                        United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 96-3291
                                   ___________

Virgie Lee Otey, Administratrix of the    *
Estate of Charles Otey, deceased,         *
                                          *
              Appellee,                   *
                                          * Appeal from the United States
       v.                                 * District Court for the
                                          * Eastern District of Arkansas.
Melvin Marshall, Individually and in his *
official capacity as a Law Enforcement *
Officer in the City of Elaine Police      *
Department, Phillips County, Arkansas; *
Larry Smith, Individually and in his      *
Official Capacity as Chief of Police of *
the City of Elaine, Arkansas Police       *
Department,                               *
                                          *
              Appellants.                 *
                                     ___________

                            Submitted: April 18, 1997
                                Filed: July 30, 1997
                                 ___________

Before LOKEN, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

MAGILL, Circuit Judge.

    Larry Smith was the police chief of Elaine, Arkansas,
when Charles Otey was killed by an Elaine police officer.
The administrator of Otey's estate brought this 42
U.S.C. § 1983 (1994) suit against Chief Smith, alleging
that Chief Smith had failed to supervise and train the
officer who had killed Otey.     Chief Smith moved the
district court for summary judgment on the ground of
qualified immunity, and the district court denied the
motion.   Chief Smith now appeals the district court's
denial of summary judgment, and we reverse.

                           I.

    Elaine, Arkansas, is a small community near the
Mississippi border. On December 8, 1994, Elaine's police
force consisted of Chief Smith and two part-time
officers.   One of these part-time officers was Melvin
Marshall, who also worked as a janitor for the Elaine
school system. Pursuant to Arkansas state regulations,
Officer Marshall had taken a 100-hour law-enforcement
training course to qualify as a part-time officer.

    On the afternoon of December 8, 1994, Officer
Marshall was off-duty and relaxing in his home in Elaine.
At approximately 5:20 p.m., Officer Marshall heard
several gunshots somewhere in his neighborhood.      Such
gunshots were not uncommon in Officer Marshall's
neighborhood, and Officer Marshall had made it a practice
to investigate such gunshots when they occurred.
Accordingly, Officer Marshall placed his .357 magnum
service revolver in his pocket, picked up his badge, and
went to investigate the shots.

    Officer Marshall was told by a neighbor that the
shots had come from an alley near his house. Entering
the alley, Officer Marshall saw two African-American

                           -2-
males at the far end of the alley. Officer Marshall saw
one of these men fire a handgun into the air. The shots
were then answered by several gunshots from a nearby
housing




                          -3-
project. The men then left the alley.1 Officer Marshall
drew his service revolver from his pocket, cocked it, and
held it in the air. He then attempted to pursue the two
men who had been in the alley. Officer Marshall took a
different route, going across an empty lot, to try to cut
them off.

    At this time, Otey, who was fifteen years old, and
his fourteen-year-old friend Cyrus Thomas were on a
nearby street running from the gunshots.         Officer
Marshall saw the two boys running and yelled for them to
stop.   Thomas heard the order and stopped, while Otey
continued running. Officer Marshall's service revolver
discharged, and Otey was shot in the back.

    Officer Marshall contends that he jumped a four-foot
ditch between the empty lot and the street.      Officer
Marshall alleges that his foot slipped when he landed
after his jump. As he recovered his balance, his weapon
discharged accidentally. See J.A. at 107-10. Several
witnesses support this version of the facts. See id. at
139 (signed statement of Curley Marshall) ("I saw Melvin
[Marshall] running and jumping the ditch and when he did
his gun went off and the boy fell in the street."); 144

      1
         Officer Marshall offered this version of events during his deposition. See J.A.
at 86-87. While proffering no evidence to contradict Officer Marshall's description of
events in the alley, the appellee contends that Officer Marshall did not see anyone fire
a handgun into the air. See Appellee's Br. at 1. Contrary to the appellee's apparent
belief, a party litigant may not generate a question of material fact out of uncontradicted
evidence merely by speculating that a witness is lying. Cf. FDIC v. Bell, 106 F.3d 258,
265 n.9 (8th Cir. 1997) ("We do not allow a case to go forward to trial on the mere
chance that a jury will disregard all evidence and accept the unsupported speculation
of a party litigant.").

                                           -4-
(statement of Alvin White) ("I saw Melvin [Marshall] jump
the ditch and I saw him almost fall[;] it was like he
almost slipped backwards. The shot was when Melvin was
at the ditch.").




                           -5-
    The appellee contends that Officer Marshall shot Otey
intentionally.    Several witnesses also support this
version of the facts.     See J.A. at 204 (affidavit of
Earnestine Broadus) ("I was looking directly at Melvin
Marshall when he fired the fatal shot into Charles Otey.
Melvin Marshall was not tripping, falling or stumbling at
the time he discharged his revolver into Charles Otey's
back. In fact, Melvin Marshall was standing upright on
Lee Street, which is paved.")2; 212 (deposition of Cyrus
Thomas) (testifying that, although he did not see Officer
Marshall fire his service revolver, Thomas looked at
Officer Marshall immediately after Officer Marshall fired
and that Officer Marshall did not "appear to have fallen
or tripped or done anything").

    Otey fell to the street after being shot. Officer
Marshall then retrieved a loaded .25 caliber automatic
pistol from Otey's back pocket.3 Otey subsequently died
from his gunshot wound.

    Chief Smith was immediately notified of the shooting
by Officer Marshall. Chief Smith contacted the Arkansas

      2
        Arkansas State Police Field Investigator Barry Roy, who investigated the
shooting, allegedly transcribed a statement from Earnestine Broadus that was
considerably different from her affidavit. In the statement, Broadus allegedly told
Investigator Roy that she "heard Melvin [Marshall] when he hollered at the boys[.] I
was looking out my window to see what was going on and I saw Melvin coming across
the ditch and almost fall. The gun made a flash when Melvin slipped and almost fell."
J.A. at 140. In her affidavit, Broadus asserts that she "never told Barry Roy that
Melvin Marshall shot Charles Otey while falling." Id. at 204.
      3
        Although Otey was armed, it does not appear that he had recently fired the .25
caliber automatic pistol. There were no spent shell casings discovered in the nearby
alley, nor was gunpowder residue discovered on Otey's hands.

                                         -6-
State Police and turned the investigation of the shooting
over to them. Officer Marshall was put on administrative
leave during the pendency of the investigation, which was
conducted by Field Investigator Barry Roy of the Arkansas
State Police.




                           -7-
    Investigator Roy arrived in Elaine on the evening of
December 8, 1994.        Investigator Roy interviewed
witnesses, took a statement from Officer Marshall, and
searched the area of the shooting for physical evidence.
Based on his investigation, Investigator Roy declined to
arrest Officer Marshall in connection with the shooting.
On December 29, 1994, the prosecuting attorney for the
First Judicial District of Arkansas also declined to
bring criminal charges against Officer Marshall in
connection with the shooting.

    On July 21, 1995, Virgie Otey, who was Otey's mother
and who is also the administrator of Otey's estate,
brought § 1983 and pendant state tort claims against
Officer Marshall and Chief Smith in their individual and
official capacities.    The § 1983 action alleged that
Officer Marshall had unreasonably seized Otey, in
violation of the Fourth Amendment, by intentionally
shooting him. The lawsuit also alleged that Chief Smith
was deliberately indifferent to Otey's constitutional
rights by failing to adequately train and supervise
Officer Marshall.4


    4
     Specifically, the appellee alleged that:

            Chief Larry Smith was deliberately indifferent to the rights of
    Charles Otey and other citizens by his failure to adequately train,
    supervise, and discipline Officer Melvin Marshall and other officers; and
    in his failure to take preventative or remedial measures to prevent acts of
    violence by officers under his command, having knowledge of such
    propensities by officers, including Melvin Marshall of the city of Elaine,
    Arkansas Police Department.

           Chief Larry Smith knew or reasonably should have known of other

                                        -8-
    It was revealed during discovery that the Elaine
Police Department had a policy on the use of deadly force
in place at the time of Otey's shooting.      This policy
provided that:

          Use of deadly Force by a member of this
      Department against a person is limited to the
      following:

          (1) To effect an arrest or to prevent the
      escape from custody of an arrested person, who,
      the officer reasonably believes:      (a)   has
      committed or attempted to commit a felony, (b)
      which involved the use or threatened use of
      deadly force and      (c)     the felon cannot
      other[wise] be apprehended.

          (2) To effect an arrest or to prevent the
      escape from custody of an arrested person who


      propensities for violent misconduct, and other violations of citizens[']
      constitutional rights by Officer Melvin Marshall, and was deliberately
      indifferent in failing to promote and promulgate customs and policies of
      a preventative or remedial nature.

             Chief Larry Smith was deliberately indifferent in failing to establish
      and enforce adequate policies and customs regarding the prevention,
      investigation, and discipline of violent misconduct of officers working for
      the city of Elaine, Arkansas Police Department, and instead encouraged
      such behavior by his customs and policies amounting to acquiescence and
      indifference to violations of citizens['] constitutional rights.

            The deliberate indifference herein was in accordance with the
      customs, policies, and procedures of the city of Elaine, Arkansas Police
      Department and Chief Larry Smith.

Compl. at ¶¶ 14-17 (paragraph numeration omitted), reprinted in J.A. at 10-11.

                                          -9-
the officer reasonably believes: (a) has
committed or attempted to commit a felony, (b)
would use deadly force if not immediately
apprehended, and (c) the felon cannot otherwise
be apprehended.

    (3)   To defend himself or a third person
from what he reasonably believe to be the use or
imminent use of deadly force.




                      -10-
          (4) No deadly force may be used against an
      escaping misdemeanant.

          (5)     The             use      of     "warning         shots"       is
      prohibited.

J.A. at 193.    On February 2, 1992, Officer Marshall
signed a statement that he had read and understood the
policy.5

    In his deposition, Officer Marshall testified that he
had once violated the city's policy against the use of
warning shots. See J.A. at 225-26. While investigating
a disturbance at a dance hall, Officer Marshall had fired
two shots in the air to disperse a hostile crowd after a
bottle had been thrown at the officer. See id. Although
Chief Smith was aware of the incident, he did not
discipline or counsel Officer Marshall for the violation
of the policy.

    On April 24, 1996, Carolyn Dunigan, the Recorder for
the City of Elaine, described in an affidavit the results
of her search of city records.      Dunigan stated that,
although the records listed 920 citizen contacts with the
police over the last five years, including 695 arrests,
"[n]o citizen complaints about excessive force (deadly or
otherwise) have been made against any member of the

      5
         Chief Smith asserts that deadly force has not been used by an Elaine police
officer during the past five years, except for Officer Marshall's alleged use of deadly
force against Otey. See Appellant's Br. at 16-17. The appellee does not challenge this
assertion, but suggests that "[t]he City of Elaine simply has been very fortunate that this
is the first incident of illegal deadly force perpetrated upon a juvenile." Appellee's Br.
at 11.

                                           -11-
Elaine Police Department, including Melvin Marshall, in
the last five (5) years." J.A. at 192 (parentheticals in
original). In a deposition, Chief Smith described his
procedure for handling complaints against the police
department. Chief Smith explained that, "[u]nder normal
circumstances, they [the complainants] could come in and
sit down with me and file




                          -12-
that complaint with me . . . . We would take a statement
and then we'd do, like, file an affidavit. They would
sign that affidavit." Id. at 179. If Chief Smith was a
subject of the complaint, he would refer the complainant
to a different law enforcement agency. Id.

    The appellee contends that there have been complaints
of excessive force levied against the Elaine Police
Department. In an affidavit signed May 10, 1996, Rosie
Cooper stated that:

    I and my two children, Clifton Green and Anissia
    Johnson, have complained of Melvin Marshall
    using excessive force against Anissia and
    Clifton. Both of my children testified in court
    of the use of this excessive force. Larry Smith
    was aware of our complaint. As far as I know,
    nothing was done about the incident.

J.A. at 244.

    Officer Marshall and Chief Smith moved for summary
judgment on the ground of qualified immunity.      The
district court denied the motion, stating:

        In this case, the facts surrounding the
    shooting are contested. One issue in dispute is
    whether the shooting was accidental.    In sum,
    this case is not appropriate for summary
    judgment.

        The defendants raise the affirmative defense
    of qualified immunity. The plaintiff contends
    that Charles Otey, a ninth-grade student, was
    intentionally shot in the back as he ran from
    Officer Marshall. This does not involve a legal


                           -13-
premise that was unclear at the time of the
incident. Qualified immunity is inapplicable.




                     -14-
Mem. Op. (Aug. 16, 1996) at 2, reprinted in Appellant's
Add. at 2.    The district court did not specifically
address Chief Smith's qualified immunity from the
lawsuit. Chief Smith now appeals.

                          II.

    The appellee challenges our jurisdiction in this
matter.   We conclude that we may properly exercise
jurisdiction over this appeal.

    Other    than   certain   enumerated   interlocutory
decisions, see 28 U.S.C. § 1292 (1994), this Court has
jurisdiction only over appeals of the final orders of
district courts.      See 28 U.S.C. § 1291 (1994).
Accordingly,   this   Court  normally   does  not   have
jurisdiction over a district court's denial of a summary
judgment motion. See Miller v. Schoenen, 75 F.3d 1305,
1308 (8th Cir. 1996).

    The Supreme Court has held, however, that certain
interlocutory orders "which finally determine claims of
right separable from, and collateral to, rights asserted
in the action, too important to be denied review and too
independent of the cause itself to require that appellate
consideration be deferred until the whole case is
adjudicated," may be treated as final for appellate
jurisdiction. Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541, 546 (1949) (creating the collateral order
doctrine).     A qualified immunity defense "shields
government agents from liability for civil damages
insofar as their conduct does not violate clearly
established statutory or constitutional rights of which

                           -15-
a reasonable person would have known."        Behrens v.
Pelletier, 116 S. Ct. 834, 838 (1996) (quotations,
alterations, and citations omitted). This immunity is
"an entitlement not to stand trial or face the other
burdens of litigation, conditioned on the resolution of
the essentially legal immunity question." Id. at 838-39
(quotations, alteration, and citation omitted). In light
of this right not to face trial, the Supreme Court has
held that a district court's denial of a summary judgment
motion based on a qualified immunity defense, "to the
extent that it turns on an issue of law," is an




                           -16-
immediately appealable decision under the collateral
order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 530
(1985)   (holding   that   the   issue   of   whether   a
constitutional right had been clearly established at the
time of its alleged violation is immediately appealable).

    In Johnson v. Jones, 115 S. Ct. 2151 (1995), the
Supreme Court emphasized that, to immediately appeal a
denial of a summary judgment motion based on qualified
immunity,   the   issue immediately appealed must be a
question of law. See id. at 2158. The Johnson Court
held that an official defendant asserting a qualified
immunity defense could not immediately appeal a district
court's denial of summary judgment where the district
court's "order determines whether or not the pretrial
record sets forth a 'genuine' issue of fact for trial."
Id. at 2159.

    In Behrens, the Court clarified its holding in
Johnson, noting that a "[d]enial of summary judgment
often   includes   a   determination  that   there   are
controverted issues of material fact, and Johnson surely
does not mean that every such denial of summary judgment
is nonappealable." 116 S. Ct. at 842 (citation omitted).
Rather, Johnson held

    that determinations of evidentiary sufficiency
    at   summary  judgment  are   not  immediately
    appealable merely because they happen to arise
    in a qualified-immunity case; if what is at
    issue in the sufficiency determination is
    nothing more than whether the evidence could
    support a finding that particular conduct
    occurred, the question decided is not truly
    "separable" from the plaintiff's claim, and

                           -17-
    hence there is no "final decision" under Cohen
    and Mitchell. Johnson reaffirmed that summary-
    judgment determinations are appealable when they
    resolve a dispute concerning an abstract issue
    of   law   relating   to  qualified   immunity--
    typically, the issue whether the federal right
    allegedly infringed was clearly established . .
    . .

Id. (quotations, alteration, and citations omitted).




                          -18-
    In the instant case, the district court denied
summary judgment to Officer Marshall because there
remains the question of material fact of whether Officer
Marshall intentionally shot Otey.     See Mem. Op. at 2,
reprinted in Appellant's Add. at 2. Officer Marshall has
not appealed this decision, and we presume, for purposes
of this appeal, that Officer Marshall could be liable for
violating Otey's Fourth Amendment rights by unreasonably
seizing Otey through the use of deadly force.         See
Tennessee v. Garner, 471 U.S. 1 (1985) (Fourth Amendment
prohibits use of deadly force to stop the escape of a
suspect who poses no threat).

    That a question of material fact remains as to
Officer Marshall's liability does not, however, answer
whether Chief Smith has qualified immunity in this
matter.    To overcome Chief Smith's entitlement to
qualified immunity, the appellee must allege, and present
evidence that could support, that Chief Smith himself
violated a well-established constitutional right of Otey.
Whether the appellee has met this burden does not require
this Court to weigh the sufficiency of the evidence to
support the appellee's claim against Chief Smith.
Rather, this question requires us to undertake the legal
analysis of whether the appellee's allegations and the
evidence presented, taken in the light most favorable to
the appellee, present a claim that Chief Smith violated
a well-established right of Otey.     Under Mitchell, we
conclude that this Court has jurisdiction to determine
whether the appellee has met this burden. See 472 U.S.
at 530.




                           -19-
    In denying summary judgment to Chief Smith, the
district court did not specify what facts it assumed
regarding Chief Smith's right to qualified immunity and
what, if any, questions of material fact remain regarding
Chief Smith's right to qualified immunity. Accordingly,
it is somewhat difficult for this Court to "know what set
of facts to assume when [we] answer[] the purely legal
question about 'clearly established' law . . . ."
Johnson, 115 S. Ct. at 2159. In such a circumstance, the
Supreme Court has directed us "to undertake a cumbersome
review of the record to determine what facts the district
court, in the light most favorable to the nonmoving
party, likely assumed." Id.




                           -20-
                          III.

    The appellee has alleged that Chief Smith is liable
for violating Otey's constitutional rights because of
Chief Smith's alleged failure to train, supervise, and
discipline Officer Marshall.    We conclude that Chief
Smith did not "violate clearly established statutory or
constitutional rights of which a reasonable person would
have known," Behrens, 116 S. Ct. at 838 (quotations and
citations omitted), and is therefore entitled to
qualified immunity for this claim.

    Section 1983 liability cannot attach to a supervisor
merely   because   a   subordinate   violated   someone's
constitutional rights. See City of Canton v. Harris, 489
U.S. 378, 385 (1989) ("Respondeat Superior or vicarious
liability will not attach under § 1983."). Rather, Chief
Smith can be liable for Officer Marshall's constitutional
violation only "if he directly participated in the
constitutional violation, or if his failure to train or
supervise the offending actor caused the deprivation . .
. ." Tilson v. Forrest City Police Dep't, 28 F.3d 802,
806 (8th Cir. 1994) (citations omitted).

    There is no allegation in this case that Chief Smith
ordered Officer Marshall to shoot Otey or otherwise
directly participated in Officer Marshall's alleged
violation of Otey's constitutional rights. Rather, the
appellee alleges that Chief Smith is liable for failing
to supervise and train Officer Marshall. For Chief Smith
to have violated Otey's constitutional rights by failing
to supervise Officer Marshall, it must be shown that
Chief Smith:

                           -21-
(1)      Received  notice   of   a  pattern   of
unconstitutional acts committed by subordinates;

(2) Demonstrated deliberate indifference to or
tacit authorization of the offensive acts;

(3)   Failed to take sufficient remedial action;
and




                       -22-
    (4) That such failure proximately caused injury
    to [Otey].

Jane Doe A. v. Special Sch. Dist. of St. Louis County,
901 F.2d 642, 645 (8th Cir. 1990).

    In this case, the appellee has pointed to two pieces
of evidence that Chief Smith had received notice that
Officer Marshall was prone to using excessive force.
Officer Marshall had once fired warning shots to quell a
disturbance at a dance hall, an action that directly
violated Elaine Police Department procedure.           In
addition, Rosie Cooper alleged in an affidavit that her
two children had complained of Officer Marshall using
excessive force and that Chief Smith knew of these
complaints.   The appellee alleges that in neither of
these cases did Chief Smith discipline or counsel Officer
Marshall.

    Assuming that these allegations are true, we conclude
that they fail to state a violation by Chief Smith of
Otey's constitutional rights. Officer Marshall's use of
warning shots did not put Chief Smith on notice that
Officer Marshal engaged in a pattern of unconstitutional
acts.    While prohibited by Elaine Police Department
policy, Officer Marshall's use of warning shots simply
did not violate anyone's constitutional rights. Although
it may be an unwise practice to fire gunshots into the
air to quell an unruly crowd, there is no evidence that
Officer Marshall seized anyone--unconstitutionally or
otherwise--when he fired warning shots at the dance hall.
See J.A. at      226 (deposition of Officer Marshall)



                           -23-
(testifying   that,  following   warning   shots,   crowd
dispersed, and that no arrests were made).

    Moreover, Rosie Cooper's affidavit does not state
when excessive force was allegedly used, what the alleged
excessive force consisted of, nor when the complaints of
excessive force were allegedly made.        Without some
indication that these complaints were made prior to
Otey's death, there is simply no evidentiary support for
the allegation that Chief Smith was on notice of the
alleged violations. Without such




                           -24-
notice, Chief Smith cannot be liable for        Officer
Marshall's alleged constitutional violations.

    In   Harris, the Supreme Court explained that "the
inadequacy of police training may serve as the basis for
§ 1983 liability only where the failure to train amounts
to deliberate indifference to the rights of persons with
whom the police come into contact." 489 U.S. at 388. We
have held that:
    It is necessary to show that in light of the
    duties   assigned    to  specific  officers   or
    employees the need for more or different
    training is so obvious, and the inadequacy so
    likely    to   result   in   the  violation   of
    constitutional rights, that the policymakers of
    the city can reasonably be said to have been
    deliberately indifferent to the need. In other
    words, the plaintiff must demonstrate that the
    city had notice that its procedures were
    inadequate and likely to result in a violation
    of constitutional rights.

Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996)
(quotations and citations omitted).

    Rather than demonstrating indifference to Otey's
constitutional right not to be seized unreasonably
through the use of deadly force, all of the evidence in
this case demonstrates that Chief Smith and the Elaine
Police Department had specifically trained Officer
Marshall only to use deadly force in a manner consistent
with the constitution. Compare Garner, 471 U.S. at 11
("Where 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


                          -25-
deadly force to do so."), with J.A. at 193 (Elaine Police
Department policy on use of deadly force) (deadly force
may be used only where a suspect has used, threatened to
use, or is likely to use deadly force against arresting
officer or third person).     It is undisputed that the
policy had been communicated to Officer Marshall, and
that Officer Marshall had signed the Elaine Policy
Department policy, indicating that he had read and
understood the policy. See id.




                           -26-
    In sum, based on the facts alleged by the appellee,
Chief Smith did not violate any well-established
constitutional right held by Otey. Because Chief Smith
did not violate any well-established constitutional
right, he is entitled to qualified immunity for the
appellee's claims for civil damages.    Accordingly, we
reverse the district court's denial of summary judgment
on the claims against Chief Smith in his private and
official capacities.

    A true copy.


        Attest:


            CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                          -27-
