Smith Ex Rel. Kolski v. City of Brooklyn Park

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 13-1640

___________________________

Stacy Ann Smith, as trustee for the heirs and next of kin of Eric Kirk Kolski

lllllllllllllllllllll Plaintiff - Appellant

v.

City of Brooklyn Park; Officer Chad Glirbas, individually and in his official

capacity; Officer Charles Cudd, individually and in his official capacity

lllllllllllllllllllll Defendants - Appellees

____________

Appeal from United States District Court

for the District of Minnesota - Minneapolis

____________

Submitted: February 12, 2014

Filed: July 3, 2014

[Published]

____________

Before SMITH, BEAM, and BENTON, Circuit Judges.

____________

PER CURIAM.

Stacy Ann Smith, as trustee for the heirs and next of kin of Eric Kirk Kolski,

filed suit against the City of Brooklyn Park, Minnesota ("the City") and Brooklyn

Park Police Officers Chad Glirbas and Charles Cudd (collectively, "defendants").

Smith alleged that the defendants violated Eric Kolski's constitutional rights when the

officers used deadly force against Kolski during a response to a domestic disturbance

with a weapon. The defendants moved for summary judgment, and the district court1

granted the motion. Smith appeals, arguing that the district court erred in granting

summary judgment to the defendants because she presented sufficient evidence to

create a fact dispute regarding critical facts at the time that the officers used deadly

force against Kolski. We affirm.

I. Background

At 6:45 p.m. on November 25, 2008, Pamela Kukowski called 911 to report a

domestic disturbance involving a gun at the house that she shared with Kolski.

Kukowski explained that she was hiding in the bathroom because Kolski had a

shotgun and was threatening to kill her.

Officers responded to the 911 call and set up a perimeter around the house.

Officer Glirbas made contact with Kolski at the house's south door and tried to

convince Kolski to exit the house. Kolski stood behind the door, blocking Glirbas's

vision of Kolski's right side. Officer Cudd, Lieutenant Larry Eckman, Officer Jeremy

Halek, and Officer Michael Nordin saw Kolski concealing his right side and right

hand.

Officer Glirbas attempted to negotiate with Kolski to get Kolski to exit the

house, but Kolski repeated statements like "I'm not going to jail," "I hurt too bad,"

and that he wanted to speak with "Linda." Officer Glirbas explained to Kolski that he

had not gone to jail the last time that the police were at his house and that the police

just needed him to step out and talk to them. Kolski replied, "You're going to have to

come in here and get me." Kolski then closed the door and went back inside the

house.

1

The Honorable Michael J. Davis, Chief Judge, United States District Court for

the District of Minnesota.

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As set forth by the district court, the transcript of the 911 call from Kukowski

reveals the following:

Kukowski told the dispatcher that Kolski was trying to kick down the

bathroom door. (911 Transcript. 8; 911 Audio Track 9.) Dispatch

relayed this information to the officers. (911 Transcript. 8; 911 Audio

Track 10.)

Kukowski stated that she was afraid that Kolski would shoot

through the bathroom door. (911 Transcript 13; 911 Audio Track 21.)

Once Kolski realized the police were at the house, he told Kukowski: "If

they f* * *ing knock on my door, I'm f* * *ing coming in there, and I'll

f* * *ing (inaudible)." (911 Transcript 17; 911 Audio Track 31.) He then

yelled, "I will not go to f* * *ing jail. I will not go to f* * *ing jail.

Mother f* * *er, you're full of sh* *. (inaudible)." (911 Transcript. 18;

911 Audio Track 34.) The dispatcher told the police that Kolski told

Kukowski that "he's not going to jail because of [her]." (911 Transcript

18; 911 Audio Track 37.) Later, Kukowski began screaming, while still

on the 911 call, and yelling at Kolski to put the gun away and to get his

"arm out of there." (911 Transcript 25–26; 911 Audio Track 47.) Kolski

repeatedly asked her if she called the police, and she repeatedly told him

to put the gun away. (Id.) Kolski then said "You're done." (911

Transcript. 26; 911 Audio Track 47.) Next, Kolski continued to yell,

"Let me in this door." (911 Transcript 27; Audio Track 47.)

Dispatch told the police that Kolski still had the gun, that

Kukowski repeatedly told Kolski to put the gun away, and that he kept

asking her if she called the police. (911 Audio Track 48; 911 Transcript

27.) Kukowski told dispatch that she was afraid that he would shoot

through the bathroom door. (911 Transcript 28–30; 911 Audio Track

51.)

Kolski tried to kick the door in and Kukow[sk]i was screaming.

(911 Transcript 36–37; 911 Audio, Track 62.) Dispatch told the police

that Kolski was trying to kick the door down. (911 Transcript 40; 911

Audio Track 64.) Kukowski told dispatch that Kolski was walking

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around outside the bathroom and the lock on the door no longer

worked—she was blocking the door with her legs. (911 Transcript

37–38; 911 Audio, Track 62.) Dispatch told the police that Kukowski

could hear him walking around outside the bathroom. (911 Transcript

41; 911 Audio Track 66.)

Smith v. City of Brooklyn Park, Civil No. 11–3421 (MJD/JJG), 2013 WL 673861, at

*1–2 (D. Minn. Feb. 25, 2013).

Officers interpreted the noises from inside as Kolski attempting to kick in the

bathroom door and Kukowski screaming. Based on their determination that

Kukowski's life was in danger, the officers decided that immediate entry into the

house was necessary. Lieutenant Eckman and Officer Nordin were unsuccessful in

their attempt to use tools to enter through the door. The officers then kicked in the

door, with Officer Cudd entering first and Officer Glirbas entering behind him.

When Officer Cudd entered the house, he had a barricade in his left hand and

his MP5 semi-automatic machine gun in his right hand. Officer Glirbas was also

carrying an MP5. Lieutenant Eckman, Sergeant Marcus Erickson, Officer Nordin,

Officer Halek, and Officer Rielly Nordan entered next, with their guns drawn. The

officers shouted "Police." One of the officers yelled something to the effect of "come

out with your hands up" or "show your hands." The transcript of the 911 call reveals

that Kukowski told the 911 operator that she heard the officers instruct Kolski to "get

down on your hands."

Officer Cudd did not hear a response from Kolski. Because the house was dark

and in disorder, the officers had difficulty moving about. The officers entered into the

kitchen; when the officers entered, the doorway from the kitchen to the living room

was open. Officer Cudd tripped over items as he entered the kitchen adjacent to the

living room; as he tripped, Officer Cudd saw a face. Officer Cudd dropped the

barricade and turned on the flashlight on his gun to illuminate the living room. He

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saw Kolski leaning on the couch with a shotgun raised and pointed at the police

officers. Officer Cudd yelled, "He's got a gun!" and fired his weapon at Kolski

because he believed that Kolski would kill him or other officers. Officer Glirbas next

entered and was a few feet to the left of Officer Cudd when he heard Officer Cudd

yell, "He has a gun!" Officer Glirbas also turned on the flashlight on his MP5

semi-automatic machine gun; he saw a male sitting on the couch with a gun in a

raised position aimed at the officers. Officer Glirbas believed that Kolski was going

to shoot him or Officer Cudd, so Officer Glirbas fired his gun at Kolski. The

transcript of the 911 call reveals that Kolski was shot at 7:15 p.m. Officer Glirbas

then approached Kolski and moved Kolski's shotgun away from his body.

Officer Halek then handcuffed Kolski behind his back as he lay on the couch.

As Officer Halek rolled Kolski over, Kolski fell onto the floor. When Officer Halek

checked Kolski's vital signs, Officer Halek found no signs of life. He requested a

medical bag and asked dispatch to send the paramedics who were stationed two

blocks away. Other officers secured the house and escorted Kukowski out of the

bathroom and out of the residence. There was a "partial hole near the center of the

[bathroom] door."

Smith alleges that Kolski was in his living room "fully illuminated and

unarmed." Neither the transcript of the 911 call nor the officers' statements support

this allegation. According to Lieutenant Eckman, when the police entered the home

through the kitchen, the kitchen lights were off, but the living room lights were on.

Initially, Officer Glirbas blocked Lieutenant Eckman's view, so he could not see

whether Kolski was armed. Lieutenant Eckman further stated that he heard officers

yell "gun, gun. Drop the gun." Thereafter, he heard gunshots. After the shots were

fired, Lieutenant Eckman had a full view of Kolski and could see that he was on the

couch and armed with a shotgun next to him with the barrel pointed towards the

police.

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Kolski died as a result of the gunshot wounds. An autopsy revealed that, at the

time of his death, Kolski had a .205 blood alcohol level and multiple painkillers in his

system.

Officer Cudd, Officer Glirbas, and other patrol officers were armed with MP5

semi-automatic weapons. The MP5s that patrol officers like Officers Cudd and

Glirbas used are equipped to fire only one bullet per trigger pull. Kolski had 16 or 17

bullet wounds. Officer Cudd fired 14 shots and Officer Glirbas fired 13 shots.

On May 21, 2009, a Hennepin County grand jury entered a no bill for Officers

Cudd and Glirbas.

Following the shooting, at 8:56 p.m., Hennepin County Sheriff's Office

Detective Bogenreif arrived to investigate Kolski's death. Hennepin County Sheriff's

Office Detective Steve Sinclair arrived later that evening. They took statements from

civilians and photographed the officers and their weapons. They questioned Officer

Halek, Officer Nordan, Sergeant Erickson, Officer Nordin, and Lieutenant Eckman

the following day. They interviewed Officers Glirbas and Cudd on December 1, 2008.

A 20-gauge shotgun was recovered from Kolski's home, photographed at the

scene, and taken to the Hennepin County Crime Laboratory.

On November 22, 2011, Smith filed suit against the City and Officers Glirbas

and Cudd, alleging a violation of 42 U.S.C. § 1983 against all the defendants ("Count

1"); violations of 42 U.S.C. § 1983 against the City ("Count 2"); a violation of 42

U.S.C. § 1985 against all the defendants ("Count 3"); assault and battery by Officers

Glirbas and Cudd ("Count 4"); negligence by Officers Glirbas and Cudd ("Count 5");

negligence by the City ("Count 6"); and respondeat superior against the City ("Count

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7"). The defendants moved for summary judgment on all claims, including on the

basis of qualified immunity and official immunity.2

The district court granted the defendants' summary judgment motion. Relevant

to the present appeal, the district court concluded that Officers Glirbas and Cudd were

entitled to qualified immunity on Smith's Fourth Amendment excessive-force claim

brought pursuant to § 1983. The court found that an officer's use of deadly force is

objectively reasonable where a suspect is pointing a gun at the officer. Smith, 2013

WL 673861, at *6 (citing Sinclair v. City of Des Moines, 268 F.3d 594, 596 (8th Cir.

2001)). The court cited the following evidence in support of its conclusion that

Officers "Cudd and Glirbas reasonably feared for their lives and the lives of the other

officers": (1) their knowledge that Kolski "was an armed domestic assault suspect

who, they reasonably believed, was going to kill or injure Kukowski, who was

trapped in the bathroom by Kolski"; (2) their knowledge that Kolski "was yelling,

threatening Kukowski, and trying to break down the door to the bathroom where she

was hiding"; (3) their knowledge of Kolski's awareness of the police's presence

"because he had talked to officers at his door," "rebuffed police entreaties to come out

of the house," and "stated that the police would have to come in and get him"; (4)

Kolski's awareness "that police had entered his house because they loudly broke open

the door and, as they entered, police officers repeatedly announced 'police'"; (5) the

difficulty locating "an armed suspect while entering into a dark room . . . where

Kolski sat on the couch with his shotgun"; (6) witnesses' testimony "that Kolski had

a weapon aimed at the officers"; (7) Officer Cudd's warning to the other officers "that

Kolski had a gun" and his decision to shoot Kolski "because he thought that Kolski

was going to shoot him or other officers"; and (8) Officer Glirbas's shooting of Kolski

"because he thought Kolski was going to shoot him or Cudd." Id.

2

Prior to oral argument on the summary judgment motion, Smith filed a motion

to supplement her opposition to the summary judgment motion and submitted a

preliminary expert report to the district court. The district court denied this motion,

and Smith has not appealed this denial.

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The district court rejected Smith's assertion "that Kolski was unarmed, fully

illuminated, and had his hands up when he was shot" because of the lack of evidence

supporting this claim. Id. at *7. According to the court, Lieutenant Eckman's

testimony did not support this claim because "Eckman explicitly confirms that Kolski

was armed. He also states, consistent with Glirbas and Cudd, that Kolski was on the

living room couch and another officer yelled out that Kolski had a gun." Id. The court

found that "[t]he only discrepancy between Eckman's statement and the statements

of other officers is that, while Eckman confirmed that the police entered into a dark

house, he also recalled that the lights were on in the living room"; however, the court

concluded that "[t]his detail does not change the analysis of the reasonableness of the

officers' actions." Id.

The court also found that no physical evidence "establish[ed] a genuine issue

of material fact as to whether Kolski was armed." Id. And, it noted that no other

evidence in the record established "that Kolski was unarmed when he was killed." Id.

Instead, Officers "Glirbas and Cudd both advised that, after entering Kolski's home,

they saw Kolski sitting on a couch in the living room, pointing a shotgun in Cudd's

direction. An officer is permitted to use deadly force when he is confronted with a

suspect pointing a gun at him." Id. The court determined that Smith could not "create

a fact dispute simply by attacking the officers' credibility." Id. (citing Thompson v.

Hubbard, 257 F.3d 896, 899 (8th Cir. 2001)).

The court also pointed out that "[t]he information known to Defendants when

they entered the home was based on undisputed radio traffic that repeatedly reported

that Kolski was armed and threatening to kill Kukowski." Id. (citing Scott v. Harris,

550 U.S. 372, 380 (2007)). According to the court, Smith

has the audio and transcript of Kukowski's 911 call throughout the

incident, the radio traffic for the officers, the autopsy report, crime scene

photos, an extensive witness statement from Kukowski, and police

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statements. As in Janis [v. Biesheuvel, 428 F.3d 795 (8th Cir. 2005)], the

alleged victim, Kolski, is deceased and there are no other witness to the

incident besides the officers and Kukowski. There is no basis for

Plaintiff to allege that Kolski was unarmed when every witness testified

that he was armed or that they could not see him; the 911 call, radio

traffic, and Kukowski's interview clearly indicate that he was armed and

threatening violence; and the crime scene photographs document his

firearm near where he was killed.

Id. at *8. Based on the undisputed evidence, the court concluded that, viewing the

facts in the light most favorable to Smith, Officers Glirbas and Cudd "had probable

cause to believe that Kolski posed a threat of serious physical harm to the officer or

others"; therefore, the court granted summary judgment to the officers on the basis

of qualified immunity. Id.

Relatedly, the court found that "[o]fficial immunity bars the state law claims

of assault and battery and negligence against Cudd and Glirbas in Counts Four and

Five and of respondeat superior liability against the City in Count Seven." Id. at *9.

This was because the officers "were discretionary actors when they used deadly force

against Kolski. As the Court discussed with regard to the issue of qualified immunity,

there is no evidence that Cudd or Glirbas acted willfully and maliciously. They acted

reasonably in response to a significant threat of death or physical injury." Id. at 10.

The court also dismissed Smith's Monell claim against the City brought

pursuant to § 1983 and the § 1985 conspiracy claim.3

II. Discussion

Smith argues that the district court erroneously granted summary judgment to

the officers on the basis of qualified and official immunity on her Fourth Amendment

3

Smith does not challenge the district court's dismissal of these claims.

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excessive-force claim and state-law claims. Smith contends that she presented

sufficient persuasive evidence to show the existence of a material fact dispute

regarding critical facts at the time that the officers used deadly force. According to

Smith, the district court erroneously relied on the self-serving statements of the

officers who shot Kolski and ignored physical and circumstantial evidence that, if

credited, would discredit the officers' version of events and support a jury finding that

Kolski was unarmed and had his hands up at the time that he was shot. She claims

that statements in the record contradict the officers' claim that the living room where

Kolski was shot was dark and that, prior to shooting Kolski, officers yelled, "Gun, he

has a gun." She contends that the physical evidence strongly suggests that, contrary

to the officers' claim, Kolski was not shouldering a gun when he was shot but was

instead unarmed and with his hands up. Smith points to Lieutenant Eckman's

statement that the lights were on in the living room, which is contrary to the claim of

Officers Cudd and Glirbas that the home was dark. She also notes that while all the

officers claim to have heard an officer yelling "gun," Kukowski heard the officers

command Kolski to "get down on your hands" immediately before shots were fired,

which, she contends, is an unusual statement for officers to yell at a man pointing a

gun at them prior to opening fire. She also finds inconsistencies in the officers'

testimony as to the position of Kolski's body after the shooting. Finally, Smith argues

that the number and location of Kolski's gunshot wounds support an inference that

he was lying down or in a semi-supine position when shot.

A. Qualified Immunity

We review de novo a district court's determination of whether a government

official is entitled to qualified immunity. Burton v. Ark. Sec. of State, 737 F.3d 1219,

1228 (8th Cir. 2013). "A government official is entitled to qualified immunity 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." Id.

(quotation and citation omitted). When reviewing the district court's grant of

summary judgment on the basis of qualified immunity, we must view the facts in the

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light most favorable to the non-moving party. Id. When determining whether a

government official is entitled to qualified immunity, we apply 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. (quotation and citation omitted). The Supreme

Court has allowed us "'to exercise [our] sound discretion in deciding which of the two

prongs of the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.'" Id. at 1228–29 (alteration in original)

(quoting Pearson v. Callahan, 555 U.S. 223, 236 (2009)).

"All claims that law enforcement officers have used excessive

force, whether deadly or not, in the course of an arrest, investigatory

stop, or other seizure are analyzed under the Fourth Amendment's

objective reasonableness standard." Nance v. Sammis, 586 F.3d 604,

609–10 (8th Cir. 2009). "Not every push or shove violates the Fourth

Amendment, but force is excessive when the officers' actions are not

objectively reasonable in light of the facts and circumstances

confronting them." Rohrbough v. Hall, 586 F.3d 582, 585 (8th Cir.

2009) (quotations, alteration, and citation omitted). "The key question

is whether the officers' actions are objectively reasonable in light of the

facts and circumstances confronting them, without regard to their

underlying intent or motivation." Nance, 586 F.3d at 610 (quotations

and citation omitted). "Objective reasonableness depends on the facts

and circumstances of the 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." Rohrbough, 586 F.3d at 586

(quotations and citations omitted).

Royster v. Nichols, 698 F.3d 681, 691 (8th Cir. 2012).

We have recognized that "no constitutional or statutory right exists that would

prohibit a police officer from using deadly force when faced with an apparently

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loaded weapon." Sinclair v. City of Des Moines, Iowa, 268 F.3d 594, 596 (8th Cir.

2001) (per curiam). "As the Supreme Court has explicitly said, use of deadly force is

permissible when the officer has probable cause to believe that the suspect poses a

significant threat of death or serious physical injury to the officer or others." Id.

(citing Tennessee v. Garner, 471 U.S. 1, 3 (1985)). "'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.'"

Thompson v. Hubbard, 257 F.3d 896, 899 (8th Cir. 2001) (quoting Graham v.

Connor, 490 U.S. 386, 396–97 (1989)). "[T]o defeat the motion for summary

judgment, [Smith] needed to present enough evidence to permit a reasonable jury to

conclude that [the officers'] use of deadly force was objectively unreasonable."

Thompson, 257 F.3d at 899.

In Thompson, an officer chased a suspect who ran between two buildings and

climbed over a fence. Id. at 898. According to the officer, the suspect "got up from

the ground, looked over his shoulder at [the officer], and moved his arms as though

reaching for a weapon at waist level." Id. The suspect had turned his back toward the

officer and "obscured his hands from [the officer's] view." Id. The officer yelled for

the suspect to "stop," but the suspect's "arms continued to move"; the officer "fired

a single shot into [the suspect's] back just below his right shoulder blade." Id. The

suspect died from the gunshot, and no weapon was recovered from his body. Id.

Another officer, "who had followed most of the foot chase in a patrol car, stated that

he attempted to look down the space between the two buildings where he had seen

[the suspect] and [the officer] run, but that he neither saw nor heard the shooting,

leaving [the officer] as the lone surviving witness to the shooting." Id. The deceased

suspect's family members filed suit under § 1983 alleging excessive force in violation

of the deceased's constitutional rights. Id. The district court granted summary

judgment to the officer, the officer's supervisor, and the city. Id.

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On appeal, we "conclude[d] that summary judgment was appropriate" where

the officer's "use of force, as he describe[d] it, was within the bounds of the Fourth

Amendment, and all of the evidence presented to the district court [was] consistent

with that account." Id. (citing Krueger v. Fuhr, 991 F.2d 435, 439 (8th Cir. 1993)

(summary judgment against plaintiffs appropriate despite the fact that the suspect was

shot in the back where such a shot was consistent with the reasonable use of force

described by the officer); Gardner v. Buerger, 82 F.3d 248, 253 (8th Cir. 1996)

(summary judgment inappropriate where officer's own account of shooting raised

genuine issue as to its reasonableness)). We explained that "[t]he plaintiffs may not

stave off summary judgment 'armed with only the hope that the jury might disbelieve

witnesses' testimony.'" Id. (quoting Gardner, 82 F.3d at 252).We found that "neither

the plaintiffs' attacks on [witnessing officer's] credibility nor anything else in the

record undermine[d] [the officer's] credibility." Id. at 899–900. The plaintiffs'

evidence was "simply insufficient to support even an inference that [the officer] [was]

lying" and failed "to satisfy the plaintiffs' burden of proving that his actions were not

objectively reasonable." Id. at 900.

Here, Smith identifies purported "inconsistencies" in the officers' statements

in support of her argument that genuine issues of material fact exist as to whether the

officers' use of force was excessive. She contends that these "inconsistencies" show

that, taking the facts in the light most favorable to her, Kolski was unarmed with his

hands up at the time that the officers shot him. But, as in Thompson, we conclude that

Officers Cudd and Glirbas describe a scene in which the use of deadly force was

constitutionally permissible. Their account is strengthened by statements from other

officers and the transcript of the 911 call. No genuine issues of material fact exist as

to whether Kolski made threats and possessed a firearm. As the district court correctly

found, "[t]here is no evidence in the record that Kolski was unarmed when he was

killed." Smith, 2013 WL 673861, at *7 (emphasis added).

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First, Smith attacks the credibility of Officers Cudd and Glirbas, arguing that

their claim that the entire home was dark is contradicted by Lieutenant Eckman's

statement that the lights were on in the living room. The district court adequately

explained why this purported "inconsistency" is insufficient to create a genuine issue

of material fact as to whether "Kolski was unarmed, fully illuminated, and had his

hands up when he was shot." Id. According to the court:

Eckman's statements do not support Plaintiff's argument. Eckman

testified that, when he initially encountered Kolski, Kolski was on the

living room couch, but, because Glirbas and Cudd were ahead of

Eckman and Glirbas was blocking Eckman's view, Eckman could "only

see his body from his knees down" and could not see if he was armed.

(Eckman Statement at 6.) However, he further testified that Glirbas and

Cudd were yelling "gun, gun. Drop the gun." (Id.) Then, after they shot

Kolski, Eckman moved so he had a full view of Kolski on the couch and

he could see that Kolski was armed with a shotgun that "was next to him

with the barrel pointed in our direction." (Id. at 6–7.) Eckman explicitly

confirms that Kolski was armed. He also states, consistent with Glirbas

and Cudd, that Kolski was on the living room couch and another officer

yelled out that Kolski had a gun. The only discrepancy between

Eckman's statement and the statements of other officers is that, while

Eckman confirmed that the police entered into a dark house, he also

recalled that the lights were on in the living room. This detail does not

change the analysis of the reasonableness of the officers' actions.

Id. (emphases added).

Second, Smith contends that all of the officers' testimonies that they heard

another officer yelling "gun" is inconsistent with Kukowski hearing the officers

instruct Kolski to "get down on your hands" immediately before shots were fired.

Smith asserts that telling a suspect to "get down on your hands" "is an unusual

statement for officers to yell at a man pointing a gun at them, and prior to opening

fire"; therefore, she concludes that a factfinder could draw a "reasonable inference

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that . . . Kolski was not armed or pointing a gun at officers, but rather sitting or

standing unarmed when shot." Smith's contention that Kukowski was unarmed based

on an officer telling him to "get down on your hands" is at best speculative and

contradicts all of the objective evidence in the record, including the transcript of the

911 call, which described Kolski as armed. As the district court explained, "The

information known to Defendants when they entered the home was based on

undisputed radio traffic that repeatedly reported that Kolski was armed and

threatening to kill Kukowski." Id. (citing Scott v. Harris, 550 U.S. 372, 380 (2007)

("When opposing parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could believe it, a court should

not adopt that version of the facts for purposes of ruling on a motion for summary

judgment.")).

Third, Smith argues that all of the officers' statements as to the positioning of

Kolski's body after the shooting are inconsistent with one another and lead to the

inference that Kolski was unarmed. Again, all of the officers' statements and the

objective evidence of the 911 call show that Kolski was, in fact, armed. Smith's mere

speculation that Kolski was not armed is contradicted by the record. Cf. Scott, 550

U.S. at 380.

Finally, Smith points to multiple gunshot wounds to Kolski's head, shoulders,

and arms as creating a reasonable inference that Kolski was unarmed. While 16 or 17

bullet wounds seems like a large number for two officers facing one suspect, it still

does not negate the objective evidence that Kolski was armed during the encounter.

Therefore, we affirm the district court's grant of summary judgment on the

basis of qualified immunity to Officers Glirbas and Cudd.

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B. Official Immunity

Minnesota law provides that "a public official charged by law with duties

which call for the exercise of his judgment or discretion is not personally liable to an

individual for damages unless he is guilty of a willful or malicious wrong." Elwood

v. Rice Cnty., 423 N.W.2d 671, 677 (Minn. 1988) (quotation and citations omitted).

Determination of whether official immunity is available in a given

context requires a two-step inquiry: (1) whether the alleged acts are

discretionary or ministerial; and (2) whether the alleged acts, even

though of the type covered by official immunity, were malicious or

willful and therefore stripped of the immunity's protection.

Dokman v. Cnty. of Hennepin, 637 N.W.2d 286, 296 (Minn. Ct. App. 2001) (citation

omitted).

"Under Minnesota law, the decision to use deadly force is a discretionary

decision entitling a police officer to official immunity absent a willful or malicious

wrong." Hayek v. City of St. Paul, 488 F.3d 1049, 1056 (8th Cir. 2007) (citing Maras

v. City of Brainerd, 502 N.W.2d 69, 77 (Minn. Ct. App. 1993)). Therefore, under step

one of the official-immunity inquiry, Officers Glirbas and Cudd were discretionary

actors when they used deadly force against Kolski.

Under step two of the official-immunity inquiry, the Minnesota Supreme Court

has

stated that in determining whether an official has committed a malicious

wrong, the fact finder considers whether the official has intentionally

committed an act that he or she had reason to believe is prohibited. Rico

v. State, 472 N.W.2d 100, 107–08 (Minn. 1991). The Rico standard

contemplates less of a subjective inquiry into malice, which was

traditionally favored at common law, and more of an objective inquiry

into the legal reasonableness of an official's actions.

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State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994).

Here, Smith has identified no evidence showing that Officers Cudd or Glirbas

intentionally committed an act that they had reason to believe was prohibited; instead,

we agree with the district court that the record evidence shows that "[t]hey acted

reasonably in response to a significant threat of death or physical injury." Smith, 2013

WL 673861, at *10.

We affirm the district court's grant of summary judgment to Officers Glirbas

and Cudd on Smith's state-law claims on the basis of official immunity.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

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