133371P.pdf   08/06/2015  Troy Ellison  v.  Donna Lesher
   U.S. Court of Appeals Case No:  13-3371
   U.S. District Court for the Eastern District of Arkansas - Little Rock   
   [PUBLISHED] [Colloton, Author, with Wollman and Benton, Circuit Judges] 
   Civil case - Civil rights. In action alleging the defendant officers 
   unlawfully entered the home of plaintiff's 67-year-old father and used 
   excessive force when they shot and killed him, the district court did not 
   err in denying defendants' motion for summary judgment based on qualified 
   immunity on Count I of the complaint which alleged unlawful entry; under 
   the facts outlined by the district court, defendants entered because they 
   thought the deceased was being "mouthy" and that belief did not provide an 
   exception to the warrant requirement for entering the residence; the court 
   would not look to facts not outlined by the district court as that would 
   be beyond the proper scope of an interlocutory appeal on the issue of 
   qualified immunity; with respect to the district court's finding that 
   defendant Lesher was not entitled to qualified immunity on Count II's 
   allegations of excessive force, Lesher frames her argument that she was 
   entitled to qualified immunity on a set of facts not assumed by the 
   district court; while she may be able to prove at trial that the deceased 
   was wielding a cane in a threatening manner, the court must accept for the 
   purposes of its decision that he was not wielding the cane when shot; 
   under the facts outlined by the district court officer Lesher would have 
   been on notice that use of deadly force would not be reasonable, and 
   Lesher was not entitled to qualified immunity; given the de minimus level 
   of injuries the deceased suffered before the shooting, defendant McCrillis 
   is entitled to qualified immunity on the excessive force claim against him 
   and defendant Lesher was entitled qualified immunity on plaintiff's claim 
   she used excessive non-lethal force before the shooting.