# Michelin D. McKee v. James Montiel

> Court of Appeals for the Eleventh Circuit · May 8, 2025

URL: https://www.frixlaw.com/law-library/cases/11038000

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** May 8, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11038000

## How later opinions describe it (automated extraction)

- holding that arguments made for the first time in a reply brief “come too late”
- 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”
- explaining that to defeat qualified immunity, the plaintiff must establish that the defendant violated a “clearly established” constitutional right
- 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”

## Opinion text

USCA11 Case: 24-11828 Document: 45-1 Date Filed: 05/08/2025 Page: 1 of 16

[DO NOT PUBLISH]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.,
USCA11 Case: 24-11828 Document: 45-1 Date Filed: 05/08/2025 Page: 2 of 16

2 Opinion of the Court 24-11828

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—
USCA11 Case: 24-11828 Document: 45-1 Date Filed: 05/08/2025 Page: 3 of 16

24-11828 Opinion of the Court 3

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.
USCA11 Case: 24-11828 Document: 45-1 Date Filed: 05/08/2025 Page: 4 of 16

4 Opinion of the Court 24-11828

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.
USCA11 Case: 24-11828 Document: 45-1 Date Filed: 05/08/2025 Page: 5 of 16

24-11828 Opinion of the Court 5

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.
USCA11 Case: 24-11828 Document: 45-1 Date Filed: 05/08/2025 Page: 6 of 16

6 Opinion of the Court 24-11828

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
USCA11 Case: 24-11828 Document: 45-1 Date Filed: 05/08/2025 Page: 7 of 16

24-11828 Opinion of the Court 7

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
USCA11 Case: 24-11828 Document: 45-1 Date Filed: 05/08/2025 Page: 8 of 16

8 Opinion of the Court 24-11828

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
USCA11 Case: 24-11828 Document: 45-1 Date Filed: 05/08/2025 Page: 9 of 16

24-11828 Opinion of the Court 9

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.
USCA11 Case: 24-11828 Document: 45-1 Date Filed: 05/08/2025 Page: 10 of 16

10 Opinion of the Court 24-11828

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
USCA11 Case: 24-11828 Document: 45-1 Date Filed: 05/08/2025 Page: 11 of 16

24-11828 Opinion of the Court 11

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
USCA11 Case: 24-11828 Document: 45-1 Date Filed: 05/08/2025 Page: 12 of 16

12 Opinion of the Court 24-11828

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
USCA11 Case: 24-11828 Document: 45-1 Date Filed: 05/08/2025 Page: 13 of 16

24-11828 Opinion of the Court 13

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
USCA11 Case: 24-11828 Document: 45-1 Date Filed: 05/08/2025 Page: 14 of 16

14 Opinion of the Court 24-11828

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).
USCA11 Case: 24-11828 Document: 45-1 Date Filed: 05/08/2025 Page: 15 of 16

24-11828 Opinion of the Court 15

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”).
USCA11 Case: 24-11828 Document: 45-1 Date Filed: 05/08/2025 Page: 16 of 16

16 Opinion of the Court 24-11828

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11038000. Public record. Not legal advice.