                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 11-3618
                        ___________________________

                         Cassidy Jared Loch; Saara Loch

                      lllllllllllllllllllll Plaintiffs - Appellants

                                           v.

           City of Litchfield; Litchfield Police Officer Travis Rueckert

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                    Appeal from United States District Court
                   for the District of Minnesota - Minneapolis
                                  ____________

                             Submitted: June 12, 2012
                              Filed: August 27, 2012
                                  ____________

Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.
                          ____________

COLLOTON, Circuit Judge.

      Cassidy Loch and his wife, Saara Loch, brought this action under 42 U.S.C.
§ 1983, alleging that City of Litchfield police officer Travis Rueckert employed
excessive force when he shot Cassidy Loch eight times. The Lochs also assert state-
law tort claims against Rueckert and seek to hold the City vicariously liable for
Rueckert’s actions. The district court1 granted summary judgment for the defendants,
ruling that Rueckert was entitled to qualified immunity on the § 1983 claim and that
official immunity barred the Lochs’ state-law claims. The Lochs appeal, and we
affirm.

                                         I.

       On March 14, 2009, the Lochs attended a party at a friend’s home. Saara left
the party around 10:00 or 10:30 p.m., but returned around 1:00 a.m. with her brother,
Seth Rokala, to pick up Cassidy. Cassidy, who was very intoxicated, did not want to
leave the party, and the Lochs began to argue. Rokala tried to take Cassidy’s keys to
prevent him from driving, but Cassidy entered his truck and drove away. Saara and
Rokala pursued Cassidy in another vehicle.

       Upon arriving at the Lochs’ home, Saara and Rokala found Cassidy’s truck in
the driveway. Rokala parked behind the truck to block Cassidy from leaving, and
Saara went into the house. Inside, she encountered Cassidy, who looked at Saara,
said nothing, and went outside to his truck. Cassidy tried to maneuver his truck out
of the driveway but struck Saara’s vehicle. Cassidy’s mother, Gail, arrived in
response to a phone call from Saara and positioned her vehicle to block Cassidy’s
exit. Undeterred, Cassidy attempted to drive through the yard, but his truck became
stuck in a snowbank.

       Rokala began to argue with Cassidy, as Saara and Gail urged Cassidy to get out
of the truck and calm down. Rokala’s wife, Elizabeth, called the police at 1:31 a.m.
and reported that Cassidy was “drunk and . . . driving out of control in his yard.” A



      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.

                                         -2-
dispatcher sent Officer Rueckert to the Lochs’ home, telling him that there was a man
there “under the influence [and] trying to leave the residence.”

      Meanwhile, while still in his truck, Cassidy drew a .45 caliber handgun,
pointed it at his chin, and said “is this what you want me to do?” He then struck the
driver’s side window with the gun, shattering the window. Rokala began to fight
Cassidy for the gun and tried to pull him out of the truck.

      Officer Rueckert arrived on the scene and parked his vehicle in the street. As
Rueckert began walking toward Cassidy’s truck, Rokala yelled that Cassidy had a
gun. Rueckert drew his firearm and retreated to his vehicle, taking cover behind the
engine block and notifying his dispatcher by radio that someone at the scene had a
gun. Around this time, Rokala saw Cassidy throw his gun out the window. Rueckert,
however, did not see Cassidy throw the firearm, and Rokala did not tell Rueckert that
Cassidy had done so. From behind his vehicle, Rueckert watched as Cassidy tried to
open the driver’s side door of the truck. Finding the door blocked by a tree, Cassidy
kicked the glass out of the window and climbed out of the vehicle.

       Once outside, Cassidy engaged Rokala in a “nose-to-nose” confrontation.
Fearing for Rokala’s safety, Rueckert pointed his firearm at Cassidy and ordered
everyone to get on the ground. Rather than heed this command, Cassidy turned and
began walking toward Rueckert with his hands raised above his head or extended out
to his sides. As Cassidy continued toward him, Rueckert began backing up and
repeatedly ordered Cassidy to the ground. Cassidy did not comply, and Rueckert
heard him say something that included the word “kill.” Saara, Gail, and Rokala
yelled that Cassidy was unarmed, but Rueckert denies hearing them.

      Cassidy continued toward Rueckert, and as he reached the edge of the street,
Cassidy slipped on a snowbank and tried to right himself. As he did so, one of
Cassidy’s hands moved toward his side. Rueckert began firing, and Cassidy was hit

                                         -3-
multiple times. In an interview several hours after the shooting, Rueckert told an
investigator that he had seen a black object on Cassidy’s hip and believed it was a
holster or firearm. It turned out that Cassidy was wearing a cell phone holder on his
side.

       After the shooting, Rueckert radioed “shots fired, one down,” and requested
assistance, stating, “I don’t have the gun yet.” Litchfield Chief of Police Patrick Fank
arrived on the scene, and Rueckert told Fank that he had not yet recovered the
firearm. Rueckert did not mention the black object on Cassidy’s hip. Rueckert
searched Cassidy’s person and truck, but found no firearm. Rokala eventually led
Rueckert to the gun, which sat in the snow near Cassidy’s truck.

       The Lochs filed suit under § 1983, alleging that Rueckert employed excessive
force in violation of the Fourth Amendment. They also brought state-law claims
against Rueckert for assault, battery, and intentional infliction of emotional distress,
and Saara sued for loss of consortium.2 The district court granted summary judgment
for the defendants. The court ruled that Rueckert’s use of deadly force was
objectively reasonable under the circumstances, and that Cassidy therefore could not
establish the violation of a constitutional right. The court concluded that the Lochs’
state-law claims were barred by official immunity under Minnesota law.

                                          II.

      We review de novo the district court’s order granting summary judgment,
viewing the evidence in the light most favorable to the Lochs and drawing all
reasonable inferences in their favor. Schoelch v. Mitchell, 625 F.3d 1041, 1045 (8th


      2
       The Lochs brought a failure-to-train claim against the City and state-law
claims against the City for negligent hiring, supervision, and retention. The Lochs
do not pursue these claims on appeal.

                                          -4-
Cir. 2010). Summary judgment is appropriate if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).

                                           A.

       The Lochs argue that there are genuine issues of fact about whether Rueckert’s
use of force was objectively reasonable and whether Rueckert is entitled to qualified
immunity against the Lochs’ excessive force claim. Qualified immunity shields a
government official from liability and the burdens of litigation unless his conduct
violates “clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). An
official is entitled to qualified immunity unless (1) the evidence, viewed in the light
most favorable to the plaintiff, establishes a violation of a constitutional or statutory
right, and (2) the right was clearly established at the time of the violation. See
Pearson v. Callahan, 555 U.S. 223, 232 (2009).

       The Lochs’ claim of excessive force is governed by the Fourth Amendment’s
prohibition against unreasonable seizures. See Graham v. Connor, 490 U.S. 386, 395
(1989). The reasonableness of a use of force turns on whether the officer’s actions
were objectively reasonable in light of the facts and circumstances confronting him,
without regard to his subjective intent or motivation. Id. at 397. We must consider
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 officer or others, and
whether the suspect is actively fleeing or resisting arrest. Id. at 396. The use of
deadly force is reasonable where an officer has probable cause to believe that a
suspect poses a threat of serious physical harm to the officer or others. See Tennessee
v. Garner, 471 U.S. 1, 11 (1985). We judge the reasonableness of Rueckert’s use of
force “from the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.” Graham, 490 U.S. at 396.

                                          -5-
      The Lochs argue that the force used was excessive under the circumstances.
They emphasize that Rueckert never saw a firearm before he shot Cassidy. In the
Lochs’ view, Rueckert’s explanation of seeing a black object on Cassidy’s hip is not
credible, because he did not mention that observation until several hours after the
shooting. The Lochs also note that several people at the scene yelled to Rueckert that
Cassidy was unarmed as he approached the officer, and they emphasize that Cassidy’s
arms were raised or extended at his sides, suggesting that he was trying to comply
with the officer’s orders. Finally, the Lochs point out that Rueckert did not warn
Cassidy that he would be shot if he failed to halt.

       Even accepting the facts cited by the Lochs, we conclude that Rueckert’s use
of force was objectively reasonable. Rueckert responded to the Loch residence on the
report of an intoxicated man attempting to leave in a vehicle. The dangerousness of
the situation escalated when, upon arriving at the scene, Rueckert learned from
Rokala that the man in the truck was armed with a firearm. Rueckert took cover and
watched as Cassidy climbed out of the truck and confronted Rokala in a “nose-to-
nose” argument. Having just been told that Cassidy had a gun, Rueckert acted
reasonably in drawing his firearm and ordering Cassidy to the ground to prevent harm
to Rokala or others at the scene.

       Although Cassidy had by this time thrown his firearm in the snow, the Lochs
acknowledge that Rueckert did not observe that action. Instead of complying with
Rueckert’s command to get on the ground, Cassidy turned and moved toward the
officer. The Lochs, noting that Cassidy’s arms were raised above his head or
extended at his sides, suggest that Cassidy was simply trying to find a suitable place
to get on the ground, because his truck sat near a tree and snowbank. But even if
Cassidy’s motives were innocent, a reasonable officer on the scene could have
interpreted Cassidy’s actions as resistance. It is undisputed that Cassidy continued
toward Rueckert despite the officer’s repeated orders to get on the ground while
Rokala, who had just been engaged in a “nose-to-nose” argument with Cassidy

                                         -6-
outside of the truck, readily complied with Rueckert’s command. Thus, a reasonable
officer could believe that Cassidy’s failure to comply was a matter of choice rather
than necessity.

       The Lochs also note that Cassidy never brandished or aimed a firearm, and they
assert broadly that “[i]t is objectively unreasonable to use deadly force against an
unarmed suspect.” That is not the law. An act taken based on a mistaken perception
or belief, if objectively reasonable, does not violate the Fourth Amendment. Krueger
v. Fuhr, 991 F.2d 435, 439 (8th Cir. 1993). Even if a suspect is ultimately “found to
be unarmed, a police officer can still employ deadly force if objectively reasonable.”
Billingsley v. City of Omaha, 277 F.3d 990, 995 (8th Cir. 2002).

       The Lochs argue that a genuine issue of fact exists as to whether Rueckert
reasonably believed Cassidy was armed at the time of the shooting. They emphasize
that several witnesses yelled to Rueckert that Cassidy was unarmed, and they contend
that Rueckert’s explanation of seeing a black object on Cassidy’s hip was simply an
after-the-fact justification for the shooting.

       Even assuming Rueckert heard witnesses yell that Cassidy was unarmed, we
agree with the district court that a reasonable officer in Rueckert’s position still
“would be on alert that Cassidy could possibly be armed.” Rokala told Rueckert that
Cassidy had a gun, and Rueckert did not see Cassidy toss the firearm. After
confronting Rokala, Cassidy turned and moved toward the officer. Rokala estimated
that just fifteen to twenty seconds elapsed between the time he told Rueckert that
Cassidy had a gun and when he told Rueckert that Cassidy was unarmed. Rokala also
believes that no more than fifteen to thirty seconds passed between his argument with
Cassidy and the shooting. Even if Rueckert heard witnesses yell that Cassidy was
now unarmed, these facts presented the type of “tense, uncertain, and rapidly
evolving” situation requiring “split-second judgments” that we are hesitant to second-
guess with the benefit of hindsight. Graham, 490 U.S. at 396-97. A reasonable

                                         -7-
officer in Rueckert’s position, having just been told that Cassidy had a gun, could not
know the truth of the bystanders’ claims that Cassidy was now unarmed as he
continued to approach the officer.

       The Lochs also suggest that a reasonable jury could disbelieve Rueckert’s
claim that he saw a black object on Cassidy’s hip and thought it was a gun or a
holster. If Rueckert’s claim were true, the Lochs contend, then Rueckert would have
mentioned the object to Chief Fank at the scene, rather than raising it several hours
later when questioned by an investigator. Even assuming Rueckert did not see the
black object, his use of force was still objectively reasonable. Rueckert knew he was
dealing with an intoxicated individual, and he had been told that Cassidy had a gun.
Although others on the scene later yelled that Cassidy was unarmed, Rueckert was
in no position—with Cassidy continuing toward him—to verify which version was
true. Rueckert heard Cassidy say “kill” as he continued toward the officer. Cassidy
then slipped on the snow, and one of his hands moved toward his side. In these
circumstances, a reasonable officer could believe that deadly force was necessary to
protect himself from death or serious harm.

       Finally, the Lochs fault Rueckert for failing to warn Cassidy that he would
shoot if Cassidy did not halt. Before employing deadly force, an officer should give
“some warning” when it is “feasible” to do so. Garner, 471 U.S. at 11-12. Although
Rueckert did not issue a specific warning before firing, he acted reasonably.
Rueckert drew his firearm, pointed it at Cassidy, and repeatedly ordered him to get
on the ground. Rueckert’s conduct should have put Cassidy on notice that his
“escalation of the situation would result in the use of the firearm.” Estate of Morgan
v. Cook, 686 F.3d 494, 498 (8th Cir. 2012). The lack of a more specific warning does
not render Rueckert’s use of force unreasonable. See id.; Krueger, 991 F.2d at 440.
The district court properly granted summary judgment in favor of Rueckert on the
Lochs’ § 1983 claim.



                                         -8-
                                          B.

       The Lochs also allege that the City is “vicariously and supervisory liable” for
Rueckert’s actions. The Lochs do not articulate whether they seek to hold the City
vicariously liable on their § 1983 claim or on their state-law tort claims. It is well-
established, however, that a municipality cannot be held liable under § 1983 on a
respondeat superior theory. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691
(1978).

       The district court ruled that if the Lochs seek to hold the City liable for
Rueckert’s alleged state-law torts, then Rueckert is entitled to official immunity, and
the City is thus entitled to vicarious official immunity. We agree with this
conclusion. Under Minnesota law, police officers performing discretionary functions
are entitled to official immunity unless they act with malice. See Kelly v. City of
Minneapolis, 598 N.W.2d 657, 664 (Minn. 1999). This immunity extends to shield
governmental entities from vicarious liability for an officer’s actions. See Wiederholt
v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998).

       Rueckert’s decision to use deadly force is a discretionary function, so he is
entitled to official immunity absent a willful or malicious wrong. See Hayek v. City
of St. Paul, 488 F.3d 1049, 1056 (8th Cir. 2007). Malice in this context
“contemplates less of a subjective inquiry into malice . . . and more of an objective
inquiry into the legal reasonableness of an official’s actions.” State by Beaulieu v.
City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994). The Lochs make no claim
on appeal that Rueckert acted with malice, and in light of our conclusion that
Rueckert’s actions were objectively reasonable, we agree with the district court that
no reasonable jury could find that Rueckert’s conduct was willful or malicious. See
Hayek, 488 F.3d at 1056-57. The district court properly held that Rueckert and the
City are entitled to official immunity.



                                         -9-
                       *      *     *

The judgment of the district court is affirmed.
               ______________________________




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