Donald Clark Wright, III v. Brandon Warren

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-13930

Non-Argument Calendar

____________________

DONALD CLARK WRIGHT, III,

Plaintiff-Appellee,

versus

BRANDON WARREN,

in his Individual and Official Capacity,

Defendant-Appellant,

VICTOR HILL,

in his Individual and Official Capacity,

Defendant.

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2 Opinion of the Court 23-13930

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:21-cv-05197-MHC

____________________

Before BRANCH, LAGOA, and ANDERSON, Circuit Judges.

PER CURIAM:

This case is about a routine traffic stop gone wrong. On

Christmas Eve 2019, Deputy Brandon Warren of the Clayton

County Sheriff’s Office pulled over Donald Clark Wright III after a

search of Wright’s vehicle tags indicated that Wright had outstand-

ing arrest warrants. While Deputy Warren was outside his police

cruiser, Wright sped off in his truck, prompting Deputy Warren to

engage Wright in hot pursuit. Wright’s truck eventually spun out

and crashed into a curb, rendering it inoperable. Deputy Warren

caught up to Wright and approached the truck on foot with his ser-

vice weapon drawn. Upon seeing Deputy Warren, Wright—who

was unarmed—exited the truck and ran away toward a nearby tree

line, coming upon a fence. As Wright prepared to jump over the

fence, Deputy Warren fired several shots at Wright, striking him

once in the buttocks.

Wright sued Deputy Warren, alleging that the shooting

amounted to an excessive use of force in violation of the Fourth

and Fourteenth Amendments. At summary judgment, the district

court denied Deputy Warren qualified immunity, finding that a

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reasonable jury, viewing the record evidence in the light most fa-

vorable to Wright, could find that Deputy Warren’s use of deadly

force against Wright was objectively unreasonable under clearly es-

tablished law.

Deputy Warren now seeks interlocutory review of the de-

nial of qualified immunity. See 28 U.S.C. § 1291; English v. City of

Gainsville, 75 F.4th 1151, 1155 (11th Cir. 2023). After careful review,

we conclude that Deputy Warren is not entitled to qualified im-

munity and affirm the district court’s denial of summary judg-

ment.

I. BACKGROUND

A. Factual Background

On December 24, 2019, Donald Clark Wright III was driving

southbound on I-75 in Georgia on his way to his family’s home for

Christmas. At some point, Deputy Brandon Warren of the Clayton

County Sheriff’s Office pulled behind Wright’s truck in his police

cruiser. Deputy Warren decided to run the truck’s tags and the as-

sociated driver’s license number, revealing that Wright had out-

standing arrest warrants for “criminal attempt to commit a vehicle

theft, criminal damage to property, [and] pointing a gun at an-

other.” Deputy Warren followed Wright off the highway to a gas

station. After Wright came to a stop in the back of the parking lot,

Deputy Warren activated the emergency blue lights on his cruiser

and called in his location.

Deputy Warren approached Wright’s truck and asked to see

Wright’s driver’s license. Wright replied that he did not have his

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4 Opinion of the Court 23-13930

license on him but told Deputy Warren his first name, which

matched the name on the warrants. To stall while he waited for

backup, Deputy Warren told Wright that the tint on his vehicle

windows appeared too dark and that he wanted to test it for com-

pliance. As Deputy Warren walked back to his cruiser to retrieve a

tint meter, Wright suddenly sped out of the parking lot, back onto

the road. Deputy Warren quickly jumped into his cruiser to pursue

Wright. Throughout the chase, Wright drove at a high rate of

speed and crossed onto the wrong side of the road to bypass traffic.

Deputy Warren lost sight of Wright’s truck at least once during the

chase. While driving up a hill, Wright lost control of his truck and

crashed into a curb near an elementary school and a church.

Deputy Warren caught up to Wright’s now-totaled truck

and exited his cruiser. 1 Realizing that the truck was now

1 From this point on, the parties’ accounts of the facts differ drastically. Under

his version of events, Deputy Warren, upon catching up to Wright’s truck,

exited his cruiser and positioned himself “[o]n the front quarter panel of the

driver’s side” with his service weapon drawn. From this vantage, Deputy War-

ren observed Wright rummaging through his truck for something, although

he could not see Wright’s hands. Deputy Warren began shouting at Wright to

show his hands. Wright “abruptly” exited the truck with his back toward Dep-

uty Warren and reached inside his vehicle. According to Deputy Warren,

Wright then “extend[ed] his arm [in] an outward motion” holding “a black and

silver firearm,” prompting Deputy Warren to fire four shots.

What actually occurred in that moment “may or may not be” as Dep-

uty Warren describes. Davis v. Legal Servs. Ala., Inc., 19 F.4th 1261, 1264 n.1

(11th Cir. 2021). But, because we must “view the evidence and draw all rea-

sonable inferences from it in the light most favorable to the nonmoving party”

at summary judgment, id., these facts are irrelevant to the extent they conflict

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inoperable, Wright grabbed his iPhone—which was in a black

case—and AirPods and hopped out of the truck to continue fleeing

on foot. Wright was not armed and held nothing else in his hands.

As he exited the truck, Wright saw Deputy Warren approaching

him from about 15 to 20 feet away with his service weapon drawn.

Deputy Warren testified he shouted several times at Wright,

“Hands, hands, show me your hands,” but Wright never heard

those commands. Regardless, Deputy Warren was able to see

Wright’s hands when Wright exited the truck.

Wright ran around the front door of his truck and towards

the woods, never looking back to face Deputy Warren. Wright

came upon a fence, which he intended to jump over. But, when

Wright was “a couple strides” away from the fence, Deputy War-

ren fired at least four shots at Wright, with one striking him in the

buttocks.

Despite having just been shot, Wright “continued to run

with all [his] heart” through the woods, people’s backyards, and the

street. Deputy Warren did not pursue Wright any further after

Wright hopped the fence. However, after unsuccessfully trying to

call an Uber to pick him up, Wright eventually surrendered to the

barrage of police officers that had swarmed the scene. The officers

with Wright’s version of events, see Buending v. Town of Redington Beach, 10

F.4th 1125, 1130 (11th Cir. 2021) (“If the record presents disputed issues of fact,

the court may not decide them; rather, [it] must deny the motion and proceed

to trial.” (quoting Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir.

2012))).

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arrested Wright and took him to the hospital to treat his wounds.

Wright was later charged with counts for “fleeing from police of-

ficer, reckless driving, improper lane change, striking fixed object –

hit and run, and misdemeanor obstructing an officer.”

B. Procedural History

On December 21, 2021, Wright sued Deputy Warren and

Clayton County Sheriff Victor Hill, in their individual and official

capacities, in the U.S. District Court for the Northern District of

Georgia, alleging they violated his right to be free from an unlawful

seizure under 42 U.S.C. § 1983 and the Georgia Constitution.

Wright also brought a state-law claim for battery against Deputy

Warren.

The Defendants moved to dismiss the complaint, arguing

that they were immune from suit on all counts. The district court

agreed that sovereign immunity barred Wright’s official-capacity

claims against Deputy Warren, and that the state-law individual-

capacity claims failed under Georgia’s official-immunity doctrine.

The district court also held that Wright did not state a viable § 1983

claim against Sheriff Hill in either his individual or official capacity,

as the complaint failed to plausibly allege that Sheriff Hill commit-

ted a constitutional violation. However, the district court rejected

Deputy Warren’s argument that he was entitled to qualified im-

munity on Wright’s § 1983 excessive-force claim (in his individual

capacity), concluding that Wright “stated a claim that it was unrea-

sonable for Warren to believe that deadly force was necessary to

prevent his escape.”

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Following discovery, Deputy Warren moved for summary

judgment on the remaining § 1983 claim, once again asserting the

defense of qualified immunity. The district court denied summary

judgment, finding that there remained “a genuine issue of material

fact underlying whether Warren’s use of force was reasonable” un-

der clearly established law. Deputy Warren timely appealed the

denial of qualified immunity on that claim.

II. STANDARD OF REVIEW

We review a district court’s denial of summary judgment on

qualified immunity grounds de novo. Fils v. City of Aventura, 647 F.3d

1272, 1287 (11th Cir. 2011). In doing so, we review all evidence and

factual inferences “in the light most favorable to the non-moving

party, and resolve all reasonable doubts about the facts in favor of

the non-movant.” Kingsland v. City of Miami, 382 F.3d 1220, 1226

(11th Cir. 2004).

III. ANALYSIS

Deputy Warren asserts that he is entitled to qualified im-

munity on Wright’s remaining excessive-force claim. Qualified im-

munity protects officers engaged in discretionary functions from

civil liability under § 1983 “only if the officers’ actions do ‘not vio-

late clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Perez v. Suszczynski, 809

F.3d 1213, 1218 (11th Cir. 2016) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). To invoke this defense, the officer must first

show that he was “acting within the scope of his discretionary au-

thority when the allegedly wrongful acts occurred.” Spencer v.

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Benison, 5 F.4th 1222, 1230 (11th Cir. 2021). If the officer makes that

showing, “the burden shifts to the plaintiff to show that the official’s

conduct (1) violated federal law (2) that was clearly established at

the relevant time.” Id. To qualify as “clearly established,” a legal

principle “must be established with obvious clarity by the case law

so that every objectively reasonable government official facing the

circumstances would know that the official’s conduct did violate

federal law when the official acted.” Bradley v. Benton, 10 F.4th 1232,

1242 (11th Cir. 2021).

It is undisputed that Deputy Warren was acting within the

scope of his discretionary authority when he shot Wright. Cf.

Hunter v. City of Leeds, 941 F.3d 1265, 1278 n.16 (11th Cir. 2019)

(“The pursuit and apprehension of suspected criminals is a core dis-

cretionary function of the police.” (citing Crenshaw v. Lister, 556

F.3d 1283, 1289–90 (11th Cir. 2009))). Accordingly, we must decide

whether Wright has established that (1) Deputy Warren’s use of

deadly force was unconstitutionally excessive under the Fourth

Amendment, and (2) that “every objectively reasonable govern-

ment official facing the circumstances would know that” such force

was unlawful. Bradley, 10 F.4th at 1242. We consider each prong

of the qualified-immunity analysis in turn.

A.

The Fourth Amendment’s proscription against unreasona-

ble seizures protects one’s right to be free from excessive force dur-

ing an arrest or other seizure by a state officer. Graham v. Connor,

490 U.S. 386, 395 (1989); see also Torres v. Madrid, 592 U.S. 306, 318

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(2021) (recognizing that an intentional shooting by police consti-

tutes a Fourth Amendment seizure “the instant that the bullets

str[ike]” the target). Excessive force claims are governed by the

Fourth Amendment’s “objective reasonableness” standard, which

asks “whether the officers’ actions are ‘objectively reasonable’ in

light of the facts and circumstances confronting them, without re-

gard to their underlying intent or motivation.” Graham, 490 U.S. at

397.

The reasonableness of the officer’s conduct must be judged

“from the perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.” Id. at 396; see also Carr v.

Tatangelo, 338 F.3d 1259, 1269 (11th Cir. 2003) (“A reasonable but

mistaken belief that probable cause exists for using deadly force is

not actionable under § 1983.”). Once we have “determined the rel-

evant set of facts and drawn all inferences in favor of the nonmov-

ing party to the extent supportable by the record, the reasonable-

ness of the officer’s actions is a pure question of law.” Penley v. Es-

linger, 605 F.3d 843, 848–49 (11th Cir. 2010).

The Eleventh Circuit has recognized that a police officer

generally may use deadly force without violating the Fourth

Amendment when the 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 se-

rious physical harm’; (2) reasonably believes that the

use of deadly force was necessary to prevent escape;

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and (3) has given some warning about the possible use

of deadly force, if feasible.

McCullough v. Antolini, 559 F.3d 1201, 1202 (11th Cir. 2009) (quoting

Vaughan v. Cox, 343 F.3d 1323, 1329–30 (11th Cir. 2003)) (emphasis

in original).

However, these are not “rigid preconditions” for the lawful

application of deadly force, but rather factors we consider “to aid

our effort to ‘slosh . . . through the factbound morass of [this] rea-

sonableness’ analysis.” Penley, 605 F.3d at 850 (quoting Scott v. Har-

ris, 550 U.S. 372, 383 (2007)); cf. Powell v. Snook, 25 F.4th 912, 922

(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.’” (first quoting Penley, 605 F.3d at 854 n.6; then

citing, Tatangelo, 338 F.3d at 1269 n.19)).

Deputy Warren argues that his use of deadly force was rea-

sonable because he believed Wright was armed, knew of Wright’s

past violent arrests, had just engaged in a high-speed chase with

him, and saw Wright continuing to flee into a residential neighbor-

hood. Taking the evidence in the light most favorable to Wright,

however, we conclude that no reasonable officer on the scene

would agree.

To begin, it was simply not reasonable for Deputy Warren

to think he was in danger of immediate harm at the time of the

shooting. At the heart of Deputy Warren’s qualified-immunity de-

fense is the claim that he “reasonably believed Wright was holding

a gun,” rather than (as we now know) a black iPhone and AirPods.

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According to Deputy Warren, it was reasonable for him to think

that Wright had a gun because, as Wright testified, Deputy Warren

was able to see Wright’s hands as Wright exited his truck. Two

competing inferences can be drawn from the fact that Deputy War-

ren saw Wright’s hands “from 15 to 20 feet” before Wright fled into

the woods: (1) that Deputy Warren had sufficient opportunity to

discern that Wright was not holding a gun, or (2) that Deputy War-

ren did not see Wright’s hands long enough to dispel his belief that

the iPhone was a gun. Under the former scenario, it would not be

reasonable to think Wright was armed. Tennessee v. Garner, 471 U.S.

1, 3 (1985). And because we must draw all reasonable inferences in

Wright’s favor at summary judgment, see Allen v. Tyson Foods, Inc.,

121 F.3d 642, 646 (11th Cir. 1997), that is the scenario we must

adopt.

In any event, “the mere presence of a gun or other weapon

is not enough to warrant the exercise of deadly force and shield an

officer from suit.” Perez, 809 F.3d at 1220. Instead, “the ultimate

determination depends on the risk presented,” “with emphasis on

the level and immediacy of that threat.” Id. (citing Morton v. Kirk-

wood, 707 F.3d 1276, 1280 (11th Cir. 2013)).

Here, Deputy Warren was not required to make “a split-sec-

ond judgment” to shoot Wright in order to avoid “an imminent

threat of violence.” McCormick v. City of Fort Lauderdale, 333 F.3d

1234, 1246 (11th Cir. 2003) (quotation omitted). When Deputy

Warren first pulled the trigger, Wright was already running away—

at no point turning around to reengage. Deputy Warren was

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“neither threatened by a weapon, nor appeared to be threatened by

a weapon, nor [was] fired upon, but rather . . . without provocation

shot at a nondangerous suspect.” Lundgren v. McDaniel, 814 F.2d

600, 602 (11th Cir. 1987). Instead, he shot Wright in the back while

Wright was fleeing; deadly force is not reasonable in such circum-

stances. See, e.g., Mercado v. City of Orlando, 407 F.3d 1152, 1157

(11th Cir. 2005) (finding deadly force unreasonable where there was

“no indication that [the suspect] made any threatening moves to-

ward the police”); Bradley, 10 F.4th at 1244 (same where fleeing sus-

pect “never tried to harm any of the officers, nor did he make any

threatening movements or gestures”).

The use of deadly force was also not needed to protect oth-

ers from imminent violence, as no reasonable officer would believe

Wright presented an “immediate” threat to anyone else “at the

time of the shooting.” Vaughan, 343 F.3d at 1330. As Deputy War-

ren testified, no other people were in the “general area” at the time

of the shooting. And no evidence suggests that there was anyone

in the nearby church or school either.

Deputy Warren nonetheless argues that it was reasonable to

think that Wright posed a danger to the inhabitants of the sur-

rounding residential area given Wright’s past arrest for “pointing a

gun at another” and his “reckless attempts to avoid arrest.” True,

“deadly force is more likely reasonable if . . . the suspect commit-

ted a crime involving the infliction or threatened infliction of seri-

ous harm, such that his being at large represents an inherent risk to

the general public.” Penley, 605 F.3d at 850 (internal quotation

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omitted). However, to the extent Wright’s evasive driving may

have threatened the safety of other motorists, 2 that threat largely

subsided when Wright exited his inoperable truck and ran away on

foot. See Glasscox v. City of Argo, 903 F.3d 1207, 1215 (11th Cir. 2018)

(explaining the “severity” of threat posed by reckless driving “car-

ries little weight” once the suspect is “no longer engaged” in that

conduct).

That Wright resisted arrest—without ever resorting to vio-

lence—“is not enough to justify the use of deadly force” either.

Cantu v. City of Dothan, 974 F.3d 1217, 1230 (11th Cir. 2020). Wright,

viewing the facts in the light most favorable to him, was merely

“evading arrest . . . in an attempt to avoid capture,” and gave no

indication that he was primed to commit any violence at any time.

Vaughan, 343 F.3d at 1330. Moreover, Deputy Warren’s assessment

that Wright posed an immediate threat to the public because

Wright apparently was “willing to threaten others with a gun be-

fore” is the very sort of unreasonable speculation that qualified im-

munity does not reach—especially since, under Wright’s version of

the facts, Deputy Warren “had no reason to believe” Wright was

armed. Salvato v. Miley, 790 F.3d 1286, 1293 (11th Cir. 2015); see also

2 Wright objects to Deputy Warren’s testimony that Wright drove “in reckless

disregard for the safety of others” as an improper statement of opinion. How-

ever, Wright offers no evidence to rebut Deputy Warren’s factual assertions

that Wright was “driving on the wrong side of the road” and “going around

vehicles” in his attempt to flee.

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United States v. Satterfield, 743 F.2d 827, 845 (11th Cir. 1984) (“[A]

remote eventuality is not the type of circumstance that creates an

urgent need for immediate action.”); Long v. Slaton, 508 F.3d 576,

586 (11th Cir. 2007) (Forrester, J., concurring in part and dissenting

in part) (arguing deadly force is not reasonable where “the possibil-

ity that a nonviolent fleeing felon will later pose a threat of physical

harm to others is remote and highly speculative”).

We also think it would have been “feasible” for Deputy War-

ren to issue a warning before shooting to kill. Powell, 25 F.4th at

922. This is not a case where there was “little or no time or oppor-

tunity for [the officer] to warn [the suspect]” prior to shooting be-

cause deadly force was “immediately” necessary “to protect . . .

others from a threat of serious physical harm.” Cantu, 974 F.3d at

1231. Given that Wright was running away from Deputy Warren—

the only other person in the vicinity—“a reasonable officer would

not have believed that [he] was compelled to use deadly force im-

mediately . . . [and] would have known to hold off doing so until

[he] had given a warning.” Id.

Accordingly, we hold that a reasonable jury could find the

disputed facts in Wright’s favor and determine that it was unrea-

sonable for Deputy Warren to shoot Wright as he fled. We thus

conclude that Wright has established a violation of the Fourth

Amendment.

B.

We must now decide whether it would have been clear to an

objectively reasonable officer that shooting Wright as he fled was

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unlawful. Vaughan, 343 F.3d at 1332. A right is considered to be

“clearly established” only if “the state of the law [at the time of the

violation] gave the defendants ‘fair warning’ that their alleged con-

duct was unconstitutional.” Id. (quoting Hope v. Pelzer, 536 U.S. 730,

741 (2002)). To make this showing, a plaintiff must “point to either

(1) ‘case law with indistinguishable facts,’ (2) ‘a broad statement of

principle within the Constitution, statute, or case law,’ or (3) ‘con-

duct so egregious that a constitutional right was clearly violated,

even in the total absence of case law.’” Crocker v. Beatty, 995 F.3d

1232, 1240 (11th Cir. 2021) (quoting Lewis v. City of W. Palm Beach,

561 F.3d 1288, 1291 (11th Cir. 2009)).

By the time Deputy Warren pulled the trigger on December

24, 2019, it had long been established in our Circuit that “[u]sing

deadly force, without warning, on an unarmed, retreating suspect

is excessive.” Salvato, 790 F.3d at 1294 (citing Garner, 471 U.S. at 1).

Moreover, the “particularized facts” from which that principle

arose, Vinyard v. Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002), are

“materially similar” to the facts of this case, Bailey v. Wheeler, 843

F.3d 473, 484 (11th Cir. 2016).

In Tennessee v. Garner, the Supreme Court held it was unrea-

sonable for an officer to shoot a fleeing suspect who—like

Wright—was unarmed, running away with his back turned, and

trying to scale a fence when he was hit. See 471 U.S. at 3–4, 11.

According to the Court, the use of deadly force under such circum-

stances was excessive because the officer “did not have probable

cause to believe that [the suspect] . . . posed any physical danger to

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16 Opinion of the Court 23-13930

himself or others.” Id. at 21. So too here. As we have already ex-

plained, no reasonable officer could have viewed Wright as a threat,

meaning that Deputy Warren’s decision to shoot Wright violated

Garner’s clearly established proscription against using deadly force

to neutralize unarmed fleeing suspects.

Resisting this conclusion, Deputy Warren says Garner is dis-

tinguishable because, in that case, the officer was “reasonably sure”

the fleeing suspect was unarmed, while Deputy Warren believed

Wright had a gun. But, under Wright’s view of the facts, a jury

could find that belief to be unreasonable. “Restated in Fourth

Amendment terms, this means [Deputy Warren] had no articulable

basis to think [Wright] was armed.” Garner, 471 U.S. at 20. And

since Garner held that it is unreasonable to shoot a fleeing suspect

from behind when that is the case, see id. at 21–22, we conclude

that it is “beyond debate” that Deputy Warren had “fair warning

that his conduct violated the law,” Gates v. Khokar, 884 F.3d 1290,

1296 (11th Cir. 2018) (citations omitted). Therefore, Deputy War-

ren is not entitled to qualified immunity.

IV. CONCLUSION

For the reasons stated, we affirm the district court’s denial

of summary judgment.

AFFIRMED.