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Ellison v. Lesher

United States Court of Appeals, Eighth Circuit

August 6, 2015

Troy Ellison, as Personal Representative of the Estate of Eugene Ellison, deceased, Plaintiff - Appellee,
v.
Donna Lesher, individually and in her official capacity; Tabitha McCrillis, individually and in her official capacity, 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, Defendants

Submitted December 11, 2014

Appeal from United States District Court for the Eastern District of Arkansas - Little Rock.

For Troy Ellison, as Personal Representative of the Estate of Eugene Ellison, deceased, Plaintiff - Appellee: Ben Elson, G. Flint Taylor, People's Law Office, Chicago, IL; Michael J. Laux, Laux Law Group, San Francisco, CA.

For Donna Lesher, individually and in her official capacity, Defendant - Appellant: Thomas Milton Carpenter, City Attorney, William Clark Mann III, City Attorney's Office, Little Rock, AR.

For Tabitha McCrillis, individually and in her official capacity, Defendant - Appellant: Thomas Milton Carpenter, City Attorney, William Clark Mann III, City Attorney's Office, Little Rock, AR.

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.

OPINION

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 non-lethal 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, 105 S.Ct. 2806, 86 L.Ed.2d 411 (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, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). In considering the appeal by the officers, therefore, we are constrained 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 ...


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