Jayne Swinford v. Joshua Santos

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13675

____________________

JAYNE SWINFORD,

Plaintiff-Appellant,

versus

OFFICER JOSHUA SANTOS,

In his individual capacity,

OFFICER CHARLES BIDINGER,

In his individual capacity,

OFFICER ROGER OLIVER WILLIAMS, JR.,

In his individual capacity,

SERGEANT JONATHAN MCILVAN,

In his individual capacity,

CORPORAL RICHARD ALEXANDER LEDER,

In his individual capacity, et al.,

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2 Opinion of the Court 22-13675

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 3:21-cv-00090-CAR

____________________

Before BRANCH, GRANT, Circuit Judges, and CALVERT,∗ District

Judge.

BRANCH, Circuit Judge:

This appeal arises out of the death of Thomas Swinford.

Thomas was shot and killed by Athens-Clarke County (“ACC”)

police officers after he refused officers’ commands to drop a gun1

and instead raised and pointed it at police officers. Thomas’s

widow, Jayne Swinford, filed a lawsuit in Georgia state court

alleging claims under 42 U.S.C. § 1983 and Georgia’s wrongful

death statute against seven individual officers who shot Thomas

after he raised his gun, the ACC police department’s chief of police

in his official and individual capacities, and the county government.

∗The Honorable Victoria Calvert, United States District Judge for the

Northern District of Georgia, sitting by designation.

1 The gun was actually a BB gun, but Appellant concedes “for all purposes of

this appeal that the gun Thomas Swinford held . . . reasonably appeared to be

real to those on the scene.”

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Mrs. Swinford’s complaint referenced, but did not attach, body

camera footage, which she asserted supported her claims. The case

was timely removed to federal court.

Defendants moved to dismiss the complaint on qualified and

official immunity grounds, relying primarily on body camera

footage from two officers that showed the sequence of events

leading up to the shooting. The district court considered the body

camera footage over Mrs. Swinford’s objections and granted

defendants’ motion to dismiss, finding that the footage established

that the officers acted reasonably in light of the circumstances they

faced and thus they did not violate Thomas’s constitutional rights.

Accordingly, the district court also denied Mrs. Swinford’s motion

to amend her complaint on futility grounds. The district court

subsequently denied her motion to reconsider, and she timely

appealed.

On appeal, she again argues that the district court

improperly considered the contents of the body camera footage as

well as that the district court erred in denying her motion to amend

and motion for reconsideration. We disagree. For the following

reasons, we determine that the district court properly considered

the body camera footage under our incorporation-by-reference

doctrine and properly granted defendants’ motion to dismiss.

Accordingly, after careful review and with the benefit of oral

argument, we affirm the district court’s orders.

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4 Opinion of the Court 22-13675

I. Background

Mrs. Swinford’s initial complaint alleged the following facts,

which she based in part off of body camera footage.2

Around 4:15 p.m., on March 8, 2019, the ACC police

department received reports from Thomas’s father and Mrs.

Swinford that Thomas was threatening to commit suicide by police

and was under the influence of drugs. The ACC police department

had responded to three prior suicide threats involving Thomas. In

response to the threat on March 8, 2019, the ACC police

department dispatched units to Thomas’s home in Athens,

Georgia. One of the officers who responded communicated to

dispatch that Thomas had a handgun. Accordingly, the police

department established a perimeter for a “barricaded gunman”

situation.

Mrs. Swinford alleged that once the officers were dealing

with a barricaded gunman situation, the police department was

required, per its own policy, to dispatch a Strategic Response Team

(“SRT”), whose members have advanced training and special

equipment to respond to situations involving mental health crises.

Nevertheless, the police department did not deploy an SRT,

instead it deployed regular units who created a perimeter around

the residence. At 5:55 p.m., the police department received a

report that Thomas had fled in his mother’s car and was outside

2 Mrs. Swinford titled an entire section of her initial complaint “Comprehensive

Facts from Bodycam Videos and Reports.”

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the perimeter. Thomas returned to his parents’ home shortly

thereafter, and the police department, for the second time, created

a perimeter around the house using non-SRT units. The police

used spike strips when creating the perimeter with the intent to

disable Thomas’s vehicle should he choose to flee a second time.

Despite the implementation of the spike strips, at 6:02 p.m.,

Thomas again broke the perimeter by driving over the spike strips.

He drove “approximately one-half mile to a vacant church parking

lot, where he parked the disabled vehicle.”

Mrs. Swinford’s initial complaint described the following

events immediately preceding Thomas’s death:

• Police units established a perimeter around the church

parking lot and took cover as they aimed firearms at

Thomas.

• Police spent the next twenty minutes ordering Thomas to

put down his gun as he paced near his mother’s vehicle.

• Thomas informed the police he would come out if he were

permitted to speak to his wife, but the police directed Mrs.

Swinford not to speak to him.

• None of the police units on scene were equipped with “less

lethal” weapons, such as beanbag or sponge rounds,

although officers repeatedly mentioned that they needed

these rounds while on scene.

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• At 6:13 p.m., dispatch advised the units on scene that they

may need an SRT commander, but an SRT commander was

never deployed to the scene.

• At 6:25 p.m., Thomas kissed a photo of his family.

• At 6:28 p.m., Thomas walked in the direction of two police

officers who had taken cover behind their patrol vehicle and

raised his gun toward them.

• At the time Thomas raised his gun, the SRT was not on the

scene.

• The seven officer defendants opened fire on Thomas after

he raised his gun, firing a total of twenty-one shots.

• Ultimately, six shots struck Thomas—including two in the

back—and Thomas died of his injuries.

• Mrs. Swinford alleged that “[a]ccording to bodycam

footage” Thomas fell face down immediately after the first

shots were fired, but that the officers continued to fire on

Thomas after he was already on the ground with his gun out

of reach.

• Mrs. Swinford alleged that all officers who fired on Thomas

knew that he “had expressed the intention to commit suicide

by enticing [the police] to kill him by employing lethal

force.”

Based on the above allegations Mrs. Swinford filed the

instant lawsuit in July 2021, bringing the following three claims:

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Count I—violations of the Fourth and Fourteenth Amendment

under 42 U.S.C. § 1983 against the chief of police and the seven

individual officers;3 Count II—a Georgia wrongful death claim

against the chief of police and the individual officers; and Count

III—a claim for Monell 4 liability against the chief of police and the

county. The defendants timely removed Mrs. Swinford’s lawsuit

to the U.S. District Court for the Middle District of Georgia based

on federal question jurisdiction. Thereafter, they filed a motion to

dismiss arguing that the individual officers were entitled to

qualified immunity, both because their actions did not constitute

excessive force and because the law was not clearly established at

the time of Thomas’s death that their actions violated the

Constitution. In making this argument, they relied on body

camera footage that showed the events leading up to the officers

shooting Thomas as well as the moment that officers discharged

their weapons. Defendants also argued that the Monell claims

against the county and police chief should be dismissed for failure

3 Mrs. Swinford’s complaint names only the individual officers who shot

Thomas at the church. The complaint does not allege that the chief of police

was present at the perimeter or at the church where Thomas was eventually

shot. Instead, her allegations against the chief pertain to comments he made

at a press conference post-shooting and his alleged failure to ensure officers

were equipped with less than lethal weapons.

4 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

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to state a claim and that the individual officers were entitled to

official immunity on the Georgia wrongful death claim.5

In opposition to the motion, Mrs. Swinford argued that the

district court could not consider the bodycam videos because:

(1) they were not written instruments; (2) they showed only

approximately three minutes of Thomas’s interaction with the

police whereas her complaint relied on facts gleaned from hours of

video across fifteen different body cameras and thus the videos

were not central to Mrs. Swinford’s claims; and (3) she did not

“stipulate” to the videos’ authenticity. Notably, however, she did

not argue that the defendants’ bodycam videos were inauthentic or

had been doctored in some manner, only that they were not

“comprehensive” or “complete” because they showed only

approximately three minutes of the interaction. She also argued

that the individual officers were not entitled to qualified

immunity. 6 She also did not respond to the defendants’ arguments

regarding the Monell claims against the county and the chief of

police.

5 Defendants also argued that Mrs. Swinford’s claims were barred by Georgia’s

two-year statute of limitations because her claims accrued on March 8, 2019,

and she did not file her complaint until July 7, 2021. That issue is not before

us on appeal, and we need not reach it to resolve this case.

6 In making this argument, she argued that the individual officers had failed to

establish they were acting within their discretionary authority—a dubious

position that she abandons on appeal.

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More than three months after defendants filed their reply

brief, Mrs. Swinford filed a motion to amend her complaint. The

proposed amended complaint would have, among other things,

dropped her references to body camera footage and added a claim

alleging a violation of the Americans with Disabilities Act (“ADA”),

42 U.S.C. § 12112(a), against the county. Defendants opposed the

request to amend the complaint, arguing that amendment would

be futile because any ADA claim failed as a matter of law, and Mrs.

Swinford’s claims for excessive force failed for the same reasons

raised in their motion to dismiss—namely that the defendants’

bodycam footage proved no constitutional violation occurred,

regardless of how Mrs. Swinford attempted to frame that evidence.

Mrs. Swinford filed a reply brief, again arguing that the district

court should not consider the videos relied on by the defendants

because they “are a mere fraction of what forms the basis” of her

claims, and thus the court should grant her leave to amend.

In a comprehensive order, the district court granted

defendants’ motion to dismiss and denied Mrs. Swinford’s request

to amend her complaint. The district court relied on the

incorporation-by-reference doctrine to consider the body camera

footage in reaching its decision. In relying on this doctrine, the

district court determined that the initial—and operative—

complaint directly referenced the bodycam footage at issue,

including by having an entire section titled “Comprehensive Facts

from Bodycam Videos and Reports.” Next, it determined that the

videos were authentic because Mrs. Swinford had disputed their

completeness, not their authenticity. As to that dispute, the district

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court noted that the body camera footage “depict[ed] the

[i]ndividual [o]fficers’ use of deadly force—the moment central to

[Mrs. Swinford’s] claims.”

After determining it could consider the defendants’ body

camera footage, the district court summarized the contents. As the

district court emphasized, the defendants’ body camera footage

tells a different story than the complaint regarding the moment

that officers started shooting at Thomas. Here is what the footage

shows.

For nearly three minutes prior to the shooting, Thomas can

be seen pacing around his vehicle. An officer utilizing a speaker

repeatedly told Thomas to put his gun down while also expressing

concern for his well-being. For example, the officer told Thomas

that they could get him help and that his family was concerned

about him and wanted to know he was “alright.” The officer

instructed Thomas to “set the gun down on the hood” and to talk

with him. He told Thomas to put down the gun and come to the

front of his vehicle. He told Thomas that he knew there was a lot

going on, but that they could work through it. He implored

Thomas to “give [the police] a chance.” He told Thomas that he

knew that Thomas was feeling alone but that he was not alone.

Immediately after the officer told Thomas that he was not

alone, Thomas started walking toward officers with his gun in hand

and the officer on the loudspeaker stated, “Don’t do that Thomas.

Thomas do not do that. Drop the gun.” Thomas lifted the gun

and aimed it at some of the officers and, as a result, the officers

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opened fire on Thomas. In total, the shooting consisted of one

volley of fire lasting approximately four seconds. Thomas fell face

down and raised his head after the firing had stopped, and officers

shouted to Thomas to not move. One officer asked others where

Thomas’s gun was, and they answered that it was right in front of

him. Officers approached Thomas, who was still lying face down,

and instructed him not to move. They then placed Thomas in

handcuffs and called for medical help. Following the shooting, one

of the officers stated, “[W]e probably shouldn’t have shot him.”

After considering the video evidence, the district court

determined that the individual officers were entitled to qualified

immunity because their use of force was reasonable in light of the

circumstances, namely Thomas’s raising of the gun and pointing it

at some of the officers, and thus they had not committed a

constitutional violation. And because the defendants’ bodycam

footage established that no constitutional violation occurred, the

district court determined that any amendment would be futile.

The district court also concluded that Mrs. Swinford had failed to

state a failure-to-supervise claim against the police chief because

she did not allege any facts that showed either that the chief directly

participated in the alleged unconstitutional conduct or that a causal

connection existed between the chief’s actions and the alleged

violation. Similarly, the district court found that the complaint

failed to plead facts to plausibly establish any causal connection

between the county’s policies or customs and the alleged

constitutional violation. As to Mrs. Swinford’s proposed ADA

claim in the proposed amended complaint, the district court

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determined that even assuming that officers could be held liable

under the ADA, she had failed to adequately allege facts to show

that an ACC official acted with the required discriminatory intent

or to otherwise make out a prima facie ADA claim. After disposing

of the federal claims, the district court declined to exercise

supplemental jurisdiction over the Georgia wrongful death claim

and dismissed it without prejudice. The district court thereafter

entered judgment in favor of the defendants.

After the district court issued its dismissal order and entered

judgment against Mrs. Swinford, she moved the district court to

reconsider under Federal Rule of Civil Procedure 59(e), again

asserting that the district court erred in considering the defendants’

body camera footage. She also argued that the district court erred

in (1) considering the allegations in the complaint instead of her

proposed amended complaint; (2) failing to conduct an

individualized qualified immunity analysis as to each officer;

(3) considering the defendants’ body camera footage (which came

from only two officers) rather than the body camera footage she

relied upon, which came from all seven officers; 7 and (4) granting

qualified immunity to the individual officers because, in her view,

our decision in Hunter v. Leeds, 941 F.3d 1265 (11th Cir. 2019),

established that the officers’ shooting of Thomas violated his

constitutional rights. Finally, she argued that newly discovered

7 In support of this argument, Mrs. Swinford submitted all body camera

footage in her possession from the March 8, 2019, shooting.

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evidence—in the form of ACC policies, manuals, and agendas—

supported her Monell claims against ACC and the police chief.

The district court denied Mrs. Swinford’s motion to

reconsider, determining that (1) she was largely attempting to

relitigate matters already decided by presenting new arguments

and new evidence (including body camera footage from other

officers); (2) it would not consider her new arguments; (3) it would

not consider the new evidence she submitted because she did not

allege that this evidence was unavailable to her when the district

court was considering the motion to dismiss; and (4) the situation

in Hunter was factually distinct from the instant one. Mrs. Swinford

timely appealed the district court’s orders. 8

II. Standard of Review

We review the district court’s grant of a motion to dismiss

under Rule 12(b)(6) of the Federal Rules of Civil Procedure de novo.

Davis v. City of Apopka, 78 F.4th 1326, 1331 (11th Cir. 2023), cert.

denied sub nom., Davis v. Apopka, 144 S. Ct. 2528 (2024). “Although

we ordinarily review district court orders denying leave to amend

a complaint for abuse of discretion . . . we review such decisions de

novo when the denial is based on a legal determination that

amendment would be futile.” Taveras v. Bank of Am., N.A., 89 F.4th

1279, 1285 (11th Cir. 2024) (quotations omitted). “We review the

8 Mrs. Swinford does not appeal the district court’s decision to not exercise

supplemental jurisdiction over her Georgia wrongful death claims.

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denial of a Rule 59(e) motion for abuse of discretion.” Berry v.

Crestwood Healthcare LP, 84 F.4th 1300, 1313 (11th Cir. 2023).

III. Discussion

Mrs. Swinford raises three primary arguments on appeal.

First, she argues that the district court improperly considered the

defendants’ body camera footage when ruling on defendants’

motion to dismiss and thus erred in finding that the individual

officers had not committed a constitutional violation and were

entitled to qualified immunity. Second, she argues that the district

court erred in denying her motion to amend. Finally, she argues

that the district court erred in denying her motion to reconsider.

We address and reject each argument in turn.

A. Motion to Dismiss

1. The district court properly considered the defendants’ body

camera footage.

In general, district courts must limit their consideration to

the pleadings and any exhibits attached to the pleadings when

ruling on a motion to dismiss. Grossman v. Nationsbank, N.A., 225

F.3d 1228, 1231 (11th Cir. 2000). If a party presents, and the court

considers, evidence outside of the pleadings, the general rule

requires the district court to convert the motion to dismiss into a

motion for summary judgment. See Fed R. Civ. P. 12(d); Finn v.

Gunter, 722 F.2d 711, 713 (11th Cir. 1984). However, there are two

exceptions to the general rule: (1) the incorporation-by-reference

doctrine and (2) judicial notice. Tellabs, Inc. v. Makor Issues & Rts.,

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Ltd., 551 U.S. 308, 322 (2007). At issue here is the incorporation-by-

reference doctrine.

Under the incorporation-by-reference doctrine, a district

court may consider evidence attached to a motion to dismiss

without converting the motion into a motion for summary

judgment “if the document is (1) central to the plaintiff’s claim; and

(2) undisputed, meaning that its authenticity is not challenged.”

Johnson v. City of Atlanta, 107 F.4th 1292, 1300 (11th Cir. 2024).

As to the first requirement—the centrality of the bodycam

footage to Mrs. Swinford’s claims—the defendants’ bodycam

videos clearly depict the events central to her excessive force

claim—the events surrounding the individual officers shooting her

husband. The footage shows all the relevant conduct, namely

officers’ attempts to de-escalate the situation, Thomas ignoring the

officers’ instructions to put down his gun, Thomas walking toward

officers while raising the gun, and the officers firing upon Thomas.

This sequence of events is what forms the basis of Mrs. Swinford’s

claims against the defendants.

Mrs. Swinford appears to argue that the centrality

requirement is not satisfied in this case because, according to her,

the incorporation-by-reference doctrine applies only to written

instruments, and the defendants’ bodycam videos are not written

instruments. This argument is foreclosed by our decision in Baker

v. City Madison, where we applied the incorporation-by-reference

doctrine to police bodycam footage like the footage at issue in this

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case. 9 67 F.4th 1268, 1277–78 (11th Cir. 2023); see also Johnson, 107

F.4th at 1298. Mrs. Swinford attempts to distinguish Baker by

arguing that an examination of the trial docket in Baker indicates

that initial disclosures had already occurred in that case when the

district court considered the police bodycam footage. But we said

nothing in Baker regarding initial disclosures, and instead held that

the centrality requirement was met because—like defendants’

bodycam footage in this case—the police bodycam footage in that

case “show[ed] all the relevant conduct” giving rise to plaintiff’s

claims. Baker, 67 F.4th at 1277. Accordingly, we determine that

the centrality requirement for the incorporation-by-reference

doctrine is met in this case.

Turning now to the second requirement of the

incorporation-by-reference doctrine—that the bodycam footage be

undisputed—Mrs. Swinford argues that (1) she did not stipulate

that the footage was authentic; and (2) the footage was incomplete

because it showed only excerpts of the officers’ body camera

footage and did not include footage from every officer on the scene

that day. Both of her arguments fail.

As to her first contention, nothing in our precedent

mandates that a plaintiff stipulate that a video is authentic for the

district court to properly consider it. All that is required is that its

authenticity is not challenged. Horsley v. Feldt, 304 F.3d 1125, 1134

(11th Cir. 2002). She has not done so. She did not argue below and

9 In fairness to Mrs. Swinford, we issued our opinion in Baker after she

submitted her initial brief.

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has not argued on appeal that “the footage has been altered in any

way,” nor does she contend “that what the footage depicts differs

from what actually happened.” Baker, 67 F.4th at 1277.

As to her second contention regarding the video footage

being incomplete, Mrs. Swinford relies on our decision in Horsley,

wherein we determined that the district court could not consider

transcript excerpts from a CNN broadcast attached to the

defendant’s motion to dismiss in a defamation case because the

excerpts “did not contain the statements the complaint insist[ed]

that [the defendant] made” and that “for all we kn[e]w” those

statements were intentionally left out of the excerpts that the

defendant selected. Horsley, 304 F.3d at 1135. We face a very

different situation here. While the defendants’ bodycam videos

may be “incomplete” in the sense that they do not show every

angle of Thomas’s death or the hours of footage leading up to his

death, they clearly show unedited footage of the event underlying

Mrs. Swinford’s excessive force claim. Accordingly, the district

court did not err in concluding that the video footage was

authentic.

Because the requirements of the incorporation-by-reference

doctrine were met, the district court properly considered the

defendants’ body camera footage when ruling on the motion to

dismiss. We now assess whether this video footage established that

the officers were entitled to qualified immunity. 10

10 Mrs. Swinford also argues that the district court should have considered the

allegations in her proposed amended complaint, as opposed to the allegations

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2. The individual officers are entitled to qualified immunity.

Qualified immunity shields government employees from

suit against them in their individual capacities for discretionary

actions they perform in carrying out their duties. Brooks v. Miller,

78 F.4th 1267, 1279 (11th Cir. 2023). To determine whether

qualified immunity applies, we engage in a burden-shifting

analysis. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). The

first step requires a defendant to show that he was acting within

the scope of his discretionary authority when committing the

challenged act. Id. “Once the defendant does that, the burden

shifts to the plaintiff, who must show that qualified immunity is

not appropriate” by establishing: “(1) the defendant violated a

constitutional right, and (2) that constitutional right was ‘clearly

in the initial complaint, in ruling on the motion to dismiss. Her contention is

incorrect. The initial complaint was the operative complaint in this case and

was the complaint that the defendants moved to dismiss. It is true that Mrs.

Swinford sought the court’s leave to amend her complaint and attached a

proposed amended complaint. She sought the court’s permission because

more than twenty-one days had passed since defendants filed their motion to

dismiss—indeed, more than four months had passed—and therefore she could

no longer amend her complaint as a matter of course. See Fed R. Civ. P.

15(a)(1)(B). Thus, Mrs. Swinford’s filing of a proposed amended complaint did

not operate to replace her initial complaint without leave first being given by

the district court. Because the district court chose to rule on the merits of

defendants’ motion to dismiss, it was required to consider the allegations in

the initial complaint, not the proposed amended complaint. And, as discussed

in more detail above, the district court subsequently ruled on her motion to

amend, properly determining based on defendants’ bodycam footage that no

constitutional violation occurred and therefore any amendment would be

futile.

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established’ at the time of the defendant’s actions.” Brooks, 78 F.4th

at 1280 (citing Powell v. Snook, 25 F.4th 912, 920 (11th Cir. 2022)).

“Courts have ‘discretion to decide which of the two prongs of the

qualified-immunity analysis to tackle first.’” Id. (alterations

adopted) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).

Mrs. Swinford concedes on appeal that the individual

officers were acting within their respective discretionary authority

when they shot Thomas. Accordingly, she must establish both that

the individual officers violated Thomas’s constitutional rights and

that the right was clearly established at the time of the officers’

actions. We begin and end our qualified immunity analysis by

addressing the first requirement.

The Fourth Amendment provides a “right of the people to

be secure in their persons . . . against unreasonable . . . seizures.”

U.S. Const. amend. IV. This right “encompasses the plain right to

be free from excessive force.” Lee, 284 F.3d at 1197. Excessive force

claims are judged under the Fourth Amendment’s objective

reasonableness standard. Graham v. Connor, 490 U.S. 386, 395–96

(1989). “That standard requires us to ask ‘whether the officer’s

conduct was objectively reasonable in light of the facts confronting

the officer.’” Patel v. City of Madison, 959 F.3d 1330, 1338–39 (11th

Cir. 2020) (alterations adopted) (quoting Vinyard v. Wilson, 311 F.3d

1340, 1347 (11th Cir. 2002)). Accordingly, we must “examine the

totality of the circumstances, ‘including the severity of the crime at

issue, whether the suspect poses an immediate threat to the safety

of the officers or others, and whether the suspect is actively

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resisting arrest or attempting to evade arrest by flight.’” Baker, 67

F.4th at 1279 (alterations adopted) (quoting Graham, 490 U.S. at

396). “Other considerations are the need for the application of

force, the relationship between the need and the amount of force

used, the extent of the injury inflicted, and whether the force was

applied in good faith or maliciously and sadistically.” Id. We have

held that deadly force is reasonable when an officer:

(1) has probable cause to believe that the suspect

poses a threat of serious physical harm, either to the

officer or to others or that he has committed a crime

involving the infliction or threatened infliction of

serious physical harm; (2) reasonably believes that the

use of deadly force was necessary to prevent escape;

and (3) has given some warning about the possible

use of deadly force, if feasible.

Hunter v. Leeds, 941 F.3d 1265, 1279 (11th Cir. 2019) (emphasis

added) (quoting Robinson v. Arrugueta, 415 F.3d 1252, 1255 (11th

Cir. 2005)).

Based on our precedent and the contents of the defendants’

body camera footage, we conclude that the individual officers’ use

of deadly force was reasonable in light of the circumstances they

faced. Once Thomas approached some of the officers and pointed

his gun at them, the individual officers clearly had probable cause

to believe that he posed a serious threat to the officers on scene.

Accordingly, they did not use excessive force in shooting Thomas.

Mrs. Swinford makes four arguments as to why we should

reach a different conclusion, none of which are convincing. First,

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22-13675 Opinion of the Court 21

she argues that statements that the officers made after the shooting

expressing regret establishes a doubt as to their probable cause. But

these after-the-fact statements are irrelevant to the inquiry of

whether the officers had probable cause. Cf. Patel, 959 F.3d at 1339

(explaining that “we must be careful not to Monday-morning

quarterback” the reasonableness of an officer’s use of force). As

discussed above, the defendants’ body camera footage clearly

established that they had probable cause to believe Thomas posed

a threat to the lives of the officers on the scene. Thus, her first

argument fails.

Second, Mrs. Swinford argues that even assuming the

officers had probable cause to believe Thomas posed a threat when

he raised his gun, this probable cause dissipated once the first shot

was fired because Thomas immediately began to fall. According to

her version of events, the initial shot was a separate and distinct

event followed by other officers firing additional shots after

Thomas was already on the ground with his gun out of reach. In

making this argument she relies on our decision in Hunter, where

we determined that an officer was not entitled to qualified

immunity at summary judgment for firing a second round of seven

shots after his initial round of three shots caused the suspect to drop

his firearm and obey the officers’ commands. 941 F.3d at 1279–80.

The problem for Mrs. Swinford is the body camera footage

shows an entirely different series of events than what she describes.

Although Mrs. Swinford describes a separate round of fire after

Thomas is already incapacitated on the ground, the footage clearly

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22 Opinion of the Court 22-13675

shows that there was only one round of fire from the officers that

lasted approximately four seconds in total, not two distinct rounds

of fire. “[W]here a video is clear and obviously contradicts the

plaintiff’s alleged facts, we accept the video’s depiction instead of

the complaint’s account and view the facts in the light depicted by

the video.” Baker, 67 F.4th at 1277–78 (internal citation omitted).

Thus, the events are starkly different from Mrs. Swinford’s

recitation, which she makes in an attempt to bring this case within

the confines of Hunter. Unlike the officer in Hunter, the officers in

the instant case began firing simultaneously and ceased firing

shortly thereafter. Once Thomas was on the ground, officers

approached him and began administering first aid. They never

opened fire a second time like the officer in Hunter. Accordingly,

Hunter does not help her case.

We now turn to Mrs. Swinford’s third argument. She argues

that Thomas was not “warned of [the officers’] intention to use

deadly force . . . as he paced outside his vehicle.” But we have never

held that an officer must always warn someone of his intent to use

deadly force. Davis v. Waller, 44 F.4th 1305, 1315 (11th Cir. 2022)

(“[W]e have declined to fashion an inflexible rule that, in order to

avoid civil liability, an officer must always warn his suspect before

firing—particularly where, as here, such warning might easily have

cost the officer his life.” (quotations omitted)), cert. denied, 143 S.

Ct. 2434 (2023). And there is no indication that the officers

intended to use deadly force as their interaction began with

Thomas pacing outside his vehicle. Indeed, the officers continued

to instruct him to put down his firearm and told him they were

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22-13675 Opinion of the Court 23

concerned for his well-being. The officers did not use deadly force

until Thomas raised his gun in their direction. At that point it was

not feasible for them to warn Thomas because they were forced to

act. Given the circumstances and the split second that officers had

to decide whether to fire their weapons, we find no error in the

officers’ failure to verbally warn Thomas that they would open

fire. 11

Mrs. Swinford’s final argument is that the district court erred

in conducting the qualified immunity analysis in a collective

manner rather than looking at each of the officers’ individual

actions as viewed from their respective vantage points. It is true

that “each defendant is entitled to an independent qualified-

immunity analysis as it relates to his or her actions and omissions”

and thus courts “must be careful to evaluate a given defendant’s

qualified-immunity claim, considering only the actions and

omissions in which that particular defendant engaged.” Alcocer v.

Mills, 906 F.3d 944, 951 (11th Cir. 2018). Unfortunately for Mrs.

Swinford, however, she invited this error by continually referring

to the officers’ actions collectively, rather than individually, and she

failed to preserve such an argument for appeal because she did not

raise it in opposing the motion to dismiss. F.T.C. v. AbbVie Prods.

LLC, 713 F.3d 54, 65 (11th Cir. 2013) (“It is a cardinal rule of

11 Further supporting our conclusion on this issue is the fact that officers

repeatedly instructed Thomas to drop his gun, all while having their own

weapons drawn and pointed at Thomas. It would defy common sense to

believe that Thomas did not know that the officers would open fire on him if

he pointed his gun at them.

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24 Opinion of the Court 22-13675

appellate review that a party may not challenge as error a ruling

invited by that party.” (quotations and ellipses omitted)).

When Mrs. Swinford filed her complaint, she brought her

excessive force claim against the officers based on their collective

actions, rather than individually. Accordingly, the individual

officers argued in their motion to dismiss that all of them were

entitled to qualified immunity based on the contents of the body

camera footage. In opposing the motion to dismiss, Mrs. Swinford

never argued that the officers’ actions had to be assessed on an

individualized basis and instead continued to refer to the officers as

a group arguing that their collective actions did not entitle them to

qualified immunity. 12 The first time that she argued to the district

court that the officers’ actions had to be assessed individually was

when she filed her motion to reconsider. The district court

declined to consider this argument, and the late raising of the issue

did not preserve the argument for appeal. Accordingly, we will not

consider it. 13 See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957–

58 (11th Cir. 2009) (refusing to consider an argument raised for the

first time to the district court in a motion to reconsider).

12 For example, Mrs. Swinford argued below that “ACCPD Officers shot

Thomas in the absence of a threat because he had nothing but a BB gun, as

opposed to ACCPD Officers who were shielded by cover” and “ACCPD shot

many times after Thomas had dropped the gun out of reach and fallen on his

face.”

13 Even if we were to consider such an argument, Mrs. Swinford does not

explain how an individualized inquiry would have changed the outcome of

the qualified immunity analysis for any of the officers.

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22-13675 Opinion of the Court 25

Because we conclude that the officers did not use excessive

force—and thus did not commit a constitutional violation—they

are entitled to qualified immunity, and we end our qualified

immunity analysis. Furthermore, because we determine that no

underlying constitutional violation occurred, Thomas’s

supervisory liability claim against the chief of police and his Monell

claim against the county fail as a matter of law. Paez v. Mulvey, 915

F.3d 1276, 1291 (11th Cir. 2019) (“[B]ecause [the officers]

committed no constitutional violations, their supervisors . . .

cannot be found liable . . . for violating § 1983.”); City of Los Angeles

v. Heller, 475 U.S. 796, 799 (1986) (noting that the city of Los

Angeles and the Police Commission could not be held liable under

§ 1983 if the individual officer “inflicted no constitutional injury”

on the plaintiff).

B. Motion to Amend

We now turn to Mrs. Swinford’s argument that the district

court erred in denying her motion to amend the complaint, which

would have dropped her references to the body camera footage

and added a claim alleging a violation of the ADA, 42 U.S.C.

§ 12112(a), against the county. Rule 15(a)(2) of the Federal Rules

of Civil Procedure provides that when, as here, a party cannot

amend its complaint as a matter of course under Rule 15(a)(1), it

may “amend its pleading only with the opposing party’s written

consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). “[A] district

court may properly deny leave to amend the complaint . . . when

such amendment would be futile.” Hall v. United Ins. Co. of Am.,

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26 Opinion of the Court 22-13675

367 F.3d 1255, 1262–63 (11th Cir. 2004). Amendment would be

futile when a proposed amended complaint would still be

dismissed. Id.

Mrs. Swinford argues in a conclusory manner on appeal that

the district court erred in denying her leave to amend because

(1) she filed a motion to amend her complaint before the trial court

issued an order on the motion to dismiss; (2) the district court cited

to the original complaint in deeming that her proposed amended

complaint was futile; and (3) the district based its finding of futility

on the body camera footage that defendants attached to their

motion to dismiss. Her arguments fail. To start, as discussed in

footnote 10, the district court cited to the original complaint

because it was ruling on defendants’ motion to dismiss and the

original complaint was the operative complaint. And in ruling on

the motion to dismiss, the district court properly considered the

defendants’ body camera footage which established that the

officers had not violated Thomas’s constitutional rights.

Accordingly, the district court properly concluded that any

amendment to Mrs. Swinford’s claims of excessive force would be

futile because the video evidence established no constitutional

violation had occurred. Thus, we find no error in the district

court’s futility determination.14

14 In arguing that the district court erred in denying her leave to amend, Mrs.

Swinford does not mention her proposed ADA claim. However, she did argue

in another section of her brief that the district court erred in “dismissing” this

claim because it overlooked statements made by the chief of police to the

effect that the police had an SRT—which was tasked with handling individuals

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22-13675 Opinion of the Court 27

C. Motion to Reconsider

Finally, Mrs. Swinford argues that the district court

committed manifest error in denying her motion to reconsider.

Her entire argument on this point is that the district court failed to

properly apply our decision in Hunter to the facts of this case in

ruling on the motion to dismiss. As we explained above, however,

Hunter is factually distinct from the instant case and does not

control. Accordingly, we find no error under our abuse of

suffering mental health crises—and was aware of Thomas’s history of

threatened suicides. She also points to allegations in the proposed amended

complaint that the chief of police was the county’s designated official and

policymaker. Thus, Mrs. Swinford contends that she was entitled to an

inference that the police department had a policy behind the actions that led

to Thomas’s death.

Setting aside the fact that the district court never dismissed Mrs. Swinford’s

ADA claim—because no ADA claim was in the original complaint—we find

no error in the district court’s determination that she failed to state a viable

ADA claim in her proposed amended complaint. The district court

determined that Mrs. Swinford failed to “allege sufficient facts to support [an

inference that the chief of police] had actual knowledge that ACCPD’s

dispatch program discriminated against mentally ill individuals in deciding

whether to deploy [the SRT] or that he failed adequately to respond.” On

appeal, she does not make any argument as to why this determination was

incorrect. Accordingly, she has waived any argument to this effect. Sapuppo

v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).

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28 Opinion of the Court 22-13675

discretion review of the district court’s order denying Mrs.

Swinford’s motion to reconsider.

IV. Conclusion

For the reasons above, we conclude that the district court

properly considered the body camera footage when ruling on the

defendants’ motion to dismiss under our incorporation-by-

reference doctrine and properly granted qualified immunity to the

individual officers. Furthermore, we find no error in the district

court’s denial of Mrs. Swinford’s request for leave to amend her

complaint or its order denying her motion for reconsideration.

Accordingly, we affirm the district court’s orders.

AFFIRMED.

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22-13675 Calvert, J., Concurring 1

CALVERT, District Judge, Concurring:

During the pendency of this appeal, other panels of this

Court decided Baker v. City of Madison, Alabama, 67 F.4th 1268, 1277

(11th Cir. 2023), which held that the incorporation-by-reference

doctrine applies to police body camera footage, and Johnson v. City

of Atlanta, 107 F.4th 1292, 1300 (11th Cir. 2024), which held that the

incorporation-by-reference doctrine does not require the

complaint to refer to the document at issue or to attach it. Under

the prior panel precedent rule, this panel is bound by these rulings,

and accordingly I join the majority opinion in full.1 United States v.

Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).

As a district judge who regularly handles motions to dismiss

raising qualified immunity, I write separately to point out some

practical issues with applying the incorporation by reference

doctrine to body camera footage within the motion to dismiss

framework, and offer some guidance on resolving them.

When reviewing a motion to dismiss, we are instructed to

“accept[] the facts alleged in the complaint as true and draw[] all

reasonable inferences therefrom in the plaintiff’s favor.” Chesser v.

Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001). In the case of

1 If not bound by Baker and Johnson, I would have further explored Judge

Brasher’s cogent concerns about expanding the incorporation by reference

doctrine to cover audiovisual evidence. J.I.W. by & through T.W. v. Dorminey,

No. 21-12330, 2022 WL 17351654, at *8 (11th Cir. Dec. 1, 2022) (Brasher, J.,

concurring) (“I don’t believe the doctrine of incorporation by reference is as

simple as the parties believe it to be.”).

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2 Calvert, J., Concurring 22-13675

incorporation by reference involving a document, this is

straightforward. The parties can dispute what a given clause was

intended to mean, but there is generally no dispute as to what the

document says. In the paradigmatic example of a contract, the

district court determines whether the well-pleaded allegations of

the complaint constitute a breach of the incorporated contract.

But when a video is incorporated by reference, Baker

instructs that “we accept the video’s depiction instead of the

complaint’s account . . . and view the facts in the light depicted by

the video.” 67 F.4th at 1278 (citations omitted). Unlike a document,

a video can depict numerous subjects moving independently at

varying distances and speaking over each other at varying degrees

of audibility. When there are multiple videos providing different

viewpoints of the same event, the task is even more complicated.

At the motion to dismiss stage, the district court usually has

only a complaint, the videos, and the parties’ briefs, the latter of

which by design are structured around competing narratives and

theories of the case and thus do not neatly map to each other.

Compare this with the more orderly summary judgment

framework where the parties would have been required to

organize their arguments as to the contents of the videos into

discrete factual assertions, permitting the district court to engage

in the more familiar process of disregarding portions of the record

not cited and focusing on whether the record actually supports a

given factual assertion. Fed. R. Civ. P. 56(c).

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22-13675 Calvert, J., Concurring 3

Turning to this case, unmoored from the framework of the

summary judgment process, the district court below was

essentially forced to transcribe the footage and cite directly to

portions of the video in formulating its opinion. To do so required

some degree of editorial judgment with no opportunity for the

parties to weigh in on what made the “final cut.”

While motions to dismiss governed by Baker and Johnson do

not require conversion to summary judgment, my read of those

cases is that they do not foreclose conversion as an exercise of

discretion. Exercising this discretion will often lead to a more

orderly presentation of the merits and facilitate appellate review.

Any concerns about subjecting a defendant to discovery prior to a

ruling on the motion can be avoided by sharply narrowing the

scope of discovery to those issues necessary for resolution of the

converted motion under Federal Rule of Civil Procedure 26(b) and

(c).