The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16162 ELEVENTH CIRCUIT
SEPTEMBER 1, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00066-CV-ORL-35-DAB
ROBERT G. SWOFFORD, JR.,
an individual,
SHARON L. SWOFFORD,
an individual, his wife,
Plaintiffs-Appellees,
versus
DONALD ESLINGER,
Defendant,
WILLIAM MORRIS, JR.,
RONALD REMUS,
in their individual capacity,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 1, 2010)
Before EDMONDSON, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Deputies William Morris and Ronald Remus of the Sheriff’s Office of
Seminole County, Florida, appeal the denial of qualified immunity against Robert
Swofford’s complaint of excessive force. The district court concluded that genuine
issues of material fact barred summary judgment, and we affirm.
The Swoffords filed a complaint against the deputies and Sheriff Donald
Eslinger about injuries from an encounter between Robert Swofford and the
deputies. Swofford, who encountered the deputies while armed and investigating a
possible trespass on his land, alleged that the deputies used excessive force to
disarm him. The deputies moved to dismiss the complaint based on qualified
immunity, which the district court denied.
We review de novo the denial of summary judgment based on qualified
immunity. Skop v. City of Atlanta, GA, 485 F.3d 1130, 1136 (11th Cir. 2007).
We construe all facts and make all reasonable inferences in the light most
favorable to the nonmoving party. Id.
The district court did not err when it ruled that Morris and Remus were not
entitled to qualified immunity. The record reveals material issues of fact about
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whether the deputies identified themselves to Swofford, the position of Swofford’s
gun, the need for Morris and Remus to shoot Swofford, and whether Remus should
have intervened to prevent Morris’s use of force. Morris and Remus testified that
they identified themselves and warned Swofford repeatedly, but the radio
transmission from the scene did not record the deputies speaking before they fired
their guns, and that recording is consistent with Swofford’s version of events. The
deputies also gave inconsistent statements about the position of Swofford’s gun
during the encounter. The deputies acknowledged that Swofford, a white male, did
not match the description of the Hispanic suspects for whom the deputies were
searching and that Swofford was likely the owner of the property. A reasonable
jury could find that Morris and Remus violated Swofford’s clearly established
constitutional rights.
The denial of qualified immunity is AFFIRMED.
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