Timothy E. Johnson v. Agent Tony Williams

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NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 25-10718

Non-Argument Calendar

____________________

TIMOTHY E. JOHNSON,

Plaintiff-Appellant,

versus

CITY OF PALM BAY, FLORIDA,

Defendant,

AGENT TONY WILLIAMS,

OFFICER BREET NAYMIK,

AGENT COLE MCDONALD,

In their individual capacities,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:24-cv-00791-WWB-LHP

____________________

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2 Opinion of the Court 25-10718

Before ROSENBAUM, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:

Timothy Johnson, proceeding pro se, appeals the district

court’s order dismissing his civil complaint accusing several Florida

police officers of using excessive force against him on the ground

that the officers are entitled to qualified immunity. He argues that

the officers are not entitled to qualified immunity because the

officers were wearing plain clothes, did not identify themselves,

and he was lying on the ground with his hands out when officers

fired their weapons at him without giving him any commands or a

chance to comply. After review, we agree with the district court

that the body cam footage conclusively refutes much of Johnson’s

alleged version of events and demonstrates that the officers are

entitled to qualified immunity. Accordingly, we affirm.

I. Background

In 2024, Johnson filed a pro se 42 U.S.C. § 1983 civil

complaint against Florida’s Palm Bay police officers Tony

Williams, Breet Naymik, and Cole McDonald in their individual

capacities for the use of excessive force in violation of the Fourth,

Eighth, and Fourteenth Amendments. Johnson alleged that, on

June 14, 2023, he was parked on a dead-end street next to a park

when an unidentified pickup truck pulled up behind him. Johnson

“got scared” and when he backed up to leave, he hit the truck. He

then “took off” and drove his car “on the park field.” At some

unspecified point, he stopped on the field, exited his car, and ran

into the yard of a home. He alleged that, as he was entering the

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25-10718 Opinion of the Court 3

yard, he “heard a police radio so [he] assume[d] that officers were

near so [he] laid down behind [a] car that was in the backyard with

[his] hands in front of [him].” According to Johnson, Officer

Williams came up behind him, did not identify himself, and shot

Johnson in the foot. Then Officers Naymik and McDonald also

opened fire on Johnson, firing a total of 16 shots, all while Johnson

was “laying on the ground empty handed with [his] hands out in

front of [him].” Johnson alleged that a bullet grazed his forehead

while “two to three” others hit him in one of his thighs. Johnson

further alleged that, when he turned to face Officer Williams and

asked if Williams was going to kill him, Williams for the first time

“told [Johnson] to keep [his] hands on the ground.”

Johnson asserted that Officer Williams’s body cam was

activated, but there was no audio until after the officers fired their

weapons at him. He claimed that another officer who was not

named in the suit, Brandon Neely, said in interview that “he did

not hear anyone mention [that] they saw Johnson with a firearm

prior to the shots being fired” and Neely did not personally see

Johnson in possession of a gun. Nevertheless, Johnson admitted in

his complaint that he had a gun at the time of the encounter, but

he maintained that he was not a threat to anyone because he did

not have the gun in his hands and “there was no bullet in the

chamber.” He alleged that none of the officers “said they [saw] him

with a firearm” until they rolled him over because he had the gun

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4 Opinion of the Court 25-10718

hidden under his chest. 1 Johnson alleged that he had to undergo

two surgeries because of his injuries, the bone in his foot was

shattered, and he spent five months in a wheelchair. He requested

$1.2 million in compensatory damages and $100,000 for punitive

damages.

The officers filed a joint motion to dismiss Johnson’s

complaint, pursuant to Federal Rule Civil Procedure 12(b)(6), on

the ground that Johnson failed to state a claim upon which relief

could be granted because the officers were entitled to qualified

immunity. They maintained that the body cam footage, which

Johnson referenced in his complaint, established that they did not

use excessive force, and they submitted body cam footage with

their motion. In this footage, at approximately 6:14 p.m., Johnson’s

car can be heard hitting the officers’ truck, and then his car is visible

on camera careening up onto the curb and driving through a fence,

and into the park. Officers can be heard yelling “hands, “hands,”

and stating “he hit us, he hit us.” One of the officers from the truck

then begins a foot pursuit upon seeing the vehicle stop a short

distance away near what appears to be a private residence. When

1 Although Johnson did not allege in his complaint whether he was arrested

following this police encounter, the district court took judicial notice of state

court records establishing that Johnson was arrested and charged with

multiple offenses, including trafficking in, or possession of, a controlled

substance, aggravated battery with a deadly weapon (a motor vehicle) upon a

law enforcement officer, possession of a firearm by a convicted felon, and

resisting an officer without violence. We also take judicial notice of this

information as well.

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this officer reached the car, the driver’s side door was open, and

Johnson was not in the car.

Meanwhile, Officer Williams’s bodycam, which was not

initially recording audio, showed Officer Williams jump the fence

into the yard of a private residence and approach the back of the

property. As Williams rounded the corner of the property, he

observed Johnson lying on the ground in front of a vehicle.

Williams drew his gun and aimed it at Johnson. Johnson’s hands

were not visible and appeared to be underneath his body. Johnson

was also moving his head from side to side, looking at Williams and

then away. Williams fired into the ground near Johnson. Williams

then turned on the audio for his body camera while shouting

“hands, let me see your hands.” Johnson did not move, and other

officers briefly fired multiple shots. 2 Officer Williams then yelled

“hold fire,” and Johnson’s hands were visible and extended flat out

in front of him above his head.

Another officer, yelled from behind Williams, “gun” and

Williams stated “yeah.” An officer not visible in the frame asked,

“where’s his hands,” and Williams responded, “his hands are

straight out, the gun is still under him.” A few seconds later,

Williams repeated to other officers approaching, “I see both hands,

the gun is under him.” Williams shortly thereafter stated “there’s

also a bag under him too.” Officers then waited for a safety shield

2 Audio from the bodycam footage from the officer engaged in the foot pursuit

confirms that multiple “let me see your hands” commands were issued before

officers fired any shots at Johnson.

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6 Opinion of the Court 25-10718

to arrive before approaching Johnson. During this time, Johnson

attempted to move several times and stated, “ya’ll clipped me,” and

officers continued to instruct him not to move. Before

approaching Johnson, Williams told the other officers that the gun

was near Johnson’s left chest. After approaching with the shield,

officers removed the gun from under Johnson and secured him.

Johnson opposed the motion to dismiss, arguing that the

body cam footage showed that Officer Williams did not discover

that Johnson had a gun until he was lying on the ground; that

Williams knew the gun was under Johnson’s chest, not in his

hands; and that Johnson was not a threat to officers. Johnson then

reiterated his version of events incorporating references to the

body cam footage. He maintained that the officers were not

entitled to qualified immunity.

The district court granted the motion to dismiss, concluding

that the body cam footage was properly before the court and

conclusively established that the officers did not use excessive

force. Accordingly, the district court determined that the officers

were entitled to qualified immunity. This appeal followed.

II. Discussion

Johnson argues that the district court erred in granting

qualified immunity to the officers because it is disputed whether

the officers gave Johnson any verbal commands before using force

or whether they gave him any opportunity to comply with

commands before deploying force. He maintains that the officers

wore “plain clothes and ski masks,” and he was not “aware they

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could be police” until he heard their radios as he lay on the ground.

He asserts that he did not resist and could not comply with the

officers’ demands to show his hands because “he was pinned down

on the ground by gunfire.” Thus, he contends the use of force was

excessive.

“We review a district court’s grant of [a] Rule

12(b)(6) . . . motion[] de novo.” Johnson v. City of Atlanta, 107 F.4th

1292, 1297 (11th Cir. 2024). Generally, at the motion to dismiss

stage, “we accept the facts alleged in the complaint as true and view

them in the light most favorable to the plaintiff.” Id. When, as

here, a plaintiff references bodycam footage in the complaint, the

district court may consider it under the incorporation-by-reference

doctrine provided that it is “central to the plaintiff’s claim” and “its

authenticity is unchallenged.” Baker v. City of Madison, 67 F.4th

1268, 1276–77 (11th Cir. 2023) (quotations omitted); see also

Johnson, 107 F.4th at 1300 (holding that “when resolving a motion

to dismiss . . . a court may properly consider a document not

referred to or attached to a complaint under the incorporation-by-

reference doctrine if the document is (1) central to the plaintiff’s

claims; and (2) undisputed, meaning that its authenticity is not

challenged”). “[W]here [the] video is clear and obviously

contradicts the plaintiff’s alleged facts, we accept the video’s

depiction instead of the complaint’s account, and [we] view the

facts in the light depicted by the video.” Baker, 67 F.4th at 1277–78

(citation omitted). On the other hand, because we are at the

motion to dismiss stage, “[we] must construe all ambiguities in the

video footage in favor of the plaintiff.” Id. at 1277.

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Qualified immunity shields law enforcement officials 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), so long as their conduct “does

not violate clearly established statutory or constitutional rights of

which a reasonable person would have known,” Mullenix v. Luna,

577 U.S. 7, 11 (2015) (quotations omitted). “[B]ecause government

officials are not required to err on the side of caution, qualified

immunity is appropriate in close cases where a reasonable officer

could have believed that his actions were lawful.” Lee v. Ferraro,

284 F.3d 1188, 1200 (11th Cir. 2002) (alteration adopted)

(quotations omitted). In other words, “qualified immunity

protects all but the plainly incompetent or those who knowingly

violate the law.” Mullenix, 577 U.S. at 12 (quotations omitted).

The qualified immunity inquiry involves a burden-shifting

analysis. Lee, 284 F.3d at 1194. The first step requires a defendant

to show that he was acting within the scope of his discretionary

authority when committing the challenged act. 3 Id. “Once the

defendant does that, the burden shifts to the plaintiff, who must

show that qualified immunity is not appropriate” by establishing

that: “(1) the defendant violated a constitutional right, and (2) that

constitutional right was clearly established at the time of the

3 Johnson does not dispute that the officers were acting within the scope of

their discretionary authority. Therefore, we focus on whether Johnson

established that the officers violated a constitutional right and that the right

was clearly established at the time of the defendant’s actions.

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defendant’s actions.” Brooks, 78 F.4th at 1280 (quotations omitted).

“Both elements must be satisfied for an official to lose qualified

immunity.” Baker, 67 F.4th at 1278 (quotations omitted).

The Fourth Amendment sets forth the “right of the people

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

U.S. Const. amend. IV. This right encompasses the right to be free

from the use of excessive force during an arrest. Graham v. Connor,

490 U.S. 386, 394–95 (1989). Nevertheless, “Fourth Amendment

jurisprudence has long recognized that the right to make an

arrest . . . necessarily carries with it the right to use some degree of

physical coercion or threat thereof to effect it.” Id. at 396. “To

determine if the use of force exceeded that which is necessary,

courts are required to balance carefully the nature and quality of

the intrusion on the individual’s Fourth Amendment interests

against the countervailing governmental interests at stake.” Jean-

Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (quotations

omitted).

Excessive force claims are judged under the Fourth

Amendment’s objective reasonableness standard. 4 Graham, 490

U.S. at 395–96. “That standard requires us to ask whether the

officer’s conduct was objectively reasonable in light of the facts

4 Although Johnson also referenced in his complaint his right to be free from

excessive force under the Eighth Amendment, the Supreme Court has made

clear that where, as here, the excessive force claim arises in the context of an

arrest, it is properly analyzed under the Fourth Amendment, not the Eighth.

Graham, 490 U.S. at 394.

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confronting the officer.” Patel v. City of Madison, 959 F.3d 1330,

1338–39 (11th Cir. 2020) (alterations adopted) (quotations

omitted); see also Jean-Baptiste, 627 F.3d at 821 (“[T]he only

perspective that counts is that of a reasonable officer on the scene

at the time the events unfolded.” (quotations omitted)). Whether

the force used was reasonable is dependent on 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 he is actively resisting arrest or

attempting to evade arrest by flight.” 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, [and]

the extent of the injury inflicted . . . .” Baker, 67 F.4th at 1279.

Importantly, “[t]he calculus of reasonableness must embody

allowance for the fact that police officers are often forced to make

split-second judgments—in circumstances that are tense,

uncertain, and rapidly evolving—about the amount of force that is

necessary in a particular situation.” Graham, 490 U.S. at 396–97.

“The law does not require officers in a tense and dangerous

situation to wait until the moment a suspect uses a deadly weapon

to act to stop the suspect.” Jean-Baptiste, 627 F.3d at 821 (alteration

adopted).

Here, in light of the facts and circumstances confronting the

officers, the use of deadly force to secure Johnson was reasonable.

Specifically, after an unmarked police truck pulled up behind

Johnson’s car, Johnson reversed his car, ran into the truck, and then

sped off erratically, driving up on the curb, crashing through a

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chain link fence, and speeding off into the park. Johnson then

drove a short distance before abandoning his vehicle, fleeing on

foot, and entering the fenced backyard of a private residence while

armed. 5 Then, even though he admitted that he heard police

radios, Johnson laid down in front of a car and put his gun

underneath his chest. A reasonable officer confronting those

circumstances would have viewed Johnson’s actions as an attempt

to evade police that not only endangered officers but the

community at large. Furthermore, contrary to Johnson’s

allegations, the bodycam footage establishes that Officer Williams

knew that Johnson was armed, and Johnson’s hands were

5 Johnson contends that the officers were wearing “plain clothes and ski

masks” and implies that he was unaware that they were officers. We note that

all of the officers visible on the bodycam footage are wearing official police

uniforms, with visible badges on their chests and emblazoned in large, capital

letters with “POLICE,” and no one is wearing a ski mask. Also, at least two of

the vehicles on scene at the arrest location were marked police cruisers with

their lights on. Not only that, but it was daylight when these events occurred,

so the officers and their attire were plainly visible. Additionally, Johnson

admitted in his complaint that when he exited his vehicle and ran into the

nearby yard, he heard police radios, meaning, at that point, he was aware that

the persons pursuing him were police. Regardless, what Johnson knew or

believed in the moment is not relevant to the qualified immunity analysis. See

Jean-Baptiste, 627 F.3d at 821 (“[T]he only perspective that counts is that of a

reasonable officer on the scene at the time the events unfolded.” (quotations

omitted)). And it was not unreasonable, based on the camera footage and facts

alleged—even viewed in the light most favorable to Johnson—for the officers

to believe Johnson knew they were officers trying to effect an arrest when they

yelled for him to show his hands, but he kept them underneath himself until

after shots were fired.

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underneath him with the gun when Officer Williams approached

Johnson. A reasonable officer confronted with these circumstances

would have viewed Johnson as posing a significant threat to the

safety of the officers and others who might be in the area.

Moreover, contrary to Johnson’s allegations, the bodycam footage

establishes that Johnson did not respond to the commands to show

his hands until after shots were fired. Under these rapidly evolving

and unpredictable circumstances, we conclude that the officers’ use

of deadly force was not objectively unreasonable to fully secure

Johnson. The officers were not required to wait for Johnson to

move or to pull his gun before using deadly force to stop him. 6 See

Jean-Baptiste, 627 F.3d at 821 (holding that, regardless of whether

the suspect pointed the gun at the officer, the officer’s use of deadly

force against the suspect was reasonable because the person was

suspected of committing violent crimes, was armed, attempted to

elude police, and “posed a threat of serious physical injury to [the

officer] and to the citizens in the surrounding residential area”); see

also Crenshaw v. Lister, 556 F.3d 1283, 1292–93 (11th Cir. 2009)

(concluding that the deployment of a police canine against a

suspect who suffered 31 bites was a reasonable use of force even

though the suspect had said he wanted to surrender because

officers believed the suspect was armed and “it was objectively

reasonable for [the officer] to question the sincerity” of the suspect

6 We note that the officers fired shots only briefly and did not shoot again once

Johnson complied and placed his hands above his head.

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based on the suspect’s earlier conduct of fleeing from police first in

a car then on foot and hiding in a wooded area).

In sum, we have credited, as we must at this stage, Johnson’s

factual allegations except where they are obviously contradicted by

the body cam footage, and we conclude that the Graham factors—

including the severity of the crime at issue (hitting a police vehicle

and fleeing from police), and the fact that Johnson was armed,

actively attempting to evade arrest, and posed an immediate threat

to the safety of the officers and others in the residential area—all

weigh in favor of the reasonableness of the use of deadly force in

this case. Graham, 490 U.S. at 396–97. Accordingly, because

Johnson failed to show a constitutional violation, the district court

properly granted the officers’ motion to dismiss based on qualified

immunity.

AFFIRMED.