UNITED STATES COURT OF APPEALS May 14, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

LATARSHA FLORES; SAMUEL JACKSON, individually and as representatives of the Estate of Shamikle Jackson, and as next friends of N.J., successor in interest,

Plaintiffs - Appellees, v. No. 23-1049

JUSTIN HENDERSON, individually; KEITH MATTHEWS, individually; TONEY HANNON, individually; CLARK ORCHARD, individually,

Defendants - Appellants. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:20-CV-00618-RBJ) _________________________________

Heidi J. Hugdahl, Bruno, Colin & Lowe, P.C., Denver, Colorado (David M. Goddard, Bruno, Colin & Lowe, P.C., Denver, Colorado; and Julia Bannon, Office of the City Attorney, Aurora, Colorado, with her on the briefs) for Defendants-Appellants.

Kylie M. Schmidt, Ogborn Mihm LLP, Denver, Colorado (Jason B. Wesoky, Ogborn Mihm LLP, Denver, Colorado; Kenneth R. Fiedler and James Anderson, Fiedler Injury Law, Denver, Colorado; and Penelope L. Clor, Tomazin Law Group, Denver, Colorado, with her on the brief) for Plaintiff-Appellees. _________________________________

Before TYMKOVICH, MATHESON, and BACHARACH, Circuit Judges. _________________________________

TYMKOVICH, Circuit Judge. _________________________________ Appellate Case: 23-1049 Document: 010111049241 Date Filed: 05/14/2024 Page: 2

Shamikle Jackson called 911 to report that two people were dead inside an

apartment and that he was holding others hostage. He said it was a life-threatening

emergency and that his remaining hostages only had a few minutes left. Aurora

Police Officers responded to the call and arrived at the scene. They first encountered

Mr. Jackson’s sister at the apartment door in no apparent distress. She said her

brother was home but did not know whether anyone inside the apartment was hurt.

As the officers began to search Mr. Jackson’s apartment, they received a radio

call that the sister believed Mr. Jackson was alone, unarmed, and might have mental

health problems. The officers continued down a hallway to the back bedroom. Mr.

Jackson emerged from the bedroom and advanced toward the officers with a machete.

He was shot and killed.

Mr. Jackson’s parents sued the officers under 42 U.S.C. § 1983 for using

unconstitutionally excessive force. The district court denied the officers’ motion for

summary judgment based on qualified immunity. It concluded a reasonable jury

could find the officers recklessly created the need to use deadly force, thereby

unreasonably violating Mr. Jackson’s constitutional rights under clearly established

law.

We reverse. The officers had a split second to respond to a deadly threat

posed by Mr. Jackson. In these circumstances, it was not clearly established the

officers recklessly created a situation where the use of deadly force was necessary.

The officers are thus entitled to qualified immunity.

2 Appellate Case: 23-1049 Document: 010111049241 Date Filed: 05/14/2024 Page: 3

I. Jurisdiction

Plaintiffs first contend we lack jurisdiction over this interlocutory appeal because

the district court’s denial of summary judgment was based on a disputed issue of material

fact.

“[W]e have interlocutory jurisdiction over denials of qualified immu