William O. Evans, Jr., as Trustee for the Heirs and Next-of-Kin for Benjamin Evans v. Brian Jeffery Krook, individually

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-2753
___________________________
William O. Evans, Jr., as Trustee for the Heirs and
Next-of-Kin for Benjamin Evans
Plaintiff - Appellee
v.
Brian Jeffery Krook, individually and in his official capacity as
a Deputy for Washington County Sheriff’s Office
Defendant - Appellant
Michelle Folendorf, individually and in her official capacity as a Deputy for
Washington County Sheriff’s Office; Joshua John Ramirez, individually and in his
official capacity as a Deputy for Washington County Sheriff’s Office;
Michael Ramos, individually and in his official capacity as a Deputy for
Washington County Sheriff’s Office; Dan Starry, individually and in his official
capacity as a Deputy for Washington County Sheriff’s Office;
Washington County, as a political subdivision of the State of Minnesota
Defendants
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: March 14, 2024
Filed: July 3, 2024
[Published]
____________

-- 1 of 3 --

-2-
Before GRUENDER, SHEPHERD, and GRASZ, Circuit Judges.
____________
PER CURIAM.
On April 12, 2018, Benjamin Evans knelt in a crosswalk in Lake Elmo,
Minnesota, with a loaded gun pointing toward his own head. After about forty
minutes of negotiations with multiple officers on the scene, Police Deputy Brian
Krook shot Evans multiple times, killing him. In a criminal trial, a jury acquitted
Krook of a second-degree manslaughter charge for killing Evans. Evans’ father,
William O. Evans, Jr., then sued Krook civilly under 42 U.S.C. § 1983, alleging
excessive force in violation of the Fourth Amendment.
Krook moved for summary judgment based on qualified immunity. Qualified
immunity is unavailable as a defense when an officer uses deadly force against
someone who does not pose an “immediate threat of serious physical harm to
another.” Cole v. Hutchins, 959 F.3d 1127, 1134 (8th Cir. 2020). “[A] person does
not pose an immediate threat of serious physical harm to another when, although the
person is in possession of a gun, he does not point it at another or wield it in an
otherwise menacing fashion.” Id. The district court denied Krook’s motion due to
material fact disputes, explaining “there are genuine factual disputes over whether
Evans’ gun was ever pointed at the officers and whether Evans otherwise posed an
immediate threat to them[.]” In this interlocutory appeal, Krook challenges the order
denying qualified immunity.
The first question in an appeal from denial of qualified immunity is that of
jurisdiction, as we do not have “jurisdiction to review the district court’s
determination regarding evidence sufficiency—i.e., what facts a party may or may
not be able to prove at trial.” Thompson v. Murray, 800 F.3d 979, 982–83 (8th Cir.
2015). “[O]ur jurisdiction is limited to the purely legal question of whether the
conduct that the district court found was adequately supported in the record violated
a clearly established federal right.” Taylor v. St. Louis Cmty. Coll., 2 F.4th 1124,

-- 2 of 3 --

-3-
1126–27 (8th Cir. 2021). Here, the availability of qualified immunity turns on
whether Krook acted reasonably under the circumstances by shooting Evans because
Evans either pointed his gun at another or otherwise wielded his gun in a “menacing
fashion.” See Cole, 959 F.3d at 1134. The district court noted that it is “undisputed
that Evans never took direct aim at Krook or anyone else . . . .” Krook claims the
shooting was constitutionally reasonable because Evans’ gun was pointed in the
direction of the officers (through Evans’ own head) when Evans turned his head.
Krook argues his appeal thus involves a dispute regarding the legal question of
whether clearly established law forbid the “use of deadly force against a non-
compliant suicidal person” under these circumstances. In this situation, we must
“look beyond the officer’s characterization of the issue” and decide if the officer is
simply claiming the plaintiff lacks sufficient evidence to create a material issue of
fact, “which we lack jurisdiction to review.” Taylor, 2 F.4th at 1127. “[A]n officer
‘cannot create appellate jurisdiction by using qualified immunity verbiage to cloak
factual disputes as a legal issue.’” Id. (quoting Berry v. Doss, 900 F.3d 1017, 1021
(8th Cir. 2018)).
Here, the inconclusive nighttime videos of Evans’ actions did not clearly
contradict the district court’s factual determinations, so analyzing the record to
resolve the underlying factual dispute is beyond our limited review. See Graham v.
St. Louis Metro. Police Dep’t, 933 F.3d 1007, 1009 (8th Cir. 2019). For us to reach
Krook’s “legal argument” that he “responded reasonably and did not violate clearly
established law, we would have to exceed our jurisdiction and cast aside the district
court’s factual finding[], analyze the factual record, and resolve [a] genuine factual
dispute[] against the non-moving party. This we cannot do.” See Taylor, 2 F.4th at
1127. Therefore, we dismiss this appeal because we lack the jurisdiction to resolve
it.
______________________________

-- 3 of 3 --