Stacy Ann Smith v. City of Brooklyn Park, et al

Filing

PER CURIAM OPINION FILED - THE COURT: Lavenski R. Smith, C. Arlen Beam and Duane Benton (PUBLISHED) [4171773] [13-1640]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-1640
___________________________
Stacy Ann Smith, as trustee for the heirs and next of kin of Eric Kirk Kolski
lllllllllllllllllllll Plaintiff - Appellant
v.
City of Brooklyn Park; Officer Chad Glirbas, individually and in his official
capacity; Officer Charles Cudd, individually and in his official capacity
lllllllllllllllllllll Defendants - Appellees
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: February 12, 2014
Filed: July 3, 2014
[Published]
____________
Before SMITH, BEAM, and BENTON, Circuit Judges.
____________
PER CURIAM.
Stacy Ann Smith, as trustee for the heirs and next of kin of Eric Kirk Kolski,
filed suit against the City of Brooklyn Park, Minnesota ("the City") and Brooklyn
Park Police Officers Chad Glirbas and Charles Cudd (collectively, "defendants").
Smith alleged that the defendants violated Eric Kolski's constitutional rights when the

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officers used deadly force against Kolski during a response to a domestic disturbance
with a weapon. The defendants moved for summary judgment, and the district court1
granted the motion. Smith appeals, arguing that the district court erred in granting
summary judgment to the defendants because she presented sufficient evidence to
create a fact dispute regarding critical facts at the time that the officers used deadly
force against Kolski. We affirm.
I. Background
At 6:45 p.m. on November 25, 2008, Pamela Kukowski called 911 to report a
domestic disturbance involving a gun at the house that she shared with Kolski.
Kukowski explained that she was hiding in the bathroom because Kolski had a
shotgun and was threatening to kill her.
Officers responded to the 911 call and set up a perimeter around the house.
Officer Glirbas made contact with Kolski at the house's south door and tried to
convince Kolski to exit the house. Kolski stood behind the door, blocking Glirbas's
vision of Kolski's right side. Officer Cudd, Lieutenant Larry Eckman, Officer Jeremy
Halek, and Officer Michael Nordin saw Kolski concealing his right side and right
hand.
Officer Glirbas attempted to negotiate with Kolski to get Kolski to exit the
house, but Kolski repeated statements like "I'm not going to jail," "I hurt too bad,"
and that he wanted to speak with "Linda." Officer Glirbas explained to Kolski that he
had not gone to jail the last time that the police were at his house and that the police
just needed him to step out and talk to them. Kolski replied, "You're going to have to
come in here and get me." Kolski then closed the door and went back inside the
house.

1

The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
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As set forth by the district court, the transcript of the 911 call from Kukowski
reveals the following:
Kukowski told the dispatcher that Kolski was trying to kick down the
bathroom door. (911 Transcript. 8; 911 Audio Track 9.) Dispatch
relayed this information to the officers. (911 Transcript. 8; 911 Audio
Track 10.)
Kukowski stated that she was afraid that Kolski would shoot
through the bathroom door. (911 Transcript 13; 911 Audio Track 21.)
Once Kolski realized the police were at the house, he told Kukowski: "If
they f* * *ing knock on my door, I'm f* * *ing coming in there, and I'll
f* * *ing (inaudible)." (911 Transcript 17; 911 Audio Track 31.) He then
yelled, "I will not go to f* * *ing jail. I will not go to f* * *ing jail.
Mother f* * *er, you're full of sh* *. (inaudible)." (911 Transcript. 18;
911 Audio Track 34.) The dispatcher told the police that Kolski told
Kukowski that "he's not going to jail because of [her]." (911 Transcript
18; 911 Audio Track 37.) Later, Kukowski began screaming, while still
on the 911 call, and yelling at Kolski to put the gun away and to get his
"arm out of there." (911 Transcript 25–26; 911 Audio Track 47.) Kolski
repeatedly asked her if she called the police, and she repeatedly told him
to put the gun away. (Id.) Kolski then said "You're done." (911
Transcript. 26; 911 Audio Track 47.) Next, Kolski continued to yell,
"Let me in this door." (911 Transcript 27; Audio Track 47.)
Dispatch told the police that Kolski still had the gun, that
Kukowski repeatedly told Kolski to put the gun away, and that he kept
asking her if she called the police. (911 Audio Track 48; 911 Transcript
27.) Kukowski told dispatch that she was afraid that he would shoot
through the bathroom door. (911 Transcript 28–30; 911 Audio Track
51.)
Kolski tried to kick the door in and Kukow[sk]i was screaming.
(911 Transcript 36–37; 911 Audio, Track 62.) Dispatch told the police
that Kolski was trying to kick the door down. (911 Transcript 40; 911
Audio Track 64.) Kukowski told dispatch that Kolski was walking
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around outside the bathroom and the lock on the door no longer
worked—she was blocking the door with her legs. (911 Transcript
37–38; 911 Audio, Track 62.) Dispatch told the police that Kukowski
could hear him walking around outside the bathroom. (911 Transcript
41; 911 Audio Track 66.)
Smith v. City of Brooklyn Park, Civil No. 11–3421 (MJD/JJG), 2013 WL 673861, at
*1–2 (D. Minn. Feb. 25, 2013).
Officers interpreted the noises from inside as Kolski attempting to kick in the
bathroom door and Kukowski screaming. Based on their determination that
Kukowski's life was in danger, the officers decided that immediate entry into the
house was necessary. Lieutenant Eckman and Officer Nordin were unsuccessful in
their attempt to use tools to enter through the door. The officers then kicked in the
door, with Officer Cudd entering first and Officer Glirbas entering behind him.
When Officer Cudd entered the house, he had a barricade in his left hand and
his MP5 semi-automatic machine gun in his right hand. Officer Glirbas was also
carrying an MP5. Lieutenant Eckman, Sergeant Marcus Erickson, Officer Nordin,
Officer Halek, and Officer Rielly Nordan entered next, with their guns drawn. The
officers shouted "Police." One of the officers yelled something to the effect of "come
out with your hands up" or "show your hands." The transcript of the 911 call reveals
that Kukowski told the 911 operator that she heard the officers instruct Kolski to "get
down on your hands."
Officer Cudd did not hear a response from Kolski. Because the house was dark
and in disorder, the officers had difficulty moving about. The officers entered into the
kitchen; when the officers entered, the doorway from the kitchen to the living room
was open. Officer Cudd tripped over items as he entered the kitchen adjacent to the
living room; as he tripped, Officer Cudd saw a face. Officer Cudd dropped the
barricade and turned on the flashlight on his gun to illuminate the living room. He
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saw Kolski leaning on the couch with a shotgun raised and pointed at the police
officers. Officer Cudd yelled, "He's got a gun!" and fired his weapon at Kolski
because he believed that Kolski would kill him or other officers. Officer Glirbas next
entered and was a few feet to the left of Officer Cudd when he heard Officer Cudd
yell, "He has a gun!" Officer Glirbas also turned on the flashlight on his MP5
semi-automatic machine gun; he saw a male sitting on the couch with a gun in a
raised position aimed at the officers. Officer Glirbas believed that Kolski was going
to shoot him or Officer Cudd, so Officer Glirbas fired his gun at Kolski. The
transcript of the 911 call reveals that Kolski was shot at 7:15 p.m. Officer Glirbas
then approached Kolski and moved Kolski's shotgun away from his body.
Officer Halek then handcuffed Kolski behind his back as he lay on the couch.
As Officer Halek rolled Kolski over, Kolski fell onto the floor. When Officer Halek
checked Kolski's vital signs, Officer Halek found no signs of life. He requested a
medical bag and asked dispatch to send the paramedics who were stationed two
blocks away. Other officers secured the house and escorted Kukowski out of the
bathroom and out of the residence. There was a "partial hole near the center of the
[bathroom] door."
Smith alleges that Kolski was in his living room "fully illuminated and
unarmed." Neither the transcript of the 911 call nor the officers' statements support
this allegation. According to Lieutenant Eckman, when the police entered the home
through the kitchen, the kitchen lights were off, but the living room lights were on.
Initially, Officer Glirbas blocked Lieutenant Eckman's view, so he could not see
whether Kolski was armed. Lieutenant Eckman further stated that he heard officers
yell "gun, gun. Drop the gun." Thereafter, he heard gunshots. After the shots were
fired, Lieutenant Eckman had a full view of Kolski and could see that he was on the
couch and armed with a shotgun next to him with the barrel pointed towards the
police.

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Kolski died as a result of the gunshot wounds. An autopsy revealed that, at the
time of his death, Kolski had a .205 blood alcohol level and multiple painkillers in his
system.
Officer Cudd, Officer Glirbas, and other patrol officers were armed with MP5
semi-automatic weapons. The MP5s that patrol officers like Officers Cudd and
Glirbas used are equipped to fire only one bullet per trigger pull. Kolski had 16 or 17
bullet wounds. Officer Cudd fired 14 shots and Officer Glirbas fired 13 shots.
On May 21, 2009, a Hennepin County grand jury entered a no bill for Officers
Cudd and Glirbas.
Following the shooting, at 8:56 p.m., Hennepin County Sheriff's Office
Detective Bogenreif arrived to investigate Kolski's death. Hennepin County Sheriff's
Office Detective Steve Sinclair arrived later that evening. They took statements from
civilians and photographed the officers and their weapons. They questioned Officer
Halek, Officer Nordan, Sergeant Erickson, Officer Nordin, and Lieutenant Eckman
the following day. They interviewed Officers Glirbas and Cudd on December 1, 2008.
A 20-gauge shotgun was recovered from Kolski's home, photographed at the
scene, and taken to the Hennepin County Crime Laboratory.
On November 22, 2011, Smith filed suit against the City and Officers Glirbas
and Cudd, alleging a violation of 42 U.S.C. § 1983 against all the defendants ("Count
1"); violations of 42 U.S.C. § 1983 against the City ("Count 2"); a violation of 42
U.S.C. § 1985 against all the defendants ("Count 3"); assault and battery by Officers
Glirbas and Cudd ("Count 4"); negligence by Officers Glirbas and Cudd ("Count 5");
negligence by the City ("Count 6"); and respondeat superior against the City ("Count

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7"). The defendants moved for summary judgment on all claims, including on the
basis of qualified immunity and official immunity.2
The district court granted the defendants' summary judgment motion. Relevant
to the present appeal, the district court concluded that Officers Glirbas and Cudd were
entitled to qualified immunity on Smith's Fourth Amendment excessive-force claim
brought pursuant to § 1983. The court found that an officer's use of deadly force is
objectively reasonable where a suspect is pointing a gun at the officer. Smith, 2013
WL 673861, at *6 (citing Sinclair v. City of Des Moines, 268 F.3d 594, 596 (8th Cir.
2001)). The court cited the following evidence in support of its conclusion that
Officers "Cudd and Glirbas reasonably feared for their lives and the lives of the other
officers": (1) their knowledge that Kolski "was an armed domestic assault suspect
who, they reasonably believed, was going to kill or injure Kukowski, who was
trapped in the bathroom by Kolski"; (2) their knowledge that Kolski "was yelling,
threatening Kukowski, and trying to break down the door to the bathroom where she
was hiding"; (3) their knowledge of Kolski's awareness of the police's presence
"because he had talked to officers at his door," "rebuffed police entreaties to come out
of the house," and "stated that the police would have to come in and get him"; (4)
Kolski's awareness "that police had entered his house because they loudly broke open
the door and, as they entered, police officers repeatedly announced 'police'"; (5) the
difficulty locating "an armed suspect while entering into a dark room . . . where
Kolski sat on the couch with his shotgun"; (6) witnesses' testimony "that Kolski had
a weapon aimed at the officers"; (7) Officer Cudd's warning to the other officers "that
Kolski had a gun" and his decision to shoot Kolski "because he thought that Kolski
was going to shoot him or other officers"; and (8) Officer Glirbas's shooting of Kolski
"because he thought Kolski was going to shoot him or Cudd." Id.
2

Prior to oral argument on the summary judgment motion, Smith filed a motion
to supplement her opposition to the summary judgment motion and submitted a
preliminary expert report to the district court. The district court denied this motion,
and Smith has not appealed this denial.
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The district court rejected Smith's assertion "that Kolski was unarmed, fully
illuminated, and had his hands up when he was shot" because of the lack of evidence
supporting this claim. Id. at *7. According to the court, Lieutenant Eckman's
testimony did not support this claim because "Eckman explicitly confirms that Kolski
was armed. He also states, consistent with Glirbas and Cudd, that Kolski was on the
living room couch and another officer yelled out that Kolski had a gun." Id. The court
found that "[t]he only discrepancy between Eckman's statement and the statements
of other officers is that, while Eckman confirmed that the police entered into a dark
house, he also recalled that the lights were on in the living room"; however, the court
concluded that "[t]his detail does not change the analysis of the reasonableness of the
officers' actions." Id.
The court also found that no physical evidence "establish[ed] a genuine issue
of material fact as to whether Kolski was armed." Id. And, it noted that no other
evidence in the record established "that Kolski was unarmed when he was killed." Id.
Instead, Officers "Glirbas and Cudd both advised that, after entering Kolski's home,
they saw Kolski sitting on a couch in the living room, pointing a shotgun in Cudd's
direction. An officer is permitted to use deadly force when he is confronted with a
suspect pointing a gun at him." Id. The court determined that Smith could not "create
a fact dispute simply by attacking the officers' credibility." Id. (citing Thompson v.
Hubbard, 257 F.3d 896, 899 (8th Cir. 2001)).
The court also pointed out that "[t]he information known to Defendants when
they entered the home was based on undisputed radio traffic that repeatedly reported
that Kolski was armed and threatening to kill Kukowski." Id. (citing Scott v. Harris,
550 U.S. 372, 380 (2007)). According to the court, Smith
has the audio and transcript of Kukowski's 911 call throughout the
incident, the radio traffic for the officers, the autopsy report, crime scene
photos, an extensive witness statement from Kukowski, and police
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statements. As in Janis [v. Biesheuvel, 428 F.3d 795 (8th Cir. 2005)], the
alleged victim, Kolski, is deceased and there are no other witness to the
incident besides the officers and Kukowski. There is no basis for
Plaintiff to allege that Kolski was unarmed when every witness testified
that he was armed or that they could not see him; the 911 call, radio
traffic, and Kukowski's interview clearly indicate that he was armed and
threatening violence; and the crime scene photographs document his
firearm near where he was killed.
Id. at *8. Based on the undisputed evidence, the court concluded that, viewing the
facts in the light most favorable to Smith, Officers Glirbas and Cudd "had probable
cause to believe that Kolski posed a threat of serious physical harm to the officer or
others"; therefore, the court granted summary judgment to the officers on the basis
of qualified immunity. Id.
Relatedly, the court found that "[o]fficial immunity bars the state law claims
of assault and battery and negligence against Cudd and Glirbas in Counts Four and
Five and of respondeat superior liability against the City in Count Seven." Id. at *9.
This was because the officers "were discretionary actors when they used deadly force
against Kolski. As the Court discussed with regard to the issue of qualified immunity,
there is no evidence that Cudd or Glirbas acted willfully and maliciously. They acted
reasonably in response to a significant threat of death or physical injury." Id. at 10.
The court also dismissed Smith's Monell claim against the City brought
pursuant to § 1983 and the § 1985 conspiracy claim.3
II. Discussion
Smith argues that the district court erroneously granted summary judgment to
the officers on the basis of qualified and official immunity on her Fourth Amendment

3

Smith does not challenge the district court's dismissal of these claims.
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excessive-force claim and state-law claims. Smith contends that she presented
sufficient persuasive evidence to show the existence of a material fact dispute
regarding critical facts at the time that the officers used deadly force. According to
Smith, the district court erroneously relied on the self-serving statements of the
officers who shot Kolski and ignored physical and circumstantial evidence that, if
credited, would discredit the officers' version of events and support a jury finding that
Kolski was unarmed and had his hands up at the time that he was shot. She claims
that statements in the record contradict the officers' claim that the living room where
Kolski was shot was dark and that, prior to shooting Kolski, officers yelled, "Gun, he
has a gun." She contends that the physical evidence strongly suggests that, contrary
to the officers' claim, Kolski was not shouldering a gun when he was shot but was
instead unarmed and with his hands up. Smith points to Lieutenant Eckman's
statement that the lights were on in the living room, which is contrary to the claim of
Officers Cudd and Glirbas that the home was dark. She also notes that while all the
officers claim to have heard an officer yelling "gun," Kukowski heard the officers
command Kolski to "get down on your hands" immediately before shots were fired,
which, she contends, is an unusual statement for officers to yell at a man pointing a
gun at them prior to opening fire. She also finds inconsistencies in the officers'
testimony as to the position of Kolski's body after the shooting. Finally, Smith argues
that the number and location of Kolski's gunshot wounds support an inference that
he was lying down or in a semi-supine position when shot.
A. Qualified Immunity
We review de novo a district court's determination of whether a government
official is entitled to qualified immunity. Burton v. Ark. Sec. of State, 737 F.3d 1219,
1228 (8th Cir. 2013). "A government official is entitled to qualified immunity from
liability in a § 1983 action unless the official's conduct violates a clearly established
constitutional or statutory right of which a reasonable person would have known." Id.
(quotation and citation omitted). When reviewing the district court's grant of
summary judgment on the basis of qualified immunity, we must view the facts in the
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light most favorable to the non-moving party. Id. When determining whether a
government official is entitled to qualified immunity, we apply a two-step inquiry:
"(1) whether the facts shown by the plaintiff make out a violation of a constitutional
or statutory right, and (2) whether that right was clearly established at the time of the
defendant's alleged misconduct." Id. (quotation and citation omitted). The Supreme
Court has allowed us "'to exercise [our] sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.'" Id. at 1228–29 (alteration in original)
(quoting Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
"All claims that law enforcement officers have used excessive
force, whether deadly or not, in the course of an arrest, investigatory
stop, or other seizure are analyzed under the Fourth Amendment's
objective reasonableness standard." Nance v. Sammis, 586 F.3d 604,
609–10 (8th Cir. 2009). "Not every push or shove violates the Fourth
Amendment, but force is excessive when the officers' actions are not
objectively reasonable in light of the facts and circumstances
confronting them." Rohrbough v. Hall, 586 F.3d 582, 585 (8th Cir.
2009) (quotations, alteration, and citation omitted). "The key question
is whether the officers' actions are objectively reasonable in light of the
facts and circumstances confronting them, without regard to their
underlying intent or motivation." Nance, 586 F.3d at 610 (quotations
and citation omitted). "Objective reasonableness depends on the facts
and circumstances of the case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight." Rohrbough, 586 F.3d at 586
(quotations and citations omitted).
Royster v. Nichols, 698 F.3d 681, 691 (8th Cir. 2012).
We have recognized that "no constitutional or statutory right exists that would
prohibit a police officer from using deadly force when faced with an apparently
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loaded weapon." Sinclair v. City of Des Moines, Iowa, 268 F.3d 594, 596 (8th Cir.
2001) (per curiam). "As the Supreme Court has explicitly said, use of deadly force is
permissible when the officer has probable cause to believe that the suspect poses a
significant threat of death or serious physical injury to the officer or others." Id.
(citing Tennessee v. Garner, 471 U.S. 1, 3 (1985)). "'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.'"
Thompson v. Hubbard, 257 F.3d 896, 899 (8th Cir. 2001) (quoting Graham v.
Connor, 490 U.S. 386, 396–97 (1989)). "[T]o defeat the motion for summary
judgment, [Smith] needed to present enough evidence to permit a reasonable jury to
conclude that [the officers'] use of deadly force was objectively unreasonable."
Thompson, 257 F.3d at 899.
In Thompson, an officer chased a suspect who ran between two buildings and
climbed over a fence. Id. at 898. According to the officer, the suspect "got up from
the ground, looked over his shoulder at [the officer], and moved his arms as though
reaching for a weapon at waist level." Id. The suspect had turned his back toward the
officer and "obscured his hands from [the officer's] view." Id. The officer yelled for
the suspect to "stop," but the suspect's "arms continued to move"; the officer "fired
a single shot into [the suspect's] back just below his right shoulder blade." Id. The
suspect died from the gunshot, and no weapon was recovered from his body. Id.
Another officer, "who had followed most of the foot chase in a patrol car, stated that
he attempted to look down the space between the two buildings where he had seen
[the suspect] and [the officer] run, but that he neither saw nor heard the shooting,
leaving [the officer] as the lone surviving witness to the shooting." Id. The deceased
suspect's family members filed suit under § 1983 alleging excessive force in violation
of the deceased's constitutional rights. Id. The district court granted summary
judgment to the officer, the officer's supervisor, and the city. Id.

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On appeal, we "conclude[d] that summary judgment was appropriate" where
the officer's "use of force, as he describe[d] it, was within the bounds of the Fourth
Amendment, and all of the evidence presented to the district court [was] consistent
with that account." Id. (citing Krueger v. Fuhr, 991 F.2d 435, 439 (8th Cir. 1993)
(summary judgment against plaintiffs appropriate despite the fact that the suspect was
shot in the back where such a shot was consistent with the reasonable use of force
described by the officer); Gardner v. Buerger, 82 F.3d 248, 253 (8th Cir. 1996)
(summary judgment inappropriate where officer's own account of shooting raised
genuine issue as to its reasonableness)). We explained that "[t]he plaintiffs may not
stave off summary judgment 'armed with only the hope that the jury might disbelieve
witnesses' testimony.'" Id. (quoting Gardner, 82 F.3d at 252).We found that "neither
the plaintiffs' attacks on [witnessing officer's] credibility nor anything else in the
record undermine[d] [the officer's] credibility." Id. at 899–900. The plaintiffs'
evidence was "simply insufficient to support even an inference that [the officer] [was]
lying" and failed "to satisfy the plaintiffs' burden of proving that his actions were not
objectively reasonable." Id. at 900.
Here, Smith identifies purported "inconsistencies" in the officers' statements
in support of her argument that genuine issues of material fact exist as to whether the
officers' use of force was excessive. She contends that these "inconsistencies" show
that, taking the facts in the light most favorable to her, Kolski was unarmed with his
hands up at the time that the officers shot him. But, as in Thompson, we conclude that
Officers Cudd and Glirbas describe a scene in which the use of deadly force was
constitutionally permissible. Their account is strengthened by statements from other
officers and the transcript of the 911 call. No genuine issues of material fact exist as
to whether Kolski made threats and possessed a firearm. As the district court correctly
found, "[t]here is no evidence in the record that Kolski was unarmed when he was
killed." Smith, 2013 WL 673861, at *7 (emphasis added).

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First, Smith attacks the credibility of Officers Cudd and Glirbas, arguing that
their claim that the entire home was dark is contradicted by Lieutenant Eckman's
statement that the lights were on in the living room. The district court adequately
explained why this purported "inconsistency" is insufficient to create a genuine issue
of material fact as to whether "Kolski was unarmed, fully illuminated, and had his
hands up when he was shot." Id. According to the court:
Eckman's statements do not support Plaintiff's argument. Eckman
testified that, when he initially encountered Kolski, Kolski was on the
living room couch, but, because Glirbas and Cudd were ahead of
Eckman and Glirbas was blocking Eckman's view, Eckman could "only
see his body from his knees down" and could not see if he was armed.
(Eckman Statement at 6.) However, he further testified that Glirbas and
Cudd were yelling "gun, gun. Drop the gun." (Id.) Then, after they shot
Kolski, Eckman moved so he had a full view of Kolski on the couch and
he could see that Kolski was armed with a shotgun that "was next to him
with the barrel pointed in our direction." (Id. at 6–7.) Eckman explicitly
confirms that Kolski was armed. He also states, consistent with Glirbas
and Cudd, that Kolski was on the living room couch and another officer
yelled out that Kolski had a gun. The only discrepancy between
Eckman's statement and the statements of other officers is that, while
Eckman confirmed that the police entered into a dark house, he also
recalled that the lights were on in the living room. This detail does not
change the analysis of the reasonableness of the officers' actions.
Id. (emphases added).
Second, Smith contends that all of the officers' testimonies that they heard
another officer yelling "gun" is inconsistent with Kukowski hearing the officers
instruct Kolski to "get down on your hands" immediately before shots were fired.
Smith asserts that telling a suspect to "get down on your hands" "is an unusual
statement for officers to yell at a man pointing a gun at them, and prior to opening
fire"; therefore, she concludes that a factfinder could draw a "reasonable inference
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that . . . Kolski was not armed or pointing a gun at officers, but rather sitting or
standing unarmed when shot." Smith's contention that Kukowski was unarmed based
on an officer telling him to "get down on your hands" is at best speculative and
contradicts all of the objective evidence in the record, including the transcript of the
911 call, which described Kolski as armed. As the district court explained, "The
information known to Defendants when they entered the home was based on
undisputed radio traffic that repeatedly reported that Kolski was armed and
threatening to kill Kukowski." Id. (citing Scott v. Harris, 550 U.S. 372, 380 (2007)
("When opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.")).
Third, Smith argues that all of the officers' statements as to the positioning of
Kolski's body after the shooting are inconsistent with one another and lead to the
inference that Kolski was unarmed. Again, all of the officers' statements and the
objective evidence of the 911 call show that Kolski was, in fact, armed. Smith's mere
speculation that Kolski was not armed is contradicted by the record. Cf. Scott, 550
U.S. at 380.
Finally, Smith points to multiple gunshot wounds to Kolski's head, shoulders,
and arms as creating a reasonable inference that Kolski was unarmed. While 16 or 17
bullet wounds seems like a large number for two officers facing one suspect, it still
does not negate the objective evidence that Kolski was armed during the encounter.
Therefore, we affirm the district court's grant of summary judgment on the
basis of qualified immunity to Officers Glirbas and Cudd.

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B. Official Immunity
Minnesota law provides that "a public official charged by law with duties
which call for the exercise of his judgment or discretion is not personally liable to an
individual for damages unless he is guilty of a willful or malicious wrong." Elwood
v. Rice Cnty., 423 N.W.2d 671, 677 (Minn. 1988) (quotation and citations omitted).
Determination of whether official immunity is available in a given
context requires a two-step inquiry: (1) whether the alleged acts are
discretionary or ministerial; and (2) whether the alleged acts, even
though of the type covered by official immunity, were malicious or
willful and therefore stripped of the immunity's protection.
Dokman v. Cnty. of Hennepin, 637 N.W.2d 286, 296 (Minn. Ct. App. 2001) (citation
omitted).
"Under Minnesota law, the decision to use deadly force is a discretionary
decision entitling a police officer to official immunity absent a willful or malicious
wrong." Hayek v. City of St. Paul, 488 F.3d 1049, 1056 (8th Cir. 2007) (citing Maras
v. City of Brainerd, 502 N.W.2d 69, 77 (Minn. Ct. App. 1993)). Therefore, under step
one of the official-immunity inquiry, Officers Glirbas and Cudd were discretionary
actors when they used deadly force against Kolski.
Under step two of the official-immunity inquiry, the Minnesota Supreme Court
has
stated that in determining whether an official has committed a malicious
wrong, the fact finder considers whether the official has intentionally
committed an act that he or she had reason to believe is prohibited. Rico
v. State, 472 N.W.2d 100, 107–08 (Minn. 1991). The Rico standard
contemplates less of a subjective inquiry into malice, which was
traditionally favored at common law, and more of an objective inquiry
into the legal reasonableness of an official's actions.
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State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994).
Here, Smith has identified no evidence showing that Officers Cudd or Glirbas
intentionally committed an act that they had reason to believe was prohibited; instead,
we agree with the district court that the record evidence shows that "[t]hey acted
reasonably in response to a significant threat of death or physical injury." Smith, 2013
WL 673861, at *10.
We affirm the district court's grant of summary judgment to Officers Glirbas
and Cudd on Smith's state-law claims on the basis of official immunity.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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