Submitted: February 8, 2017
from United States District Court for the Western District of
Missouri - Kansas City
SMITH,  BENTON and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Shawn Todd and David Epperson were involved in a physical
altercation with Kenny Gurley that resulted in Gurley's
death. Donna Lancaster, Gurley's mother, brought this
suit against both officers and the Board of Police
Commissioners of Kansas City, Missouri (the
"Board") asserting a number of federal and state
law causes of action. The officers and the Board moved for
summary judgment on the basis of state and federal immunity
doctrines, and the district court granted that motion in part
and denied it in part. Both officers and the Board sought
interlocutory review, and we affirm in part and reverse in
in the light most favorable to Lancaster as the non-moving
party, see Chambers v. Pennycook, 641 F.3d 898, 904
(8th Cir. 2011), the facts are as follows. Police dispatch in
Kansas City reported that prowlers had kicked in the door of
a vacant house, and it provided a description of the
suspects. Officers Todd and Epperson responded to the call.
Upon arriving at the house a few minutes later, the officers
heard a banging noise in the home and, as a result, believed
a burglary was in progress. Officer Todd proceeded to the
back yard. Although the record is unclear about his exact
location, Officer Epperson stayed in the front of the house.
Officer Todd announced his presence and instructed the people
in the house to come out with their hands up. Shortly
thereafter, Kenny Gurley and Robert Bowlin exited the back
door of the home. Gurley was carrying a metal pipe.
Todd instructed the men to stop and put their hands up, and
they complied. Bowlin told Officer Todd that Gurley was
having some mental issues and that Gurley was thinking about
buying the property. Next, Officer Todd holstered his
firearm, walked up to Gurley, and punched him in the face.
Because the punch did not appear to affect Gurley, Officer
Todd called to Officer Epperson and requested a taser.
Officer Epperson then came into the back yard, and Gurley-who
still had the pipe in his hand with his hands in the
air-turned his body toward Officer Epperson to see who was
coming. Officer Epperson ran toward Gurley, yelled
"Stop!, " and shot him twice. Gurley died
immediately as a result of the gunshot wounds.
brought suit asserting the following claims: (1) In Count I,
she asserts a cause of action under 42 U.S.C. § 1983
against Epperson for unreasonably inflicting deadly force;
(2) In Count IV, she asserts a cause of action under §
1983 against both officers for violating Gurley's right
to bodily integrity; (3) In Count V, she asserts a claim
against the Board under § 1983 alleging the Board's
failure to adequately train the officers caused the
constitutional violations presented in Counts I and IV; (4)
In Count VI, she asserts a state law wrongful death claim
against both officers and the Board; and (5) In Count VII,
she asserts a state law negligence claim against both
officers and the Board.
defendants moved for summary judgment, asserting, as
relevant, defenses of qualified immunity, official immunity,
and sovereign immunity. The district court denied
Epperson's motion for summary judgment based on qualified
immunity on Counts I and IV, finding that it was objectively
unreasonable for him to use deadly force under the
circumstances. Likewise, the court denied Todd's motion
for summary judgment on Count IV, finding that it was
objectively unreasonable for Todd to punch Gurley in the
face. On Counts VI and VII, the court found that the officers
were not entitled to official immunity because, under
Missouri law, this immunity is not available when the
official acts with malice or in bad faith.
Accepting the plaintiff's version of the facts as true,
the court ruled that a jury could find that the officers'
actions were taken with these prohibited motives.
court next denied the Board's motion on Count V because
its only argument was derivative of the officers'
arguments on Counts I and IV-that the Board could not be
liable because the officers were not liable. Finally,
although the court did find that the Board was entitled to
sovereign immunity for the negligence claim in Count VII, it
found that immunity did not extend to the wrongful death
claim in Count VI which, under Missouri law, can be premised
on "any act . . . which, if death had not ensued, would
have entitled such person to recover damages in respect
thereof." Mo. Rev. Stat. § 537.080(1).
Hypothesizing that the failure to train allegations would
suffice, if proven, to allow Gurley to recover from the Board
had he not died, the court concluded that the Board was not
protected by sovereign immunity from the wrongful death
is entitled to summary judgment only when "there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). "Ordinarily, we lack jurisdiction to hear an
immediate appeal from a district court's order denying
summary judgment, because such an order is not a final
decision." Shannon v. Koehler, 616 F.3d 855,
860 (8th Cir. 2010) (internal quotation marks omitted).
"[B]ut an immediate appeal is appropriate where summary
judgment is denied on the grounds of sovereign immunity or
qualified immunity, because immunity is effectively lost if a
case is erroneously permitted to go to trial."
Argonaut Great Cent. Ins. Co. v. Audrain Cnty. Joint
Commc'ns, 781 F.3d 925, 929-30 (8th Cir. 2015)
(holding that the collateral order doctrine permitted
interlocutory review of a denial of a ...