                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-3371
                        ___________________________

Troy Ellison, as Personal Representative of the Estate of Eugene Ellison, deceased,

                        lllllllllllllllllllll Plaintiff - Appellee,

                                            v.

    Donna Lesher, individually and in her official capacity; Tabitha McCrillis,
                    individually and in her official capacity,

                     lllllllllllllllllllll Defendants - Appellants,

  Stuart Thomas, individually and in his official capacity; City of Little Rock, a
 municipality; Big Country Chateau Apartments, a corporation, doing business as
                    Big Country Chateau, LLC; Carl Schultz,

                            lllllllllllllllllllll Defendants.
                                     ____________

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

                          Submitted: December 11, 2014
                             Filed: August 6, 2015
                                 ____________

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
                       ____________
COLLOTON, Circuit Judge.

       On December 9, 2010, Officer Donna Lesher and Detective Tabitha McCrillis
of the Little Rock Police Department, while working off duty, were patrolling the Big
Country Chateau apartments in Little Rock. As events unfolded, Lesher shot and
killed a 67-year-old resident named Eugene Ellison in his apartment. Troy Ellison,
Eugene’s son, brought this action under 42 U.S.C. § 1983 on behalf of his father’s
estate. The lawsuit alleges that Lesher and McCrillis violated Eugene Ellison’s
Fourth Amendment rights by unlawfully entering his home and subjecting him to an
excessive use of force. Count I alleges unlawful entry, and Count II alleges excessive
use of force.

       Lesher and McCrillis moved for summary judgment based on qualified
immunity, and the district court denied their motion. We conclude, based on the facts
assumed by the district court, that the motion was properly denied as to Count I
against both defendants and as to Count II against Lesher on the claim alleging
unreasonable use of deadly force, because the assumed facts would show a violation
of clearly established rights under the Fourth Amendment. The officers, however, are
entitled to qualified immunity on Count II for the claim concerning their use of non-
lethal force. We therefore affirm in part and reverse in part.

                                          I.

       In an interlocutory appeal from an order denying qualified immunity, we have
authority to decide the purely legal issue whether the facts alleged by the plaintiff
support a claim of violation of clearly established law. Mitchell v. Forsyth, 472 U.S.
511, 528 n.9 (1985). We do not, by contrast, have jurisdiction to review which facts
a party may, or may not, be able to prove at trial. Johnson v. Jones, 515 U.S. 304,
313 (1995). In considering the appeal by the officers, therefore, we are constrained



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by the facts that the district court assumed in reaching its decision. We now set forth
those facts.

      As of 2010, pursuant to an agreement with the Big Country Chateau apartment
complex, off-duty Little Rock police officers patrolled the apartments as secondary
employment. On the evening in question, Lesher and McCrillis were patrolling the
apartments when they noticed that the door to Ellison’s apartment was open.

       From outside, Lesher and McCrillis could see Ellison sitting on his couch
inside the apartment. Ellison appeared relaxed, and was leaning on his cane. After
Lesher and McCrillis started a conversation with Ellison, he responded that he did not
want their help or attention and told the officers to leave him alone.

      McCrillis thought Ellison was being mouthy with her and wanted to keep him
from shutting the door on the officers. McCrillis stepped inside the apartment,
followed by Lesher, and asked Ellison what was his problem. Ellison got up from the
couch and approached the officers standing at the door. McCrillis shoved Ellison,
Ellison pushed back, and a physical altercation ensued. During the course of the
struggle, McCrillis and Lesher repeatedly struck Ellison and knocked off his glasses.
Ellison repeatedly told the officers to get out of his apartment and to leave him alone.

       At some point during the encounter, McCrillis requested help from back-up
units at the Little Rock Police Department. Officers Vincent Lucio and Brad Boyce
arrived on the scene shortly thereafter. The physical altercation was over when Lucio
and Boyce arrived, but Lesher was still inside the apartment, and Lucio reached inside
to pull Lesher out.

      The officers then instructed Ellison to lie down, and he refused. Lesher next
told McCrillis that Ellison was getting his cane, and that she was going to shoot
Ellison. She then fired two shots into the apartment, killing Ellison. After reviewing

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the record, the district court concluded that it is not clear whether Ellison was holding
his cane when he was shot.

      Ellison’s son Troy, as personal representative of Ellison’s estate, sued Lesher
and McCrillis. The complaint alleged two violations of the Fourth Amendment, one
premised on an alleged unlawful entry, the other based on alleged excessive use of
force. Lesher and McCrillis moved for summary judgment, arguing that qualified
immunity barred Ellison’s suit. The district court denied the motion, and the officers
appeal.

                                           II.

       Qualified immunity shields police officers from suit in a § 1983 action unless
their conduct violated a clearly established right of which a reasonable official would
have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “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).
A plaintiff need not show that the “very action in question has previously been held
unlawful,” id., but he must establish that the unlawfulness was apparent in light of
preexisting law. Hope v. Pelzer, 536 U.S. 730, 741 (2002). “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) (quotations and alterations omitted). “When properly applied,
qualified immunity protects all but the plainly incompetent or those who knowingly
violate the law.” Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (brackets and
internal quotation omitted).




                                          -4-
                                          A.

       On the claim that the officers unlawfully entered Ellison’s apartment, the
district court reasoned as follows: “Viewing the facts in the light most favorable to
Ellison, it cannot be concluded as a matter of law that an objectively reasonable basis
existed for the officers to believe that they needed to enter the apartment because
Ellison or someone else within the apartment needed immediate aid.” The district
court also said “[i]t is clear that entering a home without a warrant, absent consent or
exigent circumstances, violates a clearly established right.”

       The officers argue that they lawfully entered Ellison’s apartment without a
warrant under their authority to act as community caretakers who may assist a person
who is seriously injured or threatened with such injury. The rule that they invoke,
whether denoted as an exception to the warrant requirement for “community
caretaking” or “emergency aid,” see Burke v. Sullivan, 677 F.3d 367, 371 & n.5 (8th
Cir. 2012), is this: “A police officer may enter a residence without a warrant . . .
where the officer has a reasonable belief that an emergency exists requiring his or her
attention.” United States v. Quezada, 448 F.3d 1005, 1007 (8th Cir. 2006); see
Ryburn v. Huff, 132 S. Ct. 987, 990 (2012); Mincey v. Arizona, 437 U.S. 385, 392-93
(1978).

       According to Lesher and McCrillis, the scene they confronted at Ellison’s
apartment justified their entry. The officers submit that they observed an open
apartment door in a high crime area on a cold December night, saw Ellison sitting
behind a broken glass table in a disheveled apartment, and received an oblique
response from Ellison—“what does it look like”—when they asked whether he was
okay. Under this set of facts, the officers urge, it was reasonable for them to enter and
investigate whether someone needed assistance. At a minimum, they say, a
reasonable officer could have believed that it was reasonable to do so, such that
qualified immunity applies.

                                          -5-
        We cannot accept the contention of the officers, because it would require us
to examine a matter over which we lack jurisdiction—“which facts a party may, or
may not, be able to prove at trial.” Johnson, 515 U.S. at 313. The facts assumed by
the district court did not include salient points urged by the officers: a broken glass
table visible to the officers, a disheveled apartment suggesting a disruption, and an
ambiguous response by Ellison. The district court’s order assumed instead that
Ellison appeared relaxed while sitting on his couch, that Ellison told the officers that
he did not want their help or attention, and that Ellison told the officers to leave him
alone. In an interlocutory appeal from a denial of qualified immunity, we may
address only abstract issues of law, and we are constrained by the facts that were
assumed in the district court’s order.

       Under the facts outlined by the district court, the officers are not entitled to
qualified immunity. The district court assumed that the officers entered the apartment
after “McCrillis thought Ellison was being mouthy with her and wanted to keep him
from shutting the door on them.” R. Doc. 170, at 2. The Fourth Amendment
generally requires a warrant before police may enter a residence, Payton v. New York,
445 U.S. 573, 590 (1980), and while there are exceptions to the warrant requirement
in exceptional situations, “mouthiness” of a resident is not one of them. The right to
be secure in a residence against a warrantless entry was clearly established by Payton
and other decisions as of December 2010. See Steagald v. United States, 451 U.S.
204, 211 (1981); Smith v. Kansas City, Missouri Police Dept., 586 F.3d 576, 581 (8th
Cir. 2009). Although the precise fact pattern described by the district court has not
been the subject of a Supreme Court decision, officers were on fair notice that they
could not enter a home simply because they perceived as mouthy a resident who told
them that he wanted no help and desired to be left alone. Indeed, the officers do not
argue that entry was permissible on that basis. They contend, as noted, that other
facts not accepted by the district court justified their search. Limited as we are by the
facts assumed in the district court’s order, we affirm the denial of qualified immunity
on the claim that McCrillis and Lesher unlawfully entered Ellison’s residence.

                                          -6-
                                          B.

       On the claim that Lesher used excessive force when she shot and killed Ellison,
the district court concluded:

      Simply put, the facts, when viewed in the light most favorable to
      Ellison, indicate that Ellison, a 67 year old man, was standing in his own
      home when he was killed by Lesher, after she and McCrillis unlawfully
      entered his apartment and ignored his requests for them to leave.
      Although he was refusing to lie on the ground as the officers directed,
      the four officers, two male and two female, did not try to physically
      subdue him and it is undisputed that he was making no attempt to flee.
      Lesher also never warned him that she had a gun and would shoot if he
      did not drop his cane. As a result, a reasonable jury could find that
      Lesher used deadly force against a person who did not pose an
      immediate threat of serious physical injury or death to them.

The district court further ruled that Lesher was not entitled to qualified immunity,
because “existing case law made it sufficiently clear to a reasonable officer that a
suspect cannot be apprehended by use of deadly force unless that individual poses a
threat of serious physical harm.” R. Doc. 170, at 14 (citing Nance v. Sammis, 586
F.3d 604, 611 (8th Cir. 2009)).

       The Fourth Amendment requires us to ask, based on the perspective of a
reasonable officer on the scene, “whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting them, without regard
to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397
(1989). “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.” Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012). But where a
person “poses no immediate threat to the officer and no threat to others,” deadly force
is not justified. Tennessee v. Garner, 471 U.S. 1, 11 (1985).


                                         -7-
       Lesher argues that her use of deadly force was reasonable, because Ellison had
disobeyed multiple commands to lie down on the floor of the apartment, resisted
officers during the altercation in the apartment, and charged at the officers while
swinging a cane. On these facts, Lesher contends, a reasonable officer could have
believed that there was a threat of death or serious physical injury to the officers or
others. Invoking qualified immunity, moreover, she argues that it was not clearly
established at the time of the incident that the Fourth Amendment prohibits the use
of deadly force against a man under these circumstances.

       We conclude, again, that we cannot accept the contention advanced by Lesher,
because her framing of the abstract legal issue is premised on a set of facts that was
not assumed by the district court. Lesher avers that Ellison charged at her and the
other officers while swinging a cane. The district court, construing the evidence in
the light most favorable to Ellison, thought it was “unclear whether or not Ellison was
holding his cane,” and that “[d]iscrepancies and variations in the officers’ testimony
make it impossible to determine what the facts and circumstances confronting Lesher
were at the moment when she shot and killed Ellison.” R. Doc. 170, at 3, 14. We do
not have jurisdiction to review whether Ellison’s estate will be able to prove at trial
that Lesher shot Ellison while he was empty-handed. Johnson, 515 U.S. at 313. We
must accept for purposes of our decision that Ellison was not wielding the cane when
the shooting occurred.

       Considering the abstract legal issue based on the facts assumed by the district
court, we conclude that Lesher is not entitled to qualified immunity. If Lesher shot
Ellison while he was simply standing in his apartment and holding no cane, then there
were not reasonable grounds to believe that Ellison posed a serious threat of death or
serious physical injury to the officers or others. Ellison’s refusal of a command to lie
down on the floor did not, by itself, make reasonable the use of deadly force.




                                          -8-
       Ellison’s right to be secure against a seizure by the use of deadly force under
those circumstances was clearly established as of December 2010. Since the 1985
decision in Tennessee v. Garner, “officers have been on notice that they may not use
deadly force unless the suspect poses a significant threat of death or serious physical
injury to the officer or others.” Craighead v. Lee, 399 F.3d 954, 962 (8th Cir. 2005).
Although the precise scenario described by the district court does not appear in a
reported decision, the officers were on fair notice that the use of deadly force would
not be reasonable. Lesher does not contend that a reasonable officer could have
believed that it was reasonable to use deadly force merely to enforce an order that
Ellison lie on the ground. Her argument is premised on a different set of facts that the
district court declined to accept in resolving the motion. We therefore affirm the
denial of qualified immunity on Ellison’s claim against Lesher based on the use of
deadly force.

                                           C.

       The officers also appeal the district court’s denial of their motion for summary
judgment on the claim that they used excessive non-lethal force against Ellison during
the altercation in the apartment. The district court did not address this aspect of their
motion. Insofar as the district court did not state the facts relevant to this portion of
the claim, we have determined from the record what facts the court likely assumed.
See Johnson, 515 U.S. at 319.

       The district court stated that after McCrillis and Lesher entered Ellison’s
apartment, Ellison approached the door, McCrillis shoved Ellison, and Ellison pushed
back. There followed a physical altercation in which Ellison repeatedly told the
officers to get out of his apartment, and the officers repeatedly struck Ellison.
According to the medical examiner’s report of injuries, aside from the gunshot
wounds that killed Ellison, the body showed a “minor right front galeal scalp



                                          -9-
contusion,” a “minor cutaneous abrasion of right lower arm,” and “contusions of
testes.” Def.’s Mot. Summ. J. Ex. 6, at 11, R. Doc. 124.

       The officers argue that they were entitled to protect themselves when Ellison
responded to McCrillis’s shove by “attacking” the officers. The district court
assumed only that Ellison “pushed back,” and that the officers then repeatedly struck
him and knocked off his glasses. Whatever the reasonableness of the force used in
light of the facts assumed by the district court, it was not clearly established as of
December 2010 that a use of force causing only de minimis injury violated the Fourth
Amendment. Chambers v. Pennycook, 641 F.3d 898, 908-09 (8th Cir. 2011). Our
cases characterize relatively minor scrapes, bruises, and contusions as de minimis.
Ziesmer v. Hagen, 785 F.3d 1233, 1236-37 (8th Cir. 2015); Wertish v. Kreuger, 433
F.3d 1062, 1066-67 (8th Cir. 2006). Taking the medical examiner’s report as
evidence of injuries suffered by Ellison, the bruises, scrapes, and contusions that
Ellison experienced as a result of the altercation with officers were likewise de
minimis. McCrillis is therefore entitled to qualified immunity on the claim of
excessive force in Count II, and Lesher is entitled to qualified immunity for the use
of non-lethal force inside the apartment before the shooting.

                                   *      *       *

       A qualified immunity defense, although unsuccessful on a motion for summary
judgment, may be renewed at trial. Ortiz v. Jordan, 562 U.S. 180, 184 (2011). At
that point, the defense “must be evaluated in light of the character and quality of the
evidence received in court.” Id. As we have explained, the officers dispute the facts
assumed by the district court in ruling on the motion for summary judgment, and they
presumably will present evidence at trial to support their version of events. Even if
a jury finds that the entry to Ellison’s apartment or the use of deadly force was
unreasonable under the Fourth Amendment, the district court (on proper motion) also
must consider as a matter of law whether the actions of the officers violated a clearly

                                         -10-
established right. See Anderson v. Creighton, 483 U.S. 635, 643-44 (1987). Given
the potential significance of certain disputed facts to that inquiry, it would be
appropriate for the district court to submit special interrogatories to a jury to aid the
court in making the qualified immunity determination. See Littrell v. Franklin, 388
F.3d 578, 585-86 (8th Cir. 2004); accord Gonzalez v. Duran, 590 F.3d 855, 860-61
& 860 n.4 (10th Cir. 2009).

       For the reasons stated, the order of the district court denying the motion for
summary judgment based on qualified immunity is affirmed in part and reversed in
part. McCrillis is entitled to qualified immunity on Count II, and Lesher is entitled
to qualified immunity on those aspects of Count II that allege excessive use of non-
lethal force inside Ellison’s apartment. The district court’s order denying qualified
immunity on the claims of unlawful entry by the two officers and unreasonable use
of deadly force by Lesher is affirmed.
                         ______________________________




                                          -11-
