United States Court of Appeals

For the Eighth Circuit

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No. 13-3371

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Troy Ellison, as Personal Representative of the Estate of Eugene Ellison, deceased,

lllllllllllllllllllll Plaintiff - Appellee,

v.

Donna Lesher, individually and in her official capacity; Tabitha McCrillis,

individually and in her official capacity,

lllllllllllllllllllll Defendants - Appellants,

Stuart Thomas, individually and in his official capacity; City of Little Rock, a

municipality; Big Country Chateau Apartments, a corporation, doing business as

Big Country Chateau, LLC; Carl Schultz,

lllllllllllllllllllll Defendants.

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Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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 Submitted: December 11, 2014

 Filed: August 6, 2015

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Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.

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COLLOTON, Circuit Judge.

On December 9, 2010, Officer Donna Lesher and Detective Tabitha McCrillis

of the Little Rock Police Department, while working off duty, were patrolling the Big

Country Chateau apartments in Little Rock. As events unfolded, Lesher shot and

killed a 67-year-old resident named Eugene Ellison in his apartment. Troy Ellison,

Eugene’s son, brought this action under 42 U.S.C. § 1983 on behalf of his father’s

estate. The lawsuit alleges that Lesher and McCrillis violated Eugene Ellison’s

Fourth Amendment rights by unlawfully entering his home and subjecting him to an

excessive use of force. Count I alleges unlawful entry, and Count II alleges excessive

use of force. 

Lesher and McCrillis moved for summary judgment based on qualified

immunity, and the district court denied their motion. We conclude, based on the facts

assumed by the district court, that the motion was properly denied as to Count I

against both defendants and as to Count II against Lesher on the claim alleging

unreasonable use of deadly force, because the assumed facts would show a violation

of clearly established rights under the Fourth Amendment. The officers, however, are

entitled to qualified immunity on Count II for the claim concerning their use of nonlethal force. We therefore affirm in part and reverse in part.

I.

In an interlocutory appeal from an order denying qualified immunity, we have

authority to decide the purely legal issue whether the facts alleged by the plaintiff

support a claim of violation of clearly established law. Mitchell v. Forsyth, 472 U.S.

511, 528 n.9 (1985). We do not, by contrast, have jurisdiction to review which facts

a party may, or may not, be able to prove at trial. Johnson v. Jones, 515 U.S. 304,

313 (1995). In considering the appeal by the officers, therefore, we are constrained

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by the facts that the district court assumed in reaching its decision. We now set forth

those facts.

As of 2010, pursuant to an agreement with the Big Country Chateau apartment

complex, off-duty Little Rock police officers patrolled the apartments as secondary

employment. On the evening in question, Lesher and McCrillis were patrolling the

apartments when they noticed that the door to Ellison’s apartment was open.

From outside, Lesher and McCrillis could see Ellison sitting on his couch

inside the apartment. Ellison appeared relaxed, and was leaning on his cane. After

Lesher and McCrillis started a conversation with Ellison, he responded that he did not

want their help or attention and told the officers to leave him alone.

McCrillis thought Ellison was being mouthy with her and wanted to keep him

from shutting the door on the officers. McCrillis stepped inside the apartment,

followed by Lesher, and asked Ellison what was his problem. Ellison got up from the

couch and approached the officers standing at the door. McCrillis shoved Ellison,

Ellison pushed back, and a physical altercation ensued. During the course of the

struggle, McCrillis and Lesher repeatedly struck Ellison and knocked off his glasses. 

Ellison repeatedly told the officers to get out of his apartment and to leave him alone.

At some point during the encounter, McCrillis requested help from back-up

units at the Little Rock Police Department. Officers Vincent Lucio and Brad Boyce

arrived on the scene shortly thereafter. The physical altercation was over when Lucio

and Boyce arrived, but Lesher wasstill inside the apartment, and Lucio reached inside

to pull Lesher out. 

The officers then instructed Ellison to lie down, and he refused. Lesher next

told McCrillis that Ellison was getting his cane, and that she was going to shoot

Ellison. She then fired two shots into the apartment, killing Ellison. After reviewing

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the record, the district court concluded that it is not clear whether Ellison was holding

his cane when he was shot.

Ellison’s son Troy, as personal representative of Ellison’s estate, sued Lesher

and McCrillis. The complaint alleged two violations of the Fourth Amendment, one

premised on an alleged unlawful entry, the other based on alleged excessive use of

force. Lesher and McCrillis moved for summary judgment, arguing that qualified

immunity barred Ellison’s suit. The district court denied the motion, and the officers

appeal.

II.

Qualified immunity shields police officers from suit in a § 1983 action unless

their conduct violated a clearly established right of which a reasonable official would

have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “The contours of the

right must be sufficiently clear that a reasonable official would understand that what

he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). 

A plaintiff need not show that the “very action in question has previously been held

unlawful,” id., but he must establish that the unlawfulness was apparent in light of

preexisting law. Hope v. Pelzer, 536 U.S. 730, 741 (2002). “The salient question is

whether the state of the law at the time of an incident provided fair warning to the

defendants that their alleged conduct was unconstitutional.” Tolan v. Cotton, 134 S.

Ct. 1861, 1866 (2014) (quotations and alterations omitted). “When properly applied,

qualified immunity protects all but the plainly incompetent or those who knowingly

violate the law.” Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (brackets and

internal quotation omitted).

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 A.

On the claim that the officers unlawfully entered Ellison’s apartment, the

district court reasoned as follows: “Viewing the facts in the light most favorable to

Ellison, it cannot be concluded as a matter of law that an objectively reasonable basis

existed for the officers to believe that they needed to enter the apartment because

Ellison or someone else within the apartment needed immediate aid.” The district

court also said “[i]t is clear that entering a home without a warrant, absent consent or

exigent circumstances, violates a clearly established right.”

The officers argue that they lawfully entered Ellison’s apartment without a

warrant under their authority to act as community caretakers who may assist a person

who is seriously injured or threatened with such injury. The rule that they invoke,

whether denoted as an exception to the warrant requirement for “community

caretaking” or “emergency aid,” see Burke v. Sullivan, 677 F.3d 367, 371 & n.5 (8th

Cir. 2012), is this: “A police officer may enter a residence without a warrant . . .

where the officer has a reasonable belief that an emergency existsrequiring his or her

attention.” United States v. Quezada, 448 F.3d 1005, 1007 (8th Cir. 2006); see 

Ryburn v. Huff, 132 S. Ct. 987, 990 (2012); Mincey v. Arizona, 437 U.S. 385, 392-93

(1978).

According to Lesher and McCrillis, the scene they confronted at Ellison’s

apartment justified their entry. The officers submit that they observed an open

apartment door in a high crime area on a cold December night, saw Ellison sitting

behind a broken glass table in a disheveled apartment, and received an oblique

response from Ellison—“what does it look like”—when they asked whether he was

okay. Under thisset of facts, the officers urge, it wasreasonable for them to enter and

investigate whether someone needed assistance. At a minimum, they say, a

reasonable officer could have believed that it was reasonable to do so, such that

qualified immunity applies.

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We cannot accept the contention of the officers, because it would require us

to examine a matter over which we lack jurisdiction—“which facts a party may, or

may not, be able to prove at trial.” Johnson, 515 U.S. at 313. The facts assumed by

the district court did not include salient points urged by the officers: a broken glass

table visible to the officers, a disheveled apartment suggesting a disruption, and an

ambiguous response by Ellison. The district court’s order assumed instead that

Ellison appeared relaxed while sitting on his couch, that Ellison told the officers that

he did not want their help or attention, and that Ellison told the officers to leave him

alone. In an interlocutory appeal from a denial of qualified immunity, we may

address only abstract issues of law, and we are constrained by the facts that were

assumed in the district court’s order.

Under the facts outlined by the district court, the officers are not entitled to

qualified immunity. The district court assumed that the officers entered the apartment

after “McCrillis thought Ellison was being mouthy with her and wanted to keep him

from shutting the door on them.” R. Doc. 170, at 2. The Fourth Amendment

generally requires a warrant before police may enter a residence, Payton v. New York,

445 U.S. 573, 590 (1980), and while there are exceptions to the warrant requirement

in exceptional situations, “mouthiness” of a resident is not one of them. The right to

be secure in a residence against a warrantless entry was clearly established by Payton

and other decisions as of December 2010. See Steagald v. United States, 451 U.S.

204, 211 (1981); Smith v. Kansas City, Missouri Police Dept., 586 F.3d 576, 581 (8th

Cir. 2009). Although the precise fact pattern described by the district court has not

been the subject of a Supreme Court decision, officers were on fair notice that they

could not enter a home simply because they perceived as mouthy a resident who told

them that he wanted no help and desired to be left alone. Indeed, the officers do not

argue that entry was permissible on that basis. They contend, as noted, that other

facts not accepted by the district court justified their search. Limited as we are by the

facts assumed in the district court’s order, we affirm the denial of qualified immunity

on the claim that McCrillis and Lesher unlawfully entered Ellison’s residence.

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B.

On the claimthat Lesher used excessive force when she shot and killed Ellison,

the district court concluded:

Simply put, the facts, when viewed in the light most favorable to

Ellison, indicate that Ellison, a 67 year old man, wasstanding in his own

home when he was killed by Lesher, after she and McCrillis unlawfully

entered his apartment and ignored his requests for them to leave. 

Although he was refusing to lie on the ground as the officers directed,

the four officers, two male and two female, did not try to physically

subdue him and it is undisputed that he was making no attempt to flee. 

Lesher also never warned him that she had a gun and would shoot if he

did not drop his cane. As a result, a reasonable jury could find that

Lesher used deadly force against a person who did not pose an

immediate threat of serious physical injury or death to them.

The district court further ruled that Lesher was not entitled to qualified immunity,

because “existing case law made it sufficiently clear to a reasonable officer that a

suspect cannot be apprehended by use of deadly force unless that individual poses a

threat of serious physical harm.” R. Doc. 170, at 14 (citing Nance v. Sammis, 586

F.3d 604, 611 (8th Cir. 2009)).

The Fourth Amendment requires us to ask, based on the perspective of a

reasonable officer on the scene, “whether the officers’ actions are ‘objectively

reasonable’ in light of the facts and circumstances confronting them, without regard

to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397

(1989). “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.” Loch v. City of 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. Tennessee v. Garner, 471 U.S. 1, 11 (1985).

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Lesher argues that her use of deadly force wasreasonable, because Ellison had

disobeyed multiple commands to lie down on the floor of the apartment, resisted

officers during the altercation in the apartment, and charged at the officers while

swinging a cane. On these facts, Lesher contends, a reasonable officer could have

believed that there was a threat of death or serious physical injury to the officers or

others. Invoking qualified immunity, moreover, she argues that it was not clearly

established at the time of the incident that the Fourth Amendment prohibits the use

of deadly force against a man under these circumstances.

We conclude, again, that we cannot accept the contention advanced by Lesher,

because her framing of the abstract legal issue is premised on a set of facts that was

not assumed by the district court. Lesher avers that Ellison charged at her and the

other officers while swinging a cane. The district court, construing the evidence in

the light most favorable to Ellison, thought it was “unclear whether or not Ellison was

holding his cane,” and that “[d]iscrepancies and variations in the officers’ testimony

make it impossible to determine what the facts and circumstances confronting Lesher

were at the moment when she shot and killed Ellison.” R. Doc. 170, at 3, 14. We do

not have jurisdiction to review whether Ellison’s estate will be able to prove at trial

that Lesher shot Ellison while he was empty-handed. Johnson, 515 U.S. at 313. We

must accept for purposes of our decision that Ellison was not wielding the cane when

the shooting occurred.

Considering the abstract legal issue based on the facts assumed by the district

court, we conclude that Lesher is not entitled to qualified immunity. If Lesher shot

Ellison while he wassimply standing in his apartment and holding no cane, then there

were not reasonable grounds to believe that Ellison posed a serious threat of death or

serious physical injury to the officers or others. Ellison’s refusal of a command to lie

down on the floor did not, by itself, make reasonable the use of deadly force.

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Ellison’s right to be secure against a seizure by the use of deadly force under

those circumstances was clearly established as of December 2010. Since the 1985

decision in Tennessee v. Garner, “officers have been on notice that they may not use

deadly force unless the suspect poses a significant threat of death or serious physical

injury to the officer or others.” Craighead v. Lee, 399 F.3d 954, 962 (8th Cir. 2005). 

Although the precise scenario described by the district court does not appear in a

reported decision, the officers were on fair notice that the use of deadly force would

not be reasonable. Lesher does not contend that a reasonable officer could have

believed that it was reasonable to use deadly force merely to enforce an order that

Ellison lie on the ground. Her argument is premised on a different set of facts that the

district court declined to accept in resolving the motion. We therefore affirm the

denial of qualified immunity on Ellison’s claim against Lesher based on the use of

deadly force.

C.

The officers also appeal the district court’s denial of their motion for summary

judgment on the claimthat they used excessive non-lethalforce against Ellison during

the altercation in the apartment. The district court did not address this aspect of their

motion. Insofar as the district court did not state the facts relevant to this portion of

the claim, we have determined from the record what facts the court likely assumed. 

See Johnson, 515 U.S. at 319. 

The district court stated that after McCrillis and Lesher entered Ellison’s

apartment, Ellison approached the door,McCrillis shovedEllison, and Ellison pushed

back. There followed a physical altercation in which Ellison repeatedly told the

officers to get out of his apartment, and the officers repeatedly struck Ellison. 

According to the medical examiner’s report of injuries, aside from the gunshot

wounds that killed Ellison, the body showed a “minor right front galeal scalp

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contusion,” a “minor cutaneous abrasion of right lower arm,” and “contusions of

testes.” Def.’s Mot. Summ. J. Ex. 6, at 11, R. Doc. 124. 

The officers argue that they were entitled to protect themselves when Ellison

responded to McCrillis’s shove by “attacking” the officers. The district court

assumed only that Ellison “pushed back,” and that the officers then repeatedly struck

him and knocked off his glasses. Whatever the reasonableness of the force used in

light of the facts assumed by the district court, it was not clearly established as of

December 2010 that a use of force causing only de minimisinjury violated the Fourth

Amendment. Chambers v. Pennycook, 641 F.3d 898, 908-09 (8th Cir. 2011). Our

cases characterize relatively minor scrapes, bruises, and contusions as de minimis. 

Ziesmer v. Hagen, 785 F.3d 1233, 1236-37 (8th Cir. 2015); Wertish v. Kreuger, 433

F.3d 1062, 1066-67 (8th Cir. 2006). Taking the medical examiner’s report as

evidence of injuries suffered by Ellison, the bruises, scrapes, and contusions that

Ellison experienced as a result of the altercation with officers were likewise de

minimis. McCrillis is therefore entitled to qualified immunity on the claim of

excessive force in Count II, and Lesher is entitled to qualified immunity for the use

of non-lethal force inside the apartment before the shooting. 

* * *

A qualified immunity defense, although unsuccessful on a motion for summary

judgment, may be renewed at trial. Ortiz v. Jordan, 562 U.S. 180, 184 (2011). At

that point, the defense “must be evaluated in light of the character and quality of the

evidence received in court.” Id. As we have explained, the officers dispute the facts

assumed by the district court in ruling on the motion for summary judgment, and they

presumably will present evidence at trial to support their version of events. Even if

a jury finds that the entry to Ellison’s apartment or the use of deadly force was

unreasonable under the Fourth Amendment, the district court (on proper motion) also

must consider as a matter of law whether the actions of the officers violated a clearly

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established right. See Anderson v. Creighton, 483 U.S. 635, 643-44 (1987). Given

the potential significance of certain disputed facts to that inquiry, it would be

appropriate for the district court to submit special interrogatories to a jury to aid the

court in making the qualified immunity determination. See Littrell v. Franklin, 388

F.3d 578, 585-86 (8th Cir. 2004); accord Gonzalez v. Duran, 590 F.3d 855, 860-61

& 860 n.4 (10th Cir. 2009).

For the reasons stated, the order of the district court denying the motion for

summary judgment based on qualified immunity is affirmed in part and reversed in

part. McCrillis is entitled to qualified immunity on Count II, and Lesher is entitled

to qualified immunity on those aspects of Count II that allege excessive use of nonlethal force inside Ellison’s apartment. The district court’s order denying qualified

immunity on the claims of unlawful entry by the two officers and unreasonable use

of deadly force by Lesher is affirmed.

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