United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-2043

___________

Tamara Jean Parks, individually and as *

Trustee for the heirs and next of kin of *

Perry Michael Parks, *

*

Appellee, *

*

v. *

*

Michael Pomeroy, in his individual *

capacity as an officer of the Woodbury * Appeal from the United States

Police Department, * District Court for the

* District of Minnesota

Appellant. *

*

Jeff Gottstein, in his individual capacity *

as an officer of the Woodbury Police *

Department; City of Woodbury, *

*

Defendants. *

___________

Submitted: February 13, 2004

Filed: November 5, 2004 

___________

Before MELLOY, McMILLIAN and COLLOTON, Circuit Judges.

___________

McMILLIAN, Circuit Judge.

Tamara Jean Parks (“plaintiff”) brought this § 1983 civil rights action in the

United States District Court for the District of Minnesota on behalf of herself and the
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heirs and next of kin of her deceased husband, Perry Michael Parks (“Parks”) against

the City of Woodbury, Minnesota, and Woodbury police officers Michael Pomeroy

and Jeff Gottstein. In her complaint, plaintiff asserted a Fourth Amendment claim,

among others, alleging that Pomeroy had used objectively unreasonable force when

he fatally shot Parks during a struggle between Gottstein and Parks in Parks’s house

after Pomeroy and Gottstein responded to plaintiff’s 911 call reporting a domestic

dispute. Now before this court is an interlocutory appeal from an order of the district

court denying Pomeroy’s motion for summary judgment based upon qualified

immunity. Parks v. Pomeroy, No. 00-2191 (D. Minn. Mar. 14, 2003) (memorandum

and order) (hereinafter “slip op.”). For reversal, Pomeroy argues that the district court

erred in failing to hold that (1) in view of certain undisputed material facts, plaintiff

cannot establish a constitutional violation as a matter of law, or (2) even if plaintiff

can establish a constitutional violation, he is entitled to qualified immunity. For the

reasons stated below, we reverse the district court’s denial of qualified immunity and

remand the case to the district court for further proceedings consistent with this

opinion.

The district court had original jurisdiction based upon 28 U.S.C. §§ 1331,

1343. We have appellate jurisdiction under the collateral order doctrine. See

Johnson v. Jones, 515 U.S. 304, 310-12 (1995) (citing, e.g., Mitchell v. Forsyth, 472

U.S. 511 (1985); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)). 

The following summary of the facts is based upon plaintiff’s allegations,

viewed in the light most favorable to plaintiff. See Appellant’s Appendix, Vol. I, at

56-129 (Deposition of Tamara Jean Parks). On the evening of Saturday, June 3,

2000, plaintiff and Parks went to a restaurant and bar called “Sunsets of Woodbury”

(“Sunsets”), located near their home. While at Sunsets, plaintiff had less than two

beers, and Parks drank approximately three 22-ounce mugs of beer. Shortly after

9:00 p.m., while plaintiff and Parks were preparing to leave Sunsets, their 17-year-old

daughter called them on their cellular phone. After the phone call, plaintiff and Parks
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had a disagreement, and plaintiff began giving Parks the “silent treatment.” Plaintiff

went to retrieve their car and, with plaintiff driving, they returned home at

approximately 9:30 p.m. Shortly after they arrived home, Parks began yelling and

swearing at plaintiff. Their 12-year-old daughter began crying and told Parks to stop.

Parks continued yelling and slammed his hand on the kitchen counter. Plaintiff

grabbed the telephone and told him that she would call the police if he did not calm

down. He responded by saying something to the effect of “go ahead.” She called

911. Her conversation with the 911 dispatcher included the following pertinent

remarks:

Dispatcher: 911 Emergency.

Plaintiff: Can you send someone to 2704 Horseshoe Lane.

Dispatcher: What’s happening?

Plaintiff: It’s a big mess here. Uh, my husband’s drunk,

and he’s getting very violent.

Dispatcher: Okay, is it physical?

Plaintiff: What?

Dispatcher: Is it physical?

Plaintiff: N-not- well, not yet. But it’s gonna get there.

My girls are here.

. . . .

Plaintiff: Come get him out of here.

Dispatcher: Yep, we are.

. . . . 

Dispatcher: All right. And this occurred – occurred before?

Plaintiff: Well, this is the first time I’ve seen him this bad.

The dispatcher instructed plaintiff to remain on the line until help arrived.

Meanwhile, a call went out for officers to respond. Gottstein was the first to respond

by radio. The 911 dispatcher gave him the address and the following information:
1

According to Pomeroy, there were two steak knives laying on the kitchen

counter close to where Parks was standing. At some point, Gottstein grabbed the

knives and threw them into a nearby hallway. However, there remained on the

counter a knife block containing several knives. See Brief for Appellant at 7. 

2

According to Pomeroy, when Gottstein yelled that he thought Parks was going

for his gun, Pomeroy looked over and observed Gottstein’s hand on the grip of his

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“Husband/wife. Male is [drunk]. No weapons. It’s not physical at this point, but it

sounds like it might get there.” Pomeroy also responded to the dispatcher by radio,

and he received the same information. Both Gottstein and Pomeroy proceeded to the

house. The dispatcher reiterated the following information to the officers: “It’s a

husband/wife domestic . . . the father is [drunk] . . . [a]pparently it’s husband versus

wife. The husband is [drunk]. Children are involved.” 

Gottstein and Pomeroy arrived at the house at roughly the same time, and they

entered the house together. Plaintiff told them that Parks was in the kitchen. When

the officers went into the kitchen, Parks had calmed down and was standing by the

sink loading the dishwasher and eating a snack.1

 Gottstein said to Pomeroy: “We’re

going to get you out of here.” Parks responded: “No. This is my house. I didn’t do

anything.” Gottstein lunged forward and attempted to grab Parks. Gottstein is 5'5"

and weighs approximately 170 pounds. Parks was 5'11" and weighed approximately

220 pounds. As Gottstein lunged forward, Parks raised one hand and blocked

Gottstein, causing Gottstein to stumbled backward. Gottstein regained his balance,

grabbed Parks by the throat, and sprayed Parks several times in the face with

Oleoresin Capsicum or “OC” spray (similar to mace). Parks began waving his hands

in front of his face, while resisting Gottstein’s efforts to gain control of him. The two

ended up in a physical struggle on the kitchen floor, facing in opposite directions with

Parks on top of Gottstein. Pomeroy remained close by, but at this point had not

engaged in the physical struggle between Parks and Gottstein. While Gottstein and

Parks were struggling on the floor, Gottstein yelled out: “I think he’s going for my

gun.”2

 At that point, Pomeroy drew his firearm and pointed it directly into the back
own gun and Parks’s hand partially on the grip of Gottstein’s gun and partially

covering Gottstein’s hand. The gun, moreover, was partially withdrawn from the

holster. Brief for Appellant at 11. 

3

According to Pomeroy, he twice previously attempted to shoot Parks but his

gun did not discharge. Each time it malfunctioned, Pomeroy performed a so-called

“malfunction drill” in which he banged the bottom of the gun magazine with his hand.

The gun discharged on his third attempt to shoot Parks. Id. at 13. 

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of Parks’s right shoulder. Plaintiff, upon seeing Pomeroy draw his gun, screamed

and ran over to Parks, who was on his hands and knees, on top of Gottstein. Plaintiff

tried to pull Parks up by the shoulders and told Pomeroy not to shoot. She could feel

the effects of the OC spray in her throat, but her eyes were not affected by it. She

heard Pomeroy’s gun click, but it did not discharge. Pomeroy told Parks not to go for

the gun, to which Parks replied: “I’m not. I can’t see.” Plaintiff was on Parks’s left

side and could see that Parks’s left hand (the one closest to Gottstein’s gun) was on

the floor bracing himself and not touching Gottstein’s gun. She observed Pomeroy

reach in between Parks and Gottstein with one hand and bring his gun upward with

his other hand. Pomeroy’s gun came to a location where it was pointed directly at

plaintiff, causing her to scream and back away. As she was backing away, she

observed Pomeroy fire his gun directly into the back of Parks’s right shoulder.3

 Parks

died moments later. At the moment Pomeroy shot Parks, Parks was still on his hands

and knees. The total amount of time that elapsed between the officers’ arrival at the

house and the shooting of Parks was approximately three to four minutes.

The district court held that the facts presented at the summary judgment stage,

when viewed in the light most favorable to plaintiff, could reasonably support the

conclusion that Pomeroy violated Parks’s Fourth Amendment rights when he fatally

shot Parks. The district court reasoned: 

Viewing the record in the light most favorable to Plaintiff, a

reasonable jury could find that Officer Pomeroy shot Mr. Parks despite
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the fact that he could see that Mr. Parks’ hand was not on Officer

Gottstein’s firearm, and that therefore Mr. Parks did not pose an

immediate threat to the safety of the officers or others.

Slip op. at 12. The district court also specifically rejected Pomeroy’s argument that

he reasonably relied upon Gottstein’s statement: “I think he’s going for my gun.” The

district court explained: 

This argument misses the point. Officer Pomeroy asserts that he

saw Parks’ hand on Officer Gottstein’s firearm. Officer Pomeroy’s

testimony leads to the inescapable conclusion that he was in a position

to see what Officer Gottstein couldn’t – whether Parks was in fact

attempting to acquire Officer Gottstein’s firearm. Officer Pomeroy

cannot rely on Officer Gottstein’s belief to support his actions when he

was in a better position to assess the situation. 

Id. at 13. Thus, the district court concluded that Pomeroy was not entitled to

judgment as a matter of law on the merits of plaintiff’s Fourth Amendment claim.

On the separate question of whether Pomeroy was nevertheless entitled to

qualified immunity because plaintiff could not establish a violation of a “clearly

established” right, the district court reasoned that, at the time of the events in

question, a reasonable police officer would have been clearly on notice that no greater

force may be used in making an arrest than is reasonable under the circumstances and,

more specifically, that deadly force is unreasonable unless there is “probable cause

to believe that officers or others [are] faced with an immediate threat of serious

physical harm.” Id. at 14-15 (citing Nelson v. County of Wright, 162 F.3d 986 (8th

Cir. 1998)). The district court noted: “As explained above, a reasonable jury could

conclude that Officer Pomeroy shot [Parks] despite the fact that [Parks] did not pose

an immediate threat to the officers or to others.” Id. at 14. The district court

concluded: “Plaintiff has identified specific evidence in the record which would allow

a jury to find that Officer Pomeroy’s conduct was not objectively reasonable and
-7-

violated [Parks]’s clearly established Fourth Amendment rights.” Id. at 16-17. The

district court thus held that Pomeroy was not entitled to qualified immunity on

summary judgment. This appeal followed. 

As a threshold matter, we note that, prior to the submission of the parties’

briefs on appeal, plaintiff filed a motion to dismiss Pomeroy’s interlocutory appeal

for lack of appellate jurisdiction. We summarily denied the motion and ordered the

briefing to proceed. See Parks v. Pomeroy, No. 03-2043 (8th Cir. May 27, 2003)

(order). As indicated above, our jurisdiction over Pomeroy’s interlocutory appeal is

proper under the collateral order doctrine, although it is limited. To begin, we must

assume the truth of plaintiff’s allegations, viewing those allegations in the light most

favorable to her claim of injury. See Saucier v. Katz, 533 U.S. 194, 201 (2001). We

may not assume any fact asserted by Pomeroy which the district court has deemed to

be genuinely disputed, nor may we question at this point whether the dispute is truly

genuine. Johnson v. Jones, 515 U.S. at 313-19; see also Moore v. Duffy, 255 F.3d

543 (8th Cir. 2001) (dismissing appeal for lack of interlocutory appellate jurisdiction

under Johnson v. Jones). On that basis, we must decide whether the facts viewed in

the light most favorable to plaintiff can establish a constitutional violation. Saucier

v. Katz, 533 U.S. at 201 (“A court required to rule upon the qualified immunity issue

must consider, then, this threshold question: Taken in the light most favorable to the

party asserting the injury, do the facts alleged show the officer’s conduct violated a

constitutional right? This must be the initial inquiry.”).

If the facts alleged, viewed in the light most favorable to plaintiff, cannot

establish a constitutional violation, judgment for Pomeroy is required. If, however,

a constitutional violation can be established by plaintiff’s allegations, we must further

decide whether Pomeroy violated a “clearly established” right. Id. at 201-02 (“[I]f a

violation could be made out on a favorable view of the parties’ submissions, the next,

sequential step is to ask whether the right was clearly established.”). This “clearly

established” standard must be met in order to permit the denial of qualified immunity.
4

It is true that Pomeroy was forced to make a quick and difficult decision under

dangerous and uncertain circumstances. On the other hand, the district court was

warranted in assuming the following factual allegations and inferences. When the

officers arrived at the house, Parks had calmed down and had not become violent as

plaintiff had feared. When Gottstein told Parks he would have to leave, Parks

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For these inquiries, we conduct a de novo review. See, e.g., Tuggle v. Mangan, 348

F.3d 714, 719-20 (8th Cir. 2003) (standard of review).

In support of the argument that plaintiff cannot establish a constitutional

violation as a matter of law, Pomeroy maintains, among other things, that at one point

Pomeroy saw Parks’s hand on Gottstein’s gun while the two were struggling and that

“Pomeroy believed that his partner was telling him what was going on.” Brief for

Appellant at 22. Based upon these and other circumstances such as plaintiff’s 911

call and the rapid, dangerous, and uncertain manner in which events unfolded,

Pomeroy argues that no constitutional violation can be established as a matter of law.

Brief for Appellant at 24-26 (citing, e.g., Graham v. Connor, 490 U.S. 386, 396

(1989) (“Because ‘[t]he test of reasonableness under the Fourth Amendment is not

capable of precise definition or mechanical application,’ . . . its proper application

requires careful attention to the facts and circumstances of each particular case,

including the severity of the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether he is actively resisting arrest

or attempting to evade arrest by flight. . . . The ‘reasonableness’ of a particular use

of force must be judged from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.”)). 

The district court was well aware of the precedents now cited by Pomeroy. See

slip op. at 10-11 (quoting Graham v. Connor, among other cases). The district court

nevertheless concluded, based upon the totality of the circumstances, that there was

sufficient evidence to support a finding that Pomeroy’s shooting of Parks was

objectively unreasonable.4

 The district court held:
responded that he did not have to leave his own house when he had done nothing

wrong. The officers did not tell Pomeroy that he was under arrest or that he was

suspected of any crime. Gottstein (who was considerably smaller than Parks) lunged

at Parks, and, at that point, Parks rebuffed him by raising up his hand. Gottstein then

grabbed Parks by the throat, sprayed Parks in the face with OC spray, and ended up

on the floor underneath the obviously much bigger man. Gottstein was then heard to

say, “I think he’s going for my gun.” From the time Gottstein made that statement

until the moment Parks was shot, Parks remained on his hands and knees with his left

hand on the floor bracing himself. When Pomeroy instructed Parks not to go for

Gottstein’s gun, Parks (having just been repeatedly sprayed in the face with OC

spray) responded: “I’m not. I can’t see.” Before he fatally shot Parks, Pomeroy had

at least enough time to aim and fire his weapon twice and to perform the “malfunction

drill” each time. Finally, at the time Pomeroy fired that third and fatal shot, he could

see that Parks’s left hand was not on Gottstein’s gun.

-9-

The differing testimony of Mrs. Parks and Officer Pomeroy gives

rise to a factual dispute about what Mr. Parks was doing just prior to and

at the time he was shot. This factual dispute goes to the heart of the

matter. Viewing the record in the light most favorable to Plaintiff, a

reasonable jury could find that Officer Pomeroy shot Mr. Parks despite

the fact that he could see that Mr. Parks’ hand was not on Officer

Gottstein’s firearm, and that therefore Mr. Parks did not pose an

immediate threat to the safety of the officers or others. A reasonable

jury could find such a shooting unreasonable. 

Id. at 12. 

We agree with the Seventh Circuit’s observation that the initial inquiry under

Saucier v. Katz, 533 U.S. at 201, “starts with separating factual and legal components

of the claim for relief.” Anderson v. Cornejo, 355 F.3d 1021, 1022 (7th Cir. 2004)

(reversing denial of qualified immunity on interlocutory appeal upon concluding that

the facts alleged by the plaintiffs, when viewed in the light most favorable to them,
5

In Anderson v. Cornejo, 355 F.3d 1021, 1022-28 (7th Cir. 2004), the Seventh

Circuit held, for example, that the plaintiffs’ evidence was relevant to show disparate

impact, not disparate treatment, and yet “the equal protection guarantee is concerned

only with the latter”; the record “evince[d] nothing more than negligence,” and yet

the plaintiffs’ constitutional claim required proof of deliberate indifference; the

plaintiffs attempted to prove vicarious liability, and yet vicarious liability was “not

allowed” under the plaintiffs’ equal protection theory.

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could not establish the actual elements of their equal protection claim).5

 In the

present case, the issue of whether Pomeroy used objectively unreasonable force when

he fatally shot Parks is a question of fact. See, e.g., Kuha v. City of Minnetonka, 365

F.3d 590, 597-98 (8th Cir. 2003) (as amended Apr. 27, 2004) (“[T]he relevant inquiry

is whether [the plaintiff] presented enough proof in support of his claim that a jury

could properly find that the degree of force used against him was not ‘objectively

reasonable.’”). 

As indicated above, we lack jurisdiction at the present stage of the litigation to

review the district court’s conclusions regarding the sufficiency of the evidence to

establish material facts. See Johnson v. Jones, 515 U.S. at 313 (“We now consider

the appealability of a portion of the district court’s summary judgment order that,

though entered in a ‘qualified immunity’ case, determines only a question of

‘evidence sufficiency,’ i.e., which facts a party may, or may not, be able to prove at

trial. This kind of order, we conclude, is not appealable.”). Accordingly, we lack

interlocutory appellate jurisdiction to review the district court’s conclusion that

plaintiff may be able to prove as a matter of fact that Pomeroy’s use of force was not

objectively reasonable. See, e.g., Krein v. Norris, 309 F.3d 487, 493 (8th Cir. 2002)

(“[T]o the extent defendants appeal the district court’s holding that there remain

genuine issues of material fact, and to the extent that they challenge the sufficiency

of plaintiff’s evidence to support that conclusion, we hold that we lack interlocutory

appellate jurisdiction.”) (internal footnote omitted); accord Garvin v. Wheeler, 304

F.3d 628, 633-34 (7th Cir. 2002) (in Fourth Amendment case involving a claim of
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excessive use of deadly force, dismissing the police officer’s interlocutory appeal

from a denial of qualified immunity as untimely filed, but noting that “there is another

reason to decline to exercise jurisdiction. . . . [The district court] correctly observed

that this is a factual, not a legal dispute . . . [and Supreme Court precedent] does not

allow us to hear disputes on interlocutory appeal regarding which facts the parties

might be able to prove at trial.”).

Therefore, when the facts are taken in the light most favorable to plaintiff for

purposes of the “initial inquiry” under Saucier v. Katz, 533 U.S. at 201, we must

assume that the amount of force used by Pomeroy was unreasonable. As a result, we

conclude at this threshold stage that plaintiff may be able to prove that Pomeroy

violated Parks’s Fourth Amendment right. See id. at 201-02 (“[T]here is no doubt

that Graham v. Connor, clearly establishes the general proposition that use of force

is contrary to the Fourth Amendment if it is excessive under objective standards of

reasonableness.”); Tauke v. Stine, 120 F.3d 1363, 1365-66 (8th Cir. 1997) (applying

Fourth Amendment objectively reasonableness standard to use of deadly force).

However, our inquiry does not end there. As stated above, “if a violation could

be made out on a favorable view of the parties’ submissions, the next, sequential step

is to ask whether the right was clearly established.” Saucier v. Katz, 533 U.S. at 201

(emphasis added). This inquiry “remains distinct” from the analysis of the excessive

force claim. Id. at 204.

The qualified immunity inquiry . . . has a further dimension. The

concern of the [qualified] immunity inquiry is to acknowledge that

reasonable mistakes can be made as to the legal constraints on particular

police conduct. It is sometimes difficult for an officer to determine how

the relevant legal doctrine, here excessive force, will apply to the factual

situation the officer confronts. As officer might correctly perceive all

of the relevant facts but have a mistaken understanding as to whether a

particular amount of force is legal in those circumstances. If the
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officer’s mistake as to what the law requires is reasonable, however, the

officer is entitled to the immunity defense.

Id. at 205 (emphasis added). 

In other words, we now ask – not whether plaintiff may be able to establish a

constitutional violation – but, rather, whether she may be able to establish a violation

of a constitutional right of which the contours were so defined at the time of the

shooting that a reasonable officer in Pomeroy’s position would have understood that

what he was doing violated the law. Anderson v. Creighton, 483 U.S. 635, 640

(1987) (“The contours of the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.”). Stated differently,

Pomeroy is entitled to qualified immunity even if he wrongly, but reasonably,

believed his actions were lawful. 

Pomeroy cites numerous Fourth Amendment excessive force cases for the

proposition that he was acting lawfully – or at least reasonably thought he was – at

the time of the shooting. For example, he cites Nelson v. County of Wright, 162 F.3d

986 (8th Cir. 1998) (Nelson).

In Nelson, a Fourth Amendment excessive force case, we reviewed a grant of

qualified immunity which was based upon the conclusion that, even viewing the

evidence in the light most favorable to the plaintiff, the defendant-officer’s actions

were objectively reasonable when he used potentially deadly force to subdue the

plaintiff in the plaintiff’s own home. In that case, when the officer went to the

plaintiff’s home, after the plaintiff’s mother had called the police, the officer knew

that the plaintiff had previously been treated for chemical dependency, he was

suicidal and had been acting violently, and he had taken a number of pills. The

plaintiff actively resisted the officer’s efforts to arrest him without force, which led

to a physical struggle in which the plaintiff at one point reached for the officer’s gun

and subsequently shoved the officer on the floor and into a closet. At one point in the
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struggle, the officer hit the plaintiff over the head with his “asp.” After being shoved

in the closet, the officer fired his gun at the plaintiff and wounded him. The entire

encounter between the officer and the plaintiff lasted less than three minutes. See id.

at 990-91. Under these circumstances, we held:

Even when the facts are viewed in the light most favorable to [the

plaintiff], it is clear that the physical fight was intense and that there

would have been little time for the officer to reflect as the situation

quickly escalated. [The plaintiff] now tries to analyze the brief struggle

as if the incident were composed of distinct and separate segments. At

the time, however, it was uncertain what would happen next. The

situation was tense and “rapidly evolving.” An “officer’s actions are not

to be assessed with 20/20 hindsight” when he was faced with the need

to make instantaneous decisions.

Id. at 991 (citations omitted).

In light of this and other similar precedents, we cannot say that, at the moment

of Parks’s fatal shooting, Pomeroy reasonably should have known that what he was

doing violated Parks’s constitutional rights. In the present case, even if we assume

that Pomeroy could see Parks’s left hand on the floor at the moment of the shooting,

it cannot be disputed that Gottstein’s gun was nevertheless just inches from Parks’s

hand. As in Nelson, the physical struggle between Parks and Gottstein was hostile

and intense, the circumstances were extremely volatile and potentially deadly, and the

events were evolving rapidly. Therefore, notwithstanding plaintiff’s citation of

arguably contrary Fourth Amendment cases, we hold, upon de novo review, that –

given the state of the law at the time and the particular facts of this case – Pomeroy

did not violate a clearly established constitutional right. “Qualified immunity

operates in this case . . . just as it does in others, to protect officers from the

sometimes ‘hazy border between excessive and acceptable force’ and to ensure that

before they are subjected to suit, officers are on notice that their conduct is unlawful.”

Saucier v. Katz, 533 U.S. at 206 (internal citation omitted). 
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The order of the district court denying Pomeroy qualified immunity is therefore

reversed, and the case is remanded to the district court for further proceedings

consistent with this opinion.

COLLOTON, Circuit Judge, concurring in the judgment.

I agree that the district court's decision denying Officer Pomeroy's motion for

summary judgment should be reversed, but I respectfully disagree with the court's

discussion of our jurisdiction over this appeal. Therefore, I concur only in the

judgment.

Our marching orders for considering an appeal involving an assertion of

qualified immunity come from the Supreme Court's decision in Saucier v. Katz, 533

U.S. 194 (2001). The Court instructed that the "initial inquiry" must be whether,

"[t]aken in the light most favorable to the party asserting the injury, the facts alleged

show the officer's conduct violated a constitutional right." Id. at 201. "If no

constitutional right would have been violated were the allegations established, there

is no necessity for further inquiries concerning qualified immunity." Id. However,

"if a violation could be made out on a favorable view of the parties' submissions, the

next, sequential step is to ask whether the right was clearly established." Id. The

court today declines to undertake what the Supreme Court said "must be the initial

inquiry" (and instead assumes that Pomeroy's use of force was unreasonable), because

it says we lack jurisdiction to decide whether the facts taken in the light most

favorable to Parks show that Pomeroy's conduct was objectively unreasonable. Ante,

at 10-11. I disagree.

To be sure, Johnson v. Jones, 515 U.S. 304 (1995), established limits on

jurisdiction over immediate appeals by government officials asserting a qualified

immunity defense in a "constitutional tort" action. When a district court's order
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determines only "which facts a party may, or may not, be able to prove at trial," id.

at 313, there is no "final decision" within the meaning of 28 U.S.C. § 1291, and the

order is not appealable. Thus, if Pomeroy had sought to appeal "whether the evidence

could support a finding that particular conduct occurred," Behrens v. Pelletier, 516

U.S. 299, 313 (1996) – such as whether Mr. Parks placed his hand on the floor rather

than on Officer Gottstein's gun at the time of the shooting, or whether Pomeroy shot

Mr. Parks in the back of the shoulder rather than in the chest – then we would lack

jurisdiction. See, e.g., Garvin v. Wheeler, 304 F.3d 628, 634 (7th Cir. 2002) (no

appellate jurisdiction in police shooting case where issues regarding police officer's

credibility made it possible that jury could disbelieve officer's testimony that suspect

drew gun and credit plaintiff's version that suspect was neither armed nor resisting).

But Pomeroy did not appeal those fact-related determinations. His appeal

assumes that all of the facts alleged by Parks are true, but asserts that the facts alleged

do not show that the officer's conduct violated a constitutional right. The

constitutional right involved is the Fourth Amendment's guarantee against

unreasonable seizures, Graham v. Connor, 490 U.S. 386, 395-97 (1989), and

Pomeroy's appeal asks us to determine whether the facts alleged, taken in the light

most favorable to Parks, show that Pomeroy's use of force was "objectively

unreasonable." Id. at 397. This is precisely the sort of question that the Supreme

Court in Saucier said "must be the initial inquiry" for a court of appeals, 533 U.S. at

201, and I believe it presents an issue of law. Hill v. McKinley, 311 F.3d 899, 902

(8th Cir. 2002); White v. Balderama, 153 F.3d 237, 241 (5th Cir. 1998). It is the very

question that we answered in McCoy v. City of Monticello, 342 F.3d 842, 848-49 (8th

Cir. 2003), and I conclude it is a matter that we have jurisdiction to decide. Accord

Billington v. Smith, 292 F.3d 1177, 1183-85, 1191 (9th Cir. 2002); see also Lockridge

v. Board of Trustees, 315 F.3d 1005, 1009-12 (8th Cir. 2003) (en banc) (employment

discrimination); Anderson v. Cornejo, 355 F.3d 1021, 1023 (7th Cir. 2004) ("[I]t is

possible, consistent with Johnson, to cover the question whether the plaintiffs have

a good legal theory as well as the immunity defense; but, as Johnson and Saucier
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hold, this must be done by taking the evidence and reasonable inferences in plaintiffs'

favor.") (citation omitted).

For essentially the reasons discussed by the court in its immunity analysis,

ante, at 13, I conclude that the evidence, taken in the light most favorable to Mr.

Parks, does not establish that this tragic situation involved a violation of the Fourth

Amendment. Even assuming that Pomeroy could see Parks's left hand on the floor

at the moment of the shooting, the undisputed facts remain that Pomeroy heard

Officer Gottstein yell that he thought Parks was reaching for Gottstein's gun earlier

in the encounter, the gun remained within reach of Parks during the ongoing struggle

with Gottstein, and Parks refused to acquiesce in commands that he cease what the

court rightly describes as a "hostile and intense" struggle. Given these "extremely

volatile and potentially deadly" circumstances, ante, at 13, the evidence taken in the

light most favorable to Parks does not support a conclusion that Pomeroy's use of

force was objectively unreasonable. Accordingly, I concur in the judgment.

______________________________