Anna Wealot v. Alvin Brooks

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 16-1192

___________________________

Anna M. Wealot, individually and as Natural Mother and Lawful Heir of Waylen

Wealot, deceased

lllllllllllllllllllll Plaintiff - Appellant

v.

Alvin Brooks, Member, Kansas City Board of Police Commissioners; Chief Darryl

Forte; Michael Kilgore, Member, Kansas City Board of Police Commissioners;

Angela Wasson-Hunt, Member, Kansas City Board of Police Commissioners;

Michael Rader, Member, Kansas City Board of Police Commissioners; Mayor Sly

James, Member, Kansas City Board of Police Commissioners; David Kenner,

Member, Kansas City Board of Police Commissioners; Officer Megan Gates;

Officer Kevin Colhour

lllllllllllllllllllll Defendants - Appellees

____________

Appeal from United States District Court

for the Western District of Missouri - Kansas City

____________

Submitted: November 15, 2016

Filed: August 4, 2017

____________

Before RILEY,1 Chief Judge, WOLLMAN and KELLY, Circuit Judges.

____________

RILEY, Chief Judge.

Waylen Wealot was shot approximately ten times and killed by two Kansas

City, Missouri, police officers. Waylen’s mother, Anna Wealot, brought this action

against the two officers, the chief of police, and members of the board of police

commissioners, alleging excessive force in violation of the Fourth Amendment and

wrongful death under state law. The district court granted summary judgment to the

defendants. Having jurisdiction under 28 U.S.C. § 1291, we affirm in part and

reverse in part.

I. BACKGROUND

The following facts are recited in the light most favorable to the non-moving

party. See Stoner v. Watlingten, 735 F.3d 799, 802 (8th Cir. 2013). On March 29,

2013, Kansas City police officers Megan Gates and Kevin Colhour responded to a

call from the police dispatch requesting service relating to a disturbance at Waylen

Wealot’s residence, located at 4014 East 11th Street.2

When the officers arrived at Waylen’s residence, Kelsie Rosewicz, Waylen’s

girlfriend (who lived at the house with Waylen), and Fred Wealot, Waylen’s older

1

The Honorable William Jay Riley stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on March 10,

2017. He has been succeeded by the Honorable Lavenski R. Smith.

2

Because the physical location of the residence becomes relevant, we briefly

describe it to the best of our ability. Waylen’s house sits on the second lot from the

northeast corner of the intersection of 11th Street and Myrtle Street. Eleventh Street

runs east and west. Myrtle Street runs north and south. Waylen’s house is on the

north side of the street, facing south. Directly west of Waylen’s house, in the corner

lot, is an empty field.

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brother, were standing outside. Rosewicz and Fred told the officers no one there had

called the police, and they suggested the caller was probably one of the Lees, their

neighbors up the block. Fred and Levi Lee had been fighting over a girlfriend, Mary

Holmes, and the fight had escalated into a feud between the families. During this

conversation, Waylen emerged from inside the house and began yelling at the

officers. Rosewicz told Waylen to go back inside, which he did. Officers Gates and

Colhour got into their patrol car and drove around the corner to the Lee residence at

1022 Myrtle Street. The Lee residence is located three lots north of the intersection

at 11th and Myrtle Street and sits on the west side of the street. It is approximately

300 feet away from the Wealot residence.

Meanwhile, Levi Lee, driving a gold minivan carrying a group of people,

pulled up near Waylen’s residence, stopping at the intersection of 11th and Myrtle.

Levi and Holmes, Fred’s ex-girlfriend, exited the minivan and began shouting at

Waylen, Fred, and Rosewicz, who again were standing outside of Waylen’s house.

Levi got back inside the minivan and drove it toward Rosewicz, jumping the curb.

Waylen went inside his house to get a gun. When Waylen came back outside, he

fired multiple shots in the direction of the minivan before taking off running toward

his backyard. Waylen threw his gun along the west side of his house as he ran.

The officers were talking with a neighbor of 1022 Myrtle when they heard

gunshots and observed Waylen fire two or three rounds at the gold minivan. With her

firearm drawn, Officer Gates began to pursue Waylen on foot, crossing Myrtle Street

to cut through the empty lot on the corner, directly west of Waylen’s house. Running

ahead of Officer Colhour, who was following behind, Officer Gates cut through the

empty lot to catch Waylen as he ran north along the west side of his house toward the

backyard. Officer Gates was about four to six feet behind Waylen when, as Waylen

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turned, she began to shoot.3 Officer Gates shot Waylen eight times, continuing to

shoot as Waylen collapsed to the ground. Officer Gates stood only three to four feet

away from Waylen’s body as she fired her last shot. Officer Colhour, standing a few

feet behind Gates, shot twice. Waylen’s gun was recovered five to seven feet away

from his body.

Anna Wealot (Wealot), mother and heir of Waylen, brought these claims

alleging excessive force in violation of the Fourth Amendment and wrongful death

under state law. See 42 U.S.C. § 1983; Mo. Rev. Stat. § 537.080. The defendants

moved for summary judgment. See Fed. R. Civ. P. 56(a). The district court held the

officers were entitled to qualified immunity because no reasonable jury could find the

officers’ use of force against Waylen was objectively unreasonable.4 Because Waylen

3

The parties dispute whether the officers gave any warning to Waylen and

whether they saw Waylen drop the gun, as well as Waylen’s movements and the

position of his hands in the moments before the officers shot him.

4

All parties have treated the claims against Officer Gates and Officer Colhour

as having been brought against them in their individual capacities. From our review

of the pleadings, we are unable to discover any clear allegation of the capacity in

which the two officers were sued. We 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.” Egerdahl v. Hibbing Cmty. Coll.,

72 F.3d 615, 619 (8th Cir. 1995). The rule is different in other circuits. See Baker

v. Chisom, 501 F.3d 920, 926-27 (8th Cir. 2007) (Gruender, J., dissenting); see, e.g.,

Powell v. Alexander, 391 F.3d 1, 22 (1st Cir. 2004) (“Notwithstanding the concerns

reflected in the Eighth Circuit’s analysis, the other circuits have, with virtual

unanimity, adopted the ‘course of proceedings’ test as the better approach.” (footnote

omitted)); Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir. 1995) (“[W]hen a plaintiff

does not allege capacity specifically, the court must examine the nature of the

plaintiff’s claims, the relief sought, and the course of proceedings to determine

whether a state official is being sued in a personal capacity. . . . [An] indication that

suit has been brought against a state actor personally may be a plaintiff’s request for

compensatory or punitive damages, since such relief is unavailable in official capacity

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suits. . . . The nature of any defenses raised in response to the complaint is an

additional relevant factor.”). We have continued to apply our more stringent pleading

rule, and in one instance even done so when the parties and district court ignored the

capacity issue in the first instance. See Remington v. Hoopes, 611 F. App’x 883,

884-85 (8th Cir. 2015) (per curiam) (unpublished). There are several reasons we

refrain from doing the same here.

First, although we have referenced the Eleventh Amendment’s jurisdictional

limit in support of our stringent pleading rule, see Murphy v. State of Ark., 127 F.3d

750, 754-55 (8th Cir. 1997), this complaint’s failure to abide by our judicially created

rule does not deprive us of subject matter jurisdiction so that we are compelled to

dismiss. See Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 528 n.13 (1982)

(Powell, J., dissenting) (“Unlike other limitations on federal jurisdiction, the

limitation imposed by the Eleventh Amendment and the doctrine of sovereign

immunity may be waived by consent unequivocally expressed.”); cf. Biggs, 66 F.3d

at 60 (“Eleventh Amendment immunity is not truly a limit on the subject matter

jurisdiction of federal courts, but a block on the exercise of that jurisdiction.”). This

is especially true given only municipal actors—as opposed to state—are involved.

See Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 401

(1979) (“[T]he Court has consistently refused to construe the [Eleventh] Amendment

to afford protection to political subdivisions such as counties and municipalities.”);

Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 701 (1978) (holding

municipalities “sued under § 1983 cannot be entitled to an absolute immunity”).

Second, despite the complaint’s imperfections, every party involved in this case

proceeded with the understanding that the claims against Officer Gates and Officer

Colhour were brought individually, thus negating any concerns about whether the

defendants were on notice or prejudiced. Cf. Remington, 611 F. App’x at 885

(reviewing the facts and allegations in the complaint to determine whether the

defendants had been provided with “sufficient notice of an individual-capacity suit”).

This understanding appears to have begun when the defendants raised qualified

immunity in their answer to the Wealot complaint, see Doe v. Cassel, 403 F.3d 986,

988-89 (8th Cir. 2005) (declaring particularized pleading important, in part, because

it allows defendants to “mount a qualified immunity defense early in litigation”), and

has continued through this appeal and oral argument, without either party raising the

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had not suffered a constitutional deprivation, the district court granted summary

judgment to the other defendants on the excessive force claims. Finding official

immunity barred Wealot’s state wrongful death claims, the district court also granted

summary judgment on those claims. Wealot appeals.

II. DISCUSSION

A. Standard of Review

Summary judgment shall be granted 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). We review de novo the district court’s grant of summary judgment, viewing

the evidence in the light most favorable to the non-moving party. See Stoner, 735

F.3d at 802.

issue once, cf. Remington, 611 F. App’x at 885 (noting the issue was at least raised

at oral argument).

Third, given the disputed facts we identify below, we think it unwise to decide

the case based on unraised capacity grounds without first giving Wealot the

opportunity to request amending her complaint and the district court to address the

issue in the first instance. See Wood v. Milyard, 566 U.S. 463, ___, 132 S. Ct. 1826,

1834 (2012) (“For good reason, appellate courts ordinarily abstain from entertaining

issues that have not been raised and preserved in the court of first instance. . . . That

restraint is all the more appropriate when the appellate court itself spots an issue the

parties did not air below, and therefore would not have anticipated in developing their

arguments on appeal.”); Murphy, 127 F.3d at 755 (“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 Murphy leave

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

remanded for consideration of that issue.”); see also Doe, 403 F.3d at 989 (“The

district courts retain all tools available under the Federal Rules of Civil Procedure to

eliminate meritless claims early in the litigation process.”). On remand, the district

court may, at its discretion, allow Wealot to amend her complaint to reflect the course

of these proceedings. See Fed. R. Civ. P. 15(a)(2).

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B. Section 1983 Claims

Qualified immunity protects government officials from incurring civil liability

as long as “‘their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). To overcome the shield of qualified immunity, a plaintiff’s claim must state

a violation of a clearly established federal right, and that right must have been clearly

established at the time of the violation. See Nord v. Walsh County, 757 F.3d 734,

738 (8th Cir. 2014). Under either prong of the inquiry, the district court “may not

resolve genuine disputes of fact” relevant to the issue of qualified immunity. Tolan

v. Cotton, 572 U.S. ___, ___, 134 S. Ct. 1861, 1866 (2014) (per curiam); see also

Rohrbough v. Hall, 586 F.3d 582, 587 (8th Cir. 2009).

The Fourth Amendment protects individuals against law enforcement’s use of

unreasonable force during seizure. See Graham v. Connor, 490 U.S. 386, 394 (1989).

Wealot has alleged that when the officers forcefully seized, shot, and killed Waylen,

they violated his right to be free from excessive force. The defendants agree Waylen

was seized, but contend the officers’ infliction of deadly force was reasonable under

the circumstances. Deciding whether the inflicted force was reasonable requires

balancing “the facts and circumstances of each particular case, including the severity

of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of

the officers or others, and whether [the suspect] [was] actively resisting arrest or

attempting to evade arrest by flight.” Id. at 396. “‘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.’” Brosseau v. Haugen, 543 U.S. 194, 203 (2004) (quoting Tennessee

v. Garner, 471 U.S. 1, 11 (1985)). Under such circumstances, “deadly force may be

used if necessary to prevent escape, and if, where feasible, some warning has been

given.” Garner, 471 U.S. at 11-12; see also Capps v. Olson, 780 F.3d 879, 886 (8th

Cir. 2015). “At least since Garner was decided . . . , officers have been on notice that

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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).

In this case, the district court determined no rational jury could find the

officers’ actions unreasonable based on the “rapidly-evolving circumstances with

which [the officers] were presented.” Having reviewed the record in the light most

favorable to Wealot, we hold summary judgment was granted in error.

Before the reasonableness of the officers’ conduct can be assessed, two genuine

disputes of material fact must be resolved: (1) whether the officers saw Waylen throw

his gun and therefore knew he was unarmed, and (2) whether Waylen was turning

around to the officers with his hands raised to surrender. See Tolan, 572 U.S. at ___,

134 S. Ct. at 1868 (“[G]enuine disputes are generally resolved by juries in our

adversarial system.”); Ribbey v. Cox, 222 F.3d 1040, 1043 (8th Cir. 2000) (“The

question that we must answer, then, is whether a genuine question of material fact

exists regarding whether [the officer’s] actions—as defined by the plaintiff’s version

of the events—were objectively reasonable.”); Gainor v. Rogers, 973 F.2d 1379, 1385

(8th Cir. 1992) (“Once a genuine issue of material fact is found to exist, the defense

of qualified immunity shielding the defendant from trial must be denied.”).

Relevant to our purpose are the district court’s following findings:

The officers saw Waylen fire a gun two or three times at [Levi’s] van as

well as in the general direction of the officers. The officers ran towards

the Wealot residence. The officers saw Waylen running with a gun.

Neither officer saw Waylen drop the gun. Waylen turned toward the

officers with his hands bent at his waist. The officers were six to ten

feet away from Waylen when they fired.

....

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Although Ms. Wealot argues that whether the officers saw

Waylen throw the gun is disputed, she has not presented facts that

contradict what the officers reasonably viewed from their perspectives.

Specifically, while the officers were running after Waylen, their views

of him were from different angles and directions than those of Fred

Wealot and Ms. Rosewicz. In addition, according to Fred Wealot, when

Waylen threw his gun away, the officers’ views of him would have been

obscured by a tree and brush.

First, the district court found that “in the very brief ten seconds at issue, neither

officer observed Waylen drop his gun.” Although Rosewicz and Fred saw Waylen

throw his gun along the side of the house, the district court assumed the officers did

not because Rosewicz and Fred witnessed the events “from different angles and

directions.” This is an impermissible inference of fact. The fact that Rosewicz, Fred,

and the officers all witnessed the events from different angles does not imply they

could not have witnessed the same events. For example, Rosewicz was running

toward Waylen and was about five feet behind the officers when she saw Waylen

throw the gun and “turn[] around with his hands up.” Fred acknowledged there was

a tree and bush near the west side of Waylen’s residence, but the presence of that

particular landscaping does not necessarily prove it would have blocked the officers’

views of Waylen dropping his weapon. Even though Officer Gates testified she never

saw Waylen drop his gun, she also stated she never lost sight of Waylen during her

pursuit. Fred testified Officer Gates must have seen Waylen drop the gun because as

soon as she was done shooting, she pointed to Officer Colhour the exact spot where

Waylen’s gun was found.

The defendants agree that when Waylen turned toward the officers he “was

unarmed and surrendering with his hands bent up at his sides,” but they contend the

officers still could have “reasonably believed Waylen was still armed and turning to

shoot them.” The defendants compare the facts here to Loch v. City of Litchfield, in

which we affirmed the grant of qualified immunity to a police officer who shot an

unarmed suspect moving toward the officer with his “hands raised above his head or

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extended out to his sides.” Loch v. City of Litchfield, 689 F.3d 961, 964 (8th Cir.

2012). In Loch, however, the plaintiffs acknowledged that the officer could not have

seen the suspect discard his gun because he did so before the officer arrived. See id.

at 966. Wealot has demonstrated a genuine dispute as to whether the officers could

have seen or actually did see Waylen throw the gun as they pursued him. See

Wallace v. City of Alexander, 843 F.3d 763, 769 (8th Cir. 2016) (affirming the denial

of qualified immunity where a jury “could reasonably conclude that [the suspect] no

longer posed a significant threat after he had discarded the gun and begun to flee”).

Second, the district court found that Waylen’s hands were not up in the air as

he turned to face the officers. Cf. Wilson v. City of Des Moines, 293 F.3d 447, 452

(8th Cir. 2002) (“The manner in which [the suspect] turned seems . . . to be the most

important fact in the series of events that led to [his] death, as it reveals the most

about the level of threat he posed to the officers.”). Yet, Rosewicz testified Waylen

was turning around with his hands up. See Rahn v. Hawkins, 73 F. App’x 898, 901

(8th Cir. 2003) (per curiam) (unpublished) (holding “the law was clearly established

that using deadly force against a suspect who was attempting to surrender . . .

exceeded the Fourth Amendment’s objective-reasonableness standard”). The

officers’ testimony on this point is inconsistent. Cf. Malone v. Hinman, 847 F.3d

949, 952 (8th Cir. 2017) (acknowledging the district court’s finding that the officers’

“inconsistent testimony about whether [the suspect] turned to fire at [the officer]” was

“‘disconcerting’”); Wilson, 293 F.3d at 454 (“Because of the internal discrepancies

and variations in the officers’ testimony, among other things, there remain factual

issues in dispute that prohibit a grant of summary judgment.”); Ludwig v. Anderson,

54 F.3d 465, 473-74 & n.9 (8th Cir. 1995) (reversing the grant of summary judgment

on the basis of qualified immunity where “the depositions of the officers [we]re

internally inconsistent on several points,” including whether the suspect was moving

toward the police at the time of the shooting).

Initially, Officer Gates stated in her deposition that she saw Waylen holding

a gun as he turned toward her—“[Waylen] starts rotating his body towards us and the

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gun is at his waist height in front of him.” (Emphasis added).5 Later, after her

lawyer’s questioning, she revised her testimony upon plaintiff’s counsel’s

reexamination:

Q: I’m a little confused. I believe you testified earlier that when he

was turning you saw his right hand at his waist; is that correct?

A: Yes, sir.

Q: Okay. You didn’t see the gun, though.

A: No, sir.

Q: You saw his right hand at his waist.

A: When he was running I —

Q: . . . You testified when he was turning he had his right hand at his

waist.

A: His right arm at his side.

....

Q: So your testimony before our break was that you saw his right

hand, you didn’t see the gun, and your testimony after our break

is now you never saw his right hand; is that correct?

A: Yes, sir.

5

Officer Gates’s testimony about the gun, at first, was quite specific,

explaining:

A: I observe him running with the gun, black handgun in his right

hand. And I don’t lose sight of him at any point. During my

pursuit I am telling him to “Drop the gun, drop the gun,”

repeatedly. He didn’t stop at any point. On the west side of the

residence I’m essentially intersecting him and he begins to turn

towards me.

....

Q: With the gun still in his hand?

A: Yes.

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Officer Colhour claims that before he started firing, he saw Waylen holding the

firearm as Waylen turned and “raise[d] the gun up at [the officers].” When asked if

Waylen was standing at the time they began shooting, Officer Colhour testified

Waylen “was mid-run when it all happened.” Describing Waylen’s movements

before the shooting, he stated:

A: He was running, he turns, we — we shoot, then he does like, one,

two more steps and starts to go down. Whether he turned at some

point or turned all the way around, I don’t know what happened.

. . . He turned some way. I don’t know how. I don’t recall how

that happened.

Q. Okay. And what happens to the gun when you’re — when you’re

shooting him?

A: From my angle where I was at, as he starts to take his couple more

steps his arm comes down and I see the gun come out of his hand

right before he hits the ground.

Q: And how far did the gun go from him?

A: One to 2 feet away.

Officer Gates testified the gun was found five to seven feet away from his body, and

admitted that by the time she finished shooting, she was closer to Waylen than he was

to his gun.

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. See Ngo v. Storlie, 495 F.3d 597,

603 (8th Cir. 2007) (collecting cases). “An act taken based on a mistaken perception

or belief, if objectively reasonable, does not violate the Fourth Amendment.” Loch,

689 F.3d at 966; cf. Thompson v. Hubbard, 257 F.3d 896, 899 (8th Cir. 2001)

(explaining an officer is not legally required “to wait until he sets eyes upon the

weapon before employing deadly force to protect himself”). Yet, “the record here

does not conclusively establish the reasonableness of the officer[s’] actions.”

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Craighead, 399 F.3d at 963. The officers’ key testimony about the gun is

controverted by other witnesses, some of their own inconsistent statements, and some

physical evidence.

Wealot has sufficiently demonstrated there are at least two genuine disputes of

material fact.6 Cf. Thompson, 257 F.3d at 900; Gainor, 973 F.2d at 1387. Disputed

factual issues and conflicting testimony should not be resolved by the district court.

See Capps, 780 F.3d at 885 (holding for the purpose of qualified immunity a jury may

find unreasonable an officer’s mistaken belief that the suspect was armed); Coker v.

Ark. State Police, 734 F.3d 838, 843 (8th Cir. 2013) (“Making credibility

determinations or weighing evidence in this manner is improper at the summary

judgment stage, and it is not our function to remove the credibility assessment from

the jury.” (citation omitted)).

We reverse the dismissal of Wealot’s excessive force claims against Officers

Gates and Colhour and remand for further consideration. In light of our decision, we

6

Wealot also contends whether the officers adequately warned Waylen before

using deadly force is in dispute. See Garner, 471 U.S. at 11-12. Officer Gates

testified she and Officer Colhour both yelled, “Drop the gun, drop the gun” as they

approached Waylen. But Rosewicz and Fred maintain the officers said nothing.

Relying on Loch, the district court concluded Waylen was sufficiently “‘on notice

that his escalation of the situation would result in the use of the firearm.’” (Quoting

Loch, 689 F.3d at 967). But in Loch, the officer “repeatedly ordered [the suspect] to

get on the ground.” Loch, 689 F.3d at 967. Instead of doing so, the suspect

continued to move toward the officer, which we found reasonably could have been

interpreted by the officer as resistance. See id. at 966. We held that “[t]he lack of a

more specific warning [did] not render [the officer’s] use of force unreasonable”—not

that no warning was required at all. Id. at 967 (emphasis added); see also Estate of

Morgan v. Cook, 686 F.3d 494, 498 (8th Cir. 2012) (holding the suspect “should have

been on notice” that the use of deadly force was imminent where it was undisputed

the police officer ordered the suspect to drop his weapon “anywhere from 2 to 15

times” (citation omitted)).

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restore for the district court’s consideration Wealot’s claims against the chief of

police and the members of the board of police commissioners. See Moore v. City of

Desloge, 647 F.3d 841, 849 (8th Cir. 2011) (emphasizing we have “‘consistently

recognized a general rule that, in order for municipal liability to attach, individual

liability first must be found on an underlying substantive claim’” (quoting McCoy v.

City of Monticello, 411 F.3d 920, 922 (8th Cir. 2005))).

C. Wrongful Death Claims

Missouri’s doctrine of official immunity applies to wrongful death claims

under Missouri law. See Seiner v. Drenon, 304 F.3d 810, 813 (8th Cir. 2002). The

doctrine of official immunity “protects public employees from liability for alleged

acts of negligence committed during the course of their official duties for the

performance of discretionary acts.” Southers v. City of Farmington, 263 S.W.3d 603,

610 (Mo. 2008). The use of force is a discretionary duty. See Green v. Denison, 738

S.W.2d 861, 865 (Mo. 1987) (“Discretion and judgment are synonymous. It is hard

to imagine a setting more demanding of judgment than one in which line officers of

the police department confront a person who has recently flourished a gun.”),

abrogated on other grounds by Davis v. Lambert-St. Louis Int’l Airport, 193 S.W.3d

760 (Mo. 2006). “Police officers are not liable for negligent acts that are related to

discretionary functions. . . . But official immunity does not apply to discretionary acts

done in bad faith or with malice.” Blue v. Harrah’s N. Kan. City, LLC, 170 S.W.3d

466, 479 (Mo. Ct. App. 2005).

A finding of malice requires “conduct which is so reckless or wantonly and

willfully in disregard of one’s rights that a trier of fact could infer from such conduct

bad faith or any improper or wrongful motive.” State ex rel. Twiehaus v. Adolf, 706

S.W.2d 443, 447 (Mo. 1986) (citation omitted). Acting with malice requires an

“actual intent to cause injury.” Id. A finding of bad faith “‘embraces more than bad

judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious

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wrongdoing, [or] breach of a known duty through some ulterior motive.’” Id.

(quoting Catalina v. Crawford, 483 N.E.2d 486, 490 (Ohio Ct. App. 1984)).

Referring to its analysis of Wealot’s federal claims, the district court concluded

Wealot failed to produce evidence “that the officers or Chief Forte acted in bad faith

or with malice.” Wealot argues the officers acted in bad faith by shooting Waylen

when he was unarmed and continuing to shoot him after any perceived threat had

dissipated. Wealot also asserts the officers’ treatment of Waylen during their initial

encounter demonstrates the officers were “acting on their anger and in a malicious

manner.” The defendants concede Officer Colhour told Waylen to “‘shut the f. up,’”

and Officer Gates treated Waylen rudely. But they argue these reactions only evince

their “frustration” with Waylen’s “repeated interruptions.” Without endorsing such

conduct, we consider it in context. As the officers spoke with Fred and Rosewicz, it

was Waylen who came outside and initiated the verbal confrontation with the officers.

Later, Waylen escalated the confrontation with Lee by firing a round of gunshots at

the minivan Lee was driving, and then Waylen took off with his gun in hand. The

evidence also indicates Waylen was shooting in the direction of the minivan, which

was not far from the officers’ location. Even if a factfinder were to conclude the

officers’ beliefs that Waylen posed an immediate threat were mistaken or

unreasonable, or that the officers behaved negligently or recklessly, under these

circumstances, we agree there is insufficient evidence for a rational jury to conclude

the officers acted with malice or in bad faith.

III. CONCLUSION

We affirm the district court’s grant of summary judgment and dismissal of the

state wrongful death claims. Because at least two genuine disputes of material fact

must be resolved to determine whether the officers’ conduct was reasonable, we

reverse the grant of summary judgment on the excessive force claims against all

defendants and remand to the district court for further proceedings consistent with

this opinion.

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WOLLMAN, Circuit Judge, concurring.

I concur in all but footnote 4 of the opinion. Our circuit’s requirement of a

clear statement that a defendant is being sued in an individual capacity may represent

“a lonely position” on the issue, but it is one that must be addressed to the court en

banc. Baker v. Chisom, 501 F.3d 920, 924 n.2 (8th Cir. 2007). I would treat the

defendants’ failure to raise the issue as constituting their sub silentio acquiescence

in an unexpressed motion to amend the complaint and then deem the complaint to be

correspondingly amended. Cf. Murphy v. State of Ark., 127 F.3d 750, 755 (8th Cir.

1997).

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