Altovese Williams, Individually v. City of Burlington, Iowa; Chris Chiprez

United States Court of Appeals
For the Eighth Circuit
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No. 21-1450
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Altovese Williams, Individually, and as Administrator of the Estate of Marquis
Jones, and, by next friend B.B.D, by next friend M.R.J., Jr., by next friend D.K.J.,
by next friend M.R.J., III, by next friend M.R.H.
Plaintiff - Appellee
v.
City of Burlington, Iowa; Chris Chiprez
Defendants - Appellants
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: November 16, 2021
Filed: March 9, 2022
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Before BENTON, KELLY, and ERICKSON, Circuit Judges.
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BENTON, Circuit Judge.
Marquis Jones ran away from a traffic stop. Fleeing, he dropped a gun.
Burlington Police officer Christopher Chiprez shot and killed him. Jones’s estate

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sued under state and federal law. The district court1 denied qualified immunity to
Chiprez, based on two genuine disputes of material fact for the jury: “(1) whether
Officer Chiprez saw Jones drop the gun when he ordered him to; and (2) whether
Officer Chiprez was unreasonable in believing Jones was taking a firing position
rather than surrendering.” Chiprez appeals the denial of qualified immunity. This
court affirms.
Officers Chris Chiprez and Joshua Riffel stopped Marquis Jones on the
afternoon of October 1, 2017 for playing music too loudly while driving in a
residential neighborhood. Jones got out of his car and ran from the traffic stop;
Chiprez pursued on foot. Riffel intercepted Jones with the patrol car. Riffel got out,
tackling him in the street. He saw Jones had a handgun—the parties dispute whether
it was in his hand or fell out of his waistband. Riffel shoved Jones away shouting,
“He’s got a gun, Chip!” Chiprez, arriving on foot, saw Riffel retreating.
Jones continued running, up a hill, away from the officers. Chiprez yelled
“Drop it!” Seconds later, he fired seven shots, missing Jones. From here, the officers
and the estate tell two versions of events. It is undisputed that, near where Chiprez
ordered him to drop the gun, Jones dropped it. Jones ran through the gate to a fenced-
in yard. He got down on the ground. Chiprez approached the yard, yelled “stop,”
and shot Jones in the chest, killing him.
Jones’s estate, on behalf of his five minor children, assert three remaining
claims against the City of Burlington and officer Chiprez. They assert federal and
state constitutional violations of excessive use of force and arrest without probable
cause. Under Iowa state law they assert loss of consortium. Both sides moved for
partial summary judgment.
1 The Honorable Stephanie M. Rose, Chief Judge, United States District
Court for the Southern District of Iowa.

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The estate argues that this court lacks jurisdiction of this interlocutory appeal.
Not every denial of summary judgment in a qualified immunity case is immediately
appealable. Johnson v. Jones, 515 U.S. 304, 313-18 (1995). If the only issue is
sufficiency of the evidence, this court lacks jurisdiction. See Henderson v. Munn,
439 F.3d 497, 500-01 (8th Cir. 2006); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
But when there is an issue of law, including whether the federal right allegedly
infringed was “clearly established,” a summary judgment determination is
appealable. Johnson, 515 U.S. at 317. See also Brown v. Fortner, 518 F.3d 552,
557 (8th Cir. 2008). Since Chiprez raises the issue whether he had fair warning
about the unconstitutionality of his alleged actions, this court has jurisdiction to
review the denial of summary judgment.
This court reviews de novo the district court’s denial of summary judgment
based on a lack of qualified immunity. New v. Denver, 787 F.3d 895, 899 (8th Cir.
2015).
The doctrine of qualified immunity protects public officials from personal
liability under 42 U.S.C. § 1983, “insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009), citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). This court addresses two questions in
analyzing qualified immunity: 1) “whether the facts that a plaintiff has alleged or
shown make out a violation of a constitutional right” and 2) “whether the right at
issue was ‘clearly established’ at the time of defendant's alleged misconduct.”
Pearson, 555 U.S. at 232, citing Saucier v. Katz, 533 U.S. 194, 201 (2001) (other
citations omitted).
I.
The estate alleges a violation of the Fourth Amendment. An objectively
unreasonable use of force is excessive, violating the Fourth Amendment's

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prohibition against unreasonable seizures. See, e.g., Graham v. Connor, 490 U.S.
386, 394-96 (1989). The estate alleges that Chiprez knew or should have known
that Jones was unarmed, so his use of deadly force was excessive.
Chiprez repeatedly urges this court to disregard as “pure speculation and
conjecture” the facts presented by the estate. See Solomon v. Petray, 795 F.3d 777,
788 (8th Cir. 2015). As the Supreme Court has emphasized, when analyzing a claim
of qualified immunity, “courts may not resolve genuine disputes of fact in favor of
the party seeking summary judgment.” Tolan v. Cotton, 572 U.S. 650, 656 (2014).
Rather, this court “must construe the facts in the light most favorable to [the
nonmovant] to determine whether a constitutional violation occurred and whether
any violation of a constitutional right was clearly established.” K.W.P. v. Kansas
City Public Schools, 931 F.3d 813, 821 (8th Cir. 2019). This court may not make
determinations of fact and credibility in assessing whether a party is entitled to
qualified immunity. Ludwig v. Anderson, 54 F.3d 465, 473 (8th Cir. 1995).
“The reasonableness of a use of force turns on whether the officer's actions
were objectively reasonable in light of the facts and circumstances confronting him,
without regard to his subjective intent or motivation.” Loch v. City of Litchfield,
689 F.3d 961, 965 (8th Cir. 2012). Qualified immunity protects “reasonable
mistakes” of fact. Saucier, 533 U.S. at 206. “The calculus of reasonableness must
embody allowance for the fact that police officers are often forced to make split-
second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation.”
Graham, 490 U.S. at 396-97.
Chiprez alleges he mistakenly believed Jones was still armed when he shot
and killed him, and reasonably believed he was in a “firing position.” In support, he
cites the Iowa Attorney General’s investigation into this use of deadly force. But
the estate presented competing evidence to the district court—autopsy results, body-
camera footage, and inconsistent police reports of the incident—to support the claim
that Chiprez saw Jones drop the gun, and that he could not reasonably have believed

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Jones was in a shooting position. That evidence is more than speculation or
conjecture. In one frame of the body-camera footage, Chiprez appears to look
directly at the items dropped by Jones—including the gun—while running after him.
The autopsy results and re-creations of the scene support that Jones was nearly prone
on the ground when he was fatally shot, rather than in the upright “firing position”
Chiprez describes. These facts and evidence presented by the estate would support
a determination that a constitutional violation occurred.
The district court properly relied on Wealot v. Brooks, 865 F.3d 1119, 1122-
23 (8th Cir. 2017). Police officers there, responding to a domestic call, saw a man
fire shots at people in a nearby vehicle and run away, dropping the gun as he ran.
Id. at 1123. One officer caught up to him, shooting him eight times when he began
to turn around. Id. This court reversed the grant of summary judgment, finding two
genuine disputes of material fact: whether the officers saw the man throw his gun
and thus knew he was unarmed, and whether he was turning around with his hands
raised to surrender. Id. at 1125. The same outcome is warranted here.
II.
“For a constitutional right to be clearly established, there does not have to be
a previous case with exactly the same factual issues.” Nance v. Sammis, 586 F.3d
604, 611 (8th Cir. 2009), citing Hope v. Pelzer, 536 U.S. 730, 739 (2002). But the
right should not be defined at “a high level of generality.” White v. Pauly, 137 S.
Ct. 548, 552 (2017). “Hence, the issue is not whether prior cases present facts
substantially similar to the present case but whether prior cases would have put a
reasonable officer on notice that the use of deadly force in these circumstances would
violate [the] right not to be seized by the use of excessive force.” Craighead v. Lee,
399 F.3d 954, 962 (8th Cir. 2005).
“Since 1985, it has been established by the Supreme Court that the use of
deadly force against a fleeing suspect who does not pose a significant threat of death
or serious physical injury to the officers or others is not permitted.” Moore v.

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Indehar, 514 F.3d 756, 763 (8th Cir. 2008), citing Tennessee v. Garner, 471 U.S.
1, 11 (1985). The right established in Garner is sufficiently clear. See e.g., Capps
v. Olson, 780 F.3d 879, 886 (8th Cir. 2015) (“[A] reasonable officer would have
understood that use of deadly force against a fleeing suspect who does not pose a
significant and immediate threat of serious injury or death to an officer or others is
not permitted.”); Nance, 586 F.3d at 610; Moore, 514 F.3d at 763 (determining that
a jury could find an officer's decision to use deadly force against an unarmed person
fleeing the scene of a shooting objectively unreasonable); Wallace v. City of
Alexander, 843 F.3d 763, 769 (8th Cir. 2016) (“[A]n officer violate[s] Garner by
using deadly force to seize an individual who did not possess a weapon and was
attempting to flee the scene of a potentially violent crime.”); Craighead, 399 F.3d at
962 (“At least since Garner was decided ... 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.”).
Chiprez emphasizes his (alleged) belief that Jones was still armed. He does
not claim that he was ignorant of the constitutional prohibition against the use of
deadly force against an unarmed, non-dangerous suspect. The officers had no reason
except the gun to believe Jones was dangerous; the traffic stop was initiated for a
noise ordinance. If, construing the evidence most favorably to the estate, Chiprez
knew Jones was unarmed, then shooting him violated a clearly established
constitutional right.
III.
Chiprez argues that an admission by the estate during discovery negates its
entire case. Replying to a request for admissions, the estate responded that Chiprez
had a reasonable belief that Jones had a gun when Chiprez used deadly force. The
estate supplemented its response to state it referred only to Chiprez’s “first” use of
deadly force—the missed shots—not the fatal shot. Regardless, the response is not
the only evidence about whether Jones had a gun when fatally shot. Under Tolan,

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this court will not construe the response against the estate, as this argument would
require. See Tolan, 572 U.S. at 655.
Chiprez also asserts that opinions by the autopsy doctor should not be
considered by this court (just as the district court did not consider them). Because
this issue was not the subject of an appealable order, this court will not consider it.
See, e.g., Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545 (1949).
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The order denying qualified immunity is affirmed.
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