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Thompson v. Dill

United States Court of Appeals, Eighth Circuit

July 23, 2019

Crystal Thompson; Z.T., by and through his next friend Crystal Thompson; Tyler Hutson; G.T., III, by and through his next friend Marinda Hayden; S.T., by and through her next friend Marinda Hayden; T.T., by and through her next friend Marinda Hayden; Gerald Thompson; Mary Estrada Plaintiffs - Appellees
v.
Andrew Dill Defendant-Appellant

          Submitted: November 14, 2018

          Appeal from United States District Court for the Western District of Missouri - Southern Division

          Before GRUENDER, KELLY, and GRASZ, Circuit Judges.

          GRASZ, CIRCUIT JUDGE.

         This interlocutory appeal is about whether Trooper Andrew Dill of the Missouri Highway Patrol is immune from a lawsuit filed against him for shooting and killing Gerry Thompson during Dill's response to a serious domestic disturbance. The district court denied Dill's motion for summary judgment, concluding there were genuine issues of material fact in dispute preventing it from concluding Dill was entitled to his asserted immunity defenses. Because Dill's appeal turns on disputed issues of fact as to what occurred before the shooting, we lack jurisdiction and dismiss.

         I. Background[1]

         On May 4, 2016, law enforcement officers were dispatched to Gerry and Crystal Thompson's residence. The radio dispatcher reported that a male had assaulted Crystal and was now holding her and a small child against their will. The dispatcher reported the man - who was later identified as Crystal's husband Gerry - threatened to kill Crystal if police came to the house. Dill and other law enforcement officers from various departments responded to the call.

         Dill arrived at the residence and stationed himself in a neighboring yard to the east of the Thompson residence. The record reveals that another officer, Dallas County Deputy Sheriff Darren Cheek, conversed with Gerry at the front door entryway and ultimately employed his taser against Gerry. The taser did not subdue Gerry, and Gerry tried to push Cheek out of the entryway and close the door. Dill testified the sound of the taser combined with the fact Cheek staggered backward led Dill to believe Gerry had shot the officer. Dill then observed Cheek and several other officers forcibly enter the home.

         While Gerry and the officers were inside, Dill walked toward the residence and looked in the front door, where he observed Crystal, with blood on her face, holding a child. Dill heard screaming, yelling, and banging inside the house and concluded Gerry was not under police control and that Crystal and her child were in danger.

         Gerry soon charged out a separate door. Almost immediately and without giving any warning to Gerry, Dill discharged his firearm a single time, fatally shooting Gerry in his right side. Dill testified he saw Gerry move his hands toward his waistband and turn back toward the door, which Dill said caused him to believe Gerry was reaching for a gun to possibly shoot into the house. Gerry was actually unarmed. A video taken by Deputy Cheek's body camera inside the house showed Gerry rushing out of the house and slamming the door shut. Although the door prevented recording video of the actual shooting, the audio of the shooting was recorded.

         Gerry's children and parents and Crystal sued Dill in federal court. The complaint alleged excessive force in violation of 42 U.S.C. § 1983 and a Missouri state law claim of battery.

         After discovery, Dill filed a motion for summary judgment, claiming he was entitled to qualified immunity on the excessive force claim and official immunity on the battery claim. The essence of Dill's argument was that his decision to use deadly force was reasonable under the circumstances involved, including because Dill believed Gerry posed a threat to others considering he "disobeyed commands and fled from officers, only to immediately turn back toward them, while reaching to his waistband."

         The district court denied Dill's motion for summary judgment, concluding a genuine issue of material fact was in dispute as to whether Gerry acted in a way that made it objectively reasonable to believe he posed an immediate threat to officers or others at the scene. The district court explained the body-camera video "shows only the view from inside the residence, such that the shooting at issue and the actions of Dill and [Gerry] occurred on the other side of an opaque door." Thus, the district court reasoned it could not "conclude that [Gerry] reached for his waist, or otherwise behaved in a manner that would have justified the perception that [Gerry] was behaving in a threatening manner."

         As for the battery claim, the district court denied Dill official immunity. The district court credited the Plaintiffs' arguments that there were open fact questions as to whether Dill acted maliciously since Dill shot Gerry almost immediately upon leaving the house and, ...


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