was it objectively reasonable for Dill to believe Gerry posed a threat of
serious physical harm to anyone as he fled from his house? If so, then Dill is entitled
to qualified immunity and thus summary judgment. If not, then the case must proceed
to trial.

      The district court answered this question in the negative, reasoning that under
the summary judgment standard it could not conclude Gerry “reached for his waist,
or otherwise behaved in a manner that would have justified the perception that
[Gerry] was behaving in a threatening manner.” Dill argues this was error because,

                                          -7-
at the moment he employed deadly force, he had reason to believe Gerry was about
to cause death or serious bodily injury to the officers inside the residence by reaching
for a gun to shoot back into the house at the officers. Dill contends this belief was
reasonable considering the totality of the circumstances, including the fact Gerry
reached for his waist and turned back toward the officers inside the house.

       Dill may ultimately be able to show his split-second decision to shoot Gerry
was objectively reasonable considering the chaotic circumstances. But we do not
have jurisdiction to decide whether or not we disagree with the district court as to
whether there was sufficient evidence to find a genuine issue of material fact for
resolution at trial. See Johnson, 515 U.S. at 319–20. That question is beyond our
limited jurisdiction unless Dill can show the record plainly forecloses the district
court’s finding that a material factual dispute existed as to whether Gerry was acting
in a threatening manner. See Raines, 883 F.3d at 1074.

       Dill cannot show such a one-sided record here. It is true nothing in the record
directly contradicts Dill’s testimony that Gerry reached for his waistband and turned
back toward the door as he exited. At the same time, there is evidence that could
indicate Gerry did not act as Dill described. For example, the body-camera recording2
taken from inside the house demonstrates that Dill shot Gerry immediately upon


      2
        Dill argues the district court’s decision relied on the faulty premise that to
prevail on summary judgment an officer’s testimony must be confirmed by video.
Dill correctly points out there is no such requirement in the law. However, we do not
interpret the district court’s order as imposing such a rule. Instead, read in context,
the district court simply concluded the body camera video did not resolve the factual
dispute as to how Gerry behaved as he fled the house. In other words, because the
body camera video did not show the shooting, the district court concluded it did not
warrant discrediting the Plaintiffs’ version of events at the summary judgment stage
as permitted in appropriate circumstances. See Scott, 550 U.S. at 380–81, 386
(reversing a denial of qualified immunity in an excessive force case where the facts
depicted by the videotape utterly discredited the plaintiff’s version of events).
                                          -8-
exiting the house. Considering this, one could question whether Gerry even had time
to reach toward his waist and turn back toward the house.3 There are also
photographs and an autopsy report in the record clearly showing the entry wound was
on Gerry’s right side, which Plaintiffs argue casts doubt on whether Gerry turned
back to the house as Dill testified.4

      This evidence does not necessarily mean it was unreasonable for Dill to believe
Gerry posed a threat justifying his use of deadly force. But it does mean the record
does not plainly foreclose the district court’s finding of a factual dispute as to whether
Gerry’s actions just prior to the shooting were consistent with Dill’s testimony. And
resolution of whether the evidence is sufficient to make that dispute “genuine” is
beyond our limited jurisdiction. See Johnson, 515 U.S. at 319–20.

                             B. Missouri Battery Claim

      We next review the district court’s denial of summary judgment on the battery
claim, as to which Dill asserts he is entitled to official immunity.

       “Under the Missouri doctrine of official immunity, ‘public officers acting
within the scope of their authority are not liable for injuries arising from their
discretionary acts or omissions, but they may be held liable for torts committed when
acting in a ministerial capacity.’” Div. of Emp’t Sec., Mo., 864 F.3d at 979 (quoting
Missouri ex rel. Hill v. Baldridge, 186 S.W.3d 258, 259 (Mo. 2006) (en banc)
(cleaned up)). An officer’s actions when interacting with “a suspected criminal are


      3
          The video does not show Gerry reaching for his waist before the door closed.
      4
        The autopsy photos and report indicate the point of entry of the shotgun pellets
to be on the right side of Gerry’s body, which was the side nearest to Dill when Gerry
exited the house. Plaintiffs argue that if Gerry had turned as Dill described, the entry
wounds would have been expected “in the center/belly button.”
                                           -9-
generally discretionary, and thus they are protected by official immunity.” Id. This
includes when a police officer “draws and fires a weapon.” Seiner v. Drenon, 304
F.3d 810, 813 (8th Cir. 2002).

       However, acts performed in bad faith or with malice do not qualify as
discretionary acts. See Conway v. St. Louis Cnty., 254 S.W.3d 159, 165 (Mo. Ct.
App. 2008). “Bad faith signifies a dishonest purpose or conscious wrongdoing or
breach of a known duty through ulterior motives or ill will.” Id. “Malice [] requires
intent, [and t]o act with malice the officer must do that which a man of reasonable
intelligence would know to be contrary to his duty and intend such action to be
injurious to another.” Id.

        Under our limited review, we do not have jurisdiction to reverse the district
court’s determination that there were open fact questions as to whether Dill acted
maliciously. Dill shot Gerry immediately and, contrary to his training, without
warning, when Gerry fled the house. Further, the autopsy photographs and report
raise doubt as to Dill’s claim that Gerry turned back toward the door. Considering
those facts, and discounting Dill’s testimony that Gerry reached for his waist and
acted in a threatening manner, “a jury could find that [Dill] acted with the prohibited
. . . malice.” Div. of Emp’t Sec., Mo., 864 F.3d at 980. Once again, Dill may very
well show his actions were reasonable and consistent with his duty, but we have no
basis to decide that factual question under our limited jurisdiction.

                                  III. Conclusion

      We dismiss the appeal for lack of jurisdiction.




                                         -10-
KELLY, Circuit Judge, concurring.

       I concur in the court’s opinion, but mindful of our lack of jurisdiction over
Dill’s appeal, I would offer no comment on the likelihood of what either party
ultimately may be able to show with respect to whether Dill’s actions were
reasonable.
                        ______________________________




                                       -11-
