Davdrin Goffin v. Robbie Ashcraft

United States Court of Appeals

For the Eighth Circuit

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No. 18-1430

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Davdrin Goffin

lllllllllllllllllllllPlaintiff - Appellant

v.

Robbie K. Ashcraft, Individually and Official capacity as Police Officer, Warren,

AR; Randy Peek, Individually and Official capacity as Chief of Police, Warren,

AR; Bryan Martin, Individually and Official capacity as Mayor, Warren, AR; John

Doe, 1-10; Warren, Arkansas, City of

lllllllllllllllllllllDefendants - Appellees

____________

Appeal from United States District Court

for the Western District of Arkansas - El Dorado

____________

Submitted: April 18, 2019

Filed: October 15, 2020

____________

Before SMITH, Chief Judge, KELLY and KOBES, Circuit Judges.

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KOBES, Circuit Judge.

Officer Robbie Ashcraft tried to arrest Davdrin Goffin for burglary and stealing

handguns, bullets, and prescription pain medication. Prior to the arrest, multiple

witnesses told her that Goffin was armed, possibly intoxicated, and dangerous. When

Goffin broke free from arrest, fled toward a group of bystanders, and moved as though

he was reaching into his waistband, she shot him once in the back.

This would be a relatively straightforward qualified immunity case if those were

all the facts. An officer may constitutionally use deadly force when she reasonably

believes a fleeing suspect poses a threat of serious harm to herself or others. But

Goffin claims (and Officer Ashcraft disputes) that he was patted down by another

officer just before he fled. The pat down removed nothing from Goffin and was later

shown to have been unusually ineffective; the officer failed to discover that Goffin was

carrying a loaded magazine and extra bullets.

We conclude that Officer Ashcraft is entitled to qualified immunity on these

facts because it was not clearly established at the time of the shooting that a pat down

that removes nothing from a suspect eliminates an officer’s probable cause that the

suspect poses a threat of serious physical harm.

I.

We construe the facts in Goffin’s favor. In September 2012, Goffin’s uncle,

Tommy Reddick, reported to Officer Ashcraft and Officer Aaron Hines that his home

had been burgled—and he suspected Goffin was responsible for stealing two

handguns, a box of bullets, and a bottle of painkillers. Reddick told the officers that

earlier that day Goffin came to his house and asked for a gun, explaining that he lost

his own pistol fleeing from the police. Reddick refused and left the house. When he

returned, he saw Goffin was still nearby, arguing with a man in a black pickup truck.

Once inside his house, he discovered that someone had snuck in through a back

window, broken down a bedroom door, and stolen guns, ammunition, and pills.

Reddick warned Officer Ashcraft, “This dude is out of control!” and, “Y’all better be

ready to fight when you find him.”

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When the officers started searching for Goffin, Officer Ashcraft stopped a black

truck that looked like the one Reddick had described. The driver, Dewayne Moore,

told her that earlier Goffin had asked him for a ride. Moore initially told Goffin no, but

Goffin threatened him, saying “take me to the goddamn car wash” and then displayed

two guns that matched the descriptions of Reddick’s stolen pistols. Frightened, Moore

gave Goffin a ride. He too warned Officer Ashcraft about Goffin, telling her that

Goffin was drunk and that Moore was scared he would rob him. After the shooting,

he recounted to police that Goffin looked like he “was going to do something stupid,”

like he didn’t “give a damn . . . like, I’m going to take you out or whatever.”

After Officer Ashcraft interviewed Moore, Officer Hines called her and told her

that Goffin was at a nearby body shop. The officers arrived separately but then walked

together toward a crowd of people in the parking lot. Officer Ashcraft asked where

Goffin was and the owner of the body shop directed them toward the garage. In front

of the garage, the officers found Goffin sitting in a car talking on a Bluetooth headset.

Both officers approached the vehicle with guns drawn, but before they got there

Officer Hines holstered his pistol and drew a taser.

The officers demanded that Goffin exit with his hands raised, which he did.

They then escorted him to the back of the car and Officer Ashcraft claims she saw

something “bumping in [Goffin’s] right front pocket.” Goffin denies anything was in

that pocket. At the back of the vehicle, Goffin says that Officer Hines patted him

down and “searched every part of [his] body,” including feeling for items in his

pockets and around his waist. Goffin admits Officer Hines “didn’t go into [his]

pockets” and did not remove anything from his body.

Officer Hines started to place Goffin in handcuffs, but before he could finish,

Goffin pushed off the car and fled toward a group of seven or eight bystanders. With

his back to the officers, he raised his right shoulder, which Officer Ashcraft interpreted

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as a reach for something in his pocket or his waistband. She then shot him once in the

back.

The shooting occurred in a “split second.” Goffin says he took no more than

two steps and Officer Ashcraft agrees he made it only “a very short distance” before

she fired. After he was shot, officers discovered that the patdown had missed a loaded

9mm pistol magazine and several loose bullets. The stolen guns were discovered

within reach of where Goffin had been sitting in the car, but Goffin did not have a

weapon on him.

Goffin survived the gunshot wound and brought a 1983 action against Officer

Ashcraft, the city, and several other municipal employees, claiming that Officer

Ashcraft used excessive force against him and that the other defendants had failed to

properly train and supervise her. The district court1 granted summary judgment to the

defendants, finding that Officer Ashcraft was entitled to qualified immunity because

her actions were objectively reasonable as a matter of law. Because the underlying

excessive force claim failed, so did Goffin’s claims against the other defendants. After

dismissing all federal claims, the district court declined to exercise supplemental

jurisdiction over the remaining state-law claims. Goffin timely appealed and we have

jurisdiction. 28 U.S.C. § 1291.

II.

We review the grant of summary judgment on the basis of qualified immunity

de novo. Michael v. Trevena, 899 F.3d 528, 531 (8th Cir. 2018). “Summary

judgment is appropriate if the evidence, viewed in the light most favorable to [Goffin]

and giving him the benefit of all reasonable inferences, shows there is no genuine issue

1

The Honorable Susan O. Hickey, Chief Judge, United States District Court for

the Western District of Arkansas.

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of material fact.” Morgan v. A.G. Edwards, 486 F.3d 1034, 1039 (8th Cir. 2007). We

avoid judging an officer’s split-second decision (made with imperfect information)

against one we would make with a complete record and the benefit of hindsight.

Plumhoff v. Rickard, 572 U.S. 765, 775 (2014).

We analyze cases involving the use of deadly force against a fleeing suspect

under the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1, 7 (1985). An

officer’s actions are justified when they are “objectively reasonable in light of the facts

and circumstances confronting [the officer], without regard to [the officer’s]

underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989); see

also Capps v. Olson, 780 F.3d 879, 884 (8th Cir. 2015). An officer is justified in

using lethal force when she “has probable cause to believe that the suspect poses a

threat of serious physical harm to the officer or others.” Garner, 471 U.S. at 11.

Officer Ashcraft is entitled to qualified immunity if her conduct did not “violate

clearly established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We do “not define

clearly established law at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S.

731, 742 (2011). “The dispositive question is whether the violative nature of

particular conduct is clearly established.” Mullenix v. Luna, 136 S. Ct. 305, 308

(2015) (per curiam) (citation omitted).

Goffin must identify “either ‘controlling authority’ or ‘a robust consensus of

cases of persuasive authority’ that ‘placed the statutory or constitutional question

beyond debate’ at the time of the alleged violation.” Kelsay v. Ernst, 933 F.3d 975,

979 (8th Cir. 2019) (en banc) (quoting Ashcroft, 563 U.S. at 741–42). “A plaintiff’s

failure to identify a case where an officer acting under similar circumstances was held

to have violated the Fourth Amendment is often fatal to a claim outside of obvious

cases.” K. W. P. v. Kansas City Public Schools, 931 F.3d 813, 828 (8th Cir. 2019)

(cleaned up).

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By the time that she confronted Goffin at the body shop, Officer Ashcraft

objectively and reasonably believed that Goffin was dangerous.2 Capps, 780 F.3d at

884–85. She knew that he had lost a gun while fleeing from the police and had strong

evidence that he had recently stolen two more. Moore told her Goffin was drunk and

that he had threatened him with the stolen guns. And to top it off, Goffin’s uncle had

warned her that Goffin was spoiling for a fight.

The case turns on whether the pat down changes our analysis.3 Goffin argues

that the pat down creates an issue of material fact because, if it occurred, then Officer

Ashcraft must have known he was unarmed, or at least that there is an issue of material

fact as to whether she knew he was unarmed. But whether probable cause exists is a

legal question, not a factual one. See United States v. Kelley, 329 F.3d 624, 628 (8th

Cir. 2003). He must therefore provide a case clearly establishing that a pat down that

recovered nothing4 eliminated Officer Ashcraft’s objectively reasonable belief that he

was armed and dangerous.

2

The dissent suggests this a question for the jury. But “whether [an] officer[’s]

actions were objectively reasonable in light of clearly established law” is a legal

question for the courts. Littrell v. Franklin, 388 F.3d 578, 586 (8th Cir. 2004); see

Scott v. Harris, 550 U.S. 372, 381 n.8 (2007) (“[T]he reasonableness of Scott’s

actions—or, in Justice Stevens’ parlance, ‘[w]hether [respondent’s] actions have risen

to a level warranting deadly force,’—is a pure question of law.”) (citation omitted).

3

We refer to the search as a “pat down” because that is the language the parties

use and it describes how Goffin alleges he was searched. But the search was not a

limited Terry-style stop, as the dissent suggests. Rather, it appears to have been the

first step in a full search incident to arrest.

4

In addition to recovering nothing, the record demonstrates that this was an

unusually ineffective pat down that missed items that should have been discovered.

Because Goffin nevertheless insists that the pat down covered “every part of his body,”

and because determining the exact quality of the pat down is not necessary to our

conclusion, we disregard this factual oddity and construe the pat down in the light most

favorable to Goffin.

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Goffin fails to point to such a case. He relies on Tennessee v. Garner, but that

case stands for a general proposition and cannot clearly establish the rule in most cases.

See Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam). His reliance on

Wealot v. Brooks, 865 F.3d 1119 (8th Cir. 2017), is similarly misplaced. In Wealot,

the parties disputed whether an officer had seen the suspect throw down his gun and

raise his hands in surrender. We reversed because the district court had improperly

construed the record in favor of the officer moving for summary judgment. Id. at

1125–26. The district court did not make that mistake here and it is undisputed that

Officer Ashcraft never saw any items removed from Goffin. And even if Wealot were

factually analogous, it cannot have put Officer Ashcraft on notice that her conduct was

illegal because it was decided four years after Goffin was shot. See Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985) (clearly established law must predate the alleged

violation).

We therefore conclude that Officer Ashcraft is entitled to summary judgment

because it is not clearly established that after observing a pat down that removes

nothing from a suspect who an officer reasonably believed to be armed and dangerous,

an officer cannot use lethal force against that suspect when he flees and moves as

though he is reaching for a weapon. Nor do we think this is the “rare obvious case”

in which “the unlawfulness of the officer’s conduct is sufficiently clear even though

existing precedent does not address similar circumstances.” District of Columbia v.

Wesby, 138 S. Ct. 577, 590 (2018) (quotation omitted).

The district court is affirmed.

SMITH, Chief Judge, concurring.

I concur in the court’s determination that the unlawfulness of Officer Ashcraft’s

conduct was not clearly established. I write separately to express my view that Officer

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Ashcraft did, however, violate Goffin’s constitutional right to be free from excessive

force.

According to Goffin, Officer Hines conducted a pat-down search for weapons.

Goffin says Officer Hines checked around his waistband, felt his pockets, patted down

his legs to his ankles, and “searched every part of [Goffin’s] body.” Statement of Facts

in Supp. of Mot. for Summ. J., Ex. 13, at 18, Goffin v. Peek, No. 1:15-cv-01040 (W.D.

Ark. Dec. 18, 2017), ECF No. 50-13. Officer Ashcraft testified to standing

approximately four feet directly behind Goffin while he and Officer Hines stood at the

rear of the vehicle. It is undisputed that Officer Hines did not remove anything from

Goffin’s person. Goffin alleges that after Officer Hines completed the search, he

handcuffed Goffin’s left hand and told Goffin to put his other hand behind his back.

Instead of complying, Goffin pushed off of the car with his right hand and began to run

toward the crowd in the parking lot.

As the court recognizes, “whether probable cause exists is a legal question, not

a factual one.” See supra Part II (citing United States v. Kelly, 329 F.3d 624, 628 (8th

Cir. 2003)). Construing the facts in the light most favorable to Goffin, Officer Ashcraft

witnessed Officer Hines conduct a full body pat-down search for weapons on Goffin

that recovered nothing. “The purpose of [a pat-down] search is . . . to allow the officer

to pursue his investigation without fear of violence” and “must be strictly limited to

that which is necessary for the discovery of weapons which might be used to harm the

officer or others nearby.” Minnesota v. Dickerson, 508 U.S. 366, 373 (1993)

(emphasis added) (internal quotations omitted); see also United States v. Gilliam, 520

F.3d 844, 847–48 (8th Cir. 2008) (“Following a valid Terry stop, the officer may

conduct a limited pat-down search of the individual’s outer clothing for the purpose

of uncovering concealed weapons if the officer has a reasonable, articulable suspicion

that the person is armed and dangerous.”).

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In my view, probable cause to believe that Goffin was armed dissipated upon

completion of this full body pat-down search that revealed no weapons. Some cases

analyzing probable cause in the context of investigatory stops have so held. See, e.g.,

United States v. Butler, 223 F.3d 368, 375 (6th Cir. 2000) (although the police had

reasonable suspicion of narcotics trafficking “to justify the initial stop,” “once

Defendant identified herself, answered the officer’s questions, and consented to the

patdown which did not reveal anything suspicious, the officers were required under the

Fourth Amendment to allow Defendant to go free”); United States v. McDow, 206 F.

Supp. 3d 829, 856 (S.D.N.Y. 2016) (“Here—when the officers continued to detain

McDow after their questioning and thorough search of his pockets yielded no evidence

of the suspected crime—the Terry stop became unreasonably intrusive and ripened into

a de facto arrest that must be based on probable cause.” (cleaned up)); United States

v. Felix, No. 08-CR-68A, 2009 WL 483178, at *2 (W.D.N.Y. Feb. 25, 2009)

(although police officers had reasonable suspicion that the defendant “might be armed

with a weapon that he was attempting to sell illegally,” “[o]nce it was determined that

the defendant did not have the weapon on his person, the basis for the Fourth

Amendment seizure dissipated . . . and the defendant should have been released”). The

dissipation of probable cause to believe Goffin possessed a firearm should have

reduced the officers’ reasonable concern that Goffin posed an imminent threat to them

or to bystanders. Thus, construing the facts in the light most favorable to Goffin,

Officer Ashcraft violated Goffin’s constitutional right to be free from excessive force

by shooting him after witnessing a full body pat-down search that revealed no

weapons.

Nonetheless, I agree with the court’s determination that Officer Ashcraft is

entitled to qualified immunity because Goffin has not identified “a case clearly

establishing that a pat down that recovered nothing eliminated Officer Ashcraft’s

objectively reasonable belief that he was armed and dangerous.” See supra Part II

(emphasis added); see also City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019)

(per curiam) (explaining that it is “particularly important in excessive force cases” that

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“the clearly established right must be defined with specificity” and that “police officers

are entitled to qualified immunity unless existing precedent squarely governs the

specific facts at issue” (internal quotation omitted)). The Supreme Court’s and this

court’s precedent make the definition of the protected right crucial. That precedent

binds this court. The more precise the definition, the more difficult the claim. Had

there been no pat-down search, the threat posed by an arrestee known to have been

armed prior to the encounter would strongly favor the grant of qualified immunity.

In this case, the officer who shot Goffin was not the officer who conducted the

pat-down search. A pat down is not an invasive search and oversights can occur. The

possibility of an oversight by the pat-down officer means an observing officer may still

need to exercise independent judgment as to a potential threat. Here, circumstances

abruptly changed and a compliant arrestee bolted from custody with unknown motives

and capabilities. Pat-down searches are conducted precisely to diminish the officers’

concern that an arrestee is armed, but those searches are not foolproof. The absence of

authority clearly establishing that Officer Ashcraft’s actions, on these facts, was

constitutionally prohibited supports the district court’s grant of qualified immunity

under existing precedent.5

5

The evolved qualified immunity doctrine is experiencing increased legal and

historical scrutiny. That scrutiny is warranted. A judicially created doctrine that bars

constitutional claims against government officials otherwise enforceable through the

right to a civil jury trial deserves close and continued examination.“[C]ogent critiques

of qualified immunity as incongruent with the principles of statutory interpretation”

abound. Diamond v. Pennsylvania State Educ. Ass’n, No. 19-2812, 2020 WL

5084266, at *14 (3d Cir. Aug. 28, 2020) (Fisher, J., concurring in the judgment)

(citing Baxter v. Bracey, 140 S. Ct. 1862, 1864 (2020) (Thomas, J., dissenting from

the denial of certiorari); William Baude, Is Qualified Immunity Unlawful?, 106 Calif.

L. Rev. 45 (2018)). Justice Thomas recently reasserted his “previously expressed

. . . doubts about [the Supreme Court’s] qualified immunity jurisprudence.” Baxter,

140 S. Ct. at 1862 (2020) (Thomas, J., dissenting from the denial of certiorari) (citing

Ziglar v. Abbasi, 137 S. Ct. 1843, 1869–72 (2017) (Thomas, J., concurring in part and

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KELLY, Circuit judge, dissenting.

Officer Ashcraft never saw Goffin with a weapon, and she watched a fellow

officer conduct a pat down that revealed no weapons. Yet Ashcraft shot Goffin in the

back, in “a split-second,” after he took “no more than two steps.” Because I believe

that the relevant law is clearly established—a question for the court to decide—and that

a reasonable jury could find that Ashcraft’s use of deadly force was objectively

unreasonable, I respectfully dissent.

Police officers are not entitled to qualified immunity if “(1) they violated a

federal statutory or constitutional right, and (2) the unlawfulness of their conduct was

clearly established at the time.” District of Columbia v. Wesby, 138 S. Ct. 577, 589

(2018) (cleaned up). Goffin argues Ashcraft violated his clearly established Fourth

Amendment right to be free from excessive force. In assessing an excessive force

claim, we ask whether the officer’s actions were “‘objectively reasonable’ in light of

the facts and circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397

(1989). Reasonableness must be judged “from the perspective of a reasonable officer

on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396. “The use of

deadly force is reasonable where an officer has probable cause to believe that a suspect

poses a threat of serious physical harm to the officer or others.”6 Loch v. City of

concurring in judgment)). As Justice Thomas points out, § 1983’s text “makes no

mention of defenses or immunities.” Id. at 1862 (cleaned up). “Instead, it applies

categorically to the deprivation of constitutional rights under color of state law.” Id. at

1862–63.

6

To the extent that a probable cause analysis is required here, we have not

applied it under the clearly established prong and have only addressed it to determine

whether an officer’s actions were objectively reasonable. See Malone v. Hinman, 847

F.3d 949, 954 (8th Cir. 2017) (identifying the relevant question as “whether Officer

Hinman’s use of deadly force against Malone was objectively reasonable under the

circumstances,” and specifically whether the officer “had probable cause to believe”

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Litchfield, 689 F.3d 961, 965 (8th Cir. 2012). “But where a person ‘poses no

immediate threat to the officer and no threat to others,’ deadly force is not justified.”

Ellison v. Lesher, 796 F.3d 910, 916 (8th Cir. 2015) (quoting Tennessee v. Garner, 471

U.S. 1, 11 (1985)). “Before employing deadly force, an officer should give some

warning when it is feasible to do so.” Loch, 689 F.3d at 967 (cleaned up).

Viewing the facts in the light most favorable to Goffin and giving him the

benefit of all reasonable inferences, a jury could find that a reasonable officer would

not have believed Goffin posed a threat of serious physical harm to the officer or

others. See Morgan v. A.G. Edwards & Sons, Inc., 486 F.3d 1034, 1039 (8th Cir.

2007) (summary judgment standard). Ashcraft heard from two witnesses that Goffin

had two guns and ammunition in his possession. But after she arrived at the auto body

shop, she never saw a gun in Goffin’s possession. He was not holding a gun when he

was in the car, or when he exited the car. At the back of the car, Hines patted Goffin

down and “searched every part of [his] body,” including feeling for items in his

that Malone posed a threat of serious physical harm, but not explicitly finding that

probable cause existed); Partlow v. Stadler, 774 F.3d 497, 503 (8th Cir. 2014)

(determining that a reasonable officer would have had probable cause when analyzing

objective reasonableness); Aipperspach v. McInerney, 766 F.3d 803, 807 (8th Cir.

2014) (finding that “objectively reasonable officers had probable cause” to believe that

suspect posed a threat of serious physical harm to the officers); Ribbey v. Cox, 222

F.3d 1040, 1043 (8th Cir. 2000) (“A shooting is objectively reasonable when the

officer has probable cause to believe that the suspect poses a significant threat of death

or serious physical harm to the officer or others.”). Cf. Wallace v. City of Alexander,

843 F.3d 763,768–69 (8th Cir. 2016) (determining that the officer’s actions were

objectively unreasonable without addressing probable cause); Ellison v. Lesher, 796

F.3d 910, 916 (8th Cir. 2015) (mentioning probable cause when addressing objective

reasonableness but not reaching the question of whether the officer had probable

cause).

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pockets and around his waist.7 Ashcraft saw the pat down revealed no weapons of any

kind. Then, in a “split second,” she shot him in the back—without warning—after he

took “no more than two steps.” She thought Goffin might have been reaching for a

weapon. “An act taken based on a mistaken perception or belief” that a suspect is

armed does not necessarily violate the Fourth Amendment, but only “if objectively

reasonable.” Loch, 689 F.3d at 966. In my view, based on these facts, a jury could

find that Officer Ashcraft’s actions were not objectively reasonable.

In addition, the law is clearly established even if no prior case contained the

exact factual circumstance here: a pat down before the suspect fled. The Supreme

Court has long rejected the notion that “an official action is protected by qualified

immunity unless the very action in question has previously been held unlawful.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987). Officials can be on notice that their

7

The district court and the parties characterize this as a pat down, and the court

here finds it “unusually ineffective.” But the purpose of a pat down is “to determine

whether the person is in fact carrying a weapon.” Minnesota v. Dickerson, 508 U.S.

366, 373 (1993) (citing Terry v. Ohio, 392 U.S. 1, 24 (1968)). It is not to discover

every item a person may be carrying. See id. (“The purpose of this limited search is

not to discover evidence of crime, but to allow the officer to pursue his investigation

without fear of violence.”); United States v. Murphy, 261 F.3d 741, 743 (8th Cir.

2001) (“The justification for a pat-down search is to ensure the safety of a law

enforcement officer.”). The pat down “must be strictly limited to that which is

necessary for the discovery of weapons which might be used to harm the officer or

others nearby.” Dickerson, 508 U.S. at 373. The pat down here would only be

unsuccessful if Goffin had a weapon that the pat down failed to reveal. Neither party

argues, and the court does not contend, that the loose bullets and loaded magazine

found in Goffin’s pocket are considered weapons.

Even assuming the pat down was somehow ineffective, however, its

ineffectiveness would have no bearing on the qualified immunity analysis. The

relevant inquiry here is whether an officer reasonably conducted herself based on the

facts she had at the time of the shooting. And at the time of the shooting, Ashcraft did

not know that items would later be found in Goffin’s pocket.

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conduct violates established law “even in novel factual circumstances.” Hope v.

Pelzer, 536 U.S. 730, 741 (2002). Although existing precedent must have placed the

statutory or constitutional question beyond debate, “general statements of the law are

not inherently incapable of giving fair and clear warning to officers.” Kisela v.

Hughes, 138 S. Ct. 1148, 1153 (2018). This is because, at its core, “clearly

established” boils down to “whether the officer had fair notice that her conduct was

unlawful.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam).

Officer Ashcroft had “fair notice” that her conduct was unlawful. It is

undisputed that “[s]ince 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 officer or others is not permitted.” Moore v.

Indehar, 514 F.3d 756, 763 (8th Cir. 2008) (determining that a jury could find the

officer’s use of deadly force against an unarmed person fleeing the scene of a shooting

objectively unreasonable). We have concluded that “an 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.” Wallace v. City of

Alexander, 843 F.3d 763, 769 (8th Cir. 2016) (citing Moore, 514 F.3d at 763) (finding

that a jury could determine the officer’s use of deadly force on a fleeing, unarmed

suspect objectively unreasonable, even though the officer had previously seen the

suspect hold a gun); see also Ellison, 796 F.3d at 917 (acknowledging that “the precise

scenario” of the case, shooting an armed person for standing in his apartment and

refusing to lie down on the ground, does not appear in a reported decision but still

finding that the officers were “on fair notice that the use of deadly force would not be

reasonable”).

The court relies on the precise scenario of a suspect fleeing after a pat down that

revealed no weapons to conclude that Ashcraft violated no clearly established law. But

the pat down is a novel fact that does not render inapplicable the clearly established law

that officers “may not use deadly force unless the suspect poses a significant threat of

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death or serious physical injury to the officer or others.” Ellison, 976 F.3d at 917

(quotation omitted). And here, although the novel factual circumstance of a pat down

may impact whether a reasonable jury finds Ashcraft’s actions objectively reasonable,

it does not render inapplicable the clearly established law that she cannot use deadly

force unless a suspect poses a significant threat of death or serious physical injury to

her or others.

I would reverse the grant of qualified immunity.

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