Lead Opinion
On October 17, 2012, police officers'Joey Horsley, Nathalie Whitener, and Joseph Mayfield, defendants-appellees in this ease, executed a search warrant at a private residence in Hiram, Georgia, intending to seize methamphetamines suspected to be
I. BACKGROUND
A.The Hammett Household
At the time of his death, Daniel' Hammett was married to Brenda Van Cleve. The two lived together in a house on Nebo Road with their son Clyde Dillon Hammett (Clyde), who was seventeen years old and in high school at the time of the incident. Together, Hammett and Van Cleve lived on Hammett’s disability benefits of $650-$700 per month, plus Hammett’s earnings from occasional repossession work he did for his son, Justin Hammett. Van Cleve was not otherwise employed.
The Nebo Road residence is a small, one-story, three-bedroom house. A floor plan of the house and photos of the interi- or taken the day of the events giving rise to this suit are attached as an appendix to this opinion.
B. Van Cleve’s Drug Activity
In October 2012, Van Cleve was addicted to methamphetamines. She had smoked meth regularly since the early 1990s, resulting in multiple convictions and various stints in prison. Van Cleve also frequently smoked marijuana. She was the only chronic drug user in the household. Hammett and Van Cleve used meth together in the mid-1990s and were incarcerated for doing so. Hammett had not used meth since, though at the time of his death he was taking oxycodone, and other medications as directed by a doctor to treat his many health problems. Clyde stayed, away from drugs entirely.
C. The Search Warrant
Van Cleve’s meth use led to the events giving rise to this lawsuit. She was able to sustain her habit at no cost by having the drug “fronted” to her (i.e., receiving the meth without having to pay up front), selling a portion at a markup, and keeping the remainder for .her own consumption.' Van
D. The Search
The search took place on Wednesday, October 17, 2012. At around 2:15 p.m., Horsley briefed the search team at the Paulding County Sheriffs Office. He advised the agents and deputies that the target of the search was Van Cleve and that there was no intelligence as to whether firearms were present at the house. As they prepared to execute the search warrant, the officers met in the parking lot of a grocery store near the Nebo Road residence. Members of the search team donned tactical bullet-proof vests, each bearing the designation “SHERIFF” or “POLICE” in large letters on the front and back. Among the group of officers were Nathalie Whitener (Whitener) and Joseph Mayfield (Mayfield), defendants-appellees in this case. Whitener wore a vest similar to Horsley’s, with identical identifying markers, including the word “SHERIFF” emblazoned on the front and back in large letters. Officers Brian Rutherford (Rutherford), Mike Blackmon, Seth Cook, Scott Veal, and Jimmy Motes, none of whom are defendants in this case, accompanied Horsley, Whitener, and May-field to execute the search warrant. All of the officers wore police gear or uniforms easily identifying them as law enforcement. After the briefing, the officers drove to the Nebo Road residence in multiple marked and unmarked police cars and parked the vehicles in the driveway at around 3:15 p.m.
Horsley did not anticipate any violent resistance from Van Cleve and the warrant did not contain a no-knock clause, so he and the other officers approached the house in an unhurried manner. When Horsley reached the carport door, he began knocking and announcing “Sheriffs Office, search warrant” in a loud but non-yelling .voice. See Appendix at 3, 5. The other officers, including Whitener, May-field, and Rutherford, lined up behind Horsley next to the door in a “stack” as Horsley repeatedly knocked and announced “Sheriffs Office,” which continued for between fifteen and thirty seconds. No one inside the house answered.
Having received no response, Horsley tried the doorknob and found it was unlocked. He called out “Sheriffs Office” again through the open door and asked if anyone was home. Still no one answered, so Horsley entered, followed by the other officers. The police had their firearms drawn and in the low-ready position, which is standard operating procedure in the execution of a search warrant in Paulding County. On entering the residence, the officers found it was very dark because there were no lights on in the kitchen, living room, or hallway, and there was no natural light because all the windows were covered.
The officers cleared the kitchen. See id. at 5-7. Horsley, followed by Whitener and Rutherford, moved through the blanket-covered opening into the living room. See id. at 7-8 (showing the blanket on the floor and the doorway in which it hung during the search). Horsley turned to the left toward a hallway leading to the home’s bedrooms and bathroom. He waited there facing the hallway for about five seconds, and again announced the officers’ presence. See id. at 9-10. Whitener turned to the right to face the front door area, see id. at 11, 14, and Rutherford turned further to the right to inspect an area in the far right-hand corner of the living room, see id. at 13. Horsley heard voices coming from down the hallway.
The events that transpired next are the focus of the present dispute. In determining whether the officers were entitled to summary judgment, we must view the facts and make all reasonable inferences in the light most favorable to Plaintiff. In order to determine whether a material dispute exists, we begin by recounting the relevant evidence from each of the pertinent sources in detail as it appears in the record.
1. Testimony of principal witnesses
a. Horsley
According to Horsley, as he stood facing the hallway, he could see a light coming from inside the computer room. See Appendix at 9-10. Watching the hallway, he saw a shadow emerge. Horsley announced again that he was from the Paulding County Sheriffs Office. A large man came out of the room and turned toward Horsley.
b. Whitener
The events unfolded in a similar manner in Whitener’s telling. According to Whitener, as Horsley was looking down the hallway, Whitener was facing to the right into the living room. See Appendix at 11-14. Whitener heard Horsley say “show me your hands” or “let me see your hands” and immediately turned' to the hallway to see what was happening. As Whitener looked, she saw Hammett facing in the direction of the officers, with his hands down near his waist as if to conceal something, disobeying the command to show his hands. Hammett said nothing in response to Horsley. Whitener also had a flashlight attached to her pistol, which she pointed at Hammett, attempting to determine what Hammett was carrying. After being ordered to do so again, Hammett still did not show his hands. Instead, in Whitener’s words, Hammett “stepped .over towards the right side of the hall and just started walking at us at a fast pace,”, still “not showing his hands,” and “like hugging, basically hugging the wall.” Whitener observed Horsley attempt to grab Hammett, and then saw Hammett suddenly reach up with his hands toward Horsley’s face in an aggressive.manner. She then heard a gunshot and saw Horsley lurch backward and begin to fall. Whitener immediately fired her weapon toward Hammett, who she feared was attempting to harm Horsley and had possibly shot him. As she fired, Hammett twisted to his right and it appeared to her that the shot hit him in the lower left side of his back. Whitener expressed some uncertainty in her deposition as to whether she or Horsley shot first and whether it was her bullet or Horsley’s that struck Hammett’s torso. However, she was clear that the shots were nearly simultaneous, within a second or a half-second of one another. As Horsley began yelling for the officers to get out of the house, Whitener fell backward into the living room and .hid behind the couch near the front door. See id. • at 14. She did not exit the resi-. dence, but remained hidden, listening to whispers between the remaining occupants and fearing for her life. Later, when the house was secured, Whitener was able to leave the building.
c. Rutherford
Rutherford, who is not a defendant in this case, provided the only other eyewitness account. According to Rutherford, as the officers entered the living room, he already had the flashlight on his firearm activated because it was dark and he could not see. He turned to the right toward the corner of the house, toward the end of the couch where a pile of clutter lay. See Appendix at 13. He thought the area was large enough for someone to be hiding there, based on the way the shadows were cast. Rutherford then heard Horsley say “show me your hands” or “let me see your hands.” Shortly thereafter, Rutherford heard a gunshot. Rutherford pivoted to his left and his flashlight illuminated the words “SHERIFF” on the back of a tactical vest. He then heard another shot and saw a flash in front of the officer wearing the vest. After he heard that shot, the person wearing the vest—Rutherford did not yet recognize which officer it was
d. Van Cleve
Van Cleve was at home and admits she was under the influence of meth when the officers arrived.
When the officers exited the building, Van Cleve ran back and forth between the bathroom and the computer room in a state of shock. She was still carrying her meth when she was placed in a patrol car outside, but she was able to free her hands and swallow the drug while she was in the police car so that it would not be found.
Van Cleve’s testimony shed little light on what Hammett may have had in his hands when he left the computer room. In an interview conducted the day of the incident, of which the record contains only a summary, Van Cleve stated that Hammett was holding a clipboard when he left the computer room. At her deposition, however, she was unable to recall whether Hammett had anything in his hands, speculating that he may still have' been carrying paperwork with which he had entered the room. When shown a picture of a bottle of pepper spray found in the hallway after the shooting, Van Cleve neither confirmed nor denied it was Hammett’s. See id. at 20. She acknowledged Hammett owned pepper spray but she was not sure if he had it
e. Clyde
At the time of the shooting, Clyde was in his bedroom at the end of the hallway playing video games with headphones on one ear and his bedroom door shut. See Appendix at 1 (showing Clyde’s room as “Bedroom #3”); id. at 10, 17, 19 (photographs of the hallway, the end of the hallway, and Clyde’s room). He had come home from school about forty-five minutes earlier and gone straight into his room and closed the door. Clyde did not hear his father arrive at the house, nor did he hear any police pull up. While he was playing, he heard a male voice yell “Sheriffs Office.” Clyde threw off his headphones, and then later heard a voice say “show me your hands.” Then he heard two gunshots “one right after another,” within a second or two of each other. He did not hear Hammett, Van Cleve, or anyone else say anything during this time period. After hearing the shots, Clyde opened his door and went out into the hallway. He saw Hammett lying against the wall in the hallway next to the computer room about midway between the door opening and the corner of the living room, with his legs toward the living room and his head toward the bedrooms. See id, at 10 (showing a bloodstain on the right wall of the hallway). Clyde did not see anything in his father’s hands. Hammett was not able to say anything to Clyde. Clyde saw blood coming from his father’s shirt, so he knew he had been shot. At that point, because he was scared, Clyde returned to his bedroom. He later emerged at the command of a police officer, and was briefly placed into custody.
Clyde confirmed that Hammett usually carried a can of pepper spray for use in his repossession work and that he would keep the pepper spray in his pocket. He also agreed that the can of pepper spray shown in the incident photographs was Hammett’s and that it was found by Hammett’s body, though he did not see it there when he first went into the hallway. See id. at 20.
2. Other evidence
a. Facts pertaining to Mayfield
The parties agree the single shot May-field fired did not strike Hammett and was discharged after Hammett had already been hit by the first two bullets. Mayfield was part of the search team and entered the kitchen from the carport behind Hors-ley and Whitener. As Mayfield followed Horsley and Whitener into the building, Mayfield got “hung up” in the doorway between the kitchen and the living room, in which a blanket was hanging. See Appendix at 7-8 (showing the blanket on the floor and the doorway in which it was hung). Mayfield heard two gunshots and then turned and saw Horsley fall to the ground. He believed Horsley had been hit. After he heard the shots fired, he discharged one round from the kitchen in the general direction of the perceived threat, though he did not see Hammett and did not know who had fired the two shots. His bullet was never recovered, though there is some evidence that it may have actually struck the back of Whitener’s bullet-proof vest.
b. The autopsy report
Hammett’s autopsy report shows that although shorter than average, Hammett was a large man. He stood five feet six inches tall and weighed 241 pounds. The report describes two wounds. The fatal wound was a gunshot to the torso. The
c. Certain material facts on which the parties agree
The parties agree that three shots were fired: one by Horsley, one by Whitener, and one by Mayfield. All agree Mayfield’s shot was the last of the three and did not strike Hammett. The parties also agree the first shot grazed Hammett’s left index-finger and lodged in the wall next to the bathroom door frame fifty-two inches above the floor. See Appendix at 21. Nor is there any dispute that the second shot entered the back-left side of Hammett’s torso and killed him.
E. Procedural History
Plaintiff brought this suit as the administrator of Hammett’s estate against Hors-ley, Whitener, and Mayfield, as well as Paulding County and the City of Dallas, Georgia, and certain other defendants. He alleged violations of the Fourth Amendment and asserted state law tort claims. The district court granted summary judgment to the defendants on all claims. The court determined the actions of Horsley and Whitener were objectively reasonable in light of the circumstances and therefore granted qualified immunity. It also determined that Mayfield was entitled to summary judgment because his bullet did not strike Hammett, so Mayfield did not seize Hammett within the meaning of the Fourth Amendment. The court did not address whether the law was clearly established in either case because it found no violations in the first place. Plaintiff appeals the judgment of the district court-only with respect to his Fourth Amendment excessive force claims against Hors-ley, Whitener, and Mayfield, contending the district court erred in granting qualified immunity.
H. STANDARD OF REVIEW
We review the district court’s grant of qualified immunity to Horsley, Whitener, and Mayfield de novo. Dukes v. Deaton,
III. DISCUSSION
A. Qualified Immunity Generally
The Supreme Court has long held that government officials are entitled to a form' of immunity from civil suits for damages. See Nixon v. Fitzgerald,
At common law, government actors were afforded certain protections from liability, based -on the reasoning that “the public good can best be secured by allowing officers charged with the duty of deciding upon the rights of others, to act upon their own free, unbiased convictions, uninfluenced by any apprehensions.”
Filarsky v. Delia,
The prudential judgment embodied in qualified immunity represents a “balance between ... evils” in the protection,of the citizenry. Harlow,
So strong is the public interest in protecting government officials in the reasonable discharge of their duties that such officials are insulated not only from damages, but even from the costs of going to trial; for this reason, in most instances interlocutory appeal of district court decisions denying qualified immunity is permitted. See Siegert v. Gilley,
Although these safeguards work to the benefit of individual officers, they exist for the sole purpose of protecting the public at large. Indeed, suits against officials “frequently run against the innocent as well as the guilty—at a cost not only to the defendant officials, but to society as a whole.” Harlow,
These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will “dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.”
Id. (quoting Gregoire v. Biddle,
B. Excessive Force
The origins and purposes of qualified immunity remind us that although the circumstances of a case may be singularly unfortunate, regrettable facts do not automatically spell personal liability for police officers. We are bound to apply the Reasonableness standard set forth by the Supreme Court and this Court.'
In the present litigation, there is no dispute the officers’ conduct was discretionary, so Plaintiff must show the officers violated Hammett’s constitutional right and that the right was clearly established at' the time. See Perez v. Suszczynski,
“Any claim that a law enforcement officer used excessive force—whether, .deadly or- nob—during .a seizure of a free citizen must be analyzed under the Fourth Amendment’s ‘reasonableness’ standard.” Garczynski v. Bradshaw,
The reasonableness of the use of force is evaluated under an objective inquiry that pays careful attention to the facts and circumstances of. each particular case. And the ‘reasonableness’ of a particular use of force must be judged from the p.erspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Excessive force claims ... are evaluated for objective reasonableness based upon the information the officers had when the conduct occurred. That inquiry is dispositive: When an officer carries out a seizure that is reasonable, taking into account all relevant circumstances, there is no valid excessive force claim.
Id. at 1546-47 (citations and quotations omitted). Reasonableness is the touchstone for all excessive force claims, regardless of whether the force used was deadly. See Garczynski,
1. Horsley and Whitener
Plaintiffs sole argument with respect to Horsley and WTiitener, repeated in various forms throughout his brief, is that based on the physical evidence and testimony taken in the light most favorable to Plaintiff, a jury could reasonably find that Horsley and Whitener fired on- Hammett without justification when he was not a threat to them. In order to sustain this contention, Plaintiff asserts a jury could find the following facts. First, Hammett raised his hands in surrender when Hors-ley told him to do so. At that moment, Whitener fired without justification, her bullet grazing Hammett’s left index finger. Wounded and terrified, Hammett turned in full retreat, at which point Horsley shot Hammett in the back in cold blood. Plaintiff insists that the evidence supports this story. In rejecting it, he contends, the district court resolved questions of material fact in favor of the officers.
If the evidence could legitimately be interpreted as Plaintiff insists it can, the officers’ use of force might have been excessive. Plaintiff’s arguments fail, however, because no reasonable jury could make out his theory on the evidence in the record. Plaintiffs attempts to show otherwise stretch the summary judgment standard far beyond its breaking point.
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to'judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
The Supreme Court has instructed that “[w]hen 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.” Scott,
None of these critical facts is disputed by affirmative evidence. Several are inconsistent with the surrender-and-retreat theory, most obviously, the officers’ testimony that Hammett charged at Horsley. In addition, the two shots that struck Hammett occurred in rapid succession, which would not leave time for a retreat in the split second between them. Furthermore, if Hammett were retreating back down the hallway when he was shot, the bullet would have traveled straight through him, not diagonally from left to right, which would have been impossible. “Though factual inferences
Even if we were to set the undisputed contradictory evidence aside, the mere fact that the record, when viewed in the light most favorable to Plaintiff, is theoretically not inconsistent with his narrative, is not enough to survive summary judgment. Holding all of the contrary (and uncontradicted) evidence aside, Plaintiff has not pointed to any affirmative evidence that Hammett surrendered and retreated.
Indeed, the undisputed facts show the officers did not act unreasonably. Singletary,
Though we acknowledge the present inquiry requires Us to “slosh our way through the factbound morass of ‘reasonableness,’” Scott,
The case has parallels to this one. There, as here, “the escalation into deadly force was justified by [the decedent’s] refusal to comply with the officers’ commands.” Id. at 1168. Much as Horsley did in this case, in Garczynski, “[a]fter identifying themselves, the officers repeatedly ordered Garczynski to show his hands.” Id.
Instead of obeying these commands, Garczynski swung the gun from his head in the direction of the officers, at which point they fired. The officers reasonably reacted to what they perceived as án immediate threat of serious harm to themselves. This is exactly the type of “tense, uncertain and rapidly evolving” crisis envisioned by the Supreme Court. Judged from the perspective of á reasonable officer on the scene, the officers’ use of deadly force was objectively reasonable under the circumstances.
Id. (citation omitted). The same reasoning applies in- the present analogous,- though obviously not identical, situation. The undisputed testimony establishes that, like Garczynski, Hammett was carrying something and disobeyed an officer’s instruction to show his hands. After refusing to show his hands, Hammett moved aggressively toward Horsley and raised-his hands rapidly toward Horsley’s face. “Non-compliance of this sort supports the conclusion that use of deadly force was reasonable.” Penley,
Plaintiff, relying in large part on the testimony of Rutherford, makes much of the possibility that Whitener shot first, and insists that on the facts most favorable to him, we must assume that she did. Plaintiff contends Whitener’s justification for shooting was simply that she heard a gunshot and thought Horsley had been hit. Thus if in reality she discharged her weapon first, Plaintiff asserts, her theory of justification “goes out the window.” Brief of Appellant at 33. To the contrary, however, Whitener says she fired because Hammett was moving aggressively toward Horsley, not merely because she heard a gunshot. Indeed, she claims the entire sequence of events took place so quickly that she is not sure who shot first. Although Whitener conceded in her deposition that she theoretically could have shot first, fairly read, all of her testimony indicates she thinks she discharged the second shot. Similarly, there is nothing about the fact that Horsley may- have shot second that undermines his claim that he shot because Hammett charged at him. There is still no evidence that Hammett was submitting and retreating when he was shot, and nothing to create a dispute of material fact. See Garczynski,
In addition, Plaintiff makes much of some alleged inconsistencies between Horsley’s and Whitener’s initial statements to the Georgia Bureau of Investigation, their depositions taken during discovery, and their sworn declarations attached to their motion for summary judgment. We have difficulty identifying such discrepancies and fail to see how they would be material in any case. But even assuming Horsley and Whitener provided inconsistent testimony at various stages of the proceedings, the Supreme Court has stated that “discredited testimony is not normally considered a sufficient basis for drawing a contrary conclusion.” Anderson,
“With the plaintiffs best case in hand, the court is able to move to the question of whether the defendant committed the constitutional violation alleged in the complaint without having to assess any facts in dispute.” Robinson,
2. Mayfield
Mayfield was entitled to qualified immunity as well. As noted above, there is no dispute that Mayfield fired the third shot and that his bullet did not strike Hammett. The parties argue over the proper interpretation of two Sixth Circuit cases in attempting to determine whether Mayfield seized Hammett within the meaning of the Fourth Amendment. See Floyd v. City of Detroit,
We held in Carr v. Tatangelo that where police officers fire on an individual in alleged self-defense, but do not hit him or otherwise touch him, the individual has not been seized.
Both individuals sued the police officers. Id. at 1266. We held that Wymbs was not seized “[b]ecause [he] was not shot or physically touched by the officers.” Id. at 1270-71. As such, he did not have a claim for excessive force under the Fourth Amendment. Rather, Wymbs’ claim was properly analyzed as a Fourteenth Amendment substantive due process claim. Id. To prevail on that cause of action, a plaintiff is required to show an “executive abuse of power” that “shocks the conscience.” Id. at 1271 (quoting Cty. of Sacramento v. Lewis,
Plaintiff has not recognized, much less attempted to meet, this heightened burden with respect to Mayfield, and in any event he could not. Mayfield thought his fellow officers were under fire, having heard first Horsley’s commands that Hammett show his hands, without any response indicating submission, and then two quick bursts of gunfire. A reasonable officer in the situation would have probable cause to believe that the lives of his fellow policemen were in danger. There is no need to resort to foreign case law to find that Mayfield is entitled to qualified immunity.
IV. CONCLUSION
Hammett’s death is undoubtedly tragic. However, qualified immunity exists to protect public servants in precisely these circumstances. After discovery, Plaintiff has produced no evidence that suggests the
AFFIRMED.
Notes
. The photos in the Appendix, taken the day of the incident, were included among many others in a Georgia Bureau of Investigation report, as was a floorplan of the house. The photos on pages 3 through 20 of the Appendix were verified by Clyde in his deposition as accurately and truthfully depicting .the house as it existed on the day of the incident. Clyde also verified the floorplan. Van Cleve'verified a smaller subset of the same group of photographs at her deposition.
. Note that the pictures of the house in the Appendix were taken after the lights had been turned on. Van Cleve testified that the lights were on in the bathroom and the computer room only at the time the warrant was executed.
. According to Whitener, police officers are trained not to turn lights on until after a building is secured because to do so would put the officers at risk by making them a target; instead, they are to use the flashlights attached to their pistols.
. According to his autopsy report, Hammett weighed 241 pounds.
. Deputy Jimmy Motes was not deposed, but his supplemental incident report indicates that he entered the living room and immediately heard two shots, then turned and saw Horsley falling backward.’' This is consistent with Rutherford’s testimony and Plaintiff's contention that both shots were fired before Horsley had fallen completely.
. Though she did not specifically remember doing so, she also agreed she had possibly used cannabis that day as well, since a pipe containing half-smoked marijuana was found in the computer room.
. In her deposition, Van Cleve does not recall how many times she heard the police announce their presence.
. Van Cleve expressed a good deal of uncertainty as well as the inability to recollect many of the specifics of the incident, remarking that she “spent three years trying to forget that day.”
. The ballistics report was inconclusive as to which gun fired the bullet that struck Hammett in the back.
. The tragedy of Hammett’s death is doubly regrettable insofar as he is. unavailable to testify on his own behalf. Nevertheless, as a ' -result, evidence sufficient to defeat a motion for summary judgment must come from othér sources. Here, we have the benefit of the testimony of Hammett’s wife and son, who were both present at the time of the incident. Still, neither of them testified to anything that would challenge the officers’- version of the facts. In the end, Hammett's misfortune does nothing to change the fact that no jury cottld reasonably find for Plaintiff on this evidence.
. Although we hold Horsley and Whitener had actual probable cause, they could prevail even if they did not, for "an officer need only have arguable probable cause, not actual probable cause, in order to qualify for immunity from a Fourth Amendment claim,” Garc-zynski,
Dissenting Opinion
Dissenting in Part:
On October 17, 2012, the police entered Brenda Van Cleve’s home to execute a search warrant. The officers were informed during the pre-execution briefing that there were no known weapons or threats within the residence. Once inside, Officers Rutherford, Horsley, and Whitener proceeded to the living room, where they encountered Van Cleve’s husband, Daniel Hammett. Fifteen to thirty seconds later, Hammett—who was unarmed and not the subject of the search- warrant or a target in the underlying investigation— was dead, shot once in the hand and then fatally in the back. Those are the undisputed facts of this case.
The evidence in this case does not conclusively .establish what took place in the moments leading up to the shooting of. Hammett.
Disputed Issues of Material Fact
A. The Manner in Which Hammett Approached The Officers
First, a jury could find that Hammett did not pose an immediate threat that
Horsley went on to state that, as Hammett approached, he took a step toward Hammett with his gun at “high ready” to “try to engage him,” and instructed Hammett to put up his hands. He then lowered his gun slightly as he reached for Hammett, at which point Hammett raised his hands. Whitener also observed that Hors-ley was “grabbing towards Mr. Hammett’s hands” when Hammett’s hands “came up.” When asked whether, “as the hands came up, [she saw] ... clenched fists or [ ... ] actually s[aw] an object,” Whitener said “No. I couldn’t—I don’t know. I didn’t see any specific clenched "fist or—I don’t know if I—I don’t really recall if I saw anything, if it was—because it was dark.”
With regard to the manner in which Hammett raised his hands, Officer Whitener testified that she thought that both of Hammett’s hands were up. Officer Horsley acknowledged that Hammett raised his right hand but testified that he does not recall what Hammett was doing with his left hand." The forensic evidence, however, shows that the first bullet fired at Hammett grazed the lateral side of Hammett’s left index finger but did not strike his body and lodged in the wall 52 inches above the ground. According to Hammett’s driver’s license he was five feet two inches (62 inches) tall.
B. The Object in Hammett’s Hand
Second, a jury could find that Hammett was unarmed, and that the officers did not believe that Hammett had a deadly weapon in his hand at the time they shot him. Horsley stated that, once Hammett exited the bedroom, he saw Hammett move something from his left hand to his right. He was shining his flashlight at Hammett’s hands but “was not able to see an object in
C. The Order of the Shots Fired at Hammett
Third, a reasonable jury could find that Whitener fired the first shot, which grazed Hammett’s index finger, and that Horsley fired the second shot into Hammett’s back after Hammett had turned away from the officers. This finding is supported by both the autopsy report and by Officer Rutherford’s testimony. The district court found that Officer Rutherford’s testimony did not conflict with the testimony of Officers Horsley and Whitener because “Officer Rutherford testified that Defendant Hors-ley fell after the second shot that Officer Rutherford heard” and since “Officer Rutherford did not even know three shots were fired ... it is unknown which two of the three shots he heard.” Regardless of which two shots Officer Rutherford heard, however, his testimony necessarily precludes a reading wherein Horsley shot first and had fallen before any shots were fired by Whitener.
While the majority accepts that Rutherford’s testimony could support Plaintiffs contention that Whitener shot first and Horsley second, they maintain that this does not vitiate Whitener’s claim that her actions were reasonable because—although Whitener initially said that she
As for Horsley, a reasonable jury could find that the location of the entry wound on Hammett’s lower back supports a finding that any perceived threat had abated by the time the second shot was fired, making the use of deadly force unreasonable. Hammett—who, by all accounts, had been facing Horsley head-on when the first shot was fired—somehow had his back to the officers seconds later when the second shot entered his body.
Conclusion
Taken together, these factual findings could support a legal conclusion that the Defendant Officers acted unreasonably in employing deadly force. The majority concedes this point, acknowledging that “[i]f the evidence could legitimately be interpreted as Plaintiff insists it can, the officers’ use of force might have been excessive.” They maintain, however, that no such interpretation or reasonable inference can be made. This is not the case. To the contrary, the factual findings outlined here, and by the Plaintiff below, are supported by the forensic and testimonial evidence in the record, by far more than a “scintilla” as the majority dismissively suggests. Because that is the case, the district court erred in granting summary judg-ftient'
I concede that the majority presents a feasible explanation of the events of October 17, 2012, but that recitation is neither the only reasonable interpretation of the evidence nor- the interpretation most favorable to the Plaintiff.
Finally, I feel compelled to make an additional observation regarding the majority’s decision today. I am concerned by the implications of the majority’s view that Plaintiffs claim is undermined by the absence of opposing eyewitness testimony. By characterizing Plaintiffs legitimate interpretation of the physical and forensic evidence as “pure speculation” and “disputed by affirmative evidence, most obviously, the officers’ testimony,” the majority concludes that Plaintiffs interpretation of the physical evidence amounts to conjecture. Granting summary judgment on -qualified immunity under thesé facts therefore sets up a paradigm where, no matter how many inconsistent accounts of an incident an officer gives and no matter what viable theory is supported by forensic evidence, a fourth-amendment claim arising out of á deadly shooting will never survive summary judgment, unless a third-party eye-witness can support Plaintiffs narrative or the plaintiff survives the shooting. This cannot be the evidentiary standard in qualified immunity cases.
In circumstances; where, as .here, the evidence creates a genuine issue of material fact regarding the conduct of police officers during a deadly shooting, the case should go to trial, where both sides will have a full and fair opportunity to present their best evidence to a jury. That jury— and not this Court or the district court below—should then weigh , the evidence, make factual findings, and determine the
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. Although the majority includes a. 16-page summary of some of the testimony given in this case, the section entitled "Certain material facts on which the
. Though I dissent with regard to the grant of. summary judgment on Hammett's fourth-amendment claims against officers Whitener and Horsley, I agree with the majority that the district
. The order entered by--the district court below acknowledges in multiple footnotes that there may be material issues of fact remaining about the events in question and that
. The officers involved in the shooting of Hammett described the hallway as narrow, and a diagram
. Horsley and Whitener testified that Hammett’s hands were brought up to the level of Horsley’s
.Horsley’s opinion that Hammett was “absolutely not” attempting to comply with his commands in raising his hands
. Compounding the myriad inconsistencies in the record are the following non-testimonial accounts of what took place immediately before Hammett was shot. In an affidavit filed in support of a search warrant on October 17, 2012, Sergeant Mike Hill stated that Hammett "removed an item that was later determined to be pepper spray
. The policy states that "officers shall not use deadly force to seize an unarmed, non-dangerous subject” and that "they may use deadly force ... only when the
. I do not understand the basis
. Moreover, the majority’s assertion that "Plaintiff has not pointed to any affirmative evidence that Hammett
. .The majority’s summary of the testimony in this case fails to acknowledge the highly material inconsistencies between the statements given by the officers in their initial GBI interviews, their depositions, and their declarations submitted in support of summary judgment. The case cited for