United States Court of Appeals

For the Eighth Circuit

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No. 18-3129

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Johnnie Campbell; Keithen D. Pettus; Joseph P. Williams

lllllllllllllllllllllPlaintiffs - Appellees

v.

Christopher Johannes, Individually and in his official capacities

lllllllllllllllllllllDefendant - Appellant

City of Little Rock, A Municipal Corporation and Public Body Corporate and

Politic; Stuart Thomas, In his official capacity as Chief of Police, Little Rock

Police Department; Kenton Buckner, In his official capacity as Chief of Police,

Little Rock Police Department; Park Plaza Mall CMBS LLC; ERMC II LP; Trista

Simmons; Sara Hawkins; John Does, 1 - 10; John Doe Corporation, 4 - 5

lllllllllllllllllllllDefendants

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Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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 Submitted: September 23, 2019

Filed: September 26, 2019

[Unpublished]

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Before BENTON, KELLY, and ERICKSON, Circuit Judges.

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PER CURIAM.

In this 42 U.S.C. § 1983 action, Johnnie Campbell, Keithen Pettus, and Joseph

Williams sued City of Little Rock police officer Christopher Johannes, claiming that

he violated their Fourth Amendment rights by using excessive force against them. 

Johannes appeals the district court’s interlocutory order denying him summary 1

judgment based on qualified immunity.

In an appeal from an interlocutory order denying qualified immunity, this

court’s jurisdiction is limited to reviewing abstract issues of law, which include

whether the district court erred in relying on inadmissible evidence, see Jones v.

McNeese, 746 F.3d 887, 899 (8th Cir. 2014); and whether the conduct the district

court found properly supported at summary judgment constituted a violation of a

clearly established constitutionalright, see Shannon v. Koehler, 616 F.3d 855, 860-62

(8th Cir. 2010). This court lacks jurisdiction over an interlocutory order denying

qualified immunity, however, when the denial was premised on the district court’s

finding of a material factual dispute. See Raines v. Counseling Assocs., Inc., 883

F.3d 1071, 1074 (8th Cir. 2018). This court reviews the district court’s qualified

immunity determination de novo, viewing the record in the light most favorable to

Plaintiffs, drawing all reasonable inferences in their favor, and accepting as true the

facts the district court found adequately supported, to the extent they are not blatantly

contradicted by the record. See Shannon, 616 F.3d at 861-62.

We first conclude that the district court did not abuse its discretion by declining

to accept certain facts in Johannes’s statement of facts as undisputed based on

Plaintiffs’ failure to support their denial of those facts with specific citations to the

summary judgment record, given that Plaintiffs submitted evidence showing the

The Honorable Billy Roy Wilson, United States DistrictJudge for the Eastern 1

District of Arkansas.

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existence of genuine factual disputes. See Fed. R. Civ. P. 56(c)(1) (as relevant, party

asserting fact is genuinely disputedmust support assertion by citing to particular parts

of materials in record or by showing materials cited do not establish absence of

genuine dispute), (e)(2) (if party fails to properly address another party’s assertion of

fact as required by Rule 56(c), court may consider that fact undisputed for purposes

of ruling on summary judgment motion), advisory committee’s note to 2010

amendment (Rule 56(e)(2) authorizes district court to consider fact undisputed when

Rule 56(c)’s response requirements are not met, but court may choose not to consider

fact undisputed, particularly if it knows of record materials that show grounds for

genuine dispute); cf. United States v. Findett Corp., 220 F.3d 842, 848 n.5 (8th Cir.

2000) (reviewing for abuse of discretion district court’s decision to acceptfacts based

on party’s failure to cite to record in summary judgment response). We also conclude

that the district court did not err in considering, as part of Plaintiffs’ submission,

Johannes’s statement made in the course of an internal-investigation into the incident. 

See Fed. R. Civ. P. 56(c)(1)(A) (party opposing summary judgment may show that

fact is genuinely disputed by citing to admissions); Eliserio v. United Steelworkers

of Am. Local 310, 398 F.3d 1071, 1078 (8th Cir. 2005) (party-opponent admissions

should be considered at summary judgment).

Next, we conclude that this court lacks jurisdiction over Johannes’s argument

that, had the district court accepted his assertions as to the evidence properly before

the court, the summary judgment record would have foreclosed the finding ofmaterial

factual disputes. See Thompson v. Murray, 800 F.3d 979, 984 (8th Cir. 2015)

(dismissing appeal for lack of jurisdiction because defendants’ arguments about

denial of qualified immunity were premised on facts district court had not likely

assumed at summary judgment and essentially challenged determination that there

were genuine disputes of material fact).

Finally, we conclude that, in December 2011, when the incident occurred, it

was clearly established that Plaintiffs could not be apprehended by deadly force

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unless they posed a threat of serious physical harm. See id. at 983-84 (officer may

not use deadly force against fleeing suspect unless suspect poses immediate and

significant threat of serious injury or death to officer or to bystanders; this general

standard can be sufficient to clearly establish fleeing suspect’s rights in case whether

they have obviously been infringed); Nance v. Sammis, 586 F.3d 604, 611 (8th Cir.

2009) (“Existing case law would have made it sufficiently clear that a suspect cannot

be apprehended by use of deadly force unless that individual poses a threat ofserious

physical harm.”); Craighead v. Lee, 399 F.3d 954, 963 (8th Cir. 2005) (collecting

cases that had police officers on notice that they may not use deadly force where

suspect does not present immediate threat of serious physical injury).

Accordingly, we dismiss this appeal to the extent Johannes challenges the

district court’s finding of a material factual dispute, and affirm in all other respects.

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