Michelin D. McKee v. James Montiel

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-11828

Non-Argument Calendar

____________________

MICHELIN D. MCKEE,

as Personal Representative of the Estate

of SALAYTHIS MELVIN the Deceased,

Plaintiff-Appellee,

versus

JAMES MONTIEL,

Defendant-Appellant,

DEPUTY MARCUS BULLOCK,

in his individual capacity and as an agent

of ORANGE COUNTY SHERIFFS OFFICE, et al.,

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Defendants.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:21-cv-01085-CEM-EJK

____________________

Before JORDAN, BRANCH, and LUCK, Circuit Judges.

PER CURIAM:

Defendant James Montiel appeals the district court’s denial

of his motion for summary judgment based on qualified and

sovereign immunity. After careful review, we conclude that we

lack jurisdiction over Montiel’s appeal because his arguments turn

on the facts, not the law. Accordingly, we dismiss this appeal.

I. Background

A. Factual Background

Defendant James Montiel is a former deputy with the

Orange County Sheriff’s Office (“OCSO”) in Orange County,

Florida. One day in August 2020, Montiel and other OCSO officers

were surveilling a man named Vanshawn Sands, who had an

outstanding warrant for possession of a firearm by a felon. At some

point while under surveillance, Sands entered a vehicle, which

eventually drove to a Dick’s Sporting Goods store at a mall. Once

at the store, Sands exited the vehicle along with three others—

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Christopher Bennett, Janai Jones, and Salaythis Melvin. The

surveilling officers eventually identified Bennett as having an

outstanding warrant for tampering with an electronic monitoring

device. Jones and Melvin, though, remained unidentified.

All four individuals entered the Dick’s Sporting Goods store,

where an undercover OCSO officer continued to observe them.

The undercover officer followed Sands throughout the store and

relayed his location and activities to the other officers on the scene.

Eventually, Sands and Jones decided to leave, followed by Bennett

and Melvin. On their departure, the officers waiting outside the

store, including Montiel, decided to “apprehend the subjects before

they could get back to the[ir] vehicle.”

Officers confronted the four individuals as soon as they

exited the store. Sands, Bennett, and Jones were quickly

apprehended. Melvin, however, chose to flee on foot into the

parking lot.

Responding to the attempt to apprehend the four

individuals, Defendant Montiel rounded the corner of the Dick’s

Sporting Goods store in his unmarked police vehicle. When he

turned the corner, he saw “a black male”—Melvin—“running

towards [his] direction.” Montiel slammed on the brakes and got

out of the vehicle. Melvin ran away from Montiel. As Melvin ran

away, Montiel shot Melvin in the lower back. After the shooting,

a handgun and holster were found separated within several yards

of Melvin. Melvin later died from the gunshot.

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The details of the shooting are disputed. Montiel claims that

when he first saw Melvin running in his direction, Melvin’s

“waistband was exposed,” and Melvin was “clutching a tan firearm

in his waistband.” And when Montiel got out of the car to confront

Melvin, Montiel allegedly gave Melvin commands to stop running

and drop his gun. Montiel also claims that while Melvin was

running away, Melvin “slowed down” and “looked over his

shoulder” to “tak[e] a sight picture” of Montiel so that he could “get

a good shot.” According to Montiel, he shot Melvin because he

feared that Melvin was going to shoot him.

Other evidence sheds further light on the shooting. No

officer other than Montiel claimed to see a gun on Melvin’s person.

A DNA analysis excluded Melvin as a contributor to DNA found

on the gun, while including him as a possible contributor to DNA

found on the holster. Deputy Corey Heller testified that he saw

Melvin running with “one of his hands up on his waistline, towards

the front of his pants” and the other hand “pumping” in “an up and

backwards motion.” 1

Heller also testified that he saw Melvin “turn his head back

to look at” Montiel “more than once,” consistent with Montiel’s

claim that Melvin was taking a “sight picture” of him. But body

camera footage from the incident neither confirms nor denies that

1 In his deposition, Heller clarified that he was a “couple hundred yards” away

from Melvin at the time Melvin was shot. He also explained that at the time

of the shooting, he was inside his car, and his view was sporadically blocked

by parked and moving vehicles in the parking lot.

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Melvin indeed slowed down and turned around to look at Montiel.

Further, and finally, no officer heard Montiel give any commands

to Melvin to stop or drop his gun.2

B. Procedural History

Michelin D. McKee, as the personal representative of

Melvin’s estate, sued Montiel in his individual capacity in June

2021. As relevant here, McKee’s amended complaint asserted a 42

U.S.C. § 1983 claim for excessive force in violation of the Fourth

Amendment and a Florida state-law battery claim against Montiel.3

After discovery, Montiel moved for summary judgment on

both claims. He argued that shooting Melvin was reasonable

under the circumstances because Melvin had a gun and, while

running away, was preparing to shoot him. That is, Montiel

asserted that he reasonably feared for his own life. Thus, he argued

that he was entitled to qualified and sovereign immunity on

McKee’s claims.

McKee responded by attempting to dispute Montiel’s

version of events. Relying heavily on the body camera footage

2 Also disputed is whether Montiel’s clothing on the day of the shooting

revealed that he was a law enforcement officer.

3 McKee also asserted, against Montiel, a § 1983 claim for failure to render aid

in violation of the Fourteenth Amendment. The district court granted

summary judgment for Montiel on that claim. Further, McKee asserted claims

against other deputies and the Orange County Sheriff, but the district court

dismissed those claims in various orders. Thus, the only claims at issue here

are the excessive force and state-law battery claims against Montiel.

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from the incident, McKee argued that there was a genuine dispute

of material fact as to whether Melvin slowed down to look at

Montiel while he was running away. She also argued that there

was a genuine dispute as to whether Melvin ever drew the gun

from its holster. According to McKee, a reasonable jury could

conclude that Montiel did not reasonably fear that Melvin was

going to harm him and that, therefore, a trial was warranted.

The district court sided with McKee and denied Montiel’s

motion for summary judgment. The court began by noting that if

“Montiel’s version of events is credited, then . . . Montiel

reasonably used deadly force.” That said, the court ended up

holding that “there [was] enough conflicting evidence to allow a

reasonable juror to reach alternate conclusions” as to the facts. The

court therefore denied summary judgment.

The district court explained why it found that each key fact

was up for dispute. First, the district court found that, generally,

“the circumstances surrounding Deputy Montiel’s statement

implicate[d] his credibility.” Montiel did not give a

contemporaneous statement, even though all the other officers

did. And when he finally gave a statement, it was 11 days after the

shooting and after he had reviewed body camera footage and

spoken with his attorney. These facts, the district court held, made

it such that a jury could find that Montiel’s statement was

unreliable.

Second, the district court discounted Deputy Corey Heller’s

testimony that he saw Melvin with his hand on his waistband and

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turning to look at Montiel while running in the parking lot.

According to the district court, Heller’s testimony “suffer[ed]

from . . . inconsistencies and questions of credibility” because

Heller made the above assertions only in his deposition testimony,

and not also in his contemporaneous statement or sworn

interview. Also, as Heller admitted, he was a couple hundred yards

away from Montiel and Melvin at the time of the shooting, and at

times there were vehicles blocking his view from inside his own

car.

With the testimony and statements of both Montiel and

Heller called into question, the district court then analyzed each of

Montiel’s factual claims. As to Montiel’s assertion that he saw

Melvin with a gun in his waistband, the district court held that “[a]

reasonable juror could conclude that Deputy Montiel did not see

the gun.” The district court explained that Montiel’s initial

encounter with Melvin “happened in a matter of seconds,” all while

Montiel “was in his vehicle, slamming on the brakes, putting the

vehicle in park, and getting out of the vehicle.” In addition, “no

other law enforcement officer”—including the officer observing

Melvin inside the Dick’s Sporting Goods store—“saw the gun in

Melvin’s waistband.” Given these circumstances, the court

concluded that despite Montiel’s testimony that he saw the gun,

there was a genuine dispute of material fact on that issue.

Next, as to Montiel’s assertion that Melvin slowed down and

turned back to look at him while running away, the district court

held that Montiel’s assertion was “flatly refuted by the body camera

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footage showing Melvin in a full sprint away.” The court explained

that “particularly given how fast [Melvin] was running,” “a

reasonable jury could conclude that Melvin never turned his head

and shoulders to look back.”

The rest of Montiel’s key factual assertions suffered the same

fate. Given discrepancies in testimony and the fact that Melvin’s

DNA was not found on the gun, the district court found that there

was a genuine dispute over whether Montiel saw Melvin with his

hand on the gun. The district court also found a genuine dispute

over whether Montiel identified himself as law enforcement and

gave Melvin commands to drop his gun. And finally, as to

Montiel’s argument that the “final resting places of the gun and

holster” necessarily showed that “Melvin had removed the gun

from its holster” before being shot, the court found that

discrepancies and omissions in testimony created a genuine dispute

on that point as well.

The district court summed up its fact-related findings as

follows, holding that a reasonable jury could conclude that

[t]here was no indication that Melvin was committing

or ever had committed any crime, violent or

otherwise. He was merely in the company of

someone who had previously committed a crime.

There was also no indication that Melvin was armed.

When initially confronted by law enforcement,

Melvin ran across the parking lot, and when he saw

Deputy Montiel, he pivoted and sprinted full speed

away. To stop his flight, Deputy Montiel utilized

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deadly force and shot Melvin in the back despite

having no information that Melvin was armed or a

threat to anyone and without providing a warning.

The district court reasoned that “[u]nder this version of

events, a jury could find that Deputy Montiel’s use of deadly force

was unreasonable and therefore violated Melvin’s constitutional

rights.” Such a violation would also violate clearly established law,

as required to overcome qualified immunity. And the court held

that the same conclusion about the reasonableness of the force

applied for the Florida state-law battery claim. The district court

therefore denied Montiel’s motion for summary judgment.

Montiel timely appealed.

II. Standard of Review

We review de novo an officer’s entitlement to summary

judgment based on immunity. English v. City of Gainesville, 75 F.4th

1151, 1155 (11th Cir. 2023). We also review de novo jurisdictional

questions. Id.

III. Discussion

On appeal, Montiel argues that the district court erred in

denying his motion for summary judgment. Broadly speaking, he

argues that shooting Melvin was reasonable under the

circumstances because Melvin was armed and preparing to shoot

him. Thus, Montiel claims, he is entitled to qualified and sovereign

immunity. McKee responds by defending the district court’s

judgment on the merits. She also asserts that given that Montiel’s

appeal really boils down to a dispute about the facts and not the

law, we do not have jurisdiction over the appeal.

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We agree with McKee that we lack jurisdiction to review the

district court’s order denying summary judgment in this case. We

first address the district court’s denial of federal qualified

immunity. We then address the denial of state sovereign

immunity.

A. We lack jurisdiction to review the district court’s denial of

qualified immunity

Under 28 U.S.C. § 1291, courts of appeals have jurisdiction

to review “final decisions of the district courts.” 28 U.S.C. § 1291.

“Generally, a final decision is one that terminates the litigation.”

Howell v. Schweiker, 699 F.2d 524, 528 (11th Cir. 1983). That said,

the Supreme Court has held that even an order that does not end

the litigation is “final” if it fits in “that small class [of orders] which

finally determine claims of right separable from, and collateral to,

rights asserted in the action, too important to be denied review and

too independent of the cause itself to require that appellate

consideration be deferred until the whole case is adjudicated.”

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). One

such potential “collateral” order is an order denying qualified

immunity. See Mitchell v. Forsyth, 427 U.S. 511, 527–30 (1985).

“Whether we have interlocutory jurisdiction to review the

denial of summary judgment on qualified immunity grounds

depends on the type of issues involved in the appeal.” English, 75

F.4th at 1155 (quoting Cottrell v. Caldwell, 85 F.3d 1480, 1484 (11th

Cir. 1996)). We have jurisdiction “over legal issues that are the

basis for a denial of summary judgment on qualified immunity

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grounds.” Id. (quotation omitted). But we lack jurisdiction “where

the only issues appealed are evidentiary sufficiency issues.” Id.

(quotation omitted).

Determining whether an official is entitled to qualified

immunity “involves a two-part analysis: (1) defining the official’s

conduct, based on the record and viewed most favorably to the

non-moving party, and (2) determining whether a reasonable

public official could have believed that the questioned conduct was

lawful under clearly established law.” Id. (quoting Koch v. Rugg, 221

F.3d 1283, 1295 (11th Cir. 2000)). Where a defendant’s appeal of a

denial of summary judgment turns only on the first issue—i.e., the

factual issue of “defining the official’s conduct”—we lack

jurisdiction over the appeal. See id. at 1155–56 (explaining that we

lacked jurisdiction over an appeal where the district court ruled

against the defendants “because of a genuine dispute of material

fact” as to whether the officers actually saw the plaintiff “make a

quick motion as if to reach for a gun”); Hall v. Flournoy, 975 F.3d

1269, 1277 (11th Cir. 2020) (holding that we lack jurisdiction over a

denial of summary judgment based on qualified immunity where

“all we are left with is the factual review of what happened”);

Behrens v. Pelletier, 516 U.S. 299, 313 (1996) (explaining that we do

not have jurisdiction to review a denial of summary judgment “if

what is at issue . . . is nothing more than whether the evidence

could support a finding that particular conduct occurred”). On the

other hand, where the appeal of the denial of summary judgment

turns on the second issue—i.e., the legal question of “whether any

constitutional right was violated or whether the violation of that

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right was clearly established”—we have jurisdiction to review the

district court’s order. Hall, 975 F.3d at 1276; see also English, 75 F.4th

at 1155.

Here, based on the parties’ arguments, the only dispute at

issue is what happened on the day of the shooting. We therefore

lack jurisdiction over this appeal. English, 75 F.4th at 1155. Montiel

argues that shooting Melvin was reasonable under the

circumstances because he saw Melvin with his hand on a gun,

Melvin slowed down and turned around to look at Montiel in

apparent preparation to fire his weapon, Melvin was known to be

with dangerous individuals, and the final resting places of Melvin’s

gun and holster show that Melvin did indeed draw his gun while

running away from Montiel.

The district court, however, found that each of these facts

was subject to genuine dispute. The court held that “a reasonable

juror could conclude” that “[t]here was no indication” that Melvin

himself was dangerous, armed, “or a threat to anyone.” In other

words, there was a genuine dispute of fact as to whether Montiel

saw Melvin with a gun and saw Melvin turning around to shoot

Montiel. The court also held that there was a genuine dispute of

fact as to whether Melvin ever drew his gun. To be sure, the

district court recognized that if “Montiel’s version of events is

credited, then . . . Montiel reasonably used deadly force.” But the

court ended up finding that a reasonable jury could choose not to

credit Montiel’s story. And it was precisely because the court made

that finding that summary judgment was denied. At bottom, “the

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district court ruled against [Montiel] because of a genuine dispute

of material fact. This is the type of ruling that we lack jurisdiction

to review.” Id. at 1156.

The same conclusion applies to Montiel’s argument that,

“[a]ssuming[] without conceding that” he violated Melvin’s right

to be free from excessive force, that right was not clearly

established under these circumstances. See Hall, 975 F.3d at 1275

(explaining that to defeat qualified immunity, the plaintiff must

establish that the defendant violated a “clearly established”

constitutional right). Montiel claims that he did not violate clearly

established law because “officers, when threatened by an armed

suspect . . . act[] reasonably in firing at the suspect.” In other

words, his argument depends on a finding that Melvin in fact posed

a threat. However, again, the district court ruled against Montiel

on the facts, explaining that “whether . . . Montiel violated clearly

established law turns on the previously discussed issues of fact”—

i.e., whether Melvin indeed posed a threat to Montiel. We lack

jurisdiction to review this fact-based ruling.

At bottom, “the dispute [in this case] is about what the

evidence could prove at trial; it is not a dispute about principles of

law.” English, 75 F.4th at 1156. Montiel does not argue that he

would be entitled to qualified immunity if, as the district court

determined a reasonable jury could find, Melvin indeed posed no

danger to him or others. Rather, Montiel argues that he is entitled

to qualified immunity because the facts show that Melvin did indeed

pose a danger. But the district court found that a reasonable jury

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could disagree. We therefore lack jurisdiction over the district

court’s denial of summary judgment based on qualified immunity. 4

B. We lack jurisdiction to review the district court’s denial of

state sovereign immunity

“[A]n order denying summary judgment based on state

sovereign immunity is immediately appealable ‘if state law defines

the immunity at issue to provide immunity from suit rather than

just a defense to liability.’” Coleman v. Hillsborough Cnty., 41 F.4th

1319, 1324 (11th Cir. 2022) (quoting Parker v. Am. Traffic Sols., Inc.,

835 F.3d 1363, 1367 (11th Cir. 2016)). “In Florida, sovereign

immunity is both an immunity from liability and an immunity

from suit.” Id. (quoting Fla. Hwy. Patrol v. Jackson, 288 So. 3d 1179,

1185 (Fla. 2020)). So ordinarily, we would have jurisdiction to

review the district court’s denial of state sovereign immunity. “But

as in the qualified immunity context, we lack interlocutory

appellate jurisdiction over the denial of summary judgment based

on state-law immunity where the appeal turns on issues of

evidentiary sufficiency.” English, 75 F.4th at 1157.

4 To the extent Montiel argues that he raised a legal issue on appeal by

asserting, in one sentence of his initial brief, that “the District Court failed to

analyze the alleged constitutional violation under the ‘arguable probable

cause’ standard,” that argument fails. For “[w]e have long held that an

appellant abandons a claim when he either makes only passing references to it

or raises it in a perfunctory manner without supporting arguments and

authority.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir.

2014).

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Such is the case here. “Pursuant to Florida law, police

officers are entitled to a presumption of good faith in regard to the

use of force applied during a lawful arrest, and officers are only

liable for damage where the force used is ‘clearly excessive.’” Davis

v. Williams, 451 F.3d 759, 768 (11th Cir. 2006) (quoting City of Miami

v. Sanders, 672 So. 2d 46, 47 (Fla. 3d DCA 1996)). Further, an officer

“may not be held personally liable in tort” for actions taken in the

scope of his employment “unless such officer . . . acted in bad faith

or with malicious purpose or in a manner exhibiting wanton and

willful disregard of human rights, safety, or property.” Fla. Stat.

§ 768.28(9)(a).

Montiel argues on appeal that he is entitled to state

sovereign immunity because “he had confronted an armed suspect

[that] he believed was ready to take a shot at him.” But the district

court denied summary judgment on the battery claim because it

found that “there is a triable issue of fact as to whether excessive

force was used.” (quotation omitted). That is, the court found that

“[t]aking [McKee’s] version of the facts as true, [Montiel] did not

act in response to any actual or threatened deadly force.”

(quotation omitted). Montiel’s arguments thus turn on the facts,

not the law. We therefore lack jurisdiction over this appeal. 5

5 Montiel asserts in his reply brief that the district court “only addresse[d] part

of the immunity analysis” under Florida law and thus “committed an error of

law.” Showing up for the first time in the reply brief, that argument “come[s]

too late.” See Sapuppo, 739 F.3d at 683 (holding that arguments made for the

first time in a reply brief “come too late”).

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IV. Conclusion

At bottom, Montiel’s appeal turns on “the factual inferences

the district court drew from a series of circumstances.” Hall, 975

F.3d at 1278. We therefore lack jurisdiction to review the district

court’s order. To be sure, “[w]e may disagree with the inferences

the district court has drawn, and they are far from airtight.

However, to review that determination now would amount to

nothing more than weighing the evidence supporting the district

court’s summary judgment determination.” Id. Such weighing of

the evidence “is precisely what the Supreme Court has said we

cannot do at this interlocutory stage.” Id. For these reasons,

Montiel’s appeal is dismissed.

DISMISSED.