                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-1782
                        ___________________________

    Jerry Capps; Jaylene Capps, in their individual capacities and as Personal
              Representatives of the Estate of Christopher Capps

                       lllllllllllllllllllll Plaintiffs - Appellees

                                           v.

      David Olson, in his individual capacity; Pennington County, a political
                    subdivision of the State of South Dakota

                     lllllllllllllllllllll Defendants - Appellants
                                      ____________

                     Appeal from United States District Court
                   for the District of South Dakota - Rapid City
                                   ____________

                          Submitted: November 12, 2014
                             Filed: March 16, 2015
                                 ____________

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

MELLOY, Circuit Judge.

       Sheriff's Deputy David Olson shot and killed Christopher Capps (Capps).
Capps's parents, Jerry and Jaylene Capps, sued Deputy Olson for using excessive
force against their son in violation of 42 U.S.C. § 1983. Deputy Olson alleges Capps
was charging towards him with a weapon at the time of the shooting. Capps's parents
allege Deputy Olson shot Capps in the back when Capps was unarmed. Deputy
Olson moved for summary judgment based on qualified immunity. The district court1
denied Deputy Olson's motion, holding that outstanding questions of fact precluded
a grant of qualified immunity. For the reasons stated below, we affirm.

                                       I.

       On May 2, 2010, Deputy Olson received a report from dispatch regarding a
belated assault—one that is not in progress and occurred before dispatch received the
report. Deputy Olson was in the area, so he responded to the call. Dispatch reported
that a Native American male pushed a juvenile off of his bike and assaulted him.
Dispatch also reported that the victim was having trouble breathing.

      When Deputy Olson arrived at the scene, he came upon Tammy Scribner.
Tammy Scribner informed Deputy Olson that her husband, David Scribner (Scribner),
was in pursuit of the suspect, Capps. Deputy Olson chased Scribner and Capps over
a barbed-wire fence and through a wooded area. Deputy Olson was not able to see
Scribner and Capps until after he exited the wooded area and came to the top of a rise
in the ground. From this location, Deputy Olson saw Scribner and Capps
approximately 200 to 300 yards away. Capps was running away from Scribner and
was about 60 to 70 feet ahead of Scribner. Deputy Olson heard Scribner yelling at
Capps but could not understand what Scribner was saying.

      The parties dispute what happened next. Deputy Olson claims that he observed
Capps turn around and take three steps or so toward Scribner. As Capps was moving
towards Scribner, Deputy Olson saw Capps's hand go to the ground "for an instant"
but he did not see Capps pick up anything. Capps then began running toward
Scribner. Deputy Olson shouted, "Sheriff's Office." Capps then turned toward

      1
        The Honorable Jeffrey L. Viken, Chief Judge, United States District Court for
the District of South Dakota.

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Deputy Olson and started to run in Deputy Olson's direction. Capps was about 60
feet away from Deputy Olson when Capps turned. When Capps was about 30 feet
away, Deputy Olson saw what he thought was a silver or gray knife with a three to
four inch blade in Capps's right hand. Deputy Olson commanded Capps to "go to the
ground," "show me your hands," "stop where you are," and "drop the weapon."
Capps did not follow the commands, and Deputy Olson fired his gun at Capps five
times. Deputy Olson estimated he fired his first shot when Capps was about 20 to 25
feet away and the other four shots when Capps was approximately 15 to 18 feet away.

       After Capps fell to the ground, Deputy Olson placed Capps in handcuffs.
Deputy Olson radioed dispatch and stated shots fired, one subject down, and weapons
unknown. Deputy Olson did not search the area for a weapon after he placed Capps
in handcuffs nor did Deputy Olson say anything about a weapon to the first two
officers who arrived on the scene after the shooting.

       While Capps was still in handcuffs and on the ground, another officer on the
scene, Soucy, noticed a piece of driftwood approximately six to eight inches long to
the right of Capps's head. Soucy did not see anyone move or touch the driftwood.
Photographs taken of the driftwood show that it may have been overgrown by blades
of grass. Deputy Olson did not see the driftwood on the ground. An inventory log
noted one piece of driftwood was recovered at the scene.

      Capps was pronounced dead later that night. Dr. Donald Habbe completed the
autopsy report, which noted five gunshot wounds. One of the bullets entered Capps's
body through his back.

       An officer interviewed Deputy Olson the night of the shooting. Deputy Olson
stated that he did not look for the alleged knife because he was concerned about scene
security and that he assumed the next responding officer would conduct an
evidentiary search. Deputy Olson did not mention a knife to anyone on the scene

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after the shooting. He mentioned a knife for the first time at his interview, almost two
hours after the shooting. It is undisputed that a knife was not discovered at the scene.
Deputy Olson asserted the phrase weapons unknown means "I have not located any
weapons on anybody because I'm still occupied with two subjects." The first two
responding officers, Hislip and Schmidt, were also interviewed the night of the
shooting. Officer Hislip stated weapons unknown means "we were unsure if there
[were] any other weapons that were present." And Officer Schmidt stated that the use
of the phrase weapons unknown could mean it is unknown if the subject had a
weapon.

       An officer also interviewed Scribner the night of the shooting. In his interview,
Scribner stated that he chased and taunted Capps immediately following the assault.
After pursuing Capps for approximately ten minutes, Capps turned towards Scribner
and "picked up a rock." Scribner then said to Capps, "oh yeah you're a big guy huh?
Got a rock you f— — punk?" But as Capps moved closer to Scribner, Scribner could
see Capps "had something in his hand. Like a knife but to me it looked like a sharp
stick that he had whittled down to a point." Scribner testified that Capps yelled, "I'm
going to kill you." However, according to Scribner, Capps then turned and charged
towards Deputy Olson. Scribner heard Capps yell, "I'm going to kill, I'm going to kill
you ahhhh" to Deputy Olson. Deputy Olson did not hear Capps yell anything.

      After the suit was filed, the attorney for Capps's estate attempted to depose
Scribner. Scribner refused to answer questions and referred the attorney to the
transcript of the interview from the night of the shooting. As a result, the district
court refused to consider Scribner's transcript. The district court denied Deputy
Olson's motion for qualified immunity. Deputy Olson timely appealed.

                                        II.

      This Court reviews the denial of summary judgment de novo, construing the
evidence in the light most favorable to the nonmoving party and drawing all

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reasonable inferences in the nonmoving party's favor. Schoelch v. Mitchell, 625 F.3d
1041, 1045 (8th Cir. 2010). Summary judgment is appropriate "if the movant shows
that 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). Because this is an interlocutory
appeal from a denial of qualified immunity, our jurisdiction is limited to the legal
question of whether Deputy Olson is entitled to qualified immunity. See Craighead
v. Lee, 399 F.3d 954, 960 (8th Cir. 2005). Factual and evidentiary determinations are
not appealable at this stage. Id.

                                         III.

       An official is entitled to summary judgment based on qualified immunity unless
(1) the evidence, viewed in the light most favorable to the nonmoving party,
establishes a violation of a federal constitutional or statutory right, and (2) the right
was clearly established at the time of the violation. Pearson v. Callahan, 555 U.S.
223, 232 (2009).

             (1) Violation of a Constitutional Right

       "Since this case presents an issue of whether an officer used excessive force,
the case must be analyzed under the Fourth Amendment's objective reasonableness
standard." Craighead, 399 F.3d at 961 (citation and internal quotation marks omitted).
The objective reasonableness standard asks "'whether the officer['s] actions are
objectively reasonable in light of the facts and circumstances confronting [him],
without regard to [his] underlying intent or motivation.'" Id. (quoting Graham v.
Connor, 490 U.S. 386, 388 (1989) (internal quotation marks omitted)). An officer's
use of deadly force is reasonable if, from the objective perspective of a hypothetical
reasonable officer on the scene, the suspect poses a threat of serious bodily harm to
the officer or others. Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012).
The court "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

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officer or others, and whether the suspect is actively fleeing or resisting arrest." Id.
(citing Graham, 490 U.S. at 396).

       Deputy Olson argues that his use of force was reasonable under the
circumstances. He asserts that the alleged assault was a serious crime, Capps was
fleeing the scene, and Capps posed an immediate threat to Deputy Olson and
Scribner. We must, however, consider the totality of the circumstances in the light
most favorable to Capps. See Craighead, 399 F.3d at 960. The district court found
two overarching factual disputes precluded a grant of summary judgment—(1)
whether Capps was moving towards Deputy Olson during the shooting and (2)
whether a reasonable officer could have believed Capps was armed.

        It is undisputed that one of the five bullets entered through Capps's back.
Capps's expert, Charles Stephenson, testified that Deputy Olson's first shot entered
through the back of Capps's left shoulder. According to Stephenson, "[t]his indicates
. . . Capps was turned away from Olson when Olson [fired] his first round at Capps."
Stephenson concluded "that after Capps was struck in his left rear shoulder he
partially turned towards Olson and was struck four additional times with four rounds
entering the anterior of his chest cavity and traveling downward left to right; which
indicates that Olson was standing to the left of and above Capps." Deputy Olson's
expert, John Ryan, disagreed with Stephenson's analysis; Ryan testified that
"[s]ubjects sometimes slump forward, spin or lunge forward during a shooting in a
manner that leads to a wound in the back."

       We agree with the district court that whether Capps was moving towards
Deputy Olson when Deputy Olson fired the first shot is a disputed material fact that
bears on the reasonableness of the use of force. Because we must construe the facts
in the light most favorable to Capps at this stage, we accept Stephenson's conclusion
that Capps was not facing Deputy Olson when Deputy Olson fired his first round.



                                         -6-
       The district court also correctly held Deputy Olson's use of the phrase weapons
unknown and the other evidence regarding the possible presence of a weapon
reasonably could be interpreted by a jury to mean that Capps did not have a weapon
and that Deputy Olson did not believe Capps had a weapon. Officer Schmidt stated
the use of the phrase weapons unknown could mean it is unknown if the subject has
a weapon. Further, Deputy Olson did not look for a weapon at the scene nor did he
alert the first two responding officers about the presence of a weapon. The first
mention of the knife was almost two hours after the shooting.

       Furthermore, even if a suspect is ultimately found to be unarmed, a police
officer who reasonably believes a suspect is armed and dangerous may still employ
deadly force. "An act taken based on a mistaken perception or belief, if objectively
reasonable, does not violate the Fourth Amendment." Loch, 689 F.3d at 966.
Whether the piece of driftwood was in Capps's hand or could reasonably be mistaken
for a weapon is a factual question for a jury. Because the driftwood may have been
overgrown by blades of grass and Deputy Olson did not see the driftwood, it would
be reasonable for a jury to find that the driftwood was not in Capps's hand and that
Deputy Olson did not actually mistake the driftwood for a weapon.

       Deputy Olson also argues the district court erred when it refused to consider
Scribner's testimony. The district court stated it would not "adopt [Scribner's]
description of events when Scribner refused to permit plaintiffs' counsel to examine
him about the events which occurred on May 2, 2010." Even assuming the district
court erred by not considering Scribner's testimony, there are still genuine issues of
material fact that preclude summary judgment—whether Capps was moving towards
Deputy Olson during the shooting and whether Deputy Olson reasonably believed
Capps was armed. Scribner's testimony merely contradicts the evidence presented by
Capps. At this stage in the case, we are required to view the controverted facts in the
light most favorable to Capps.



                                         -7-
       This Court must presume Capps was not facing Deputy Olson and Deputy
Olson did not believe Capps possessed a weapon at the time of the shooting. If the
jury were to determine that Capps refused to listen to Deputy Olson's commands and
moved towards Deputy Olson with what appeared to be a weapon, the use of deadly
force could have been objectively reasonable. However, taking the evidence in the
light most favorable to Capps we must conclude there is a factual dispute as to
whether Deputy Olson violated Capps's Fourth Amendment right against excessive
force.

              (2) Clearly Established Constitutional Right

       Even if the jury could conclude a constitutional violation occurred, qualified
immunity still protects an officer if the right defined in the specific context of the case
was not clearly established. "[T]he right the official is alleged to have violated must
have been clearly established in a . . . particularized . . . sense: The contours of the
right must be sufficiently clear that a reasonable official would understand that what
he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987)
(internal quotations marks omitted). "The salient question is whether the state of the
law at the time of an incident provided fair warning to the defendants that their
alleged conduct was unconstitutional." Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014)
(per curiam) (internal quotation marks omitted). "This inquiry . . . must be
undertaken in light of the specific context of the case, not as a broad general
proposition." Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds
by Pearson, 555 U.S. at 236.

       The use of deadly force against a fleeing suspect who does not pose a
significant and immediate threat of serious injury or death to an officer or others is
not permitted. Nance v. Sammis, 586 F.3d 604, 610 (8th Cir. 2009); Moore v.
Indehar, 514 F.3d 756, 763 (8th Cir. 2008); Craighead, 399 F.3d at 963; cf. Krueger
v. Fuhr, 991 F.2d 435, 440 (8th Cir. 1993) (approving use of deadly force against

                                           -8-
fleeing suspect who poses threat of death or serious injury even if another officer
might later apprehend suspect). "For a constitutional right to be clearly established,
there does not have to be a previous case with exactly the same factual issues."
Nance, 586 F.3d at 611. "[G]eneral statements of the law are not inherently incapable
of giving fair and clear warning, and in other instances a general constitutional rule
already identified in the decisional law may apply with obvious clarity to the specific
conduct in question . . . ." United States v. Lanier, 520 U.S. 259, 271 (1997).
"Hence, the issue is not whether prior cases present facts substantially similar to the
present case but whether prior cases would have put a reasonable officer on notice
that the use of deadly force in these circumstances would violate [the plaintiff's] right
not to be seized by the use of excessive force." Craighead, 399 F.3d at 962. "[I]n an
obvious case, [general] standards can clearly establish the answer, even without a
body of relevant case law." Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (internal
quotations marks omitted). Based on the facts we are required to assume, Capps did
not pose a threat of significant bodily injury or death to Deputy Olson or Scribner.
And Deputy Olson had fair and clear warning at the time of the shooting that the use
of deadly force against a suspect who did not pose a threat of serious bodily injury or
death was unconstitutional.

       Therefore, the contours of the right were sufficiently clear—a reasonable
officer would have understood that use of deadly force against a fleeing suspect who
does not pose a significant and immediate threat of serious injury or death to an
officer or others is not permitted.

                                          IV.

     We affirm the district court's denial of Deputy Olson's motion for summary
judgment. There are genuine issues of material fact. At this stage in the proceedings,
Deputy Olson is not entitled to qualified immunity as a matter of law.
                      ______________________________

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