                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 11-3376
                                  ___________

Estate of David Eugene Morgan, Jr.,     *
                                        *
            Plaintiff - Appellant,      *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
John Edwin Cook, Police Officer;        *
John Degonia, Chief of Police,          *
Sedalia Missouri Police Department;     *
City of Sedalia,                        *
                                        *
            Defendants - Appellees.     *
                                   ___________

                            Submitted: April 19, 2012
                               Filed: July 10, 2012
                                ___________

Before LOKEN and SHEPHERD, Circuit Judges, and GERRARD,1 District Judge.
                           ___________

SHEPHERD, Circuit Judge.

      Officer John Edwin Cook fatally shot David Eugene Morgan, Jr., after
responding to a domestic disturbance at Morgan’s residence in Sedalia, Missouri.
Morgan’s estate (the “Estate”) sued Cook pursuant to 42 U.S.C. § 1983, alleging
Cook used excessive force in violation of Morgan’s Fourth Amendment rights. After

      1
       The Honorable John Gerrard, United States District Judge for the District of
Nebraska, sitting by designation.
the completion of discovery, the district court2 granted Cook’s motion for summary
judgment, finding Cook was entitled to qualified immunity because his actions were
objectively reasonable. The Estate now appeals. We affirm.

                                   I. Background

      On June 30, 2007, Sedalia Police Officers John Cook and John Comfort were
dispatched separately in response to a report of a domestic disturbance at Morgan’s
residence. Cook arrived at Morgan’s house first and approached the residence on
foot. Cook observed Morgan, who was alone on the front porch, walking toward
some chairs on the right side of the porch. Morgan stumbled over one chair and fell
into a recliner. Cook believed that Morgan was intoxicated based on Morgan’s
observed behavior as well as Cook’s previous history of dealing with Morgan. Cook
entered the fenced-in yard of the house, stopping six to twelve feet from the porch,
which had no railing and was elevated approximately one foot off the ground.

      After Cook stopped in front of the porch, Angeline Jackson came out the front
door of the house. Jackson, who was Morgan’s girlfriend and also a resident of the
house, told Cook that Morgan had a knife. Cook observed Morgan attempting to
conceal a kitchen-type knife in his right hand. Cook drew his gun and pointed it at
Morgan. Cook told Jackson to go back into the house, and Jackson did so. Cook
twice ordered Morgan to drop the knife. Morgan stood up, with the knife pointed
downward and his arm at his side. Morgan then raised his right leg as if to take a step
in Cook’s direction. Cook fired one shot that hit Morgan in the chest. Morgan
subsequently died.




      2
       The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.

                                         -2-
       The Estate filed this action in state court alleging Officer Cook violated
Morgan’s right to be free from excessive force. The case was removed to federal
court. When Cook moved for summary judgment on the basis of qualified immunity,
the district court first denied the motion, finding that “[t]he facts show that a
reasonable officer in Cook’s position would not have used deadly force because there
was no probable cause to believe that Morgan posed a significant and immediate
threat of death or serious physical injury to the officer.” (Dist. Ct. Order, Aug. 3,
2011, at 8.) The district court based this conclusion on its finding that “Morgan did
not advance towards Cook, nor did he raise the knife.” (Id.)

       After Officer Cook filed a motion for reconsideration, the district court
changed course and granted summary judgment in favor of Cook, finding Cook was
entitled to qualified immunity. In doing so, the district court noted it had overlooked
the Estate’s admission that “[a]fter standing up, Morgan moved in the direction of
Officer Cook.” (Dist. Ct. Order, Sept. 30, 2011, at 2 & n.1, 2.) The court concluded
a reasonable officer would have had probable cause to believe Morgan posed a threat
of serious, physical harm to either Cook or Jackson, and thus it was not
constitutionally unreasonable for Cook to protect himself and Jackson by firing his
weapon at Morgan. (Id. at 4.)

                                     II. Analysis

      The Estate argues the district court erred in granting Officer Cook’s motion for
summary judgment based on qualified immunity. We review a district court’s grant
of summary judgment de novo, Moore v. Indehar, 514 F.3d 756, 758 (8th Cir. 2008),
and we will affirm 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]t the
summary judgment stage, the nonmoving party is given the benefit of all reasonable
inferences.” White v. McKinley, 519 F.3d 806, 813 (8th Cir. 2008).



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       “Qualified immunity shields government officials from liability in a § 1983
action unless the official’s conduct violates a clearly established constitutional or
statutory right of which a reasonable person would have known.” Brown v. City of
Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009). Evaluating a claim of qualified
immunity requires a “two-step inquiry: (1) whether the facts shown by the plaintiff
make out a violation of a constitutional or statutory right, and (2) whether that right
was clearly established at the time of the defendant’s alleged misconduct.” Id. at 496.
Cook’s shooting of Morgan constituted a seizure under the Fourth Amendment, see
Cole v. Bone, 993 F.2d 1328, 1332-33 (8th Cir. 1993); thus, our initial inquiry is
whether the shooting amounted to a Fourth Amendment violation. In making that
determination, we examine whether Cook’s actions were “‘objectively reasonable’
in light of the facts and circumstances confronting [Cook], without regard to [Cook’s]
underlying intent or motivation.” Nance v. Sammis, 586 F.3d 604, 610 (8th Cir.
2009) (citations omitted). “The reasonableness of an officer’s use of force is
evaluated by looking at 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
officers or others, and whether he is actively resisting arrest or attempting to evade
by flight.’” Id. at 610 (quoting Brown, 574 F.3d at 496). “The use of deadly force
is not constitutionally unreasonable if an officer has ‘probable cause to believe that
the suspect poses a threat of serious physical harm, either to the officer or others.’”
Id. (quoting Moore, 514 F.3d at 762).

      The pertinent issue on appeal is whether Officer Cook had probable cause to
believe that Morgan posed an immediate threat of serious physical harm to Cook or
to Jackson.

       The Estate argues the district court erred in its analysis. The Estate contends
the “[m]ere[] lifting of one’s foot off the ground beginning to take a step cannot and
should not be viewed as creating an immediate threat to Cook.” The Estate concedes
that deadly force “could be found . . . reasonable if Cook’s assertion that Morgan

                                          -4-
lunged at him was credible,” but the Estate points out that no eyewitness other than
Cook supports the characterization that Morgan lunged toward Cook.

        The Estate’s argument that a genuine issue of material fact precludes summary
judgment is misplaced. The district court viewed the evidence in the light most
favorable to the Estate, agreeing the evidence showed that Morgan lifted his foot as
if to take a step in the general direction of Officer Cook, not that Morgan lunged at
Cook. Given the totality of the circumstances, however, the court did not err in
concluding that Cook had probable cause to believe that Morgan posed a threat of
imminent, substantial bodily injury to Cook. At the time of the shooting, Morgan was
holding a knife in his hand and appeared to be trying to conceal it from Cook. The
distance separating Cook and Morgan was minimal, totaling twelve feet at most.
When Cook ordered Morgan to drop the knife, Morgan failed to comply. Instead
Morgan stood up and moved toward Cook. Cook fired only one shot. Given all of
these facts, we find that Cook’s act of shooting Morgan was objectively reasonable.

       The Estate argues Officer Cook’s use of deadly force was unwarranted because
Cook had non-lethal alternatives at his disposal, including: waiting for Officer
Comfort to arrive; warning Morgan deadly force would be used if Morgan came any
closer; using his baton to disarm Morgan or to keep him seated; using pepper spray;
or retreating to a position outside the fence to await the arrival of backup. But our
court has declined to second-guess whether alternative actions by police officers
“might conceivably have been available.” See Cole, 993 F.2d at 1334. “The
Constitution . . . requires only that the seizure be objectively reasonable, not that the
officer pursue the most prudent course of conduct as judged by 20/20 hindsight
vision.” Id. “It may appear, in the calm aftermath, that an officer could have taken
a different course, but we do not hold the police to such a demanding standard.”
Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir. 1996).




                                          -5-
       The Estate is correct that, where it is feasible, a police officer should give a
warning that deadly force is going to be used. See Tennessee v. Garner, 471 U.S. 1,
11-12 (1985). But Officer Cook did not merely stand silent before shooting. To the
contrary, the Estate concedes that after Cook drew his pistol, he “pointed it at Morgan
[and ordered] Morgan to drop the knife anywhere from 2 to 15 times.” Morgan
should have been on notice from Cook’s raising the gun and ordering Morgan to put
the knife down that Morgan’s escalation of the situation would result in the use of the
firearm. Furthermore, because Cook was only six to twelve feet away from Morgan
when Morgan moved toward Cook, Cook did not have time to utter a more specific
warning (“Stop, or I’ll shoot.”) before firing.

       The Estate also hints that Officer Cook should have evaluated Morgan’s
actions in a slightly different light given Morgan’s high level of intoxication. But
Morgan’s intoxication does not alter our finding that Cook’s use of deadly force was
objectively reasonable. Cf. Hayek v. City of St. Paul, 488 F.3d 1049, 1055 (8th Cir.
2007) (“Even if William were mentally ill, and the officers knew it, William’s mental
state does not change the fact that he posed a deadly threat to the officers.”).

                                   III. Conclusion

       The district court did not err in its conclusion that Officer Cook’s actions were
objectively reasonable and therefore did not violate Morgan’s Fourth Amendment
rights. Cook was entitled to qualified immunity. We affirm.
                      __________________________




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