Latetia Nunley v. Blayne Newton

United States Court of Appeals

For the Eighth Circuit

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No. 23-3329

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Reshonda Sanders, as Administrator of the Estate of Donnie Sanders

lllllllllllllllllllllPlaintiff

Latetia Nunley

lllllllllllllllllllllPlaintiff - Appellee

Zahleyiah Fielder

lllllllllllllllllllllPlaintiff

v.

Blayne Newton, In his Individual Capacity

lllllllllllllllllllllDefendant - Appellant

Mark Tolbert; Cathy Dean; Don Wagner; Quinton Donald Lucas; Nathan F. Garrett

lllllllllllllllllllllDefendants

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Appeal from United States District Court

for the Western District of Missouri - Kansas City

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Submitted: May 9, 2024

Filed: September 25, 2024

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Before SMITH, KELLY, and KOBES, Circuit Judges.

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SMITH, Circuit Judge.

Officer Blayne Newton of the Kansas City, Missouri Police Department shot

and killed Donnie Sanders during a traffic stop. Sanders’s children, Latetia Nunley

and Zahleyiah Fielder (collectively, “Nunley”) filed suit against Officer Newton

pursuant to 42 U.S.C. § 1983 for violating Sanders’s Fourth Amendment right to be

free from excessive force. Officer Newton moved for summary judgment based on

qualified immunity. The district court1 denied Officer Newton’s motion, concluding

that a genuine issue of material fact exists. Officer Newton appeals the denial of

qualified immunity. We dismiss for lack of jurisdiction.

I. Background

Officer Newton, while on patrol one evening, observed a vehicle speeding. He

pulled the vehicle over for the routine traffic violation. Sanders, the driver, stopped

the vehicle, exited it, and ran. Officer Newton chased Sanders on foot.

After about a half block, Officer Newton caught up to Sanders. According to

Officer Newton, the following events then transpired. Officer Newton “yell[ed],

police, stop, police, don’t move.” R. Doc. 51-1, at 8. Sanders turned around and

rocked his head back. Sanders walked toward Officer Newton. He had his hands in

the pockets of his unzipped jacket. With his hands still inside his jacket pockets, he

raised his right hand up and extended it “out as if he had a gun” toward Officer

Newton. Id. at 9. As Sanders walked toward Officer Newton, Sanders yelled, “I’m

1

The Honorable Fernando J. Gaitan, Jr., United States District Judge for the

Western District of Missouri.

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gonna shoot you! I’m gonna get you! Better kill me! I’m gonna kill you!” R. Doc. 48-

1, at 1. Officer Newton, with his gun pointed at Sanders, began backing away while

“repeatedly yelling ‘Police! Get down! Stop! Drop it! You better drop the weapon!

Drop the gun!’” Id. Sanders did not obey these commands; instead, “he continued to

walk toward [Officer Newton] with his hand, which [was] inside his jacket pocket,

raised up and pointed at [Officer Newton] as if it were a gun.” Id. Officer Newton

continued retreating while giving commands. Sanders “started to sprint toward

[Officer Newton] while his hand, which [was] still inside his jacket pocket, [was] still

raised up at [Officer Newton] as if he had a gun pointed at [him].” Id. Approximately

one or two seconds later, Officer Newton “discharged [his] weapon at [Sanders] five

times.” Id. He was approximately 12 to 15 feet away from Sanders when he fired.

Officer Newton ceased firing after Sanders fell to the ground. Officer Newton later

learned that Sanders was unarmed.

Officer Newton’s microphone was active and able to pick up limited audio

during the foot chase.2 “Officer [Newton] is heard yelling ‘[H]ey stop!’ to [Sanders].”

R. Doc. 51-2, at 5 (second alteration in original). Twenty-seven seconds later, Officer

Newton called over his radio to other officers with Sanders’s description. Six seconds

later, “Officer [Newton] is again heard yelling ‘[S]top!’ while still chasing/moving.”

Id. (second alteration in original). After another six seconds, “Officer [Newton] is

2

Officer Newton also testified that dash cam footage did not capture all of the

audio or video of everything that transpired. See R. Doc. 48-2, at 17–18 (“Q And [the

dash cam footage], you’ll agree, captures the audio of the entire incident? A No. Q

Okay. When does—what does the audio capture? A So . . . that was an old . . .

recording system that we had and if you would get so many feet away from your car

between buildings, it would chop—you know, kind of be choppy. You’d come in and

out. Q So the audio sort of only caught bits and pieces of the incident? A Correct.

Kind of like if you’re going through a no-reception zone with a phone and it’s kind

of, you know, chopping in and out.”).

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again heard yelling commands to ‘[S]top!’” Id. (second alteration in original). After

giving his location and requesting that officers leave the radio traffic open, “Officer

[Newton] is heard commanding [Sanders] to ‘[G]et on the ground!’” Id. (third

alteration in original). Officer Newton is heard yelling, “‘[D]rop!’ and ‘[S]top!’” Id.

(alterations in original). “Seconds later, . . . Officer [Newton] is heard yelling to

[Sanders] to ‘[S]how me your hands!’” Id. at 6 (fourth alteration in original). At this

point, Sanders’s voice is audible on the recording, but “it is unclear what” Sanders

responded. Id. “After a short pause, . . . Officer [Newton] is heard yelling[,] ‘Dude,

drop it!’ in response to something [Sanders] says.” Id. Officer Newton then “yells

‘Drop!’ four times while he is heard moving before firing a series of shots in rapid

succession. Immediately after firing the final shot, . . . Officer [Newton] reports

‘[S]hots fired!’ more than once on his radio.” Id. (third alteration in original). Sanders

is again “heard saying something but, again, it is unclear what he is saying. In

response, . . . Officer [Newton] is heard yelling commands to ‘[S]how me your

hands!’” Id. (third alteration in original). After the shooting, Officer Newton “is heard

reporting to other responding officers that [Sanders] has something ‘in his pocket’

that he was trying to take out.” Id.

Following an autopsy, the medical examiner’s report identified three gunshot

wounds on Sanders: “[g]unshot wound of the abdomen,” “[g]unshot wound of the

right thigh,” and “[g]unshot wound of the right elbow.” R. Doc. 51-3, at 4–5.

Regarding the right-elbow gunshot wound, the report provides:

A round, 3/8 inch in diameter gunshot wound entrance is on the

posterior medial right elbow. A circumferential 1/8 inch in width

marginal abrasion surrounds the wound. There is no soot or stippling.

After perforating the skin of the posterior medial right elbow, the bullet

perforates with extensive fracturing the bones of the right elbow and

penetrates into the lateral right elbow.

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A deformed large fragment of projectile is recovered from the lateral

right elbow and submitted as evidence.

The direction of the bullet is left to right.

Id. at 5.

Nunley filed suit against Officer Newton for violation of decedent Sanders’s

civil rights under 42 U.S.C. § 1983, alleging excessive use of force. Newton moved

for summary judgment based on qualified immunity.3 The district court denied

qualified immunity to Officer Newton, concluding that genuine issues of material fact

exist. The court noted a dispute between the parties concerning “facts that are

essential to the [c]ourt’s analysis of the totality of the circumstances, including the

injury, threats made by the decedent, and the decedent’s level of noncompliance to

demands at the time of the incident.” R. Doc. 53, at 5 (footnote omitted). The court

then specifically pointed to Nunley’s argument “that the forensic evidence from the

autopsy shows that [Officer] Newton’s shots entered the posterior of Decedent

Sanders right medial elbow, which [Nunley] allege[d] does not align with [Officer]

Newton’s testimony that Sanders was pointing something appearing to be a gun at

him.” Id. at 6 (citing R. Doc. 51, at 8). The court explained that “whether Sanders had

his hands pointed as if he had a gun or not is an integral fact in the analysis, and the

established facts are disputed.” Id. Furthermore, Officer Newton’s reliance on three

unidentified eye witnesses’ statements did not resolve these factual disputes because

the jury would have to determine the potential witnesses’ credibility. Because no

video evidence “show[ed] the intricate events leading up to the death of Sanders,” the

3

Nunley also brought a municipal liability claim against several officials.

Nunley conceded that she failed to adduce sufficient evidence to support this claim,

and the district court dismissed it.

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court concluded that it was unable to “resolve these disputes of material fact, a

function of the jury.” Id.

II. Discussion

On appeal, Officer Newton argues that Nunley’s excessive-force claim is

barred under the Eleventh Amendment. Alternatively, he argues that the district court

erroneously denied him qualified immunity because no genuine issue of material fact

exists.

A. Eleventh Amendment

Newton argues that he is entitled to sovereign immunity under the Eleventh

Amendment because Nunley did not state in her complaint that she was suing Newton

in his personal capacity; therefore, she is suing him only in his official capacity.

According to Newton, because the Kansas City Board of Police Commissioners

(Board) is primarily selected by the Missouri governor and has its budget controlled

and overseen by the Missouri government, the Board is a state instrumentality.

Newton is a Board employee. Thus, he concludes that the Eleventh Amendment bars

damages suits against him as an official-capacity defendant employed by the State.

“We [have] previously held that when ‘a plaintiff’s complaint is silent about

the capacity in which she is suing the defendant,’ the claims should be treated as

‘only official-capacity claims.’” Wealot v. Brooks, 865 F.3d 1119, 1123 n.4 (8th Cir.

2017) (quoting Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995)).

“We have continued to apply our more stringent pleading rule, and in one instance

even [did] so when the parties and district court ignored the capacity issue in the first

instance.” Id. (citing Remington v. Hoopes, 611 F. App’x 883, 884–85 (8th Cir. 2015)

(unpublished per curiam)).

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Nunley admits that she failed to “use the magic words ‘individual-capacity’ in

the [c]omplaint.” Appellee’s Br. at 13. Nonetheless, she maintains that she brought

“claims . . . against Defendant Newton in his individual capacity and against the

members of the Kansas City Board of Police Commissioners as a Monell style claim.”

Id. (emphasis added). More specifically, she notes that she “explicitly ma[de] a

municipal liability claim” against the Board and “ma[de] a claim against [Officer]

Newton specifically for his actions alleged to have resulted in a Fourth Amendment

violation.” Id. at 14. She asks this court to liberally construe her amended complaint

so that the counts against Officer Newton and the Board are not duplicative. She

further points out that she “explicitly . . . requested leave to Amend in her Response

[in Opposition to Officer Newton’s Motion for Summary Judgment] to explicitly state

it was an individual capacity claim.” Id.

Nunley concedes that this court “takes a hardline approach to interpreting

whether a claim is made in an individual or official capacity.” Id. (citing, among

others, Murphy v. Arkansas, 127 F.3d 750, 754–55 (8th Cir. 1997) (holding Eleventh

Amendment presents jurisdictional limit on federal courts in civil rights cases against

states and their employees, and thus courts require that personal capacity § 1983

claims be clearly pleaded)). Although Nunley acknowledges that “[t]his approach

requires [her] to explicitly state that a claim is an individual-capacity claim,” she

maintains that her “lack of explicitness in the Amended Complaint is not fatal to [her]

here.” Id. at 14–15.

Nunley contends that the present case is comparable to Murphy, in which we

“deem[ed] the complaint amended” “to state personal-capacity equal protection

claims.” 127 F.3d at 755. In that case, the plaintiff’s “initial complaint contained

no . . . clear statement” that the plaintiff was suing the defendants “in their personal

capacities.” Id. at 754. “Therefore, the individual defendants contended in their

motion for summary judgment that the Eleventh Amendment totally bar[red] [the

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plaintiff’s] damages claims. [The plaintiff] responded by filing a motion for leave to

amend his complaint to assert personal capacity claims.” Id. “[T]he district court

denied the individual defendants summary judgment on Eleventh Amendment

grounds” “[w]ithout ruling on the motion to amend.” Id. It reasoned that the

“defendants [could not] seriously argue that they had no notice that they were sued

in [their] individual capacities.” Id. at 754–55 (second alteration in original). On

appeal, the defendants contended that the district court erroneously concluded that the

Eleventh Amendment did not bar the plaintiff’s § 1983 damage claims. Id. at 754.

We acknowledged the district court’s “err[or] in excusing [the plaintiff’s]

failure to clearly assert personal capacity claims in his initial complaint.” Id. at 755.

But this error “d[id] not resolve the issue.” Id. This was because “[w]hen defendants

sought summary judgment on [Eleventh Amendment] ground[s], [the plaintiff] moved

to amend his complaint.” Id. However, “the district court ha[d] not ruled on that

motion, which [was] committed to its sound discretion.” Id. We held:

Given the district court’s conclusion that defendants had sufficient

notice they were being sued in their personal capacities, we are

confident that the district court would grant [the plaintiff] leave to

amend the complaint to state personal-capacity equal protection claims

if we remanded for consideration of that issue. And given the liberality

of Fed. R. Civ. P. 15(a) regarding amendments, granting such leave to

amend would not abuse the court’s discretion. Thus, we deem the

complaint amended and affirm this portion of the district court's

Eleventh Amendment ruling.

Id. (citations omitted).

We agree with Nunley that Murphy resolves the Eleventh Amendment issue in

this case. In his answer to Nunley’s first amended complaint, Officer Newton asserted

that the § 1983 “claim against [him] in his individual capacity [is] barred by qualified

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immunity.” R. Doc. 24, at 8. He separately argued that the § 1983 claim “against

[him] in his official capacity is barred by 11th Amendment immunity.” Id. Thus,

Officer Newton had “sufficient notice [he was] being sued in [his] personal

capacit[y].” Murphy, 127 F.3d at 755. And, like the defendants in Murphy, it was not

until Officer Newton filed his motion for summary judgment that he first argued that

Nunley brought only official-capacity claims against him. See R. Doc. 48, at 3

(“Plaintiffs bring only official-capacity claims against Newton, which are barred as

a matter of law.” (bold omitted)). In her response in opposition to the motion for

summary judgment, Nunley requested leave to amend the complaint, stating:

To the extent the [c]ourt requires, [Nunley] seeks leave to amend the

[c]omplaint to specifically assert an individual capacity claim [against

Officer Newton]. Such an amendment is in the interest of justice and

does not prejudice [Officer Newton] in any way as all of the relevant

issues have been addressed in discovery and are discussed in the instant

motion.

R. Doc. 51, at 6 n.2 (citing Fed. R. Civ. P. 15(a)(2); Davis v. White, 794 F.3d 1008,

1015 (8th Cir. 2015)). As in Murphy, the district court did not rule on Nunley’s

request. See 127 F.3d at 754.

Nunley’s request to seek leave to amend her complaint is comparable to the

plaintiff in Murphy who filed a separate motion for leave to amend his complaint. See

id. As in Murphy, “we are confident that the district court would grant [Nunley] leave

to amend the complaint to state personal-capacity equal protection claims if we

remanded for consideration of that issue,” given that the district court has already

analyzed Officer Newton’s request for qualified immunity. Id. at 755. Further, “given

the liberality of Fed. R. Civ. P. 15(a) regarding amendments, granting such leave to

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amend would not abuse the court’s discretion.” Id. We deem Nunley’s complaint

amended. See id.4

B. Qualified Immunity

Nunley alleges that Newton used excessive deadly force against Sanders in

violation of his Fourth Amendment rights. “An objectively unreasonable use of force

is excessive, violating the Fourth Amendment’s prohibition against unreasonable

seizures.” Williams v. City of Burlington, 27 F.4th 1346, 1350–51 (8th Cir. 2022).

Whether an officer used reasonable “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.” Id. at 1351 (internal quotation

marks omitted). “[P]roper application” of the Fourth Amendment’s reasonableness

test “requires careful attention to the facts and circumstances of each particular case,

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 arrest by flight.” Graham v. Connor, 490 U.S. 386, 396

(1989). “Where 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.” Wealot, 865

4

Officer Newton also argues that the district court erroneously failed to address

his official immunity from suit under Missouri law. But Nunley brought a § 1983

claim, not a Missouri state-law claim. Official immunity applies only to state-law

claims, not a federal § 1983 claim. See Hill v. Borough of Kutztown, 455 F.3d 225,

243–44 (3rd Cir. 2006) (“[W]e hold that the doctrine of high official immunity under

Pennsylvania law does not shield Marino from suit under § 1983. That doctrine

shields high officials from state law claims, not constitutional claims.”); Kohn v. Sch.

Dist., No. 1:11-cv-109, 2012 WL 1598096, at *8 (M.D. Pa. May 7, 2012) (“[T]he

state-law doctrine of high public official immunity shields officials only from

state-law claims, not federal ones.”).

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F.3d at 1125 (internal quotation marks omitted). But “an officer may not use deadly

force against a fleeing suspect unless the suspect poses an immediate and significant

threat of serious injury or death to the officer or to bystanders.” Wallace v. City of

Alexander, 843 F.3d 763, 769 (8th Cir. 2016) (cleaned up). “Officers may

not seize . . . unarmed, nondangerous suspects by shooting them dead.” Id. (emphasis

added) (cleaned up). Although “it is true that ‘[a]n officer is not constitutionally

required to wait until he sets eyes upon the weapon before employing deadly force,’”

“this rule applies when an officer is trying to ‘protect himself against a fleeing

suspect’ who is armed or reaching for what appears to be a weapon.” Ngo v. Storlie,

495 F.3d 597, 603 (8th Cir. 2007) (quoting Thompson v. Hubbard, 257 F.3d 896, 899

(8th Cir. 2001)).

Officer Newton has brought an interlocutory appeal from the district court’s

denial of qualified immunity on Nunley’s excessive-force claim. “Qualified immunity

protects reasonable mistakes of fact. The calculus of reasonableness must embody

allowance for the fact that police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly evolving—about

the amount of force that is necessary in a particular situation.” Williams, 27 F.4th at

1351 (internal quotation marks and citation omitted). “[W]hen analyzing a claim of

qualified immunity, courts may not resolve genuine disputes of fact in favor of the

party seeking summary judgment”; instead, courts are required to “construe the facts

in the light most favorable to the nonmovant to determine whether a constitutional

violation occurred and whether any violation of a constitutional right was clearly

established.” Id. (cleaned up). Courts ask two questions in analyzing a public

official’s entitlement to qualified immunity: “1) whether the facts that a plaintiff has

alleged or shown make out a violation of a constitutional right and 2) whether the

right at issue was clearly established at the time of defendant’s alleged misconduct.”

Id. at 1350 (internal quotation marks omitted). “The court may consider them in either

order.” Presson v. Reed, 65 F.4th 357, 365 (8th Cir. 2023).

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Under the second inquiry in an excessive-force case, “the issue is . . . whether

prior cases would have put a reasonable officer on notice that the use of deadly force

in these circumstances would violate the right not to be seized by the use of excessive

force.” Williams, 27 F.4th at 1352 (cleaned up). “Since 1985, it has been established

by the Supreme Court that the use of deadly force against a fleeing suspect who does

not pose a significant threat of death or serious physical injury to the officers or

others is not permitted.” Id. (quoting Moore v. Indehar, 514 F.3d 756, 763 (8th Cir.

2008) (citing Tennessee v. Garner, 471 U.S. 1, 11 (1985))). This right “is sufficiently

clear.” Id. (citing Capps v. Olson, 780 F.3d 879, 886 (8th Cir. 2015) (“[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.”); Nance v. Sammis, 586 F.3d 604, 610 (8th Cir.

2009); Moore, 514 F.3d at 763 (determining that a jury could find an officer’s

decision to use deadly force against an unarmed person fleeing the scene of a

shooting objectively unreasonable); Wallace, 843 F.3d at 769 (“[A]n officer violate[s]

Garner by using deadly force to seize an individual who did not possess a weapon

and was attempting to flee the scene of a potentially violent crime.”); Craighead v.

Lee, 399 F.3d 954, 962 (8th Cir. 2005) (“At least since Garner was decided

. . . 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.”)).

Here, the district court determined that a genuine issue of material fact exists

as to whether “Sanders was pointing something appearing to be a gun at [Officer

Newton].” R. Doc. 53, at 6. While Officer Newton testified that Sanders did so, the

autopsy report—which showed that Officer “Newton’s shots entered the posterior of

Decedent Sanders right medial elbow”—could be interpreted as “not align[ing] with

[Officer] Newton’s testimony.” Id. According to the district court, this disputed fact

prevented it from analyzing the reasonableness of Officer Newton’s actions. Id.; see

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also Graham, 490 U.S. at 396 (setting forth factors for courts to consider in making

excessive-force determinations).

We “review[] de novo the district court’s denial of summary judgment based

on a lack of qualified immunity.” Williams, 27 F.4th at 1350. “The first and

fundamental question in an appeal from a denial of qualified immunity is that of

jurisdiction.” Torres v. City of St. Louis, 39 F.4th 494, 502 (8th Cir. 2022) (internal

quotation marks omitted). In this posture, “our jurisdiction is limited to the purely

legal question of whether the conduct that the district court found was adequately

supported in the record violated a clearly established federal right.” Id. (internal

quotation marks omitted). As a result, “we may review the purely legal question of

whether a factual dispute is material.” Id. (cleaned up); see also Mulbah v. Jansen,

55 F.4th 1164, 1167 (8th Cir. 2022) (“We may hear an appeal of an order denying

qualified immunity where the record plainly forecloses the district court’s finding of

a material factual dispute.” (cleaned up)). But we lack “jurisdiction to review a

district court’s denial of qualified immunity simply because we disagree with the

district court as to whether there is sufficient evidence to conclude a material fact is

genuinely in dispute.” Mulbah, 55 F.4th at 1166 (cleaned up).We are also prohibited

from “decid[ing] which facts a party may, or may not, be able to prove at trial.” Id.

(internal quotation marks omitted). And “we lack jurisdiction to review the [district]

court’s factual assumptions.” Id. We “may not make determinations of fact and

credibility in assessing whether a party is entitled to qualified immunity.” Williams,

27 F.4th at 1351. In summary, “we lack jurisdiction to consider an argument that the

plaintiff has proffered insufficient evidence to create a genuine issue of fact, but we

have jurisdiction to consider an argument that the disputed facts to which the plaintiff

cites are unable to affect the outcome of the suit.” Torres, 39 F.4th at 502 (cleaned

up).

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In the present case, Officer Newton concedes that Sanders was unarmed when

he shot him but asserts that his mistaken belief is objectively reasonable. “In many

cases, we have affirmed the grant of qualified immunity to officers who applied

deadly force to an unarmed suspect because we concluded the officers held a

reasonable belief the suspect was dangerous.” Wealot, 865 F.3d at 1128.5 As we have

recognized, “[a]n act taken based on a mistaken perception or belief, if objectively

reasonable, does not violate the Fourth Amendment.” Id. (internal quotation marks

omitted).

“[T]he record here does not conclusively establish the reasonableness of

[Officer Newton’s] actions.” Id. (internal quotation marks omitted). “Before the

reasonableness of [Officer Newton’s] conduct can be assessed, [a] genuine dispute[]

of material fact must be resolved,” id. at 1125: whether “Sanders was pointing

something appearing to be a gun [at Officer Newton],” R. Doc. 53, at 6. Officer

Newton testified that Sanders advanced toward him with right hand—inside his jacket

pocket—raised up and extended “out as if he had a gun” toward Officer Newton.

R. Doc. 51-1, at 9. The autopsy shows that the bullet that struck Sanders “perforat[ed]

the skin of [his] posterior medial right elbow,” which means Sanders was hit on the

inner back side of his right elbow. R. Doc. 51-3, at 5. The bullet then exited the

5

See, e.g., Seiner v. Drenon, 304 F.3d 810, 811 (8th Cir. 2002) (stating that the

officer “repeatedly ordered [the suspect] to show his hands” and to drop whatever was

in his hands); Billingsley v. City of Omaha, 277 F.3d 990, 993–94 (8th Cir. 2002)

(stating that the suspect ran after being told to halt, “leapt off the deck onto the

ground,” and “turned and rotated his shoulder” upon landing); Thompson, 257 F.3d

at 898 (stating that the suspect and the officer were involved in “[a] foot chase,” that

the suspect “moved his arms as though reaching for a weapon,” and that the officer

yelled “‘stop’ . . . when [the suspect’s] arms continued to move”); Krueger v. Fuhr,

991 F.2d 435, 437 (8th Cir. 1993) (stating that the officer ordered the suspect to

“freeze” several times during a chase and that the officer saw the suspect “reach to

the area of his right hip” to pull out a knife).

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“lateral” (outside) of the right elbow. Id. The bullet moved “left to right,” not up or

down. Id. One interpretation of the autopsy—and the one proffered by Nunley—is

that Officer Newton shot Sanders when his right arm was “raised above his head,

allowing the bullet to enter the inside back of the elbow and travel to the outer portion

of the elbow.” Appellee’s Br. at 11. Accepting this interpretation of the autopsy,

Officer Newton’s “testimony does not conclusively disprove the version of events

that are most favorable to [Nunley].” Mulbah, 55 F.4th at 1167 (cleaned up). It is

undisputed that Sanders was, in fact, not armed at the time of the shooting. If he also

had his arm raised “above his head” at the time of the shooting, this suggests an

“attempt to surrender” inconsistent with Officer Newton’s testimony that Sanders

extended his right hand out toward him. Appellee’s Br. at 12. Based on the autopsy,

a genuine issue of material fact exists as to whether Sanders posed a significant threat

to Officer Newton. See Wallace, 843 F.3d at 769.

At the time that Officer Newton shot Sanders, it was clearly established that the

use of deadly force against a fleeing suspect who poses no significant threat to the

officer is unconstitutional. See Williams, 27 F.4th at 1352. “[T]o determine whether

[Newton] violated clearly established law, we need to know what happened. Because

the factual record—as assumed by the district court—is unsettled and disputed, we

lack jurisdiction to go further.” Mulbah, 55 F.4th at 1167.6

III. Conclusion

Accordingly, we dismiss the appeal for lack of jurisdiction.

6

We agree with the district court that any consideration of the three unidentified

eye witnesses’ statements does not resolve the factual dispute between Officer

Newton’s testimony and the autopsy. Ultimately, the jury would have to determine

the credibility of those witnesses, as well as the proper interpretation of the autopsy.

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KOBES, Circuit Judge, concurring in part and concurring in the judgment.

Officer Newton points to multiple errors in the district court’s analysis. He

says, among other things, that the district court misapplied the summary judgment

standard and denied him qualified immunity without a dispute of material fact and by

improperly making credibility determinations. Even if he is right – and I think he

might be in part – it doesn’t change the outcome of this appeal. The case turns on the

autopsy report, which the district court found, and Officer Newton concedes, “may

or may not conform to [his] story.” The majority opinion rightly concludes that we

lack jurisdiction to review that finding. I join in parts I, II.A, and III of the Court’s

opinion, and concur in the judgment.

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