concluding that a mistake by police officers, who shot an unarmed man, didn’t entitle them to qualified immunity at the summary judgment stage because a reasonable fact-finder could regard the mistake as unreasonable given the existence of conflicting accounts
How later courts described this case
- concluding that a mistake by police officers, who shot an unarmed man, didn’t entitle them to qualified immunity at the summary judgment stage because a reasonable fact-finder could regard the mistake as unreasonable given the existence of conflicting accounts
- holding that under Missouri law “[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 form such conduct bad faith or any improper or wrongful motive’”
- finding genuine disputes of material fact regarding whether the officers knew the suspect was unarmed and whether the suspect was turning around to officers with his hands raised to surrender, where “[t]he officers’ key testimony about the gun is controverted by other witnesses, some of their own inconsistent statements, and some physical evidence”
- holding that officers were entitled to official but not qualified immunity
Written by the judges who cited it.
The opinion
*1130 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).