The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10614
Non-Argument Calendar
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D.C. Docket No. 9:14-cv-80403-DTKH
LYDIA ADAMS,
as personal representative of the estate of Seth Adams,
for the benefit of Lydia Adams,
RICHARD ADAMS,
surviving parent,
SETH ADAMS,
the estate,
Plaintiffs - Appellees,
versus
SHERIFF OF PALM BEACH COUNTY, FLORIDA,
Ric L. Bradshaw, in his official capacity,
Defendant,
MICHAEL M. CUSTER,
in his individual capacity,
Defendant - Appellant.
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________________________
Appeal from the United States District Court
for the Southern District of Florida
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(November 22, 2016)
Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
On the night of May 16, 2012, Defendant Michael Custer, while conducting
an undercover surveillance operation for the Palm Beach County Sheriff’s Office,
parked his unmarked police vehicle in the parking lot of a plant nursery. Seth
Adams, an employee of the nursery who resided on the premises, confronted
Custer about his presence there. Custer fatally shot Adams after an alleged scuffle.
Plaintiff Lydia Adams (“Plaintiff”), Seth’s mother, sued Custer in his individual
capacity under 42 U.S.C § 1983, alleging that he violated Adams’ Fourth
Amendment rights by using excessive force against Adams. Custer asserted
qualified immunity as a defense and moved for summary judgment. The district
court denied Custer’s motion, and this appeal followed. Finding that there is a
genuine dispute of material fact regarding the circumstances of the shooting, we
AFFIRM the district court’s denial of summary judgment.
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I. BACKGROUND
A. Factual Background
There are two versions of the facts in this case. Before the district court,
Defendant offered a specific chronological recitation of the events that led to his
shooting Adams. Plaintiff is unable to offer, with any specificity, a differing
summary of the events because the only other eyewitness to the shooting was the
victim of that shooting, Seth Adams, and he is dead. Nonetheless, Plaintiff
disagrees that the events could have occurred as Defendant described them, and
she produced forensic evidence as well as the testimony of other witnesses that call
into question the truthfulness of Defendant’s explanation. We set out first the
Defendant’s version of the facts. Then, we set out the evidence offered by Plaintiff
that contradicts Defendant’s testimony, along with the impact of that evidence on
the credibility of Defendant’s account.
At the time of the incident giving rise to this case, Defendant Michael Custer
(“Defendant”) was a sergeant with the Palm Beach County Sheriff’s Office
(PBSO). He was assigned to PBSO’s Tactical Unit (TAC), where his
responsibilities included performing undercover surveillance operations. On the
night of the shooting, he was on duty participating in such an operation. Due to the
nature of the operation, Defendant was driving an unmarked police SUV and
dressed in plain clothes. Although he was wearing a TAC tee-shirt under his plain
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gray button-up shirt and a badge clipped to his belt, Defendant wore his button-up
shirt untucked, which may have concealed the badge on his belt during his
encounter with Adams.
Seth Adams was an employee of A One Stop Garden Shop, which owned
the parking lot where the shooting happened. Adams also lived on the premises in
a residence behind the nursery, which was adjacent to the parking lot. That night,
Adams was wearing a work shirt with A One Stop Garden Shop’s company logo
on the front and back.
Shortly after 11:00 p.m., Defendant backed his vehicle into the parking lot of
A One Stop Garden Shop, which was closed. A sign that read “NO PARKING 6
PM TO 6 AM VEHICLES WILL BE TOWED” was posted in the parking lot,
though Defendant claims to not have seen the sign. Defendant chose this parking
spot to take advantage of the darkness there, and remained in his vehicle with the
engine running and the lights off.
Around 11:40 p.m., Seth Adams drove his pickup truck into the parking lot
and parked parallel to Defendant’s vehicle, facing the other direction. The two
drivers faced each other from 10 to 15 feet away, each now with his window down.
Defendant stated that Adams immediately began “screaming” and demanding,
“Who the f*** are you? What the f*** are you doing here?” Defendant identified
himself as a law enforcement officer and showed Adams his ID, but Adams exited
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his vehicle empty-handed and rapidly approached Defendant’s vehicle. Defendant
then exited his vehicle and tried again to show his ID to Adams and explain his
presence there. Defendant did not use any device to illuminate his ID, and both he
and Adams were behind the headlights of Adams’ truck.
Defendant claims that Adams “sat there listening to [him]” for a “couple of
seconds,” but then suddenly grabbed Defendant by the throat. Defendant says he
broke free from Adams’ grip on his neck, although the two continued to grapple
briefly. Defendant was finally able to extricate himself after hitting Adams with a
chest strike, which created some space between himself and Adams. Defendant
then drew his firearm, pointed it at Adams, and ordered him to the ground,
declaring Adams to be under arrest. Adams, still empty-handed, did not heed the
instructions, but walked back and forth in front of Defendant, “hovering” about
five feet away. Defendant backed towards his vehicle to retrieve a radio from the
front seat, which he used to request backup. The standoff continued, and Adams
then ran towards the open door of his truck, not heeding Defendant’s orders to
stop, to stay away from the truck, and to get on the ground. Defendant then kicked
the open door of Adams’ truck shut, pinning Adams between the door and the
vehicle’s frame.
The two struggled there briefly. In the statement in which he first recounted
the “pinning” incident, Defendant said he held Adams pinned in the door frame
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while Adams was “moving around . . . trying to get out of the door” and screaming
profanities “the whole time.” Defendant said he perceived that Adams “was trying
to get a weapon,” and was “convinced he had obtained a weapon” when he “saw
[Adams’] arms coming around.” Defendant then fired four rounds at Adams.
In a later statement, Defendant elaborated on the above account, claiming he
saw Adams “fishing around” the interior of the truck while he was pinned in the
doorframe. In this account, Defendant says he held his firearm in his left hand as
he wrapped his right arm around Adams’ head and neck in an effort to pull Adams
away from the truck. Adams suddenly yelled, “F*** you, as loud as he could, and
came spinning out of the truck.” At this point, Defendant says he fired his first
shot, and then fired three more as he backed away from Adams.
In short, the account offered by Defendant indicates that prior to the
shooting, a profane and angry Adams had struggled violently with Defendant and
tried to choke Defendant around the neck. Running away from Defendant, Adams
tried to get into his truck. Defendant blocked his exit from the truck, pinning
Adams inside the truck with the truck’s door pressed against him. But Adams,
who appeared to be making an effort to obtain a weapon inside the truck, suddenly
spun out of the truck and toward Defendant, who was standing at the truck’s door,
and loudly shouted F*** you. At that point, fearing for his life, Defendant shot
Adams. Adams died two hours later.
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Plaintiff disputes the truthfulness of Defendant’s account and offered
evidence that the district court concluded to have contradicted and substantially
undermined Defendant’s account of the events. First, Defendant stated that Adams
had grabbed Defendant’s neck and throat “as hard as a man can grab you.” Yet,
there was no redness or bruising on Defendant’s neck. Nor did the DNA swab
conclusively reveal any DNA from Adams.
Key to Defendant’s ultimate explanation for shooting Adams was his
assertion that Adams had made his way back to his truck at the point at which he
spun back on Defendant, standing right next to the door of the truck. As noted,
Defendant thought Adams might have gotten hold of a gun inside the truck. Yet,
as pointed out in the district court’s order, Plaintiff produced forensic evidence
supporting a conclusion that Adams was actually shot, not inside or near the open
door of the truck, but instead as he was standing at the rear of the truck. From this
the district court concluded: “[Defendant’s’] claim that he fired his first shot after
Adams—standing pinned between the driver’s side door and vehicle frame . . .—
suddenly broke free from [Defendant’s] chokehold and spun around shouting
obscenities, is thus at complete odds with forensic, blood, and ballistic
evidence . . . .”
Further undermining the credibility of Defendant’s statement regarding the
above incident as the event precipitating Defendant’s decision to shoot is the fact
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that Defendant failed to mention this event immediately after the shooting, instead
explaining that he shot Adams because the latter tried to choke Defendant. It was
only in a later account given in the presence of his attorney that Defendant
mentioned this second incident inside Adams’ truck. Further, critical to the
accuracy of Defendant’s recounting of the above conduct by Adams is the fact that
Adams was allegedly pinned inside his truck with its door open. Yet, investigation
immediately after the shooting showed the door of the truck to be closed.
As to one more detail in Defendant’s first description of the initial
encounter, Defendant stated that Adams had been hostile and aggressive from the
outset and that after Defendant identified himself as a law enforcement officer,
Adams kept screaming and “acting like a lunatic.” But another law enforcement
officer from Defendant’s team had been driving by and observed the initial
encounter between Defendant and Adams. This officer, Agent Drummond,
indicated that he saw Defendant get out of his vehicle, while Adams was standing
between the two vehicles, and it appeared that Defendant was talking to Adams,
with nothing appearing to be wrong. Less than 90 seconds later, Agent Drummond
heard on his radio another agent broadcast a warning that shots had been heard in
the area, and moments later he heard Defendant’s call for back-up. However,
according to Custer, he had initially called for back-up before any shots were fired,
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and had later issued a second call for back-up in which he noted that he had shot a
man who had attacked him.
Taking the above evidence proffered by Plaintiff in the light most favorable
to Plaintiff, the district court concluded that one could infer that Adams was not
shot as described by Defendant (that is, there was no effort by Adams to choke
Defendant and no assault initiated by Adams from inside his truck), but instead
that he was shot at the back of his truck by Defendant, who had no reason to
believe that Adams was armed or otherwise posed any danger.
B. Procedural History
Plaintiff sued both Ric Bradshaw in his official capacity as Sheriff of Palm
Beach County and Defendant in his individual capacity under 42 U.S.C. § 1983.
Plaintiff alleged that Defendant violated Adams’ Fourth Amendment rights by
shooting him, and his Fourteenth Amendment due process rights by failing to
administer first aid afterwards. Sheriff Bradshaw was sued under a Monell theory
of supervisory liability. Plaintiff also brought wrongful death claims against both
defendants under Florida state law.
The district court granted summary judgment in favor of Defendant on the
due process claim and Bradshaw on the supervisory liability claim, and partial
summary judgment for both defendants on the state law wrongful death claim. The
district court denied Defendant’s motion for summary judgement on qualified
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immunity grounds for the Fourth Amendment claim. Defendant appeals the
district court’s denial of his motion.
II. DISCUSSION
A. Jurisdiction
As a preliminary matter, Plaintiff argues that this Court lacks jurisdiction to
consider Defendant’s appeal because the appeal merely challenges the district
court’s determination that material facts are genuinely in dispute. While it is true
that an interlocutory appeal is not available for such a challenge, see Moniz v. City
of Fort Lauderdale, 145 F.3d 1278, 1280 (11th Cir. 1998), Plaintiff
mischaracterizes Defendant’s appeal. Defendant contends on appeal that his
actions did not violate a clearly-established constitutional right. This contention
raises legal issues, giving us jurisdiction to hear an interlocutory appeal. Plumhoff
v. Rickard, 134 S. Ct. 2012, 2019 (2014). In addition, we have jurisdiction to hear
“those evidentiary sufficiency issues that are part and parcel of the core qualified
immunity issues, i.e., the legal issues.” Cottrell v. Caldwell, 85 F.3d 1480, 1486
(11th Cir. 1996) (internal footnote omitted). In sum, we have jurisdiction over this
appeal because it raises the legal question of whether, after construing facts in
favor of Plaintiff, Defendant violated clearly established constitutional law. Id. at
1485 (noting the Court’s interlocutory jurisdiction “in qualified immunity cases
where the denial is based even in part on a disputed issue of law”).
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B. Standard of Review
We review de novo a district court’s disposition of a summary judgment
motion based on qualified immunity and apply the same legal standards as the
district court. Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003). We
resolve any factual disputes in the plaintiff’s favor and then decide whether that
version of the facts entitles the defendant to qualified immunity. Id.; see also
Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (“Our qualified-immunity cases
illustrate the importance of drawing inferences in favor of the nonmovant . . . .”).
Consequently, the “‘facts, as accepted at the summary judgment stage of the
proceedings, may not be the actual facts of the case.’” McCullough v. Antolini,
559 F.3d 1201, 1202 (11th Cir. 2009) (quoting Lee v. Ferraro, 284 F.3d 1188,
1190 (11th Cir. 2002), and Priester v. City of Riviera Beach, 208 F.3d 919, 925 n.3
(11th Cir. 2000)). Nevertheless, we view the facts from the plaintiff’s perspective
because the determinative issue on appeal is “not which facts the parties might be
able to prove,” but whether “certain given facts” demonstrate a violation of clearly
established law. Crenshaw v. Lister, 556 F.3d 1283, 1289 (11th Cir. 2009).
C. Whether Defendant Was Entitled to Qualified Immunity
1. Standard
Qualified immunity completely “protects government officials performing
discretionary functions from suits in their individual capacities unless their conduct
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violates ‘clearly established statutory or constitutional rights of which a reasonable
person would have known.’” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir.
2003) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). To obtain qualified
immunity, a public official must first show that he was engaged in a discretionary
duty when the allegedly wrongful act occurred. Id. at 995. Here, there is no
dispute that Defendant was acting within his discretionary authority when he shot
Adams. The burden thus shifts to Plaintiff to show that qualified immunity is not
appropriate. Id.
Plaintiff must satisfy a two-part test to meet her burden. McCullough, 559
F.3d at 1205. First, she must show that Defendant’s conduct violated a
constitutional right. Id. Assuming a violation occurred, Plaintiff must also show
that the right was clearly established at the time of the incident. Id. Viewing the
facts in the light most favorable to Plaintiff, we conclude that both prongs are
satisfied here.
2. Was there a constitutional violation?
Plaintiff’s deadly-force claim is analyzed under the objective reasonableness
standard of the Fourth Amendment. Plumhoff, 134 S. Ct. at 2020 (citing Graham
v. Connor, 490 U.S. 386 (1989), and Tennessee v. Garner, 471 U.S. 1 (1985)).
The reasonableness standard “requires a careful balancing of the nature and quality
of the intrusion on the individual’s Fourth Amendment interests against the
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countervailing governmental interests at stake.” Id. (internal citations omitted).
Reasonableness in this context depends on all the circumstances relevant to an
officer’s decision to use force and the amount of force used. Jean–Baptiste v.
Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010). We view the circumstances “from
the perspective ‘of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.’” Plumhoff, 134 S. Ct. at 2020 (quoting Graham, 490 U.S. at
396–97). And we allow for the fact that officers are often required 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.” Id.
(internal quotation marks omitted).
When considering whether a use of deadly force was reasonable, relevant
circumstances include “the seriousness of the crime, whether the suspect poses an
immediate danger to the officer or others, whether the suspect resisted or attempted
to evade arrest, and the feasibility of providing a warning before employing deadly
force.” Jean-Baptiste, 627 F.3d at 821. We also have observed that an officer may
constitutionally use deadly force when he:
(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
serious physical harm”; (2) reasonably believes that the use of deadly
force was necessary to prevent escape; and (3) has given some
warning about the possible use of deadly force, if feasible.
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McCullough, 559 F.3d at 1206 (quoting Vaughan v. Cox, 343 F.3d 1323, 1329–30
(11th Cir. 2003)).
Construing the facts in Plaintiff’s favor, Adams had neither tried to choke
nor otherwise assaulted Defendant. Defendant had no reason to believe that
Adams was armed or had attempted to obtain a weapon. Nevertheless, for reasons
not made clear, he shot Adams to death as the latter was standing near the rear of
his truck. The question then is whether it was reasonable for Defendant to use
deadly force against Adams under these circumstances. The answer, obviously, is
that it was not reasonable. While an officer may use deadly force in self-defense if
an individual poses an immediate threat of serious physical harm, “[a] police
officer may not seize an unarmed, nondangerous [person] by shooting him dead.”
Garner, 471 U.S. at 11. Thus, under the facts as construed above, Defendant
violated Adams’ Fourth Amendment rights through his unreasonable use of deadly
force.
3. Did the law clearly establish that shooting Adams under the above
circumstances was in violation of his Fourth Amendment rights?
Even assuming a constitutional violation, Defendant is entitled to qualified
immunity unless Plaintiff can show that Adams’ Fourth Amendment rights were
“clearly established” at the time of the shooting. Plumhoff, 134 S. Ct. at 2023. To
be clearly established, the contours of a right must be “sufficiently definite that any
reasonable official in the defendant’s shoes would have understood that he was
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violating it.” Id. “The salient question is whether the state of the law at the time of
an incident provided ‘fair warning’ to the defendant[] that [his] alleged conduct
was unconstitutional.” Tolan, 134 S. Ct. at 1866 (internal quotation marks
omitted).
Fair warning is most commonly provided by materially similar precedent
from the Supreme Court, this Court, or the highest state court in which the case
arose. See Terrell v. Smith, 668 F.3d 1244, 1256 (11th Cir. 2012). However, a
“judicial precedent with materially identical facts is not essential for the law to be
clearly established.” Youmans v. Gagnon, 626 F.3d 557, 563 (11th Cir. 2010).
Authoritative judicial decisions may “establish broad principles of law” that are
clearly applicable to the conduct at issue, and it may also be obvious from “explicit
statutory or constitutional statements” that certain conduct is unconstitutional.
Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1208–09 (11th Cir. 2007); see also
Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (“We do not require a case directly
on point, but existing precedent must have placed the . . . constitutional question
beyond debate.” (internal quotation marks omitted)).
At the time Defendant shot Adams, the law was clearly established that the
use of deadly force against an unarmed, non-threatening, and non-fleeing
individual is unconstitutional. See, e.g., Garner, 471 U.S. at 11 (“Where the
suspect poses no immediate threat to the officer and no threat to others, the harm
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resulting from failing to apprehend him does not justify the use of deadly force to
do so.”); Mercado v. City of Orlando, 407 F.3d 1152 (11th Cir. 2005)
(intentionally shooting a non-threatening individual in the head at close range with
a non-lethal round was clearly-established excessive force); Lundgren v.
McDaniel, 814 F.2d 600, 603 (11th Cir. 1987) (“[S]hooting a suspected felon who
was apparently neither fleeing nor threatening the officers or others was—even in
July, 1983—an unreasonable seizure and clearly violated [F]ourth [A]mendment
law.”) (internal footnote omitted); Pruitt v. City of Montgomery, 771 F.2d 1475
(11th Cir. 1985) (shooting an unarmed burglary suspect who posed no risk of harm
to police or others was unconstitutional).
The law being clearly established, Plaintiff has shown that both prongs of
the qualified immunity test are met. Accordingly, we affirm the district court’s
denial of summary judgment to Defendant on his qualified immunity defense.
AFFIRMED.
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