The opinion
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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-12436
____________________
KIMBERLEY DIANE SETTLE,
A Personal Representative for the Estate of Jacob
Joseph Settle Sr,
Plaintiff-Appellee,
versus
DAVID COLLIER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:22-cv-22688-TKW-HTC
____________________
Before WILLIAM PRYOR, Chief Judge, and BRANCH and ABUDU, Cir-
cuit Judges.
WILLIAM PRYOR, CHIEF JUDGE:
This appeal requires us to decide whether Officer David Col-
lier is entitled to immunity from a suit involving the death of Jacob
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2 Opinion of the Court 24-12436
Settle. On the evening of November 14, 2020, Collier and his part-
ner officer went to Settle’s house to execute arrest warrants for him
and his wife. Settle was in his truck when Collier arrived and re-
fused to leave the truck when Collier demanded that he do so.
Within seconds, the situation escalated as Collier threatened to
break open the windows, and Settle then started the engine of the
truck and placed the transmission into a gear. Collier was in a tight
space in between the truck and the house and feared the truck
would hit him and his partner, so he fired his gun into the truck.
Settle died on the scene. His estate’s representative sued Collier for
excessive force in violation of the Fourth Amendment and for bat-
tery under Florida law. After Collier invoked qualified immunity
and state immunity, the district court denied Collier’s motion for
summary judgment. We reverse and remand with instructions to
grant summary judgment in favor of Collier.
I. BACKGROUND
In this appeal of a denial of summary judgment based on
qualified immunity, we recount the events viewing the evidence in
the light most favorable to the estate as nonmovant. See Baxter v.
Santiago-Miranda, 121 F.4th 873, 878 (11th Cir. 2024).
On the evening of November 14, 2020, Escambia County of-
ficers David Collier and Raymond Hart arrived at 2242 Handy
Road to execute arrest warrants for Jacob Settle and his wife,
Sophronia Whitehead. Settle had active arrest warrants for driving
while his license was suspended, and Whitehead had active arrest
warrants for failure to appear, destroying evidence, parole
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24-12436 Opinion of the Court 3
violations, and driving while her license was suspended. Officers
Hart and Collier had never encountered Settle before that night.
Although Collier stated that he was aware that Settle had a “nar-
cotics violation history,” he had no way of knowing if Settle was
under the influence of narcotics at the time.
Whitehead and Settle had visited a friend until the early
morning hours of November 14, so they slept until around 8:30
p.m. When they awakened, they decided to drive to another
friend’s house in Settle’s truck. Because the front door was boarded
up, Settle left through the back door, which Whitehead then
locked, and she exited through the bedroom window.
After arriving, the officers made their way to the backyard
where the truck was parked. Collier saw the truck parked “parallel”
with the porch, the driver’s side facing it. The front end of the truck
faced the house and was parked “almost up against” it. There was
also an air conditioning unit “sitting right up against” the porch,
roughly perpendicular to the truck’s back wheel. The backyard was
“pitch black” that night because there were no working porch or
backyard lights. The officers’ flashlights were “the only light[s]” in
the backyard. The backyard was also filled with “debris and trash
in the yard stacked up against the porch.”
As the officers approached the truck, Whitehead and Settle
saw their flashlights “come around the side of the house.” White-
head entered the passenger’s seat and Settle entered the driver’s
seat. Whitehead and Settle “duck[ed] down in the truck.” White-
head said that they did not know the officers were police “until they
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4 Opinion of the Court 24-12436
c[a]me around” to the truck. Collier “got right up on the driver’s
side” with his flashlight and saw both “slumped over” inside. Hart
went up to the passenger’s side. Neither Whitehead nor Settle ex-
ited the truck even after realizing the presence of police officers.
But Whitehead sat up when she realized it.
Worried that Settle might be unconscious, Collier “at-
tempted to open up the door,” but it was locked. Settle then sat up
straight and looked alert. Collier and Hart announced that they
were from the sheriff’s office and asked Settle, by name, to exit the
vehicle. After Settle did not exit the vehicle, Collier announced he
was there to serve an arrest warrant and yelled, “Open your doors.
Unlock your doors or we’re going to bust your windows out.” Set-
tle attempted to deceive the officers by telling them that they were
trying to arrest the wrong person. His flashlight still shining into
the car, Collier then saw Settle “dig and reach around with his
hands in the center console” and heard what he thought was the
jingle of keys. So he “tried beating on the driver’s side window,
trying to break the glass and enter the vehicle to get him out.”
Settle started the truck’s engine. Whitehead, Hart, and Col-
lier all saw Settle then put the transmission into gear. Collier
dropped his flashlight and pushed himself away from the truck.
Whitehead testified that the “truck never moved an inch” after Set-
tle put it into gear, speculating that he must have only put it in neu-
tral.
Within a few seconds of Settle putting the truck into gear,
Collier fired his gun. At the time of firing, Collier was “eight to
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24-12436 Opinion of the Court 5
[ten] feet” away from the truck. Both bullets went through the
driver’s side door window, not through the front window. White-
head stated that she “heard two somethings” after Settle put the
transmission in gear when she was interviewed in December 2022
by criminal investigators. But at her July 2023 deposition, White-
head said that she “didn’t hear no gunshots,” because “the truck
has got pipes on it.” Instead, she testified that she became aware of
the gunshots because her “leg was burning down the side . . . from
gunpowder.” According to Whitehead, the gunshots and the start-
ing of the engine must have been nearly simultaneous.
The two shots struck Settle. Collier opened the truck door
and started rendering aid to Settle by applying pressure to his two
wounds—both in his arm/shoulder area. Settle stopped breathing,
so Collier tried to resuscitate him. But Settle died. Settle’s toxicol-
ogy report showed both methamphetamine and THC carboxy in
his blood at the time of death.
On November 9, 2022, the personal representative of Set-
tle’s estate filed this suit in the district court against Collier, Hart,
and the sheriff. The district court dismissed the claims against Hart
and the sheriff, which left two claims against Collier: one claim for
excessive force in violation of the Fourth Amendment, 42 U.S.C.
§ 1983, and a claim of battery under Florida law.
During discovery, the estate produced one expert, Kelly
Timms, a forensic services technician. In her deposition, Timms
disputed that Collier was at risk of being struck by the truck when
he fired the shots that killed Settle. She opined that Collier was not
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6 Opinion of the Court 24-12436
standing directly in front of the truck when he fired the deadly
shots, but was instead standing in line with the metal part of the
truck between the front windshield and the front side doors—oth-
erwise known as the “A-pillar.”
After Collier moved for summary judgment based on quali-
fied immunity and state-agent immunity, the district court denied
his motion. The district court ruled that a “reasonable jury could
find that [Collier] violated Mr. Settle’s constitutional right to be
free from excessive force when he shot into a non-moving truck
that did not pose a risk to [Collier] or others.” It denied qualified
immunity because it was “clearly established since at least 2013 that
when a driver does not use or does not threaten to use his car as a
weapon, an officer may not use deadly force against him.” And it
ruled that Collier was not entitled to state immunity from the bat-
tery claim because a “reasonable jury could find that [Collier] acted
with wanton and willful disregard” for Settle’s safety and that Col-
lier “did not reasonably believe that it was necessary to use deadly
force because Mr. Settle did not use the truck against [Collier] in a
threatening way.”
II. STANDARDS OF REVIEW
We “review a denial of qualified immunity de novo and, on a
motion for summary judgment, view the evidence in the light most
favorable to the nonmoving party.” Nelson v. Tompkins, 89 F.4th
1289, 1295 (11th Cir. 2024). We review de novo whether an officer
is entitled to summary judgment based on state law immunity. Eng-
lish v. City of Gainesville, 75 F.4th 1151, 1155 (11th Cir. 2023).
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III. DISCUSSION
We divide our discussion into two parts. First, we explain
that Collier is entitled to qualified immunity because he did not use
excessive force. Second, we explain that Collier is entitled to state-
agent immunity from the claim of battery.
A. Collier Did Not Use Excessive Force in Violation of the
Fourth Amendment.
When officers raise the defense of qualified immunity, they
have “the burden to establish that they were acting within their
discretionary authority.” Ingram v. Kubik, 30 F.4th 1241, 1250 (11th
Cir. 2022). “If the officers satisfy that burden, the burden then shifts
to the plaintiff to establish that the officers violated a constitutional
right that was clearly established at the time of the alleged viola-
tion.” Id. We may review whether there was a violation or whether
the violation was clearly established in either order. Id. In this ap-
peal, we start and end with whether Collier violated Settle’s consti-
tutional rights by using excessive force. The estate does not dispute
that Collier was acting “pursuant to his discretionary authority”
during the incident. So the burden shifted to the estate to prove
that Collier violated Settle’s clearly established constitutional
rights.
An “excessive force claim [that] arises in the context of an
arrest . . . is most properly characterized as one invoking the pro-
tections of the Fourth Amendment, which guarantees citizens the
right ‘to be secure in their persons . . . against unreasonable . . . sei-
zures.’” Graham v. Connor, 490 U.S. 386, 394 (1989) (quoting U.S.
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8 Opinion of the Court 24-12436
CONST. amend. IV). As the text of the Fourth Amendment sug-
gests, excessive force claims are governed by an “‘objective reason-
ableness’ standard.” Id. at 388. In reviewing the reasonableness of
an officer’s use of force, “we look at the fact pattern from the per-
spective of a reasonable officer on the scene with knowledge of the
attendant circumstances and facts, and balance the risk of bodily
harm to the suspect against the gravity of the threat the officer
sought to eliminate.” McCullough v. Antolini, 559 F.3d 1201, 1206
(11th Cir. 2009). “Our inquiry does not employ the 20/20 vision of
hindsight.” Baxter, 121 F.4th at 888 (citation and internal quotation
marks omitted).
The use of deadly force is reasonable when an “officer has
probable cause to believe that the suspect poses a threat of serious
physical harm, either to the officer or to others.” Tennessee v. Gar-
ner, 471 U.S. 1, 11 (1985). So “if the suspect threatens the officer
with a weapon or there is probable cause to believe that he has
committed a crime involving the infliction or threatened infliction
of serious physical harm, deadly force may be used if necessary to
prevent escape, and if, where feasible, some warning has been
given.” Id. at 11–12. “This rule covers situations in which (1) an of-
ficer believed his life was in danger because a suspect used a vehicle
as a weapon against the officer or (2) the suspect’s use of the vehicle
otherwise presented an immediate threat of serious physical
harm.” Baxter, 121 F.4th at 888. This Court has “[c]onsistently . . .
upheld an officer’s use of deadly force” under this framework. Id.
And the Fourth Amendment does not “require officers in a tense
and dangerous situation to wait until the moment a suspect uses a
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24-12436 Opinion of the Court 9
deadly weapon to act to stop the suspect.” Long v. Slaton, 508 F.3d
576, 581 (11th Cir. 2007).
The parties dispute whether Collier could have reasonably
believed that Settle’s vehicle presented an immediate threat of
physical harm warranting the use of deadly force. Collier argues
that even under the estate’s version of events, the circumstances
were “tense, rapidly evolving, and not within [his] complete con-
trol” such that he had an objectively reasonable belief that deadly
force was necessary to protect his and Hart’s lives. Settle’s estate
argues that “the truck never moved,” so the truck could not have
been “used or threatened to be used in a way that indicated it had
become a deadly weapon.” We agree with Collier.
The estate’s argument ignores that, under the circum-
stances, Settle needed not move the car for his actions to be rea-
sonably perceived as threatening. The estate admits that Settle
“started the truck and moved the gear shift.” Collier saw Settle put
the truck into gear. And Whitehead said that Settle put the car into
gear before Collier fired. So, even viewing the evidence in the light
most favorable to the estate, there was some amount of time be-
tween Settle starting the truck and Collier firing the shots. In that
short time, Collier recognized Settle’s intent to drive the truck and
so convert it into a deadly weapon.
Two of our decisions are instructive. First, Long v. Slaton in-
volved a mentally unstable man who stole a police vehicle and tried
to back it out of a driveway. 508 F.3d at 578–79. The officer at the
scene knew of the man’s condition, pointed his pistol at the man,
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and warned him to comply or else he would shoot. Id. The man
put the car in reverse and backed down the driveway; the officer
stepped in the middle of the driveway (facing the front of the car)
and fired three shots that killed the man. Id. While the car had not
yet become a “deadly weapon” at the time of the shooting, the
plaintiff’s “unstable frame of mind, energetic evasion of the dep-
uty’s physical control, . . . criminal act of stealing a police cruiser,
and [his] starting to drive . . . gave the deputy reason to believe that
[he] was dangerous.” Id. at 581–82. (footnote omitted). And in Pace
v. Capobianco, this Court held that an officer who shot a man after a
high-speed chase did not violate the Fourth Amendment “[e]ven
when” the man’s “car was stopped,” he “did not try to run over the
deputies[,] . . . [and] did not aim the car at the deputies.” 283 F.3d
1275, 1277, 1282 (11th Cir. 2002). The Court reached that conclu-
sion because “[b]y the time of the shooting, [the man] had used the
automobile in a manner to give reasonable policemen probable
cause to believe that it had become a deadly weapon.” Id. at 1282.
And the man never “left his automobile or even turned the engine
off,” establishing that he was still “armed.” Id. at 1281–82.
Even if the truck never moved, Collier could reasonably per-
ceive that Settle’s vehicle was a deadly weapon. He reasonably in-
terpreted Settle’s starting the engine and putting it into gear as es-
calatory. Common sense would suggest that Settle’s next step
would be to drive—not to remain stationary. Settle had already re-
sisted arrest; by starting the truck engine and putting it into gear,
Collier reasonably believed that Settle intended to escape in reck-
less disregard of the officers’ safety or to evade arrest by injuring
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them. By starting the engine and putting the transmission into gear,
Settle converted his truck into a “deadly weapon with which [he]
was armed.” Id. at 1282. And because Collier had probable cause to
believe Settle intended to drive the truck dangerously, he was not
“require[d] . . . to wait [to fire] until the moment” that Settle drove
it. Long, 508 F.3d at 581.
We reject the estate’s attempt to create a categorical rule
that officers cannot reasonably perceive that a vehicle has been
converted into a deadly weapon either until the vehicle moves or
unless the suspect’s behavior before the incident established that
he was dangerous. The estate admits that “this Court has [held]
that even if a vehicle did not move and an officer was not in its
path, the use of deadly force could be reasonable.” Yet it argues
that this “principle . . . extends only to situations where the sus-
pect’s prior behavior or use of the vehicle gave an officer reason to
believe that the vehicle had become a deadly weapon.” But our
precedents establish no bright-line rule. After all, “[t]he constitu-
tional test for excessive force is necessarily fact specific,”
McCullough, 559 F.3d at 1206, and “not capable of precise definition
or mechanical application,” Long, 508 F.3d at 580 (citation and in-
ternal quotation marks omitted).
The estate makes much of one surface-level similarity be-
tween this appeal and Morton v. Kirkwood, a decision where we dis-
cerned a constitutional violation. 707 F.3d 1276 (11th Cir. 2013). In
Morton too the vehicle was “stationary” when the officer fired at its
driver. Id. at 1279–80, 1282. The plaintiff was sitting in his car at a
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park when he saw a police officer walk into the park. Id. at 1279.
He then attempted to “coast” out of the park, never seeing anyone
in front of his car. Id. At that point, the plaintiff heard an officer
shout, so he “shifted his car to park and raised his hands.” Id. at
1279–80. The officer “nonetheless shot at the car.” Id. at 1280. We
held that, based on those facts, an officer could not reasonably per-
ceive an immediate threat to his safety. Id. at 1281–82. The fact
that the vehicle in Morton was stationary is of little importance. In
Morton, the vehicle was stationary because the driver complied
with the officer’s request to stop the vehicle. Id. at 1279–80. In this
appeal, the truck was stationary from the start of the encounter;
Settle did not make it stationary at the command of the officer. In-
deed, Settle refused to comply with Collier’s lawful order to exit
the vehicle, unlike the plaintiff in Morton, who alleged that he
promptly complied with the officer’s orders. Id. The plaintiff in
Morton deescalated, unlike Settle who escalated the situation by
starting the truck and putting the transmission into gear.
The estate insists that Collier was unreasonable in firing be-
cause he “was not in the path of the truck” and was about eight feet
away when he fired. This argument answers the wrong question.
Reasonableness hinges on the perspective of the officer, so the
more apt question is whether Collier could have reasonably per-
ceived that he was in the path of the vehicle and that his safety was
in danger. See Tillis v. Brown, 12 F.4th 1291, 1299 (11th Cir. 2021).
And we do not impose on officers “the benefit of hindsight.” Baxter,
121 F.4th at 890. When officers must make split-second judgments,
we accept that they “d[o] not have time to calculate angles and
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trajectories to determine whether [they are] a few feet outside of
harm’s way.” Tillis, 12 F.4th at 1299.
Two precedents are instructive. In Robinson v. Arrugueta, we
declined to hold an officer to the benefit of hindsight that he “per-
haps could have escaped unharmed.” 415 F.3d 1252, 1256 (11th Cir.
2005). There, the decedent accelerated to just one to two miles per
hour toward the officer, but the officer was standing four feet away
from the front of the vehicle and was sandwiched between the de-
cedent’s vehicle and another. Id. at 1254, 1256. And Tillis involved
a high-speed chase that ended with a crash into some bushes. 12
F.4th at 1295. The officer pulled behind the vehicle and stepped out
of his car to make the arrest. Id. As he stepped out, the vehicle’s
“reverse lights turned on” and the officer shot into the vehicle as it
drove past him. Id. We held that the officer “had no way of know-
ing whether [the vehicle] would continue in a straight line or
swerve toward him,” and he did not have time to calculate whether
he was in harm’s way. Id. at 1299. “[O]n foot next to [the] vehicle,”
the officer was “exposed to danger” which justified firing at the sus-
pect. Id.
Collier feared for his life when Settle put the truck into gear.
Collier could reasonably fear that Settle’s next move was to drive
it. Like the officer in Robinson, Collier was in a “narrow space” be-
tween the car and the porch—even if more than four feet away.
415 F.4th at 1256. Had Collier tried to escape by rushing directly
away from the house toward the back of the truck, the air condi-
tioning unit and debris would have obstructed his path. And he
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reasonably could have feared being struck if the vehicle went in
reverse. Moving the other way would have required him to step in
front of the vehicle which had been put into gear. Like the officer
in Tillis, he also “had no waying of knowing” what Settle would do
next, especially considering that Settle was actively resisting arrest.
See 12 F.4th at 1299. And he was standing “on foot next to” Settle’s
truck, exposing him to danger from the truck’s movements. See id.
Collier had little-to-no visibility in the “pitch black” backyard. And
Collier no longer had his flashlight in hand. So even if there were a
clear path of escape, Collier would not have been able to see it. We
cannot hold Collier to the benefit of hindsight by requiring him to
have “calculate[d] angles and trajectories” of the truck’s potential
paths or for an escape attempt. Id.
Settle’s estate suggests that Collier was not justified in firing
because he had no reason to believe that Settle was violent or dan-
gerous before the encounter. True, “the severity of the crime
prompting [the encounter] can carry weight” in the reasonableness
analysis. Barnes v. Felix, 145 S. Ct. 1353, 1358 (2025) (citation and
internal quotation marks omitted). But in “circumstances that are
tense, uncertain, and rapidly evolving,” we must make “allowance
for the fact that police officers are often forced to make split-second
judgments.” Graham, 490 U.S. at 396–97. Sometimes, an officer
does not have time to reflect and consider why the encounter was
initiated—whether it was a routine Terry stop or a high-speed
chase.
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We have held that an officer acted reasonably in using
deadly force by shooting into a vehicle during a tense situation
even when the officer did not have reason to think the driver had
committed violent crimes. For example, in Baxter, this Court held
that an officer did not violate the Fourth Amendment when he
fired shots into a vehicle being driven by a person suspected of sim-
ple car theft. 121 F.4th at 878–91. And in Robinson, this Court held
that an officer did not violate the Fourth Amendment when he
fired shots into a vehicle being driven by a person suspected of deal-
ing heroin. 415 F.3d at 1253, 1256.
The estate faults Collier for neither giving a warning that he
was about to fire nor “display[ing] his weapon” before firing the
shots. “Officers are required to give a warning before using deadly
force if a warning is feasible. The critical inquiry is feasibility.” Davis
v. Waller, 44 F.4th 1305, 1315 (11th Cir. 2022). The feasibility re-
quirement is not an “inflexible rule that, in order to avoid civil lia-
bility, an officer must always warn his suspect before firing—par-
ticularly where . . . such a warning might easily have cost the of-
ficer his life.” Id. (citation and internal quotation marks omitted).
Settle’s rapid escalation and Collier’s proximity to the truck put
Collier in immediate danger, so he was not required to issue a
warning before firing.
The estate’s reliance on Vaughan v. Cox is unavailing. 343
F.3d 1323 (11th Cir. 2003). In Vaughan, an officer “traveled along-
side” a fleeing stolen vehicle, which had struck a police cruiser, on
an interstate highway for 30 to 45 seconds before firing into the
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vehicle. Id. at 1326–27, 1331. We considered that ample “time and
opportunity to warn” the vehicle’s driver before firing. Id at 1331.
Here, in contrast, the encounter escalated in the seconds it took
Settle to turn on the truck and put it into gear, giving Collier little
time or opportunity to issue a warning.
The district court relied on Underwood v. City of Bessemer, 11
F.4th 1317 (11th Cir. 2021), to hold that Collier could have warned
Settle before firing. In Underwood, an officer walked in front of a
vehicle as it “coast[ed]” slowly toward the officer “as if to stop,”
and the officer began shooting when the vehicle was roughly eight
feet away. 11 F.4th at 1322, 1331. True, in Underwood and here, the
officer was eight feet away at the time he fired—and at that dis-
tance, a warning is in fact more feasible. But the driver in Under-
wood was slowing down “as if to stop,” unlike Settle who put the
truck in gear as if to drive. In the light of the proximity of the truck
to Collier, Collier’s lack of visibility, and Settle’s escalatory actions,
Collier could forego a warning. A delay could have put his or Hart’s
life in danger. See Waller, 44 F.4th at 1315.
B. Collier is Entitled to State Statutory Immunity from
the Estate’s Battery Claim.
Florida’s self-defense immunity statute provides that a “per-
son who uses or threatens to use force as permitted in [sec-
tion] 776.012 . . . is justified in such conduct and is immune from
. . . civil action for the use or threatened use of such force.” FLA.
STAT. § 776.032(1). Section 776.012 also provides that a person who
“reasonably believes that using or threatening to use such force is
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24-12436 Opinion of the Court 17
necessary to prevent imminent death or great bodily harm to him-
self . . . or another” may use deadly force, and that there is no “duty
to retreat” before using or threatening to use such force. Id.
§ 776.012(2). We have ruled that section 776.012 is at least co-ex-
tensive with the Fourth Amendment standard for the use of deadly
force. See Penley v. Eslinger, 605 F.3d 843, 855–56 (11th Cir. 2010).
Because Collier’s use of deadly force was not excessive in violation
of the Fourth Amendment, Collier was also entitled to immunity
from the estate’s claim of battery.
IV. CONCLUSION
We REVERSE and REMAND with instructions to enter
judgment for Collier.
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24-12436 ABUDU, J., Dissenting 1
ABUDU, Circuit Judge, Dissenting:
The record in this case presents conflicting evidence regard-
ing the material fact of whether Deputy Sheriff David Collier was
near or in the path of Jacob Settle, Sr.’s truck, as well as if and how
Settle’s truck was moving to justify Collier shooting into it and kill-
ing Settle. The district court correctly concluded that these factual
disputes, when taken in the light most favorable to Settle’s estate
(the “Plaintiff”), could allow a reasonable jury to find that Settle’s
vehicle did not present an immediate threat of physical harm,
thereby making Collier’s use of deadly force unreasonable.
We review a district court’s grant of summary judgment de
novo, Christmas v. Harris County, 51 F.4th 1348, 1353 (11th Cir. 2022),
viewing the facts and drawing all reasonable inferences in the light
most favorable to the non-moving party, Sconiers v. Lockhart, 946
F.3d 1256, 1262 (11th Cir. 2020). Summary judgment is appropriate
when the record contains no genuine issues of material fact such
that the court may grant judgment as a matter of law in favor of
the moving party. Marbury v. Warden, 936 F.3d 1227, 1232 (11th
Cir. 2019). The issue is only material if it could ultimately change
the outcome of litigation. Terrell v. Sec’y Dep’t of Veterans Affs, 98
F.4th 1343, 1351 (11th Cir. 2024). It is only genuine if it could lead
the reasonable factfinder to rule in favor of the nonmovant. James
River Ins. Co. v. Ultratec Special Effects Inc., 22 F.4th 1246, 1251 (11th
Cir. 2022). On de novo review, the district court was correct in con-
cluding that Collier did not meet his burden.
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2 ABUDU, J., Dissenting 24-12436
A. There Exist Genuine Issues of Material Fact
On the night of November 14, 2020, Deputies David Collier
and Raymond Hart went to the home of Raymond Settle and
Sophronia Whitehead to execute arrest warrants for nonviolent
crimes. Both deputies explained that they approached the front
door to no avail, so they proceeded to the backyard to continue
their search. Settle’s truck was parked in the backyard near the
porch and facing his house. Whitehead and Settle had gotten into
the truck just as the deputies entered the backyard to continue their
search. The parties dispute what happened next.
In Collier’s version of events, the backyard was “very dark,”
so he and Hart conducted their search using flashlights to illumi-
nate their path and avoid being seen by Whitehead and Settle. Col-
lier suspected that they were both concerned about being arrested
because they had outstanding warrants and feared going to jail.
He, therefore, initially thought that the two were hiding from the
officers.
Collier then explained that he approached the truck to ask
Settle and Whitehead to get out of it, but the two refused. He then
tried to break through the truck’s driver’s side window to remove
Whitehead and Settle from the vehicle. As he did so, Settle report-
edly started the truck and put it in reverse, which scared Collier and
caused him to step back from the truck. When Collier stepped back
from the truck, he tripped over something in the yard, which
caused him to fall on the ground. He said that he then regained his
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24-12436 ABUDU, J., Dissenting 3
footing and drew his weapon before firing two shots into the
driver’s side window, which ultimately killed Settle.
In the days following the shooting, Collier recounted that
the truck was “coming at [him]” as if it were approaching him head
on. He explained that he was “in [a] corner” and performing eva-
sive maneuvers to avoid contact because the truck was “coming at
[him],” again, as if it were aimed directly at him.
Whitehead’s account differs significantly. She explained that
she and Settle did not immediately recognize Hart and Collier as
officers when they entered the backyard. She explained that they
could not see the officers’ uniforms through the darkness, only
their flashlights. Further, she contends the officers did not verbally
identify themselves as law enforcement when they approached the
truck and attempted to open its doors. It was not until the officers
got closer that Settle and Whitehead could make out the deputies’
uniforms. Upon learning that the two unidentified men were of-
ficers and being told to unlock the door, Whitehead complied with
the officers’ commands. However, instead of opening the doors,
Collier attempted to break the window with his baton.
Whitehead stated that Settle started the truck after Collier
threatened to break the driver’s side window. However, she testi-
fied that the truck “never moved an inch” after Settle started it. In
fact, she maintained that the deputies shot Settle at “almost the ex-
act time” that he started the truck. She said that she knows this
because she did not hear the gunshots over the truck’s loud igni-
tion. She noted that it was only clear that Collier had fired his
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4 ABUDU, J., Dissenting 24-12436
weapon because her leg was burning from the gunpowder and she
heard Settle screaming, “Oh my God. Oh, my God.”
No one disputes that Collier opened the driver’s side door
and rendered aid to Settle while Hart removed Whitehead and
placed her in the back of his patrol car.
In the aftermath of the shooting, the Plaintiff presented ex-
pert testimony from Kelly Timms, a forensics services expert, that
Collier was not directly in front of the truck at the time of the
shooting. Instead, according to Timms, Collier was in front of the
truck’s A-line, meaning the “area that most people think of as the
[sic] edge of their door. . . [or] the supportive pillar that holds [the]
windshield in place.” In sum, the parties could not agree on: (1)
whether the officers identified themselves; (2) whether Settle
started the truck and started to drive it; and (3) whether Collier was
in front of the truck and, thus, in danger of being struck.
B. Material Factual Disputes Regarding Need for Exces-
sive Force Foreclose Summary Judgment
The district court determined that “a reasonable jury could
find that [Collier] did not have probable cause to believe that Mr.
Settle posed a threat of serious physical harm,” and denied Collier
qualified immunity. In making that determination, the court
pointed to two significant factual disputes: (1) Collier’s physical po-
sition at the time of the shooting; and (2) the truck’s alleged move-
ment. Our jurisprudence, and the longstanding understanding re-
garding the important role of juries, requires this Court to affirm
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24-12436 ABUDU, J., Dissenting 5
the district court’s decision and remand the case for further pro-
ceedings.
Of course, many appeals of summary judgment orders raise
questions of both law and fact. They do so because the district
court must conduct a two-step factual and legal inquiry. See Koch
v. Rugg, 221 F.3d 1283, 1295 (11th Cir. 2000). The first step defines
the movant’s conduct based on the record, taking all inferences in
favor of the nonmovant. Id. The second step analyzes whether a
reasonable official would or should have known that the movant’s
actions violated clearly established laws. Id. at 1294-95.
Here, the only true issues on appeal are factual disputes,
which are defined at the first step. At the district court, Collier ar-
gued that his use of deadly force was reasonable at the time that he
discharged his weapon because Settle refused to exit his truck, put
his keys in the ignition, and placed his hand on the gear. He ex-
plained that “whether the vehicle was moving or not [did] not cre-
ate a disputed issue of material fact.” The district court disagreed.
It explained that the inconsistencies regarding if and how the truck
moved were a credibility issue that was improper for summary
judgment. In other words, the district court explained that the
truck’s movement, whether forward, backward, or not at all, was
a factual dispute, not a legal dispute.
Collier also argued that his use of force was reasonable be-
cause he was trapped. Again, the district court found this was a
material factual dispute. It explained that a juror could rely on Set-
tle’s expert to find that Collier was standing “closer to the end of
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6 ABUDU, J., Dissenting 24-12436
the porch” rather than entrapped between the house and truck.
Accordingly, the court explained that “a reasonable jury could find
that the truck did not pose a [reasonable] risk to the defendant” at
the time of the shooting. While Collier says that he reasonably
feared for his life because he was trapped, his alleged entrapment
and subsequent fear are open to a jury’s ultimate determination.
In short, the court recognized that a reasonable jury could interpret
the events on the night of the shooting differently. More im-
portantly, this discrepancy about what the evidence could prove at
trial was the basis on which the district court made its decision.
The determination of these factual disputes ultimately fac-
tors into our analysis of the legal dispute in this case—whether Col-
lier’s use of deadly force was reasonable because he reasonably be-
lieved that Settle was using or threatened to use his vehicle as a
deadly weapon. See Singletary v. Vargas, 804 F.3d 1174, 1181-82
(11th Cir. 2015). Indeed, to reach a legal determination, courts
must “slosh [their] way through the fact bound morass of reasona-
bleness.” Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. 2023)
(quoting Scott v. Harris, 550 U.S. 372, 383 (2007)). Our precedent is
instructive regarding what constitutes an immediate threat to law
enforcement, and what level of force is reasonable.
In Underwood v. City of Bessemer, we held that officers did not
have probable cause to think a suspect would use his car as a
weapon. 11 F.4th 1317, 1329-31 (11th Cir. 2021). There, the sus-
pect was not driving aggressively as if he would harm the officer.
Id. at 1330. To the contrary, he was inching forward “so slowly
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24-12436 ABUDU, J., Dissenting 7
that it looked like he would stop.” Id. Just like this case, the car
was reportedly about eight feet away from the officer. Id. The
Court ultimately concluded that, accepting those facts as true, a
reasonable jury could find that Underwood did not pose a threat to
the officer’s safety.1 Id. at 1330-31.
Similarly, in Morton v. Kirkwood, we held that an officer
lacked probable cause to believe that a suspect posed an immediate
threat of harm when the suspect was “an unarmed man in a sta-
tionary vehicle.” 707 F.3d 1276, 1282 (11th Cir. 2013). There, of-
ficers approached an unarmed man who was sitting in his car at a
local park. Id. at 1279. As the officers approached the man, he be-
gan to slowly drive away from them, coasting at a speed of one
mile per hour. Id. At that point, a previously unseen officer
stepped in front of the suspect’s car and told him to stop the vehi-
cle. Id. at 1279-80. The suspect then placed his hand on the gear to
shift it into park and immediately threw his hands in the air before
another officer shot the suspect several times and left him para-
lyzed. Id. Ultimately, we concluded that a reasonable officer
would have no reason to believe that the suspect’s driving put an-
yone’s safety in danger. Id. at 1281-82.
Both Underwood and Morton underscore the presence and
need to resolve factual disputes in the instant case. In Underwood
1 In Underwood v. City of Bessemer, we ultimately affirmed the lower court’s
grant of summary judgment because the officer’s alleged violation was not
clearly established at the time of the shooting. 11 F.4th 1317, 1332 (11th Cir.
2021).
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8 ABUDU, J., Dissenting 24-12436
and Morton, we highlighted the suspect’s driving in our evaluation
of whether an officer reasonably feared for his life at the time of the
shooting. Similarly, here, there is a factual dispute about how dan-
gerous Settle’s driving was at the time of the shooting. As high-
lighted above, Whitehead claimed that the truck never moved,
while Collier claimed that the truck moved backwards and then
possibly forward. Each varying factual account carries a different
inference that weighs into the reasonableness of Collier’s actions.
Because these factual disputes exist about the direction of the
truck’s movement, or if the truck moved at all, then this case is
appropriate for a jury, not a panel of judges.
Ultimately, this appeal does not present questions of law
that are applied to undisputed facts. Even Collier concedes that he
could not have reasonably used deadly force had Settle been re-
treating from the scene. So, this dispute comes down to Collier’s
position at the time of the shooting as well as how and if the truck
moved. As the district court explained, these are both factual dis-
putes appropriate for a jury.
C. Collier is not Entitled to Summary Judgment under
Florida’s “Self-Defense” Immunity Provision
Florida law allows officers to assert immunity if their actions
constitute “self-defense” against a person who uses or threatens to
use force, thus endangering the officer’s safety. Fla. Stat.
§ 776.032(1). In short, an individual may use deadly force when he
or she believes it is necessary to prevent death or substantial harm
to that person or another. Id. As the majority notes, we have
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24-12436 ABUDU, J., Dissenting 9
previously mirrored our analysis of both Florida’s immunity stat-
ute and excessive force claims. See Penley v. Eslinger, 605 F.3d 843,
855-56 (11th Cir. 2010). Therefore, the factual disputes regarding
Collier’s use of excessive deadly force also prevent his entitlement
to immunity under Section 776.032(1).
D. Conclusion
For the reasons stated, the district court’s denial of Collier’s
motion for summary judgment should be affirmed. I respectfully
dissent.