The opinion
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-3193
___________________________
Jennifer Morgan-Tyra
Plaintiff - Appellant
Michael Morgan
Plaintiff
v.
City of St. Louis
Defendant
Andrei Nikolov
Defendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: September 21, 2023
Filed: January 8, 2024
____________
Before SHEPHERD, KELLY, and STRAS, Circuit Judges.
____________
STRAS, Circuit Judge.
While responding to a domestic-disturbance call, Officer Andrei Nikolov shot
a woman who was holding a gun and shouting expletives at someone concealed from
his view. The woman brought an excessive-force claim, but the district court1
dismissed it at summary judgment. In the absence of a clear legal answer to whether
an officer can use deadly force in this situation, we affirm.
I.
Officer Nikolov and his partner responded to a St. Louis home after a 911 call.
The dispatcher informed them that “Karla Nicholson [was] having a dispute with
her . . . roommate [who] possibly ha[d] a gun and ha[d] threatened her. She [wa]s
locked in her bedroom.”
The parties dispute much of what happened from there, but a few points of
agreement exist. The first is that there was a second 911 call at some point: a person
named “Jennifer Tyra” had called from the same location and reported that a “white
female armed with a screwdriver [was] trying to attack [her]. Jennifer [wa]s armed
with a gun [and had] threatened to shoot her if the female came close to her.” The
parties disagree, however, about whether Officer Nikolov heard about the second
911 call.
Everyone generally agrees about what happened next. After pounding on a
closed metal screen door, the officers encountered a man inside who said something
along the lines of, “I tried to calm the situation down[;] they are in the back.” As
they moved toward the standoff, Officer Nikolov first heard “screaming” and “swear
words” and then saw Jennifer Morgan-Tyra standing in a hallway with a gun in her
hands. The person on the other end of it—later identified as Nicholson—was in a
1
The Honorable Matthew T. Schelp, United States District Judge for the
Eastern District of Missouri.
-2-
bedroom around the corner, out of Officer Nikolov’s view. Someone directed
Morgan-Tyra to drop the gun, but instead of complying, she continued to shout
expletives at the person in the bedroom. According to her own deposition, her
“intention” was “to use [her] words to intimidate” and make the other person
“believe [she] would shoot.” Where exactly she was pointing the gun, however, is
disputed.
What is clear is that Officer Nikolov ended the standoff by firing at least nine
shots, several of which struck Morgan-Tyra and caused severe and lasting injuries.
She sued him, claiming he had used excessive force. See 42 U.S.C. § 1983. After
initially denying summary judgment and allowing additional discovery, the district
court changed its mind and granted qualified immunity. 2 Morgan-Tyra’s position is
that her excessive-force claim should have gone to a jury.
II.
We review the district court’s summary-judgment ruling de novo, viewing the
record in the light most favorable to Morgan-Tyra and drawing all reasonable
inferences in her favor. See N.S. ex rel. Lee v. Kan. City Bd. of Police Comm’rs, 35
F.4th 1111, 1113 (8th Cir. 2022). In a case like this one, where the “opposing parties
tell two different stories,” Scott v. Harris, 550 U.S. 372, 380 (2007), we “evaluate
the evidence using the plaintiff-friendly version of the facts,” N.S., 35 F.4th at 1113.
If those facts entitle the officer to judgment as a matter of law, we will affirm the
grant of summary judgment. See id.
In a case involving a qualified-immunity defense, summary judgment is
appropriate if: (1) the plaintiff-friendly version of the facts fails to establish a
constitutional violation; or (2) the law at the time did not clearly establish the right.
2
Morgan-Tyra believes that the district court’s decision to grant summary
judgment after first denying it violates the law-of-the-case doctrine. Not so. The
doctrine only “applies to decisions made on appeal,” not to situations in which a
district court changes its mind while a case is pending. Mosley v. City of
Northwoods, 415 F.3d 908, 911 (8th Cir. 2005) (emphasis added).
-3-
See Dean v. Bearden, 79 F.4th 986, 988 (8th Cir. 2023). We may rely on either basis
to affirm, and here our focus is the latter. See Camreta v. Greene, 563 U.S. 692,
706–07 (2011).
The allegation is that Officer Nikolov used excessive force when he shot
Morgan-Tyra multiple times. We apply an objective-reasonableness standard to the
amount of force used, accounting for “the fact that police officers are forced to make
split-second judgments—in circumstances that are tense, uncertain, and rapidly
evolving.” Graham v. Connor, 490 U.S. 386, 396–97 (1989). An unreasonable act
in one situation may be reasonable in another. See id. at 396. And just as
excessive-force claims must be “judged from the perspective of a reasonable officer
on the scene,” id., qualified immunity depends on the “factual situation the officer
confronts,” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (citation
omitted). In this way, the law gives officers a double benefit of the doubt: “in
addition to the deference officers receive on the underlying constitutional claim,
qualified immunity can apply in the event the mistaken belief was reasonable.”
Saucier v. Katz, 533 U.S. 194, 206 (2001).
As fact-intensive as excessive-force cases usually are, the Supreme Court has
provided a straightforward rule in situations like this one: officers may use deadly
force when there is “probable cause to believe that [a] suspect poses a threat of
serious physical harm, either to the officer or to others.” Tennessee v. Garner, 471
U.S. 1, 11 (1985) (emphasis added). The only qualifier is that “an officer should
give ‘some warning’ when it is ‘feasible’ to do so.” Loch v. City of Litchfield, 689
F.3d 961, 967 (8th Cir. 2012) (quoting Garner, 471 U.S. at 11–12). Both common
sense and our cases suggest that a warning is less likely to be “feasible” in a
high-pressure situation that requires a split-second judgment. See, e.g., McElree v.
City of Cedar Rapids, 983 F.3d 1009, 1018 (8th Cir. 2020).
This situation was about as high pressure as it gets. The woman right in front
of Officer Nikolov was holding a gun while shouting expletives at someone he could
not see. He knew she had been the subject of at least one 911 call, if not two, and
-4-
was obviously angry at the person on the other end of the gun. Not to mention that
he had already encountered someone who had tried—without success—to deescalate
the situation. Even if we assume that Officer Nikolov’s split-second decision to
shoot without warning 3 was objectively unreasonable under the circumstances, he
still did not violate a clearly established right. See Kisela, 138 S. Ct. at 1153
(explaining that qualified immunity applies unless “any competent officer would
have known that shooting [someone] to protect [another] would violate the Fourth
Amendment”).
Morgan-Tyra counters with the fact that she was only defending herself, a
legal right she had under Missouri law. See Mo. Rev. Stat. § 563.031.1. The
problem is that a reasonable officer would not have known who was standing in front
of him: the “initial aggressor” or a victim who had fought back. Id. It is true that
the second message from dispatch said that a woman named “Jennifer Tyra” had
armed herself in response to an attack by her roommate. But it is too much to expect
a reasonable officer to sort out everyone’s identity in the heat of the moment, when
the person right in front of him appears to be on the verge of shooting someone. The
point is that, even if Officer Nikolov misjudged the threat, we cannot say that he
acted in a clearly unreasonable way. At most, his actions fall within the “hazy border
between excessive and acceptable force,” which gives him the benefit of qualified
immunity. Mullenix v. Luna, 577 U.S. 7, 18 (2015) (per curiam) (citation omitted).
3
The evidence is somewhat equivocal on this point. Officer Nikolov claims
he gave a warning, and others who were there agreed. Even Morgan-Tyra admitted
as much at first, but later claimed otherwise. From our review of the 911 calls,
someone gave a warning. But given the fact dispute, we will assume it was not
Officer Nikolov, even if there is reason to doubt Morgan-Tyra’s inconsistent
accounts. See N.S., 35 F.4th at 1113; Progressive N. Ins. Co. v. McDonough, 608
F.3d 388, 391 (8th Cir. 2010) (“A party cannot offer testimony that contradicts the
party’s earlier statements made under oath to create a genuine issue of material
fact.”).
-5-
Indeed, other cases suggest that deadly force is available in these
circumstances. Consider Smith v. City of Brooklyn Park, 757 F.3d 765 (8th Cir.
2014) (per curiam), which also involved a domestic-disturbance call. A woman had
reported that her male roommate “had a shotgun and was threatening to kill her.”
Id. at 767. At first, the officers tried to get the man to leave on his own. Then, when
they heard noises coming from inside suggesting the woman’s life could be in
danger, they kicked in the door and entered the house. Id. at 768.
The house was dark, so they shouted commands like “come out with your
hands up” with the hope that the man would surrender. Id. Then, after rounding a
corner, one officer tripped and “saw a face.” Id. He turned on his flashlight and saw
the man “leaning on the couch with a shotgun raised and pointed” in the officers’
direction. One officer fired after shouting, “[h]e’s got a gun!” Id. Another rushed
in and began shooting too. Id. Of the 27 shots fired, 16 or 17 hit the man, who
eventually died. Id. at 769.
We concluded that the officers had “describe[d] a scene in which the use of
deadly force was constitutionally permissible.” Id. at 773. The man had “made
threats and possessed a firearm,” so the officers’ conduct was objectively reasonable
under the circumstances. Id. Given that the facts in this case also involve an
individual who “made threats and possessed a firearm,” id., there is not much room
for Morgan-Tyra to argue that she had a clearly established right to be free from
deadly force.
No one identifies a case as close as Smith, and the dissent hardly tries. See
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (requiring “existing precedent [to]
have placed the . . . constitutional question beyond debate”). Morgan-Tyra, for her
part, relies on Craighead v. Lee, 399 F.3d 954 (8th Cir. 2005), but the officer in that
case encountered two men wrestling over a gun, see id. at 959. By the time the
officer fired a shotgun, one of them had already captured the gun and was pointing
it “overhead.” Id. at 961. We concluded that using a shotgun “without warning”
was objectively unreasonable under the circumstances because a “trained” officer
-6-
would have known that “the shot would hit both men.” Id. Here, by contrast, there
was no shotgun, no struggle over a gun, and no suspect pointing a gun overhead.
For those reasons, “a reasonable officer could miss the connection between that case
and this one.” City of Tahlequah v. Bond, 595 U.S. 9, 14 (2021) (per curiam).
The same goes for Cole ex rel. Est. of Richards v. Hutchins, 959 F.3d 1127
(8th Cir. 2020). For one thing, we decided it based on the law in effect after the
events in this case occurred, meaning it could not have clearly established a right
beforehand. See al-Kidd, 563 U.S. at 735 (specifying that courts must assess the law
as of “the time of the challenged conduct”). For another, the threat of harm in Cole
had “passed”: the potential victim had “entered his home and slammed the front
door,” putting a physical barrier in the way of the aggressor, who was outside. Cole,
959 F.3d at 1131–32. And then, only after the aggressor “turned away,” did the
officer begin shooting at him. Id. at 1131. Under those circumstances, we concluded
that the use of deadly force was “objectively unreasonable.” Id. at 1134.
The potential threat here, by contrast, had not “passed.” Id. at 1132. Officer
Nikolov reasonably believed that Morgan-Tyra had a gun pointed in the general
direction of someone in another room. And, as she admits, she used expletives to
make others “believe [she] would shoot.” Although she makes much of the fact that
she was pointing the gun in a downward direction,4 it makes no difference because,
4
Morgan-Tyra’s story has shifted on this point too. She agreed in her first
deposition that the gun “was still pointed directly” at Nicholson “in the seconds
leading up to” the shots. She then initially stated in her second deposition that the
gun was down and “aim[ed] . . . at the floor.” But she soon corrected herself and
returned to what she said before: “at the moment [she was] shot, [she was] still
pointing the gun directly at . . . Nicholson.” We will give her the benefit of the doubt
and resolve the factual dispute created by her own testimony in her favor, even
though we are not required to do so, because qualified immunity applies either way.
See N.S., 35 F.4th at 1113; Stewart v. Rise, Inc., 791 F.3d 849, 861 (8th Cir. 2015)
(“We may discount a plaintiff’s self-serving . . . deposition testimony as a matter of
law where it clearly contradicts the plaintiff’s earlier testimony under oath and where
the plaintiff offers no explanation for the inconsistencies.”).
-7-
even crediting her version of facts, she was wielding it in a “menacing fashion” and
“appear[ed] ready to shoot.” Id. at 1134–35 (citation omitted); cf. Partridge v. City
of Benton, 929 F.3d 562, 566 (8th Cir. 2019). Officer Nikolov, having just entered
this “tense, uncertain, and rapidly evolving” situation, N.S., 35 F.4th at 1114
(quoting Graham, 490 U.S. at 397), “had no way of knowing what [Morgan-Tyra]
planned to do,” Partlow v. Stadler, 774 F.3d 497, 502 (8th Cir. 2014).
III.
We accordingly affirm the judgment of the district court.
KELLY, Circuit Judge, dissenting.
On de novo review of the district court’s grant of summary judgment, we must
view the record in the light most favorable to the nonmovant—Morgan-Tyra—and
we must draw all reasonable inferences in her favor. Jackson v. Stair, 944 F.3d 704,
709 (8th Cir. 2019). “Summary judgment is appropriate when ‘there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.’” Id. (quoting Fed. R. Civ. P. 56(a)). Applying these standards, a genuine dispute
of material fact remains as to where Morgan-Tyra’s gun was pointing when Officer
Nikolov shot her. This means Officer Nikolov is not entitled to summary judgment.
As the court acknowledges, where Morgan-Tyra was pointing her gun when
Officer Nikolov shot her is disputed. When she was deposed in the hospital, Morgan-
Tyra initially could not remember where she was pointing her gun when she was
shot. She later explained that before she was shot, she was standing in the hallway
at the threshold of the bedroom Nicholson was in. Morgan-Tyra said she would
“aim” her gun “at the floor” when Nicholson sat down on the bed in the room, and
she would point it at Nicholson when Nicholson stood up. But Morgan-Tyra
specified that when she heard the gunshots and fell to the ground, Nicholson was
sitting down. Thus, according to Morgan-Tyra, when Officer Nikolov shot her, her
gun was “down.” Officer Nikolov describes the situation differently. He said that
-8-
Morgan-Tyra had been pointing her gun at an angle in front of her but then Morgan-
Tyra “lowered it from” Nicholson, “and as she turned towards [Officer Nikolov], she
raised it” “directly at” him and he started shooting. There is enough evidence for a
jury to find in favor of either side. Accordingly, this dispute is genuine. See Partridge
v. City of Benton (Partridge II), 70 F.4th 489, 491 (8th Cir. 2023) (citing Zubrod v.
Hoch, 907 F.3d 568, 575 (8th Cir. 2018)).
This dispute is also “material because it is ‘outcome determinative under
prevailing law.’” Partridge II, 70 F.4th at 492 (quoting Holloway v. Pigman, 884 F.2d
365, 366 (8th Cir. 1989)). In assessing whether a use of force was reasonable, we
consider, inter alia, whether the individual “pose[d] an immediate threat to the safety
of the officer or others.” Partridge v. City of Benton (Partridge I), 929 F.3d 562, 565
(8th Cir. 2019) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per
curiam)). “[A]n individual’s mere possession of a firearm is not enough for an officer
to have probable cause to believe that individual poses an immediate threat.” Cole
ex rel. Est. of Richards v. Hutchins, 959 F.3d 1127, 1132 (8th Cir. 2020) (citations
omitted). More is needed: “the suspect must also point the firearm at another
individual or take similar ‘menacing action.’” Id. (citing Partridge I, 929 F.3d at
566). This is still not the end of the inquiry: if the individual did pose a threat, when
they posed it matters because “mere seconds after an immediate threat has passed is
sufficient time for an officer to conclude the immediate threat has passed,
extinguishing any prior justification for the use of deadly force.” Cole, 959 F.3d at
1135 (citing Ludwig v. Anderson, 54 F.3d 465, 474 (8th Cir. 1995)); see also Nance
v. Sammis, 586 F.3d 604, 611–12 (8th Cir. 2009) (“[An officer’s] failure to take
action to deescalate the situation if he had an opportunity and means to do so could
establish liability.”).
In this case, where Morgan-Tyra’s gun was pointed at the moment when
Officer Nikolov shot her is determinative of whether Morgan-Tyra posed a threat
that justified the use of lethal force. Put differently, “the dispositive fact in this case
is whether [Morgan-Tyra] pointed [her] gun at the officers [or at Nicholson,] or
otherwise moved it in a menacing way” when Officer Nikolov shot her. See Partridge
-9-
II, 70 F.4th at 494 (Shepherd, J., dissenting). If she did, Officer Nikolov may have
been justified in his use of lethal force. But if Morgan-Tyra did not point her gun at
another person—here, Officer Nikolov or Nicholson—or otherwise move her gun in
a menacing way, his use of force was not justified. See id. at 493 (majority opinion);
Cole, 959 F.3d at 1135 (recognizing clearly established principle that a person is not
an immediate threat unless they appear “ready to shoot” (quoting Nance, 586 F.3d
at 611)); see also New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 8–
9 (2022) (holding that the Second Amendment protects an individual’s right to carry
a handgun for self-defense outside the home); cf. Walters v. Wolf, 660 F.3d 307, 318
(8th Cir. 2011) (declining to “foreclose the possibility that [a] plaintiff could show
that a state actor violated the Second Amendment by depriving an individual of a . . .
firearm that he or she otherwise lawfully possessed for self-defense”).
This issue remains in dispute. The court says otherwise, concluding that
“Officer Nikolov reasonably believed that Morgan-Tyra had a gun pointed in the
general direction of someone in another room.” Putting aside the fact that Officer
Nikolov testified that he believed her gun was pointed elsewhere when he shot her,5
5
At his deposition, Officer Nikolov said that Morgan-Tyra “lowered [the gun]
from Ms. Nicholson,” turned toward him, and “raised it.” In his sworn affidavit, he
was even more specific:
I again loudly ordered Morgan-Tyra to drop the gun and she did not
drop the gun. Instead, Morgan-Tyra began to lower the gun while she
turned in my direction, making eye contact with me. Morgan-Tyra
quickly began to raise the gun back up, directly at me, at which time I
fired my Department issued handgun at Morgan-Tyra until the threat
she posed had ceased.
As a result of these assertions, Morgan-Tyra was charged with assault of a law
enforcement officer and armed criminal action, where Officer Nikolov was the
victim. When asked to testify in the criminal case against Morgan-Tyra, Officer
Nikolov asserted his Fifth Amendment rights and declined to answer any questions,
and the St. Louis Attorney’s Office eventually dropped the charges.
-10-
the court’s conclusion fails to view the evidence in the light most favorable to
Morgan-Tyra. Morgan-Tyra had more than one version of events, but in the one most
favorable to her, 6 she testified that she was aiming her gun “down” at the moment
she was shot, not that she was pointing it in the direction of anyone. To the extent
the court relies on evidence that Morgan-Tyra was pointing the gun in the direction
of Nicholson in the moments leading up to the shooting, that is not the relevant
moment in time for her excessive force claim. See Cole, 959 F.3d at 1135 (collecting
cases supporting the proposition that “[deadly] force that is reasonable at one
moment can become unreasonable in the next if the justification for the use of force
has ceased” (quoting Lytle v. Bexar Cty., 560 F.3d 404, 413 (5th Cir. 2009)));
Jackson, 944 F.3d at 711–12; Nance, 586 F.3d at 610 (observing that we look at
whether the individual “poses an immediate threat to the safety of the officers or
others” in evaluating reasonableness of use of force (quoting Brown v. City of
Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009)) (emphasis added)).
The court also asserts that even if Morgan-Tyra was pointing the gun at the
floor—and we have to assume she was—Officer Nikolov did not use excessive force
when he shot her because Morgan-Tyra was “wielding” the gun in a “menacing
fashion.” The plaintiff-friendly version of the facts is that when Officer Nikolov shot
Morgan-Tyra, her gun was pointed at the floor, and not at a person. She may have
hoped Nicholson would think she would use the gun. But what a plaintiff may have
subjectively intended “is not determinative . . . of what a reasonable officer on the
scene would have perceived. Nor does it answer whether ‘the officer[’s] actions
[were] “objectively reasonable” in light of the facts and circumstances confronting
[him].’” Partlow v. Stadler, 774 F.3d 497, 502 (8th Cir. 2014) (quoting Graham v.
Connor, 490 U.S. 386, 397 (1989)); see also Hernandez v. Jarman, 340 F.3d 617, 624
(8th Cir. 2003) (“The reasonableness of [an officer]’s use of deadly force is judged
from the perspective of a reasonable officer on the scene, and not from the
unknowable intentions of the victim.”) (citation omitted). What is relevant are her
6
Morgan-Tyra was hospitalized at the VA Medical Center when her first
deposition was taken, and during that deposition she was in her hospital bed
receiving treatment for complications from the shooting.
-11-
actions. When she was shot, Morgan-Tyra was not pointing her gun at Officer
Nikolov or at Nicholson. And to describe her as “wielding” the gun in a “menacing
fashion” is to make inferences in favor of Officer Nikolov, which we cannot do. See
Cole, 959 F.3d at 1132; Partridge I, 929 F.3d at 566. Because “the evidence does not
indisputably establish where and how [or even if, Morgan-Tyra] moved the gun as
[s]he was shot, this court should not conclude—without a trial—that [she] took a
‘menacing action’ with the firearm that created an immediate deadly threat.”
Partridge II, 70 F.4th at 492 n.2.
At summary judgment we are required to view the controverted record in the
light most favorable to Morgan-Tyra, the nonmoving party. Nance, 586 F.3d at 610.
When the facts are viewed in that light, Morgan-Tyra has identified a genuine dispute
of material fact about where she was pointing her gun when Officer Nikolov shot
her multiple times in the back, permanently paralyzing her. This precludes summary
judgment.7 See Partridge II, 70 F.4th at 493.
I respectfully dissent.
______________________________
7
Viewing the facts in the light most favorable to Morgan-Tyra, and adopting
that version of events, it is clearly established that Officer Nikolov’s use of force
was excessive. See Cole, 959 F.3d at 1134–35; Partridge II, 70 F.4th at 492–93.
-12-