Florine K. Ching, as Trustee for the Heirs v. City of Minneapolis

United States Court of Appeals
For the Eighth Circuit
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No. 22-3157
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Florine K. Ching, as Trustee for the Heirs and Next of Kin of Travis Matthew
Jordan, Decedent
Plaintiff - Appellee
v.
City of Minneapolis
Defendant
Ofc. Neal Walsh, in his individual and official capacity
Defendant - Appellant
Ofc. Ryan Keyes and Police Chief Medaria Arradondo, in their individual and
official capacities
Defendants
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Appeal from United States District Court
for the District of Minnesota
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Submitted: June 15, 2023
Filed: July 13, 2023
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Before LOKEN, ERICKSON, and KOBES, Circuit Judges.
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ERICKSON, Circuit Judge.
Florine Ching brought this 42 U.S.C. § 1983 action after her son Travis Jordan
was shot and killed by City of Minneapolis Police Officer Neal Walsh. The district
court found Walsh was entitled to qualified immunity as to his initial use of deadly
force but not the continued use of force after Jordan dropped his knife and had fallen
to the ground. In this interlocutory appeal, Walsh asserts he is entitled to qualified
immunity as to the entire encounter, which lasted a total of about two seconds. We
reverse the denial of qualified immunity.
I. BACKGROUND
On November 9, 2018, law enforcement was dispatched to Jordan’s mother’s
residence following a report that Jordan was present at the home, suicidal,
emotionally disturbed, and interested in acquiring a gun. When the officers made
contact with Jordan who was inside the house, Jordan indicated he did not want to
speak with the officers and told them to leave. A few minutes later, Jordan moved
through the house, entering an enclosed front porch with a knife. The officers drew
their weapons and repeatedly commanded Jordan to drop the knife. Jordan,
undeterred, opened the front door, stepped into the doorway, and repeatedly shouted,
“Let’s do this” and, “Come on, just do it.”
Ignoring the officers’ commands to drop the knife, Jordan came outside and
began to deliberately walk toward Walsh while shouting, “Let’s do this” and, “Just
do it.” Jordan walked toward Walsh with the knife at his side. As Jordan approached
the officers, they continued to order Jordan to drop the knife. As the distance
between Jordan and Walsh closed, Walsh began to back away from Jordan. Jordan
kept coming and continued to refuse to stop or drop the knife. When Jordan was
approximately six to twelve feet from Walsh, Walsh began shooting at Jordan. He
shot without pause seven times over the course of approximately two seconds. In
quick succession and without any discernible pause, Walsh fired three shots while

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Jordan was standing and four shots while Jordan was on the ground. Jordan
subsequently succumbed to his wounds.
Ching filed this § 1983 action, alleging, among other claims, an excessive
force claim against Walsh. Walsh moved for judgment on the pleadings based on
qualified immunity. At the urging of Ching, the district court bifurcated the analysis
of Walsh’s use of force into two segments—the initial use of force while Jordan was
walking toward the officer and the continued use of force after Jordan had dropped
the knife and fallen to the ground. As to the shooting that lasted no more than two
seconds, the district court found Walsh was entitled to qualified immunity with
regard to the initial use of force but not as to the continued firing. The district court
reasoned that Walsh had sufficient time and situational awareness to adjust his aim
downward after Jordan fell to the ground and, based on this determination,
concluded a reasonable jury could find Walsh had time to reassess the threat posed
by Jordan. Walsh appeals.
II. DISCUSSION
Appellate review of the denial of qualified immunity is limited to issues of
law. McDaniel v. Neal, 44 F.4th 1085, 1088 (8th Cir. 2022). We review de novo
the district court’s qualified immunity determination. See Lane v. Nading, 927 F.3d
1018, 1022 (8th Cir. 2019).
In a § 1983 action, an officer is entitled to qualified immunity unless: (1) the
officer’s conduct violated a constitutional right, and (2) that right was clearly
established. Manning v. Cotton, 862 F.3d 663, 668 (8th Cir. 2017). An officer
violates the Fourth Amendment by using excessive force when conducting a seizure.
See White v. Jackson, 865 F.3d 1064, 1074 (8th Cir. 2017). In determining whether
an officer has used excessive force, we consider whether the force used was
reasonable under the particular circumstances. See id. The use of deadly force is
reasonable only if the officer had probable cause to believe the suspect presented “a

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threat of serious physical harm to the officer or others.” Partridge v. City of Benton,
929 F.3d 562, 565 (8th Cir. 2019).
An officer violates a clearly established right only if a reasonable officer in
the same position would understand his conduct violates the right. Dillard v.
O’Kelley, 961 F.3d 1048, 1052 (8th Cir. 2020) (en banc). Courts must not “define
clearly established law at a high level of generality.” Id. (quoting Kisela v. Hughes,
138 S. Ct. 1148, 1152 (2018)). In determining whether an officer violated a clearly
established right, a court should “look for a controlling case or ‘a robust consensus
of cases of persuasive authority’” that “involves sufficiently similar facts to squarely
govern” the conduct at issue and places the question “beyond debate.” Ashcroft v.
Al-Kidd, 563 U.S. 731, 741 (2011); Perry v. Adams, 993 F.3d 584, 587 (8th Cir.
2021); Dillard, 961 F.3d at 1052.
As a preliminary matter, Ching asserts we must accept the factual inference,
which the district court accepted, that Walsh had sufficient time to reassess the threat
Jordan posed after he fell to the ground and dropped the knife. At this stage of the
proceedings, we consider the pleadings and the materials “necessarily embraced by
the pleadings.” LeMay v. United States, 18 F.4th 283, 289 (8th Cir. 2021). Videos
of an incident are necessarily embraced by the pleadings, and we will consider the
videos here. See id. The jurisdictional limitation on our authority to review a district
court’s factual findings does not obligate us to accept a version of events that is
“blatantly contradicted by the record.” Wallace v. City of Alexander, 843 F.3d 763,
767 (8th Cir. 2016); see Ehlers v. City of Rapid City, 846 F.3d 1002, 1010 (8th Cir.
2017).
Our review of the videos of the incident establishes that Walsh never paused
during the shooting that lasted less than two seconds, and he continued shooting for
only approximately one second after Jordan fell to the ground, dropping the knife.
Given the swift and continuous progression of the incident and Walsh’s limited time
to observe and process the circumstances, a jury could not find Walsh had sufficient
time to reassess the threat Jordan presented before he stopped firing.

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This situation is unlike the encounter in Roberts v. City of Omaha, 723 F.3d
966, 974 (8th Cir. 2013), where the Court accepted the district court’s finding that
there was a disputed factual issue as to the objective reasonableness of an officer’s
actions due to evidence suggesting the officer fired his weapon at the person several
times, paused, and fired several more times, possibly shooting the person in the back.
Here, the entire encounter lasted less than two seconds and all shots were fired in
quick succession with inadequate time or opportunity for a reasonable officer to
assess whether the immediate threat had passed.
While mere seconds can be sufficient time for an officer to reassess a threat,
see Cole ex rel. Est. of Richards v. Hutchins, 959 F.3d 1127, 1135 (8th Cir. 2020),
this Court’s precedent at the time of the shooting did not provide Walsh with notice
that a single second in a less than two-second encounter was sufficient time for him
to reassess the threat Jordan presented. Ching has not presented, and we are not
aware of, any case in which a court has bifurcated a shooting when an entire
continuous shooting lasted less than two seconds, and the alleged excessive force
occurred only one second after the threat was arguably dissipated.
The facts of this case are markedly similar to the facts of Estate of Morgan v.
Cook, 686 F.3d 494 (8th Cir. 2012). In Cook, an officer responded to the scene of
an intoxicated suspect. 686 F.3d at 495. The officer observed the suspect––who
was six to twelve feet from the officer––attempting to conceal a kitchen knife, which
was pointed down by his side. Id. at 495-96, 498. The officer twice directed the
suspect to drop the knife, and the suspect failed to do so. Id. at 496. The suspect
then stood and raised his leg forward as if to take a step in the officer’s direction,
and the officer shot the suspect. Id. This Court held the officer’s decision to shoot
at the suspect was objectively reasonable because, among other facts, the suspect
was holding a knife, failed to comply with the officer’s direction to drop it, began
moving toward the officer, and was no more than twelve feet from the officer when
the officer began shooting. Id. at 497. Given the similarities to this case, the caselaw
did not place “beyond debate” that Walsh could not reasonably believe Jordan
presented a sufficient threat to justify the use of deadly force. See Dillard, 961 F.3d

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at 1052; see also Kong ex rel. Kong v. City of Burnsville, 960 F.3d 985, 993 (8th
Cir. 2020) (noting an officer may use deadly force to stop a person armed with a
bladed weapon if the officer reasonably believed the person could kill or seriously
injure others). Because, after Jordan posed a threat to Walsh, it was not clearly
established that Walsh’s continuous shooting, which lasted less than two seconds,
violated a constitutional right, Walsh is entitled to qualified immunity.
The parties dispute the significance of Jordan’s reported suicidality. Compare
Kong, 960 F.3d at 993 (noting mental illness does not reduce the immediate and
significant threat a suspect poses), with Partridge, 929 F.3d at 565 (considering the
decedent’s suicidality when determining no reasonable officer would have believed
the decedent presented an immediate threat). Even if Jordan’s emotional condition
perhaps mitigated the threat he posed to the responding officers, a question we need
not reach, this detail does not sufficiently distinguish this case from Cook such that
Walsh would have had “fair warning” that his conduct violated a constitutional right.
See Sisney v. Reisch, 674 F.3d 839, 845 (8th Cir. 2012).
III. CONCLUSION
For the foregoing reasons, we reverse the denial of qualified immunity and
remand for entry of judgment in favor of defendants.
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