*3 BLACK, Before JULIE CARNES and WILLIAMS,* Judges, Judge. Circuit BLACK, Judge: Circuit 17, 2012, police officers'Joey On October Whitener, Horsley, Joseph Nathalie ease, Mayfield, in this defendants-appellees private a search warrant at executed Hiram, Georgia, intending to residence suspected to methamphetamines be seize * Florida, Williams, sitting designation, by M. United Honorable Kathleen Judge District States District for Southern possession of Brenda Van Cleve. not typically keep lights on in the During warrant, room, execution living kitchen, or hallway. Because confrontation ensued. Each of the officers the front door was sealed with tape, the shot, fired one two of which struck family Daniel used the carport door for entry and Hammett, Van Cleve’s husband. 3-5, 11, Hammett exit. See id. at carport The injuries, died from his and plaintiff-appel- door into leads the' kitchen dining (Plaintiff) area, lant Justin Hammett brought which is Connected to the family this suit on behalf of Hammett’s estate. room and from there the rest of the house 12, complaint alleges The by officers used an archway. See 5-8, id. at against excessive force Hammett in family viola- hung a blanket the archway for tion of the Fourth' Amendment. The dis- climate purposes. control See id. at 7-8. As granted summary trict court judgment, measures, de- result these there very *4 termining the officers were entitled to or light little natural artificial in the interi qualified immunity. appealed, Plaintiff or of and the house.
we affirm. B. Drug Activity Van Cleve ’s I. BACKGROUND 2012, In October Cleve was Van addict- A.The Hammett Household toed methamphetamines. She had smoked 1990s, meth regularly early since the death, At the time of his re- Ham- Daniel' sulting in multiple convictions mett was married to and various Brenda Van Cleve. prison. stints in also frequently Van Cleve together The two lived in a house on Nebo marijuana. smoked She was only Clyde with their son Dillon Road Hammett chronic drug in user the household. Ham- (Clyde), years who was seventeen and old mett and Cleve meth in together Van in used high school at of the time the incident. the mid-1990s were and incarcerated for Together, Hammett and Van Cleve lived doing so. not Hammett had used meth disability on Hammett’s benefits of $650- since, though of at the time month, death he per plus earnings $700 Hammett’s taking was oxycodone, and other from medi- repossession occasional work he did cations as to by directed doctor treat his son, for his Justin Hammett. Van Cleve many problems. Clyde stayed, health away not employed. was otherwise drugs from entirely. small, The Nebo Road residence is a one-story, three-bedroom A house. floor C. The Search Warrant plan of photos the house of the and interi- or day taken the of giving the events rise Van Cleve’s meth to the use led events to appendix this suit are attached an giving as to to rise this She able lawsuit. was this opinion.1Hammett and by having Van Cleve cov sustain her no habit at cost ered all the (i.e., windows and the front drug door receiving “fronted” her plastic blankets, with of front), sheets and up which meth having pay without sell they packing tape. affixed the walls ing portion at a and markup, keeping the 11-14, 16, 18-19. Appendix See at They did remainder for consumption.' .her own Van photos Appendix, day 1. The accurately truthfully in the taken the and house depicting .the incident, among many were included day Clyde as it existed on the of the incident. Georgia Investigation others Bureau floorplan. also verified the Van Cleve'verified report, floorplan as was a of the house. The group photo- a smaller subset of the same photos pages through Appendix 20 of the graphs deposition. at her by Clyde deposition were verified in his (Rutherford), Blackmon, Seth Mike erford activity eventually drug attracted Cleve’s e Motes, Cook, Veal, Jimmy none Joey Scott enforcement. of law attention th case, ac- agent an with the of whom are defendants this (Horsley), Horsley Whitener, assigned Horsley, May- County Office Paulding companied Sheriffs Haralson-Paulding Drug Task All of the search warrant. to the field to execute Force, police gear information over or uniforms received the officers wore preceding months identifying the several them as law enforce- easily course of selling meth briefing, that Van Cleve drove ment. After officers incident resi carport multiple of the Nebo Road from the Nebo Road residence in Horsley a confidential recruited police dence. and unmarked cars marked purchase to make a controlled driveway formant parked the vehicles so, The informant did successful from her. p.m. around 3:15 obtaining forty meth ly dollars’ worth Horsley anticipate any violent did op Cleve, from which was recorded Van from Cleve and the warrant resistance Van for a Horsley subsequently applied video. clause, so he not contain a no-knock did on Octo to search warrant house approached other officers and the 2012, Horsley ex he obtained it. ber in an unhurried manner. house When was a small-time dealer pected Van Cleve door, carport be- Horsley reached the he to track thought might that he be able but announcing knocking and “Sheriffs gan supplier by searching the house. her down *5 Office, in a non- warrant” loud but search 3, The Appendix See 5. yelling .voice. D. The Search Whitener, officers, May- including other Wednesday, on place took The search Rutherford, field, up lined behind and p.m., At 2:15 around October to in a “stack” as Horsley next the door at the Horsley briefed the search team an- repeatedly knocked and Horsley ad- Paulding County Sheriffs Office. He Office,”which continued nounced “Sheriffs the agents deputies that the and vised No thirty and seconds. for between fifteen Cleve and target of the search Van was house answered. one inside the intelligence no as to wheth- that there was Horsley response, received no Having As present at the house. er firearms were it was un- doorknob and found war- tried the they prepared to execute the search out Office” He called “Sheriffs rant, in lot of locked. parking officers met the the if open door and again through the asked resi- grocery store near the Nebo Road answered, home. no one anyone was Still the team dence. Members search entered, by other vests, Horsley followed the so bullet-proof each donned tactical police had their firearms or officers. The designation “SHERIFF” bearing the low-ready position, in the which front drawn and large in letters on the “POLICE” operating procedure in the ex- is Among group of officers standard and back. (Whitener) Paulding in of a search warrant ecution Whitener were Nathalie residence, entering the County. On Mayfield (Mayfield), defendants- Joseph very it dark because officers found was wore a appellees this Whitener case. kitchen, lights on in the no Horsley’s, there were with identical vest similar room, no hallway, or and there was markers, living identifying including the word all the were light natural because windows the front and emblazoned “SHERIFF” any not turn on The officers did Ruth- covered.2 large letters. Officers Brian back lights been Appendix were taken after the had pictures in the of the house 2. Note that the lights they through as moved the house.3 from inside computer room. See Ap- pendix The officers continued to call out “Sheriffs at 9-10. Watching the hallway, he Office, search they warrant” as saw a emerge. Horsley moved shadow announced through they again house. Still received no that he from Paulding was Coun- ty answer. A large Sheriffs Office. man came out of the room and turned Horsley.4 toward The officers cleared the kitchen. See id. man, who Hammett, The turned out to be Horsley, by at 5-7. followed Whitener and stopped for a Horsley second and saw that Rutherford, through moved the blanket- his hands were into tucked his waistband opening covered into living room. See area. Horsley then saw him move some- (showing id. at 7-8 the blanket on the floor thing from his right left hand to his hand doorway in hung during and the which it in a manner that concealed what he had. search). Horsley turned to the left flashlight to Horsley’s attached pistol hallway leading toward the home’s pointed illuminated and he it at Ham- bedrooms and bathroom. He waited there waistband, announcing mett’s “Sheriffs facing hallway seconds, for about five Office, your let me see hands” he did so. again announced the pres- officers’ Horsley then he to get decided needed ence. See id. at 9-10. Whitener turned to ground Hammett to the so the other offi- area, right face front door see cers through hallway could move 11, 14, id. at turned fur- Rutherford secure the of the rest house so that it right inspect ther to the an area obey could be searched. Hammett did room, right-hand living far corner of the Horsley’s hands, command to raise his Horsley coming see id. at 13. heard voices however, no reply. and made verbal In- hallway. from down the stead, stepped suddenly Hammett toward The events that transpired next are the Horsley, sliding against body the wall present focus of the In dispute. determin- (Hammett’s Horsley’s left right) an ing the officers whether were entitled to *6 apparent attempt to him. move As around summary judgment, we must view the Horsley he approached, dropped his fire- facts and make all in reasonable inferences arm slightly, took a small step toward light the most favorable to Plaintiff. In Hammett, and out his reached left hand to order determine whether a material dis- him, to begin toward Hammett to subdue exists, pute begin by recounting we the but he did touch Hammett. Hammett perti- relevant evidence from of each the quickly right moved his hand toward the in appears nent sources detail as it in the so, of Horsley’s left side As head. he did record. Horsley caught glimpse a of shiny brief object Horsley black in Hammett’s hands. Testimony principal 1. witnesses of thought ambushing was him Hammett Horsley a. a weapon, responded by with he and rais- According Horsley, ing to facing as he stood his firearm shooting and toward Ham- hallway, light the he could coming loudly see mett. Hammett cried out in re- lights building Cleve turned on. Van testified that the is secured because to do so would in computer put by making were on the bathroom and the the officers at risk them a instead, only target; room at the time the they flashlights was execut- are warrant to use the pistols. ed. attached to their Whitener, According police According 3. to autopsy report, officers are 4. to his Hammett lights weighed trained not to pounds. turn on until after a fired, hit As being by possibly As shot him. she sponse Horsley’s to bullet. and had fired, he to Horsley right ap- lurched backward it Hammett twisted to his and he attack and fell. While Hammett’s to her that hit him peared avoid the shot the in in falling, two more shots was he heard ex- left side his lower back. Whitener and feared that Ham- rapid he succession deposition in her pressed uncertainty some foregoing the All of the mett shooter. was Horsley to whether she or first as shot and After in a of seconds. occurred matter Horsley’s it her was or whether bullet shots, Horsley scrambled hearing the However, she struck Hammett’s torso. was backward, to other officers yelled for the nearly clear that the shots were simulta- house, quickly exited the get out the neous, within a second or a half-second of residence. yelling As Horsley began for one another. house, get of the
the officers out Whit- b. Whitener living into room ener backward fell front near door. .hid behind couch manner unfolded in a similar events (cid:127) id. exit See at She did not the resi-. telling. According to Whiten- Whitener’s hidden, dence, listening but remained er, Horsley looking as was down hall- remaining occupants whispers between the right into way, facing to the Whitener Later, fearing for her life. when the living room. 11-14. Appendix See at secured, able to house was Whitener was Horsley say heard me Whitener “show building. leave your your or “let hands” hands” me see immediately hallway to the turned' see what was As happening. Whitener c. Rutherford looked, facing she saw Hammett Rutherford, is not a who defendant officers, of the his direction hands case, only eyewit- this other provided his near waist conceal some- down as if to Rutherford, According to ness account. thing, disobeying the to show command room, living the officers entered the he Hammett nothing hands. in response said already on his flashlight firearm had Horsley. flashlight also had a Whitener it he was dark and activated because could pistol, to her at pointed attached which she right He not see. toward the turned Hammett, attempting to determine what house, of the the end corner toward or- being Hammett was After carrying. pile lay. Ap- See couch where clutter again, to do so did not dered Hammett still 13. He pendix thought area was Instead, his hands. show Whitener’s *7 enough for to be large hiding someone words, Hammett “stepped towards .over there, on the way based the shadows were of right just the side the hall and started Horsley say cast. Rutherford then heard walking at us at a pace,”, fast still “not your your “show me or “let me hands” see hands,” showing his hugging, “like and thereafter, Shortly hands.” Rutherford basically hugging ob- the wall.” Whitener pivoted to gunshot. heard a Rutherford his Hammett, Horsley attempt grab served to flashlight his illuminated left and the up suddenly and then saw reach Hammett a the back of tacti- words “SHERIFF” on in Horsley’s his hands face an with toward then another cal vest. He heard shot and gun- aggressive.manner. then heard She in wearing saw a flash front of the officer Horsley shot and saw lurch and backward shot, After he that the vest. heard the begin immediately to fall. fired Whitener Hammett, wearing person the weapon who she vest—Rutherford did her toward Horsley yet recognize it attempting was to harm not which officer was—fell feared ground.5 to the to ground, As he the Van deposition looked Cleve’s testimony is confus recognized Rutherford the officer ing, perhaps because, was admits, as she she Horsley. Horsley He was thought hurt. He was under the influence of methamphet grabbed Horsley and him exit helped the amines shooting when the occurred.8 It is building. testified only Rutherford that the clear, however, agrees she a total of three Horsley; he officer was he not saw did shots were within span fired the of a few know where Whitener was the time. seconds. froze Van Cleve when she heard , reaching After help pick up to down Hors- the first failing dispose of her shot out, ley, Horsley get him to told and Ruth- drugs. building. erford exited the When the officers exited the building, Van Cleve ran back and forth between the d. Van Cleve bathroom computer and the room in a Cleve Van was at home and admits she state of shock. She still carrying was her was under the when the influence meth meth when placed patrol she was in a car usually officers arrived.6 She smoked meth outside, but she was able free her hands marijuana room, computer in the drug swallow the while she was in the is which where she was when Hammett police car so that it not would be found. home Ap came earlier that See afternoon. Van testimony Cleve’s light shed little pendix at 1 (showing computer room as may what Hammett have had in his #2,” “Bedroom the first the hall on door computer hands when he left the In room. right); id. at (photographs an day interview conducted of the inci- room). hallway computer Van dent, of which the only record contains Cleve and sitting Hammett were summary, Van Cleve stated Hammett computer talking room they heard when holding clipboard was when he left officers “Paulding County announce computer At Office, deposition, her howev- Sheriff’s search warrant.” The an room. er, she was unable to whether Ham- nouncement as if it recall sounded came from the hands, anything speculat- mett had carport his area.7 Van Cleve and Hammett sat ing may computer carrying in the he still have' thirty for or been room seconds paperwork Then, trying figure so which he out had entered the what do. got Hammett room. up picture and went out into the When shown a a bottle hallway straight pepper spray hallway while Van found in the Cleve dashed after bathroom, across the shooting, corridor in Van Cleve neither confirmed tending to nor her it flush' meth down toilet. denied was Hammett’s. id. at 20. See She heard a say your acknowledged male voice “show She me Hammett pep- owned your per hands” in the “put spray hands air.” but she he it sure if had Deputy Jimmy deposed, containing marijuana Motes was not but half-smoked was found supplemental report computer incident indicates room. living he room entered and immedi- shots, ately heard two then turned and deposition, saw 7. In her Van Cleve does not recall Horsley falling many backward.’' This is consistent police how times she heard the an- *8 testimony with presence. Rutherford’s and Plaintiff's nounce their both were contention that shots before fired Horsley completely. good expressed had fallen 8. Van of uncer- Cleve a deal tainty inability well as the recollect as incident, Though many 6. specifically specifics she did not remember remark- the the so, doing agreed possibly ing “spent years trying forget she also she she had three well, day day.” used pipe cannabis that a as since 1044 Clyde usually Hammett into the confirmed that when he went out his hands spray for in his pepper carried a can of use seeing she did not remember
hallway, and repossession keep that he would work and in the the spray hallway the after pepper pepper spray pocket. the in his He also shooting. spray agreed pepper can of that the shown was Ham- the photographs incident Clyde e. by mett’s and it found Hammett’s that was Clyde of the was shooting, At time the it body, not see there when though he did hallway at the end of the hallway. his bedroom See at he first went into the id. 20. games headphones video playing his bedroom door shut. See one and ear evidence Other (showing Clyde’s 1
Appendix at room #3”); 10, 17, (photo- id. at “Bedroom Mayfield pertaining a. Facts hallway, hall- the of the graphs of the end parties agree single May- shot The room). way, come Clyde’s and He had field fired not strike Hammett and was did forty-five school about minutes from home discharged already after Hammett had into gone straight his room and earlier and by Mayfield hit been the first two bullets. Clyde his did not hear closed the door. part was team and entered of the search house, at the nor he hear father arrive did carport kitchen behind Hors- from any up. playing, he police pull While was ley Mayfield and As followed Whitener. yell Of- he heard a male voice “Sheriffs Horsley building, into the and Whitener off his and Clyde headphones, fice.” threw Mayfield “hung up” doorway in the got a voice me say then later heard “show room, living between the kitchen and your gunshots Then he heard hands.” two hanging. Ap- in which was a blanket See another,” within right “one after a second (showing pendix the blanket on the 7-8 or other. He not hear two of each did doorway and was floor which it Cleve, Hammett, anyone say or else Van hung). gunshots two Mayfield heard and anything during period. this time After fall Horsley to the then turned and saw shots, Clyde opened his hearing the door Horsley had ground. been hit. He believed into hallway. out He saw fired, went After he heard shots he dis- against lying the wall in the Hammett charged from the kitchen in one round computer threat, next to the about hallway room general perceived of the direction the door midway opening though between he not see Hammett and did did room, living legs not His corner of the with his know had fired two shots. who recovered, though living room and to- was his head bullet never there toward id, may actually is some that it have (showing See evidence ward the bedrooms. at 10 bullet-proof struck the of Whitener’s right hall- back on the wall of the bloodstain vest. way). Clyde anything not see in his did hands. Hammett was not able
father’s report autopsy The b. say Clyde. Clyde blood anything saw shirt, from coming his father’s so he knew report autopsy Hammett’s shows that point, he been shot. At that he average, had because although than Hammett shorter scared, Clyde returned to bed- was a large was man. He stood five feet six emerged at pounds. He later command weighed room. inches tall The officer, briefly report was fatal police placed describes two wounds. The gunshot into to the torso. custody. wound
1045 granted qualified of entrance was found on the immunity. wound back- It also deter- torso, eight Mayfield left side of the centimeters mined was entitled to sum- of fifty-three mary the left the midline and cen- judgment because his bullet not did top Hammett, timeters from the of Mayfield the head. The strike so did not seize left-to-right, bullet followed a back-to-front Hammett within the of meaning slightly through and downward direction Fourth Amendment. The court not did ad- projectile Hammett’s torso. The did dress whether the clearly law was estab- body, exit the but caused a bruise on Ham- lished either case because it no found mett’s abdomen three to the centimeters violations in first place. Plaintiff ap- right fifty-eight of the midline and centim- peals judgment of the district court- from the of top eters the head. The second only respect to his Fourth Amend- grazing wound was laceration on the ment excessive against force claims Hors- aspect lateral finger, of the left also Whitener, index ley, Mayfield, contending and by a caused bullet. the district court in granting quali- erred immunity. fied
c. Certain material
on
facts
parties agree
which the
H. STANDARD OF REVIEW
parties agree
The
that three shots were
We review the district
grant
court’s
Whitener,
by Horsley,
fired: one
by
one
qualified
immunity to Horsley, Whiten
by Mayfield.
agree
and one
All
Mayfield’s
er, Mayfield
Deaton,
and
de novo.
v.
Dukes
shot was the last of the three and did not
1035,
(11th
2017),
852
1041
peti
F.3d
Cir.
parties
agree
strike Hammett. The
also
—filed,
—,
tion
cert.
U.S.
138 S.Ct.
for
grazed
the first shot
Hammett’s left index-
72,
above
Appendix
the floor. See
at 21.
III.
Nor is
DISCUSSION
any dispute
there
the second shot
Qualified
A.
Immunity Generally
entered the back-left side of Hammett’s
torso and
him.9
killed
Supreme
long
Court has
held
government officials are
entitled
a form'
History
E. Procedural
immunity
from
damages.
civil suits for
brought
731, 744,
Plaintiff
this suit as
Fitzgerald,
the admin- See Nixon v.
457 U.S.
2690, 2698,
istrator of
against
Hammett’s estate
102
Hors-
S.Ct.
At actors were common (11th 2002). liabili 1194 The satisfaction of protections from certain Cir. afforded reasoning “the ty, -on the that must be grievances balanced individual based by al good can be secured public best that against harm result the societal would of charged duty lowing officers with the proceed- to allowing against from lawsuits others, rights of to deciding upon the act In of public service servants unchecked. free, convic upon their own unbiased end, permits to the officials this doctrine tions, by any apprehen uninfluenced faithfully perform their without be duties sions.” “recognizes ing second-guessed. It Delia, 377, 388, government po 132 officials problems 566 U.S. that like Filarsky v. 1661-62, 1657, performing 182 662 jobs lice their S.Ct. L.Ed.2d officers face Mitchell, (2012) perilous v. (quoting dynamic 18 in Wasson sometimes situations.” (1864)). 153, 155-56 Adkisson, 553, The consid same Iowa Mir v. 785 ricks F.3d good (11th 2015). public of the that erations motivated 558 The benefit Cir. individual have driven protections common law prospective to an officer is both retro it immunity of even as development official any' alleged rights spective. civil Before of the beyond has evolved contours occurs, pólice officer is violation a free to Spalding, See 161 U.S. at common law. they of address situations as the'needs (“It 498, seriously 637 would 16 S.Ct. at of his arise in-the duties unfettered course cripple proper effective adminis If, however, by liability concerns. excessive as to public affairs intrusted tration of in an the official involved incident has been government, of the if executive branch he liability, give to rise qualified could any to such a subjected [as were restraint only immunity claims meritorious ensures damages].”); v. civil for Anderson suit proceed will to trial so that officer can 635, 644-45, S.Ct. Creighton, 483 U.S. 107 public unimpeded. continue to serve the (“Al 3034, 3041-42, 523.(1987) 97 L.Ed.2d of virtue This-is an a robust important though is true we have it observed qualified immunity; “a standard because of the-scope that our determinations is pending civil lawsuit of rights sword light of immunity are made official seriously impeding Damocles ... the offi tradition, we never the common-law have of cial performance in the duties.” of offi suggested precise contours 1146, Brantley, 941 F.2d Green v. 1150 slavishly can and should be immunity cial 1991) (en banc). (11th Cir. “Avoidance arcane from the often derived rules public officials one of the [is] distraction (citation quotation omit common law.” qualified immunity of the purposes main ted)). doctrine.” Id. judgment prudential embodied public pro interest strong So is the represents immunity qualified “balance government in the tecting officials reason protection,of in the between evils” ... discharge of their able duties that such 813, Harlow, 457 102 citizenry. at U.S. only officials from are insulated dam hand, permitting On the one S.Ct. costs of ages, going but from the even injured damages “may for citizens sue trial; reason, in most for this instances only offer vindica realistic avenue.for interlocutory district court deci appeal guarantees.” tion Id. of constitutional .On immunity is denying qualified per sions other, pro law it is essential that the 226, Gilley, 500 Siegert mitted. See v. U.S. they “carry public tect so that can officials 1789, 1793, 114 discretionary S.Ct. L.Ed.2d 277 out duties without the their (1991) (“One of immunity, purposes liti of the liability harassing or personal fear spare Biddle, or is qualified, (quoting Gregoire absolute defen Id. v. 177 F.2d *11 only 579, (2d dant not liability, 1949)). unwarranted but sum, 581 In Cir. a balance customarily unwarranted demands im must be struck between the harm to indi- posed upon defending long a those drawn aggrieved viduals by official misconduct lawsuit.”); v. Forsyth, out Mitchell 472 and the harm society resulting to from a 511, 526, 2806, 2815, U.S. 105 S.Ct. 86 Qualified shackled apparatus. executive im- (1985) (“[Qualified immunity] L.Ed.2d 411 munity is path the courts the have chosen. is immunity an suit rather than a from B. Excessive Force liability; mere defense to and like an abso immunity, effectively lute it if is lost a case The origins of purposes qualified trial.”). erroneously permitted go is to to immunity although remind us that the cir- Indeed, Fitzgerald, in Harlow v. the Su may cumstances of a case be singularly preme qualified Court refashioned im unfortunate, regrettable facts do not auto- munity the,express inten standard matically spell personal liability police for tion of reducing the- number of suits that officers. apply We are to bound the Rea- ,to trial; go by ceasing would to it did so by sonableness forth standard set the Su- subjective inquire as officer’s state the. preme Court and this Court.' measuring of mind instead conduct against objective an reasonableness stan In present litigation, there is no Harlow, 815-16, dard. 102 457 U.S. at dispute the officers’ conduct was discre (“The subjective S.Ct. at of 2737 element tionary, so Plaintiff must show the officers good-faith frequently defense has violated right Hammett’s constitutional proved our incompatible with admonition right clearly and that the established ... claims should not insubstantial at' Suszczynski, the time. v. See Perez 809 trial.”); Merricks, proceed to 785 F.3d cf. 1213, (11th 2016). F.3d Cir. 1218 We need (“[Qualified immunity] at 558 is also de not question clearly address of estab signed way ... a provide direct to end lished law Plaintiff has not because shown summary on judg insubstantial claims a right constitutional was violated. Thus ment.”). qualified immunity turns whether the
Although safeguards these work to the force, alleged. officers as used excessive officers, they of benefit individual exist for a “Any law claim enforce purpose protecting public the sole of at ment officer used excessive force—wheth Indeed, large. against officials suits “fre er, nob—during .deadly or- .a of seizure quently against run the innocent aswell analyzed free citizen under the be must guilty—at only to the cost defen s Fourth Amendment’ ‘reasonableness’ officials, society dant but as a whole.” Bradshaw, Garczynski standard.” v. 573 Harlow, 814, 102 457 at S.Ct. at U.S. 2736. 2009) (11th Cir. (citing F.3d 1166 expenses social costs include the These U.S. 386, 395, Connor, v. 490 109 Graham litigation, of of the diversion official en- 1865, 1871, (1989)). L.Ed.2d 443 S.Ct. 104 ergy public issues, from pressing the force Determining used is whether citizens deterrence of from able ac- balancing of “requires reasonable the indi ceptance Finally, office. public there vidual’s Amendment Fourth interests danger being is that fear sued will .government against inter relevant “dampen of all but the ardor the most — Mendez, v. resolute, Cty. Angeles irresponsible Los [pub- or ests.” the most 1539, 1546, officials], —, unflinching lic in the U.S. 198 discharge 137 S.Ct. Graham, (2017) (citing their L.Ed.2d 52 duties.” 1048. 1871). suspect a threat of serious poses 396, 109 opera “The S.Ct.
U.S. at harm, officer or to is either physical cases excessive’force question tive omitted)). (quotation of the circumstances ....” totality others ‘whether the or sort of search particular justified] Horsley and Whitener ” Tennessee v. Gar (quoting seizure.’ Id. argument Plaintiffs sole with re 1694, 1700, 1, 8-9,
ner, 105 S.Ct. 471 U.S. WTiitener, repeated Horsley (1985)). spect Supreme As the 85 L.Ed.2d brief, throughout is summarized, forms in various recently Court *12 physical on evidence and that based the of force is The of the use reasonableness light in the most favorable testimony taken objective inquiry an evaluated under Plaintiff, reasonably find jury a could to facts to the pays that careful attention fired on-Ham Horsley that and Whitener particular each and circumstances of. not justification when he was par- of a mett without the ‘reasonableness’ case. And from In to this judged force threat to them. order sustain ticular use of be a must contention, jury officer Plaintiff a p.erspective a reasonable asserts could scene, First, rather with the following on the than facts. Hammett 20/20 find hindsight. Excessive force Hors- vision his hands surrender when raised objective for moment, ... are evaluated claims him to At that ley told do so. upon based the informa- reasonableness justification, her fired without Whitener tion officers had when the conduct finger. Hammett’s left index grazing bullet inquiry dispositive: That is occurred. terrified, Hammett turned Wounded a seizure an officer carries out When retreat, point Horsley shot at which full reasonable, taking that into account is in the in cold blood. Plain Hammett back circumstances, is all there relevant no supports that the this tiff insists evidence force claim. valid excessive it, contends, rejecting In he story. (citations quotations questions Id. at 1546-47 of materi court resolved district omitted). is the touchstone Reasonableness in favor of the officers. al fact claims, regardless of for all force excessive legitimately be If the evidence could in- deadly. force used was See whether the can, Plaintiff it terpreted as insists at 1166. “As to dead Garczynski, F.3d 573 might use of force have been ex- officers’ force, force may officer use such ly police fail, however, arguments Plaintiff’s cessive. harm physical a threat of serious dispel to jury no reasonable could make out because others, pre or or to to the officer either theory on the evidence the record. his suspect escape of a who threatens vent the attempts otherwise Plaintiffs show Vargas, v. 804 F.3d Singletary this harm.” summary judgment standard stretch the 2015). 1174, (11th Cir. have held 1181 “We beyond breaking point. far its reasonable, consti it is and therefore that appropriate “if Summary judgment is for an permissible, officer use tutionally genuine that there is no the movant shows ‘probable he has cause deadly force when ” any material fact and the dispute as peril.’ life is in Id. that own to believe to'judgment as a matter is entitled movant Arrugueta, v. 415 F.3d (quoting Robinson 56(a); R. P. Celotex of law.” Fed. Civ. 2005)); 1252, (11th Cir. see also Mor 1256 317, Catrett, 322, 106 U.S. (11th Corp. v. 477 Kirkwood, v. 707 F.3d 1281 ton (1986). 2548, 2552, 91 265 “A context, L.Ed.2d 2013) (“In S.Ct. deadly force we Cir. requires more than ‘some genuine dispute police may officer have observed material metaphysical doubt deadly when the constitutionally use force ” F.3d at 1165 Garczynski, facts.’ to believe 573 probable ... has cause officer
1049 Harris, 372, 380, (quoting through house, Scott v. 550 U.S. very which was dark 1769, 1776, 127 S.Ct. 167 686 height even at the L.Ed.2d the afternoon because (2007)). fact record contains lights there were no on and all of the at all in anything support of the nonmov windows were opaque covered with materi position dispositive; “genu ant’s is als. When Hammett came out of the com dispute requires ine” is evidence room, puter Horsley clearly audibly that a jury such for reasonable could find This, him to too, ordered show his hands. the nonmovant. See Liberty Anderson v. by confirmed Van Cleve. Both officer Inc., 242, 252, Lobby, 477 U.S. 106 S.Ct. eyewitnesses testified Hammett refused 2505, 2512, (1986) (“The L.Ed.2d comply, and there is no sug evidence to of a mere existence scintilla of evidence gest otherwise—Van Cleve did not hear support plaintiffs position of the will be say anything Hammett in response to insufficient; there must be evidence submission, Horsley to indicate nor did jury which reasonably could find for Clyde any or Instead, the other officers. plaintiff.”). all Although in reasonable Hammett aggressively approached Hors- *13 ferences are to be in drawn favor of the ley with an object unidentified in his nonmoving party, “an inference based on hands, which Horsley’s he moved toward speculation conjecture and is not reason object face. the ultimately Whether turned Fund, able.” Ave. CLO Ltd. v. Bank of out to clipboard be Hammett’s or pep his Am., N.A., 1287, (11th 723 F.3d 1294 Cir. immaterial; per spray is in the tense and 2013) omitted). (quotation uncertain leading up moments to the Supreme Court
The has instructed that shooting, a reasonable officer could have parties opposing “[w]hen tell two different it to weapon, given believed a especially be stories, blatantly one of which is contra lighting way dim and the Hammett han record, by the so dicted that no reasonable Horsley it. dled and in Whitener fired it, jury could believe a court should not first, response, regardless and of who shot adopt that version of the facts for purposes gunshots the sounds of the in occurred ruling summary judg on a motion for rapid Finally, succession. the that bullet Scott, 380, ment.” 550 at U.S. at 127 S.Ct. killed Hammett entered the back-left side case, In this voluminous uncontra of his torso and caused a bruise on the completely dicted evidence stands at odds stomach, right side of traveling diago his theory with Plaintiffs of surrender and nally through body. his Taking making retreat. all facts all and None these critical facts disputed is in light reasonable inferences the most by affirmative evidence. are incon Several Plaintiff, to following favorable the facts sistent with the surrender-and-retreat the undisputed. remain The officers knocked ory, obviously, most testimony the officers’ entering and announced before the resi that charged Horsley. Hammett at In ad Then, no responded. dence but one while dition, two the shots that struck house, Hammett moving through the they continual succession, rapid occurred in ly which identity announced their would pur and their not leave for in pose, split time a retreat response. Clyde still no the confirmed Furthermore, second if police identify he heard the between them. themselves. In addition, retreating Hammett were Van Cleve testified it is back down the un shot, disputed hallway when he was she and Hammett the the bullet would heard police him, straight through announce themselves and have traveled remained not computer in trying diagonally the room for from left right, some time which would to decide what to do. impossible. “Though The officers have in moved been factual
1050 favor, Indeed, facts the undisputed show [Plaintiffs] are ferences made sup applies only ‘to the extent Single this rule unreasonably. officers not act did ” record,’ Penley Esling by the v. portable 1181; tary, Garczynski, 573 F.3d at 804 (11th 2010) 843, er, F.3d 853 Cir. 605 cases, “In F.3d at 1166. excessive force we Scott, n.8, 381 550 127 (quoting U.S. at split-second are that officers make mindful n.8), theory and Plaintiffs at 1776 S.Ct. situations,” tough and tense decisions it. be reconciled with cannot 1281, Morton, at that “the 707 F.3d undisputed if we to set Even were a of force particular ‘reasonableness’ of use aside, contradictory the mere fact evidence of a judged perspective must be from'the record, light viewed when scene, rather officer reasonable Plaintiff, theoretically is most favorable to hindsight,” than vision of 20/20 narrative, not not inconsistent with is Mendez, (quotation 1546 omit 137 S.Ct. at summary enough judgment. to survive ted). perspective, From this the facts show (and Holding contrary all uncontra a dark following. The entered officers dicted) aside, evidence has Plaintiff knocking and house after cluttered any evidence pointed affirmative they announcing for some As moved time. surrendered and See retreated.10 Hammett through building, an they continually Anderson, 477 at U.S. S.Ct. from Of they the Sheriffs nounced were (“[T]he plaintiff present affir must warrant, they executing fice were prop evidence in order to mative defeat sudden, large no All response. summary judg erly supported motion for hallway, saying man noth appeared ment.”). pure that he is assertion did ing giving officers and no indication Fund, *14 See CLO speculation. Ave. 723 F.3d cooperate though that to intended even he The in the at 1294. bullet wall and the hole the knew that he must have heard officers wounds, by of them location Hammett’s Instead, their announcements. he refused selves, essentially nothing tell us about hands, to their commands to his obey show happened. possible are what There infinite hands, object an between his and shifted explain would how the that permutations them, drawing ob approached the rapidly they during ended did the up bullets where ject up face the officer. the of lead toward chaotic scuffle that occurred. brief and darkness, given, foregoing In cir the the required point to to Plaintiff is evidence cumstances, probable the officers had theory, can support that but he would his Instead, it that weapon cause to believe was a and all of the available not. evidence Perez, to Hammett intended use it.11 See refutesit. doubly Although Horsley death 11. we 10. Hammett’s is hold and Whitener of tragedy cause, they probable prevail had actual could regrettable he is. insofar as unavailable to not, only they even Nevertheless, if did for "an officer need testify on his own behalf. as a ' cause, probable arguable have not actual -result, to evidence sufficient defeat a motion cause, probable qualify in order to for immu- summary judgment for must come from othér claim,” nity Garc- from Fourth Amendment Here, sources. have the benefit of the we is, zynski, if 573 F.3d 1167. the officer at That son, testimony of who wife Hammett’s "reasonably proba- could have believed present of were both at the time the incident. cause, existed, light ble of the in information Still, anything neither of to them testified not possessed,” did the officer then the officer challenge would the officers’-version of the (quoting commit violation. Id. a constitutional end, In the does facts. Hammett's misfortune Carr, F.3d'181, (11th Cir. 114 184 Montoutev. nothing jury to change that no the fact cottld (cid:127) 1997)). “the recognized, As have often we reasonably on find for this evidence. Plaintiff enough qualified immunity is broad standard judgment.” to some mistaken Id. cover
1051 1220 pres open door, F.3d at that “the to the (holding passenger 809 tried attempt of a in weapon-is or absence factor ing get Garczynski Garczynski ence to out. though analysis,” this the [excessive force] gun, which raised his the officers ordered consider the to inquiry must nevertheless drop. Garczynski him to Id. disobeyed the circumstances); Penley, 605 of the tality command, swinging gun instead the (holding at 853 that an officer had F.3d officers, one around toward of the at which cause to life was “probable believe his own point police shot and killed Id. him. at not peril” where re suspect the' “was negotiator’s questions; to he sponding There, parallels The case has to this one. drop with his comply did not commands here, “the escalation into force deadly he at weapon; pointed weapon” his justified by [the refusal decedent’s] omitted)). police (quotation It was not comply with officers’ Id. commands.” of unreasonable them to Hammett believe case, at 1168. as Horsley Much did this posed physical threat of harm serious in Garczynski, them- identifying “[a]fter Singletary, respond accordingly. selves, repeatedly the officers ordered at 1181. are F.3d We “loath second- 804 Garczynski to show his hands.” Id. guess by decisions made officers police commands, of obeying Instead these field,” Penley, (quota F.3d at 854 Garczynski swung the gun from his head omitted), tion so here. we will do officers, in the which direction Though acknowledge we in present point they reasonably fired. The officers requires way our Us to quiry “slosh they perceived to what as án reacted through the of ‘reason morass factbound threat of immediate serious harm ableness,’” Scott, 550 U.S. at exactly type This is themselves. 1778, such will be S.Ct. at that each case “tense, rapidly evolving” uncertain and unique, are valuable les somewhat there by Supreme crisis envisioned Court. gleaned be prior sons to deci from our Judged from the rea- perspective of á sions, particular, Garczynski v. scene, sonable officer officers’ There, an during Bradshaw. encounter deadly objectively force was use rea- wife, Garczynski estranged John sonable under circumstances. *15 himself, an to kill and manifested intent omitted). (citation reasoning Id. The same disappeared. Garczynski, F.3d at then 573 present though applies analogous,- in- the him on Reaching phone, 1161. his wife the identical, un obviously not situation. The he á him gun had and learned that, testimony disputed like establishes to Garczynski’s commit planned suicide. Garczynski, carrying Hammett some was police stayed wife contacted the and she disobeyed thing and officer’s instruction an Garczynski line with to calm trying the to show his hands. After show refusing to By him down. Id. the cell triangulating hands, aggressively his Hammett moved call, Garczynski’s the phone police found Horsley rap and toward hands at 1162. the offi raised-his Id. to car. Unbeknownst Horsley’s “Non-compli idly toward face. scene, of at the at a cers the direction supports of sort ance this the police Garczyn officer conclusion accompanying her. deadly that of force the use was reasonable.” ski’s wife him to car. instructed start however, acknowledge Penley, 605 F.3d 851. police, Id. 1163. The or at We at had here, unlike Garczynski, to that it turned out Garczynski not let Id. Be ders leave. lieving Garczynski’s departure would that not a dead was armed with Hammett cre situation, Nevertheless, dangerous ly weapon. ate a officers ran we view the the must car, windows, banged to perspective on the and situation of a reason from 1052 omitted)). Rather, (citation quotation in Horsley’s and Whitener’s officer
able
Mendez,
place
1546.
See
137 S.Ct. at
shows the
took
position.
the evidence
events
after
vantage point,
that
the officers
chaotically.
From
quickly and
to no
presence
announced their
repeatedly
addition,
In
of
Plaintiff makes much
occupied by
in a
a
dark house
response
alleged
some
inconsistencies between
dealer,
meth
Hammett’s actions
known
and Whitener’s initial statements
Horsley’s
an am
easily
appeared
could have
be
Investigation,
Georgia
to the
Bureau of
circumstances, Horsley
Under these
bush.
during discovery,
taken
depositions
their
probable
to be
had
cause
Whitener
and their sworn
attached
declarations
posed
Hammett
a threat
serious
lieve
of
summary judgment.
their motion for
We
Horsley.
harm
physical
difficulty identifying
discrepan
have
such
Plaintiff,
part
relying
large
in
on the
would
they
cies
fail to see how
be
Rutherford,
of
testimony of
makes much
assuming
any
in
case. But even
material
first,
shot
possibility
Whitener
inconsis
Horsley
provided
and Whitener
facts
favor-
insists that on the
most
testimony
stages
tent
at
of the
various
him,
we must assume
she did.
able
proceedings,
Supreme
has stat
Court
justification
Plaintiff contends Whitener’s
testimony
not nor
ed that
is
“discredited
simply that she
shooting
for
heard
mally
a sufficient basis for
considered
thought Horsley
been
gunshot and
had
Anderson,
drawing
contrary
conclusion.”
in reality
discharged
if
her
hit. Thus
she
256-57, 106
(quot
first,
asserts,
477
at
S.Ct. at 2514
U.S.
theory
weapon
Plaintiff
her
ing
Corp.
Bose
v.
Union
“goes out
Consumers
justification
of
window.”
of
States, Inc.,
485, 512,
contrary,
To
104
Appellant
at 33.
United
U.S.
Brief
however,
1949, 1966,
(1984)).
says
Whitener
she
because
fired
1053 police whether the officers shot Hammett Both sued the as to individuals officers. justification. without at that Wymbs Id. 1266. We held was not seized was or “[b]ecause [he] not shot Mayfield physically by touched at officers.” Id. such,
Mayfield
qualified
was entitled to
he
1270-71. As
did not have a claim
above,
immunity as well. As
there is
noted
for
force
excessive
under
the Fourth
dispute
Mayfield
no
that
fired
third
Rather, Wymbs’
Amendment.
claim was
his
not
shot
that
bullet did
strike
analyzed as a
properly
Fourteenth Amend
parties argue
Hammett. The
over the
process
ment substantive due
To
claim. Id.
interpretation of
proper
two
Circuit
Sixth
action,
prevail on
of
plaintiff
that cause
is
a
in attempting to
whether
cases
determine
required
an
to show
of
“executive abuse
Mayfield seized Hammett within the mean
power”
“shocks the
at
that
conscience.” Id.
Floyd
the Fourth
See
ing of
Amendment.
Cty.
Lewis,
(quoting
1271
Sacramento v.
of
Detroit,
(6th
City
v.
“split-second judgments” case, the ener, Fourth cumstances of this when Mayfield or violated evidence thp responded light to the is in most they the available viewed favor Amendment uncertain, evolving” “tense, rapidly Ferraro, Lee to the See v. able Plaintiff. Graham, (11th 2002) (“[i]n day. 1188, 490 U.S. at of that Cir. events 284 F.3d judgment 397, 109 Summary 1872. at S.Ct. of the conducting de novo review district they spared are to be appropriate, summary judgment was disposition court’s of a defending tri the of themselves burden- immunity, qualified on motion we based is judgment the district court al. The required all are to resolve issues of materi plaintiff.”); in al fact favor the Thornton AFFIRMED. Macon, City v. 132 F.3d WILLIAMS, Judge, Dissenting District (11th Cir.1998) (After taking facts the in Part: light to Plaintiff the most favorable “[w]e legal question of ... answer the whether 17, 2012, police the entered
On October to qualified the entitled im ][is] to home execute Cleve’s Van Brenda defendant facts.”). of the version munity officers in that under search warrant. were briefing during pre-execution the formed not in this case The evidence does con- or weapons no known there were that place took clusively the .establish what inside, the residence. Once threats within leading the up shooting moments of. Rutherford, Horsley, and Whiten Officers that, argues Plaintiff Hammett.3 But under room, living to the where proceeded er interpretation the most of the favorable husband, Van Cleve’s they encountered presented, evidence a reasonable jury to thirty Fifteen seconds Daniel Hammett. findings following could the that make later, was Hammett—who unarmed and I summary judgment. agree. would defeat search- or a subject warrant not the underlying investigation— target in the Disputed of Material Issues Fact in the then hand and dead, was once shot A. The in Which Hammett Manner undisput Those are in the back. fatally Approached The Officers before question of this case.1 The ed facts First, a that jury could find Hammett Offic is whether the Defendant the Court threat deadly pose did an immediate that to use force was ers’2 decision indications; that, by his majority 16-page fact bullet struck Although the all includes a. 1. summary testimony given in of some of is no Officer there Whitener—but evidence case, Hammett, materi- this the section entitled "Certain that the- he fired struck or bullet agree” mere which is a al on the Parties facts his otherwise contributed actions long, only relates sentences four Hammett’s Therefore death. Hammett’s trajectory of number of shots fired and against Mayfield fail as a claims matter of from those shots. bullets law. regard grant Though of. I dissent with by--the 3. The order district be entered court judgment on summary fourth- Hammett's multiple acknowledges low footnotes that against claims officers Whitener amendment may remaining issues of fact there be material agree majority I Horsley, question and that events resolv about should as to be court affirmed district require ing fact would those issues of against Mayfield. claims Officer Hammett’s credibility determinations that court make Mayfield’s regarding are The facts conduct summary judgment. permitted are not testimony troubling—particularly his own Nonetheless, court went the district on to gunshots and dis- he heard then blindjy summary judgment appro was conclude that charged where weapon in a dark house being priate. methamphetamine sold and
1055 justify deadly use of would force he if if I as I—I don’t recall really saw anything, ” approached the officers. Officer if it Horsley it was dark. was—because testified that when the officers entered the regard manner With to the in which living presence, room and announced their hands, Hammett Officer raised his Whiten bedrooms, Hammett exited one of the thought er testified that she that both of stopped out the hall and “walkfed] in for a up. Hammett’s Horsley hands were Officer second.” He then walking started down the acknowledged Hammett raised his hallway quickly toward the Specif- officers. right hand but testified he does not ically, Horsley' recalled that appeared “[i]t recall what doing was with his Hammett trying, that he was instead coming evidence, however, left hand."The forensic me, straight at trying get he was to to one that the bullet first fired at Ham shows side or the other” grazed and that he “couldn’t mett lateral side Hammett’s left remember” if Hammett index but finger was still did advancing body strike his lodged in him towards when wall inches Hammett his above the raised ground. According to Hammett’s similarly hands.4 driver’s Whitener testified that (62 license he was five feet two inches Hammett pace” “walked at a fast down the inches) evidence, tall.5 on Based this toward the hallway officers. jury reasonable could find that when Ham that, Horsley went to state as Ham approached Horsley mett his hands were approached, mett step he took a toward up—at least 52 inches above the ground- gun “high Hammett his ready” with at Horsley’s seeming in compliance with Officer “try him,” to engage and instructed Ham ructions.6 inst put up mett to his hands. He then lowered Object his Hammett’s Hand gun slightly he for B. as reached Ham mett, at point which Hammett raised his Second, jury could find that Hammett hands. Whitener also observed that Hors- unarmed, was and that the officers did not ley “grabbing was towards Mr. Hammett’s believe that Hammett a deadly had weap- hands” when Hammett’s up.” hands “came on in his hand at the time they shot him. whether, When asked “as the hands came that, Horsley stated once Hammett exited up, ... [she clenched fists or saw] ... [ ] bedroom, he saw Hammett move actually object,” an s[aw] Whitener said something from his left right. hand his “No. I couldn’t—I don’t I know. didn’t see He shining flashlight was his at Hammett’s any specific clenched "fist or—I don’t know hands but “was not object able see an 4. The 6.Horsley’s officers involved in the opinion Hammett shooting was “abso- narrow, hallway Hammett described the attempting comply not” lutely diagram and a included the GBI file from raising his hands “if because commands this hallways incident indicated that the was going comply [Hammett] was he would only long, 15 feet photo- feet wide. The comply” “every immediately and time [Hors- graphs similarly of the crime scene indicate ley somebody ever has] dealt with that was hallway that the in which Hammett shot compliant, way happened” that’s it does was short and narrow. position not rebut Plaintiff's or eliminate this (cid:127) creates, best, dispute. factual It at issue an Horsley and Whitener testified that Ham- jury regarding fact for the credibility brought up mett’s hands were to the level of weight opin- that should be afforded to such Horsley’s face. The record demonstrates that conjecture. ion and (74 Horsley Officer is six feet two inches inches) tall, twelve inches than taller Ham- twenty-two mett and inches taller than the height which the bullet entered the wall. *19 The stat- C. Order of Shots point.” that also
his hand at Whitener time, “[d]uring didn’t Fired at [she] that Hammett th[at] ed and, inwas Hammett’s hand” know what Third, jury a find that reasonable could moreover, if that she recall she couldn’t shot, grazed fired the which first Whitener object if was tell he an and had “could Horsley finger, index that Hammett’s and in something holding his hands he had like Hammett’s back the second shot into fired Horsley thought Initially, his hands.” from away Hammett had turned after During drugs had in his hand. Hammett by finding supported This is both officers. “I’m deposition explained, Horsley’s he autopsy report by Ruther- and Officer like, well, commands, him I’m giving and testimony. court The district ford’s found hand, dope maybe got in his maybe he’s testimony did not that Officer Rutherford’s going to the bathroom to flush them.” he’s testimony of conflict with Officers Horsley stated deposition, on his Later Horsley and because “Officer Whitener before fired” he saw [he] that “milliseconds testified Hors- object” in Hammett’s hand. Rutherford that Defendant shiny “a black “shiny that Horsley stated he believed shot that Officer ley fell after second spray, a of object” pepper was can black heard” since “Officer Rutherford and recog- the officers were trained which did know three Rutherford even shots Both Officer and Officer nize.7 Whitener ... it is unknown which two of were fired of acknowledged Horsley their awareness he Regardless shots the three heard.” of County training Paulding on the and Sher- heard, two shots Rutherford which Officer policy,8 of and iff Office’s “Use Force” however, testimony necessarily pre- understanding pepper that the use of their reading Horsley a wherein shot cludes deadly un- spray does not force constitute any fallen first and had before shots were policy. A could jury that reasonable der by fired Whitener. find on this that Officers therefore record majority accepts that Ruther- While Horsley and shot at Hammett Whitener testimony support ford’s could Plaintiffs they that he had either when believed that first contention Whitener shot and drugs pepper or a canister de- spray, second, Horsley they maintain that this or spite presence drugs the fact that claim that her not vitiate Whitener’s does spray depart- is pepper insufficient under because—al- deadly actions were reasonable policy ment to warrant use that though initially said she force. Whitener pepper Compounding hand myriad inconsistencies Hammett’s as a canister following any the record are the non-testimonial spray, made no but mention of offensive immediately place accounts of what be- took pepper spray against use of the the officers. Hammett was In an affidavit filed fore shot. 17, support of a search warrant October policy states "officers shall not 8. The that use 2012, Sergeant Mike Hill stated that Hammett unarmed, deadly non-dan- force seize an "removed an item was determined that later subject” may gerous "they use dead- pepper spray delay sprayed to be without only ly reasonably ... force when the officer face,” Horsley Horsley Agent in the which led suspect possesses deadly believes log relating police him. The to shoot CAD call which, object any of- weapon or when used *20 find, however, jury reasonable could that facing Horsley been head-on when the first shooting merely a civilian an offi- because shot was fired—somehow had his back to him “move a cer sees toward” fellow offi- the officers seconds later when the second cer, objectively is not reasonable. There is body.9 shot entered his short temporal The ample in support caselaw our circuit to window which the shots were fired See, proposition. e.g., Hyatt, that Felio v. against therefore does not militate the con- 604, (11th 2016) Fed.Appx. 639 608-09 Cir. clusion that the deadly use of force was (reversal a grant summary judgment of of unjustified.10 on of the excessive force when a use sus- pected on perpetrator report a of domestic Conclusion engaged physical
violence—who was in a struggle an reaching with officer and was together, Taken findings these factual gun—was for his fatally shot the abdo- support legal could a conclusion that the men, though even “the officers testified Defendant unreasonably Officers acted ‘dynamic’ that it a only was scene and a employing deadly force. majority con- couple passed seconds between dece- [the point, cedes this acknowledging that “[i]f reaching for gun dent] [the officer’s] the legitimately evidence could be inter- firing”); Miley, [the officer’s] Salvato v. can, preted as Plaintiff insists it the offi- (11th 1286, 2015) (af- 1290 F.3d Cir. might cers’ use of force have been exces- firming summary judgment a denial of maintain, however, They sive.” that no of police the use excessive force the when such interpretation or arrest, reasonable inference exchang- shot a man who resisted officers, can This is not ing be made. the case. To the blows the then broke free contrary, findings “rush[ed] towards” the officers and factual the outlined began hitting again, them offi- hitting one here, below, by Plaintiff sup- the are cer in knocking the head and her to the ported by the forensic and testimonial evi- ground). record, by dence in the far more than a majority dismissively “scintilla” sug- as the Horsley,
As for
jury
reasonable
could
case,
gests. Because that is the
the
entry
find that the location of the
district
wound
on Hammett’s
supports
granting
judg-
lower back
a find-
summary
court erred
Moreover,
I
majori-
majority’s
9.
do not understand the
for the
basis
the
assertion
ty's statement that “if Hammett were retreat-
pointed
any
has not
affirmative
"Plaintiff
shot,
ing
hallway
back down the
when he was
evidence that Hammett surrendered and re-
straight
the bullet would have traveled
is
to a
treated”
irrelevant
determination of
him,
through
diagonally
right,
from left to
summary judgment
whether
is warranted if
impossible.”
which would have been
The rec-
there
no
was
threat to
officers that would
any support
ord does not contain
for this
deadly
Reducing
warrant the use of
force.
fact, given
In
Horsley
statement.
that Officer
question before the Court to one of whether
positioned "facing
slightly
[Hammett]
proven
has
that Hammett surren-
Plaintiff
positioned
the left” and Officer Whitener was
unduly
pro-
dered and retreated
broadens the
right
“on
highly
side of the hall” it seems
qualified immunity
tections of the
doctrine
unlikely
pass
shot from either would
summary judgment
and turns the
standard on
straight through
interpretation
him. This
its head.
majority’s
pure
course—like the
statement—is
speculation.
an
I
Finally,
compelled
and Hors-
feel
to make
ftient'to Defendants Whitener
'
(cid:127)
regarding the ma-
additional observation
ley.
by
today. I
jority’s decision
am concerned
I
majority presents
concede that the
majority’s
implications
view
explanation
of Octo
the events
feasible
by
claim is
ab-
Plaintiffs
undermined
2012,
is
ber
but that
neither
recitation
testimony.
eyewitness
opposing
sence of
only
of the
interpretation
reasonable
characterizing
legitimate in-
By
Plaintiffs
nor-
most favor
interpretation
evidence
physical
terpretation
forensic
otherwise,
holding
able
Plaintiff.11In
“pure
and “dis-
speculation”
evidence
path as
majority
has
the same
followed
evidence,
by
puted
affirmative
most
they
court
have
the district
below:-
obviously,
testimony,”
the officers’
ma-
credibility
weighed the evidence and made
*21
interpreta-
concludes that Plaintiffs
jority
squarely
that
within
determinations
fall
physical
tion of
to
the
evidence amounts
jury.
purview
may
of
It
that a
the
a
well be
Granting summary judgment
conjecture.
that the
statements
jury
subsequent
finds
-qualified immunity under thesé
facts
than
persuasive
of the officers are more
where,
sets
paradigm
therefore
a
no
up
statements,
they
or
credit
the initial
that
many
matter how
inconsistent
of
accounts
find it con
police
the
account and
officers’
gives
an
officer
no matter
incident an
evidence... That
sistent with the forensic
theory
by
supported
what viable
is
forensic
that,
fact, however,
at
change the
does not
evidence, a fourth-amendment claim aris-
summary judgment stage,.the evidence
the
shooting
deadly
of á
will
ing out
never
light
construed
the
most favor
be
must
summary judgment, unless
survive
a third-
nonmovant,
regardless
of
the
able
support
eye-witness can
Plaintiffs
party
party’s
the court feels
one
whether
plaintiff
or the
survives
narrative
the
is
than
of
the
version
events more credible
shooting.
evidentiary
This
be the
cannot
Lee,
(citing Pries
respectfully dissent.
Appendix *40 Q. HANCOCK, Plaintiff-
Yasund Appellant, v. CAPE, Defendant-Appellee.
Brent No. 15-14284 Appeals, Court of United States notes to the search warrant’s execution also fensively against person, likely to or is actu- sprayed that an officer in the face ally bodily injury.” result serious does hand, Horsley pepper spray. On the other spray policy pepper the use of classifies pepper sprayed by that he was not stated Hammett, "Non-Deadly physical Force” and a "soft press by release issued technique.” Paulding County Sheriff's Office on October "shiny object” in 2012 identified the black gun ing any fired her Hammett when she saw perceived threat had abated fall Horsley thought he had been by the time the fired, second shot was shot—she later said that it was because making the of deadly use force unreason- Horsley. she saw Hammett move toward A Hammett—who, accounts, able. by all had