                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-3465
                        ___________________________

                                   Jacobi P. Malone

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

 Robert Hinman, Individually and in his official capacities; City of Little Rock, a
   municipal corporation and public body corporate and politic; Stuart Thomas,
individually and in his official capacity as Chief of Police, Little Rock Department

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

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

                          Submitted: September 20, 2016
                             Filed: February 7, 2017
                                 ____________

Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
                             ____________

SMITH, Circuit Judge.
       Jacobi P. Malone appeals the district court’s1 grant of summary judgment to
Little Rock Police Officer Robert Hinman, Little Rock Police Chief Stuart Thomas,
and the City of Little Rock (collectively, “defendants”) on Malone’s various
constitutional claims under 42 U.S.C. § 1983 for Officer Hinman’s alleged use of
excessive force in shooting Malone. Viewing the facts in the light most favorable to
Malone and evaluating the reasonableness of Officer Hinman’s actions “from the
perspective of a reasonable officer on the scene,” Graham v. Connor, 490 U.S. 386,
396 (1989), we conclude that Officer Hinman is entitled to qualified immunity.
Accordingly, we affirm the district court’s grant of summary judgment to Officer
Hinman, Chief Thomas, and the City of Little Rock.

                                     I. Background
       We recite the facts in the light most favorable to Malone as the non-moving
party. See id. at 388.

        At approximately 2:00 a.m. on the morning of July 16, 2011, Jacobi Malone,
then 18 years old, was walking back to his car parked in the Rivermarket area of
downtown Little Rock, Arkansas. Malone approached a crowd of 40 or 50 people
near his parked car. In the crowd, Malone saw a former schoolmate in the midst of an
escalating disturbance. Malone’s former schoolmate pulled out a pistol and pointed
it at the crowd. Malone tried to “defuse the situation.” He approached the young man
with the “intention” to “push the gun down towards the ground,” but, unfortunately,
the gun discharged. When the gun discharged the first time, Malone’s hand was on
the young man’s arm. The gun then discharged “one or two more times” before
Malone “snatched” the gun from the young man. Hearing the gunshots, the crowd
scattered. Malone started running, too, with the pistol now in his hand.



      1
       The Honorable D.P. Marshall Jr., United States District Judge for the Eastern
District of Arkansas.

                                        -2-
       Meanwhile, Officer Hinman patrolled downtown Little Rock on his bicycle
when he “heard what sounded like a disturbance and saw a large group of
approximately forty to fifty people in the parking lot and on the sidewalk in front of
the parking lot in the 200 block of East Markham.” As Officer Hinman approached
the crowd on his bike, he “heard one gunshot fired.” Officer Hinman observed that
once the first shot was fired, the crowd dispersed in all directions. He subsequently
observed Malone fleeing on foot while holding the gun.

      Officer Hinman says that he yelled “stop” to Malone but that Malone continued
to run. Malone, however, did not hear anyone yell at him to “stop.” Malone was
experiencing “an adrenaline rush,” and he did not “hear anything.” Officer Hinman
“knew that [Malone] was running toward where Officer [Steve] Montgomery and
several other individuals were located.” Officer Hinman drew his weapon and fired
multiple rounds at Malone, striking Malone in the arm, back, leg, and neck. The bullet
that hit Malone in the neck paralyzed him from the chest down. When Officer
Hinman fired his gun, Malone was two to three feet from Officer Montgomery.

       Officer Montgomery and Officer Wade Neihouse, who were present at the time
of the shooting, testified that three to five seconds elapsed between the first shot and
shots fired by Officer Hinman at Malone. Officer Hinman estimated that “ten seconds
elapsed from the time [he] heard the first shot until the time [he] fired [his] service
weapon as Mr. Malone was fleeing.”

       Malone filed suit against the defendants for violations of his federal and state
constitutional rights. He sought relief pursuant to 42 U.S.C. § 1983 and the Fourth,
Fifth, Eighth, and Fourteenth Amendments to the United States Constitution; the
Arkansas Constitution; and the common-law tort of assault and battery. Specifically,
he alleged excessive force in violation of the Fourth Amendment against Officer
Hinman; maintenance of a widespread custom of permitting excessive force against



                                          -3-
Chief Thomas and the City of Little Rock; and assault and battery against Officer
Hinman. The defendants moved for summary judgment.

       The district court granted the defendants’ motion. The district court found that
Officer Hinman was entitled to qualified immunity on Malone’s constitutional claims
because Officer Hinman’s actions were objectively reasonable under the
circumstances. The court cited the short period of time that elapsed—less than ten
seconds—between when Officer Hinman heard the gunfire and when he shot Malone.
The court emphasized that while Malone was running away from Officer Hinman at
the time that Officer Hinman shot him, Malone was running toward Officer
Montgomery. The court also noted the crowd’s presence when the shots were fired
and that Malone held a gun as he ran. Although the court found it “disconcerting” that
Officer Hinman had given inconsistent testimony about whether Malone turned to fire
at him and found it “unclear” whether Officer Hinman saw Malone shoot into the
crowd, it concluded that such details did not “change the constitutional analysis
because no genuine issues of material fact exist.” The court also determined that
Malone’s claims against Chief Thomas and the City of Little Rock failed for lack of
evidence because Malone did not rebut Chief Thomas’s testimony that Officer
Hinman was trained properly and that excessive-force incidents are properly
investigated and handled. The court dismissed Malone’s state-law claim without
prejudice and dismissed the federal claims with prejudice.

                                  II. Discussion
       On appeal, Malone argues that the district court erred in (1) granting summary
judgment based on qualified immunity to Officer Hinman on Malone’s excessive-
force claim, and (2) granting summary judgment to Chief Thomas and the City of
Little Rock on Malone’s claim of a widespread custom of excessive force.




                                         -4-
                                 A. Excessive Force
       Malone argues that the district court erred in granting Officer Hinman’s motion
for summary judgment based on qualified immunity on Malone’s excessive-force
claim.

       We apply de novo review to the district court’s grant of summary judgment to
the defendants, “viewing the evidence in the light most favorable to [Malone] and
drawing all reasonable inferences in [his] favor.” Loch v. City of Litchfield, 689 F.3d
961, 965 (8th Cir. 2012). A district court appropriately grants summary judgment to
the movant “if ‘there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “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.” Id.

       “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 v. Lee, 399 F.3d 954, 961 (8th Cir. 2005) (quoting Graham,
490 U.S. at 388). The standard that we apply in deadly force cases is well settled:

      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. [Graham, 490 U.S. at] 397, 109 S. Ct. 1865. 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, 109 S. Ct. 1865. 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, 105 S. Ct. 1694,
      85 L. Ed.2d 1 (1985). We judge the reasonableness of [an officer’s] use

                                          -5-
      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, 109 S. Ct. 1865.


Loch, 689 F.3d at 965.

       If a “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 deadly
force to do so.” Garner, 471 U.S. at 11. But “[w]here the officer has probable cause
to believe that the suspect poses a threat of serious physical harm, either to the officer
or to others, it is not constitutionally unreasonable to prevent escape by using deadly
force.” Id. “Before employing deadly force, an officer should give ‘some warning’
when it is ‘feasible’ to do so.” Loch, 689 F.3d at 967 (quoting Garner, 471 U.S. at
11–12).

       “Once the predicate facts are established, the reasonableness of [an officer’s]
conduct under the circumstances is a question of law.” Tlamka v. Serrell, 244 F.3d
628, 632 (8th Cir. 2001). But Malone contends that factual disputes exist about the
predicate facts that prelude a grant of summary judgment on Malone’s excessive-
force claim in Officer Hinman’s favor. Malone asserts that a factual dispute exists as
to whether Officer Hinman knew that someone had been injured when Officer
Hinman shot Malone. Therefore, Malone argues, the court could not consider Officer
Hinman’s purported knowledge in determining whether Officer Hinman had probable
cause to believe that Malone posed a threat to Officer Hinman or others. He also
claims that factual disputes exist as to whether Officer Hinman observed Malone
shooting when the shots were fired into the crowd and whether Malone ever turned
toward Officer Hinman. Malone asserts that these fact disputes preclude a reasonable
conclusion that Malone threatened Officer Hinman or others.




                                           -6-
        Officer Hinman stated in his affidavit that after he initially heard shots fired,
he observed “Malone, holding a weapon, . . . fire approximately two more shots into
the crowd.” Malone recalled and testified similarly that the gun discharged two to
three times while he wrestled the gun from his friend. Malone also admitted that he
took possession of the gun and had it in his hand as he fled. Officer Hinman testified
that he observed Malone holding the gun when it fired. In contrast, Malone testified
that he had not acquired possession when the gun fired because he was simply
pushing the young man’s arm down to avoid injury to others. Like the district court,
we conclude that these differing viewpoints do not change our constitutional analysis.
The crucial common fact in both accounts is Malone’s eventual possession of the
weapon at the time that Officer Hinman fired. The differences in the factual
statements are thus not material. In his brief, Malone admits that “[a]s [he] was trying
to get the gun, the gun discharged” and that when he was “able to get his hand on the
gun . . . it went off again once, maybe twice.” This is consistent with Officer
Hinman’s testimony about hearing gun shots fired. Malone has pointed to no record
evidence to refute Officer Hinman’s testimony that he heard shots fired or that he
observed Malone fleeing with the gun after the shots were fired. In fact, Malone
testified that when people scattered following the gunshots, he had “possession of the
gun” and his “intentions were to run and . . . get rid of the weapon, so [he] ran back
west, up the sidewalk” with the gun. As the district court summarized, the material,
“undisputed facts according to Malone are these: around 2:00 a.m. he had a pistol in
his hand after shots had been fired in a crowd at the Rivermarket; and he was fleeing
the scene toward other people nearby.”2


      2
       To support his argument that the district court erred in finding that Officer
Hinman’s actions did not constitute excessive force, Malone also points to the report
of Sergeant Calvin K. Grogan. Sergeant Grogan arrived at the scene shortly after the
incident occurred. Sergeant Grogan wrote, “Officer Hinman said he confronted the
man and that the man in quotations ‘tried to get his gun out,’ end quotations.” Malone
argues that the district court erred in finding Officer Hinman’s actions objectively
reasonable because Officer Hinman’s statement to Sergeant Grogan that Malone

                                          -7-
       Based on these undisputed facts, the relevant question is whether Officer
Hinman’s use of deadly force against Malone was objectively reasonable under the
circumstances. See Loch, 689 F.3d at 965. More specifically, the question is whether
Officer Hinman had “probable cause to believe that [Malone] pose[d] a threat of
serious physical harm to the officer or others.” See id. (emphasis added). Viewing the
facts in the light most favorable to Malone, he did not pose a threat of serious
physical harm to Officer Hinman because he was running away from Officer Hinman.
But we conclude that, looking at the circumstances from the perspective of a
reasonable officer and taking the disputed facts in Malone’s favor, Malone posed a
threat of serious physical harm to others. Officer Hinman knew that approximately
three gunshots had just been fired in a crowd of 40 to 50 people. He then saw Malone
running away with a gun toward Officer Montgomery and others as the crowd
dispersed. Officer Hinman instructed Malone to stop, but Malone did not stop
because he did not hear Officer Hinman.3 Malone continued to run toward Officer


“tried to get his gun out” was a lie. But the dispute over whether Officer Hinman told
Sergeant Grogan that Malone tried to get his gun out is not material to Officer
Hinman’s entitlement to qualified immunity. As explained supra, we have construed
the facts in the light most favorable to Malone and accepted his version of events. We
evaluate Officer Hinman’s actions in reacting to these circumstances “from the
perspective of a reasonable officer on the scene.” Graham, 490 U.S. at 396.
      3
        No genuine issue of material fact exists as to whether Officer Hinman
provided Malone with a warning prior to using deadly force. Officer Hinman testified
that he yelled “stop” to Malone but that Malone continued to run. Malone testified
that he did not hear anyone yell “stop” to him. Malone was experiencing “an
adrenaline rush,” and he did not “hear anything.” Malone “did not testify that
warnings were not given but only that he did not hear any warnings”; as a result, his
testimony “fails to contradict the officer’s positive testimony that he warned
[Malone] . . . before firing a shot. Consequently, [Malone’s] testimony that he did not
hear any warnings fails to present a question of material fact as to whether the giving
of the warnings was feasible and if in fact they were given.” Ford v. Childers, 855
F.2d 1271, 1276 (7th Cir. 1988). Nor does Malone’s reliance on the testimony of
Tunisha Johnson generate a disputed issue of fact. She testified only to what she saw,

                                         -8-
Montgomery. The record shows that Malone was two to three feet from Officer
Montgomery at the time that Officer Hinman fired his gun. The entire event occurred
within three to ten seconds.

       Like the district court, we recognize the tragic nature of these events: “Taking
Malone’s version as the truth, his good deed in defusing a dangerous argument,
coupled with two split-second decisions, resulted in a promising young man’s
paralysis.” Nonetheless, applying the required review standard, we hold that Officer
Hinman’s use of deadly force was objectively reasonable. Therefore, the district court
did not err in granting Officer Hinman’s motion for summary judgment based on
qualified immunity on Malone’s excessive-force claim.

                      B. Widespread Custom of Excessive Force
       Malone argues that the district court erred in granting summary judgment to
Chief Thomas and the City of Little Rock on his claim of a widespread custom of
excessive force. According to Malone, “[i]gnoring or concealing police misconduct,
and the inadequate investigation of excessive force, as well as failures to discipline,
supervise or monitor police officers for misconduct, are all actionable theories of
Monell4 liability.” (Italics omitted.) Malone contends that Chief Thomas knew that
the Little Rock Police Department altered evidence to fit Officer Hinman’s story. He
also contends that he offered evidence to contradict Chief Thomas’s statement. He
asserts that the district court excluded such evidence because Malone failed to
provide it prior to the discovery cut-off deadlines. Malone asserts that the district
court’s exclusion of this evidence was erroneous because it impeached Chief
Thomas’s testimony.


not to what she heard. She testified, “I seen, I guess it was the officer running and the
police officer just shot him.” She never discussed whether warnings were given prior
to Officer Hinman shooting Malone.
      4
          Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

                                          -9-
             Section 1983 liability for a constitutional violation may attach to
      a municipality if the violation resulted from (1) an “official municipal
      policy,” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct.
      2018, 56 L. Ed. 2d 611 (1978), (2) an unofficial “custom,” id.; or (3) a
      deliberately indifferent failure to train or supervise, see City of Canton,
      Ohio v. Harris, 489 U.S. 378, 389, 109 S. Ct. 1197, 103 L. Ed. 2d 412
      (1989). Policy and custom are not the same thing. “[A] ‘policy’ is an
      official policy, a deliberate choice of a guiding principle or procedure
      made by the municipal official who has final authority regarding such
      matters.” Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999).
      Alternatively, a plaintiff may establish municipal liability through an
      unofficial custom of the municipality by demonstrating “(1) the
      existence of a continuing, widespread, persistent pattern of
      unconstitutional misconduct by the governmental entity’s employees;
      (2) deliberate indifference to or tacit authorization of such conduct by
      the governmental entity’s policymaking officials after notice to the
      officials of that misconduct; and (3) that plaintiff was injured by acts
      pursuant to the governmental entity’s custom, i.e., that the custom was
      a moving force behind the constitutional violation.” Snider v. City of
      Cape Girardeau, 752 F.3d 1149, 1160 (8th Cir. 2014).

Corwin v. City of Indep., Mo., 829 F.3d 695, 699–700 (8th Cir. 2016) (alteration in
original) (footnote omitted).

       Because we conclude that Officer Hinman did not violate Malone’s
constitutional rights, there can be no § 1983 or Monell liability on the part of Chief
Thomas and the City. See, e.g., Monell, 436 U.S. at 691 (“Congress did not intend
municipalities to be held liable unless action pursuant to official municipal policy of
some nature caused a constitutional tort.”); Sitzes v. City of W. Memphis Ark., 606
F.3d 461, 470 (8th Cir. 2010) (agreeing with district court that plaintiffs’ failure to
train and failure to supervise claims “could not be sustained absent an underlying
constitutional violation by the officer”); Sanders v. City of Minneapolis, Minn., 474




                                         -10-
F.3d 523, 527 (8th Cir. 2007) (“Without a constitutional violation by the individual
officers, there can be no § 1983 or Monell . . . municipal liability.”).5

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




      5
       Malone also argues that the district court erred in granting the defendants’
motion to strike certain exhibits attached to Malone’s response to the defendants’
motion for summary judgment because they were offered after the discovery deadline
expired. The district court’s exclusion of this evidence relates to Malone’s Monell
claim against Chief Thomas and the City. We need not reach this issue because
Malone failed to establish an underlying constitutional violation to support his Monell
claim.

                                         -11-
