The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-11151 ELEVENTH CIRCUIT
OCTOBER 5, 2007
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 06-00362-CV-4-RH-WCS
SUZANNE HARRELL,
Plaintiff-Appellee,
versus
JAMES GOODMAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(October 5, 2007)
Before BLACK, MARCUS and COX, Circuit Judges.
PER CURIAM:
James Goodman appeals the district court’s denial of his motion for summary
judgment grounded upon qualified immunity. He contends that his actions did not
violate the Constitution, but even if they did, the law was not so clearly established
as to make it obvious that his actions violated federal law.
The facts are disputed. We exercise our discretion to accept the district court’s
recitation of the facts for summary judgment purposes. See Gonzalez v. Lee County
Hous. Auth., 161 F.3d 1290, 1294 (11th Cir. 1998).
Having considered the briefs and the relevant parts of the record, we find no
reversible error in the district court’s determination that, viewing the facts in the light
most favorable to Harrell, the use of deadly force was unwarranted and violated
clearly established law. Summary judgment was properly denied because the fact-
finder could conclude that Harrell did not “pose[] a threat of serious physical harm,
either to the officer or to others.” Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct.
1694, 1701 (1985). Thus, the use of deadly force was not justified. And, Harrell’s
state court convictions do not establish Goodman’s qualified immunity defense for
the reasons stated by the district court. (R.1-23 at 8, 9.)
The issue of qualified immunity remains in the case and will have to be
addressed at trial. We decide only that Goodman is not due summary judgment on
this record.
AFFIRMED.
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