Nicholas C. Wade v. Solomon Daniels

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 18-12371

____________________

NICHOLAS C. WADE,

Plaintiff-Appellant,

versus

SOLOMON DANIELS,

DeKalb County Sheriff's Department,

VICTOR JONES,

DeKalb County Sheriff's Department,

KERRY WILSON,

DeKalb County Sheriff's Department,

MS. S. SPEARS,

DeKalb County Sheriff's Department,

Defendants-Appellees.

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____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:16-cv-00095-MLB

____________________

Before WILSON, JILL PRYOR, and LAGOA, Circuit Judges.

WILSON, Circuit Judge:

Nicholas Wade brought this 42 U.S.C. § 1983 action against

several DeKalb County, Georgia investigators, alleging that they

violated his constitutional rights during his arrest. Wade claims

that Solomon Daniels used excessive force when he shot him three

times, that Victor Jones used excessive force when he pistol-

whipped him, and that Daniels, Jones, and Kerry Wilson were de-

liberately indifferent to his serious medical need after the shooting.

The district court granted summary judgment for the investigators

on every claim. The district court also denied Wade’s motion to

amend his complaint to add A. Beach 1 as futile.

In deciding this case, we express no sympathy for Wade; he

was pursued and arrested for murdering a child, for which he was

ultimately convicted. But we must view the facts in the light most

favorable to him and draw reasonable inferences in his favor.

Bound by that standard, we reverse the district court’s grant of

1 The record includes only Beach’s first initial.

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summary judgment for Jones on the pistol-whip claim. But we af-

firm the district court’s grant of summary judgment for Daniels on

the shooting claim and for Daniels, Jones, and Wilson on the dep-

rivation of medical care claim. We also affirm the district court’s

denial of Wade’s motion to amend his complaint.

BACKGROUND

The record, viewed in the light most favorable to Wade,

would support these findings. The DeKalb County Sheriff’s De-

partment identified Wade as a suspect in the death of Keon Belk, a

toddler. Keon’s mother, Jillian Belk (Belk), was Wade’s girlfriend.

Investigators convinced Belk to meet with Wade. On Feb-

ruary 5, 2014, Belk picked up Wade. Before she picked him up, the

investigators had left a cell phone in the backseat of her car so that

they could hear what Belk and Wade were saying. The officers

heard Wade accuse Belk of having led the police to him and heard

Belk say, “I’m scared.” The investigators followed Belk’s car into a

parking lot, where they surrounded the car. At least eleven officers

were on the scene.

Daniels and Wilson approached the driver’s side of Belk’s

vehicle, and Jones and Beach (incorrectly identified in the com-

plaint as Stacey Spears) approached the passenger side. Each inves-

tigator drew his or her gun and noticed that Wade held a sawed-off

shotgun with the barrel pointed at his own chin. Upon hearing the

investigators, Wade instinctively turned his head towards Jones

while still pointing the weapon at his own chin. Then, without

warning, Daniels fired three shots through the driver-side window

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at about 2:03 p.m., hitting Wade in the head, shoulder, and leg.

Wade crumpled onto the vehicle’s center console and dropped the

shotgun between his legs. Daniels said, “I shot that motherfucker

in the head,” and that “mother-fucker will die any [] minute.”

Beach opened the passenger door of the vehicle, removed

the shotgun, placed Wade in handcuffs, and searched him for

weapons. She then pinned Wade down to restrict his movements,

and he began to suffocate on the blood filling his mouth. Wade

asked Beach to allow him to sit up so he could breathe, but Beach

maintained pressure on Wade’s head. Wade, still handcuffed, “re-

moved” Beach’s hands from his head and tried to sit up. In re-

sponse, Jones slammed his handgun against Wade’s face, chipping

his tooth and causing lacerations to his face and mouth.

Wilson instructed another investigator on the scene to call

an ambulance. At 2:07 p.m.—four minutes after the shooting—an

investigator communicated over his radio that shots were fired and

requested EMS. One minute later the investigator said that some-

one had been shot in the head. The ambulance arrived at 2:16 p.m.

and transported Wade to the hospital at 2:39 p.m.

Wade was indicted on several counts, including aggravated

assault on a peace officer relating to an arrest. A jury convicted

Wade on that count. Wade then filed this § 1983 action against

Daniels, Jones, Wilson, and Spears, alleging that they used exces-

sive force and deprived him of medical care during his arrest. The

investigators ultimately moved for summary judgment, claiming

that they were entitled to qualified immunity on all of Wade’s

claims. After reviewing the documents provided by the

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investigators in their motion, Wade realized that he had wrongly

identified Beach as Spears, so he requested leave to amend his com-

plaint accordingly. The district court granted the investigators’

motion for summary judgment on all claims and as to all defend-

ants. It also denied Wade’s request to amend his complaint.

DISCUSSION

I. Summary Judgment

We review a grant of summary judgment de novo, viewing

the evidence and all resulting inferences and doubts in the light

most favorable to the non-moving party. Kingsland v. City of Mi-

ami, 382 F.3d 1220, 1225–26 (11th Cir. 2004), abrogated in part on

other grounds by Nieves v. Bartlett, 587 U.S. ___, 139 S. Ct. 1715,

1726 (2019). Summary judgment is appropriate only “if the movant

shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a).

Wade argues that the district court erred in granting the in-

vestigators summary judgment on his excessive force and depriva-

tion of medical care claims because they were not entitled to qual-

ified immunity. “When determining whether a defendant is enti-

tled to qualified immunity, we resolve any issues of material fact in

favor of the plaintiff.” Alston v. Swarbrick, 954 F.3d 1312, 1317–18

(11th Cir. 2020). Qualified immunity protects government officers

acting within their discretionary authority from liability for civil

damages unless a plaintiff can show (1) that the officer violated a

federal statutory or constitutional right, and (2) that the

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unlawfulness of the officer’s conduct was clearly established at the

time. Williams v. Aguirre, 956 F.3d 1147, 1156 (11th Cir. 2020).

A right is clearly established if (1) a case with facts materially

similar has been decided by the United States Supreme Court, the

Eleventh Circuit, or the applicable state supreme court before the

challenged conduct; (2) a broader, clearly established principle con-

trols the facts of the situation; or (3) the conduct so obviously vio-

lates the constitution that prior case law is unnecessary. Gaines v.

Wardynski, 871 F.3d 1203, 1208 (11th Cir. 2017). The goal is to

ensure that “some established law” provided officers with “fair

warning” that their conduct was unconstitutional. Sebastian v.

Ortiz, 918 F.3d 1301, 1311 (11th Cir. 2019).

A. Excessive Force Claims

“The Fourth Amendment’s freedom from unreasonable

searches and seizures encompasses the plain right to be free from

the use of excessive force in the course of an arrest.” Vinyard v.

Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002). But this right does

not protect against “a use of force that is necessary in the situation

at hand.” Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir.

2010) (quotation marks omitted). We determine whether an of-

ficer’s use of force was lawful by assessing whether an “objectively

reasonable officer in the same situation could have believed the use

of force was not excessive.” Brown v. City of Huntsville, 608 F.3d

724, 738 (11th Cir. 2010).

Wade argues that Daniels and Jones used excessive force in

violation of his clearly established rights and thus are not entitled

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to qualified immunity. Even if we assume that Daniels used exces-

sive force in shooting Wade, we conclude that there was no law

clearly establishing that Daniels’s conduct violated Wade’s consti-

tutional rights. But we hold that Jones used excessive force in pis-

tol-whipping Wade and that Wade’s right to be free of Jones’s use

of force was clearly established at the time.

1. Daniels’s Shooting

Wade argues that Daniels violated his Fourth Amendment

right to be free of excessive force when he shot him three times.

When evaluating the reasonableness of a use of deadly force, we

must weigh “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-Bap-

tiste, 627 F.3d at 821. The second factor essentially asks “whether,

given the circumstances, the suspect would have appeared to rea-

sonable police officers to have been gravely dangerous.” Penley v.

Eslinger, 605 F.3d 843, 851 (11th Cir. 2010) (alteration accepted).

Wade claims that these factors show that Daniels’s use of

deadly force was unreasonable. He argues that he was not resisting

or trying to evade arrest, and he was not posing any immediate

danger by pointing a shotgun at his own chin. He also asserts that

the district court improperly applied Heck v. Humphrey, 512 U.S.

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477 (1994), 2 to hold that it was required to accept that Wade

“swung the gun in the direction of” Jones “moments before” Dan-

iels shot Wade. Wade claims that the district court should have

accepted his version of the facts instead.

We need not address the Heck issue because even accepting

Wade’s version of the facts, and even assuming that Daniels’s use

of deadly force was unreasonable, the unlawfulness of his conduct

was not clearly established at the time. Wade cites only Mercado

v. City of Orlando, 407 F.3d 1152, 1161 (11th Cir. 2005), to support

his argument that Daniels violated a clearly established right, and

that case is readily distinguishable.

In Mercado, law enforcement officers responded to a call

that a man was threatening suicide. Id. at 1154. When the police

arrived on the scene, Mercado was crying on the kitchen floor. Id.

He was holding a knife and pointing it towards his heart. Id. The

officers directed Mercado to drop his knife at least twice, but he

refused. Id. He made no threatening moves towards the officers,

and the officers failed to warn him that they would use force if he

did not drop the weapon. Id. But one of the officers hit Mercado

with a Sage SL6 Launcher—a “less lethal munition”—twice to sub-

due him. Id. at 1154–55 (internal quotation mark omitted). Mer-

cado suffered a fractured skull and disabling brain injuries. Id. at

1155. We concluded that the officer who fired the weapon was not

2 Heck bars a § 1983 claim if success on the claim would render a conviction

invalid. 512 U.S. at 486–87.

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entitled to qualified immunity on Mercado’s excessive force claim.

Id. at 1157–61.

There are several notable differences between Mercado and

this case. First, Mercado was not suspected of any crime, whereas

Wade was wanted for a grave crime: the murder of an 18-month-

old child. Second, there was no indication in Mercado that anyone

felt threatened by Mercado, whereas the investigators here had

heard Belk say that she was afraid. And most importantly, the

weapon in Mercado was a knife, not a gun. As we have recognized,

“a person standing six feet away from an officer with a knife may

present a different threat than a person six feet away with a gun.”

See Perez v. Suszczynski, 809 F.3d 1213, 1220 (11th Cir. 2016).

Given these material differences, Mercado did not clearly establish

that an officer uses excessive force by shooting a suicidal individual

who is holding a gun. Daniels is thus entitled to qualified immunity

on Wade’s excessive force claim against him.

2. Jones’s Pistol-Whip

Wade argues that Jones violated his Fourth Amendment

rights when he struck Wade in the head with his pistol. Much like

the factors we weigh when evaluating a use of deadly force, we

consider these factors when evaluating any other use of force: (1)

the severity of the suspect’s crime, (2) whether the suspect poses

an immediate threat of harm to others, (3) whether the suspect is

actively resisting arrest or trying to flee, (4) the need for the use of

force, (5) the relationship between the need for force and the

amount of force used, and (6) how much injury was inflicted. See

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Mobley v. Palm Beach Cnty. Sherriff Dep’t, 783 F.3d 1347, 1353

(11th Cir. 2015) (per curiam). The “gratuitous use of force when a

criminal suspect is not resisting arrest constitutes excessive force.”

Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008).

After the shooting, Beach handcuffed Wade, removed the

shotgun from the vehicle, and searched Wade for other weapons.

Viewing the evidence in the light most favorable to Wade, he no

longer posed an immediate threat of harm to anyone at that point.

He was slumped over the center console—unarmed and severely

injured from three gunshot wounds—and Beach was holding him

down. He was not actively resisting arrest or trying to flee. Even

though Wade removed Beach’s hands from his head, he did so only

after communicating that he could not breathe and needed to sit

up so that blood would not fill his mouth. Because Jones was close

enough to pistol-whip Wade right after he tried to sit up, a jury

could reasonably infer that he was close enough to hear Wade say

that he needed to sit up so that he could breathe. And regardless,

striking Wade in the head with a pistol was disproportionate to any

need to restrain Wade given his condition. Finally, the pistol-whip

significantly injured Wade because it struck him in the head, chip-

ping his tooth and cutting his face and mouth. Given the circum-

stances, Jones’s pistol-whip was an unreasonable, “gratuitous use

of force” against a non-resisting suspect. See Hadley, 526 F.3d at

1330.

Having determined that Jones’s pistol-whip violated Wade’s

Fourth Amendment right to be free of excessive force, we turn to

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whether that right was clearly established at the time. Wade iden-

tifies three factually analogous cases. First, in Hadley, this court

held that an officer was not entitled to qualified immunity when he

punched the plaintiff while he was “handcuffed and not struggling

or resisting” because “a handcuffed, non-resisting [suspect’s] right

to be free from excessive force was clearly established in February

2002” and every reasonable officer would know that use of force

was unconstitutional. 526 F.3d at 1330, 1333–34. Second, in Lee v.

Ferraro, we held that an officer used excessive force by slamming

an arrestee’s head against a car when she was secured in handcuffs

because “[o]nce an arrestee has been fully secured, such force is

wholly unnecessary to any legitimate law enforcement purpose.”

284 F.3d 1188, 1198–99 (11th Cir. 2002). And finally, in Slicker v.

Jackson, this court held that officers were not entitled to qualified

immunity where they hit the plaintiff’s head on the pavement and

kicked him because he “was handcuffed and did not resist, attempt

to flee, or struggle with the officers in any way.” 215 F.3d 1225,

1233 (11th Cir. 2000).

The district court distinguished these cases by assuming

that Wade was resisting or being uncooperative when he removed

Beach’s hands from his head. In so doing, the district court failed

to view the facts in the light most favorable to Wade and draw rea-

sonable inferences in his favor. Viewing the facts through the ap-

propriate lens, Jones could not have reasonably believed that Wade

was resisting when he tried to sit up after communicating that he

needed to do so to breathe. And because “a handcuffed, non-resist-

ing [suspect’s] right to be free from excessive force was clearly

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established” at the time, see Hadley, 526 F.3d at 1333, Jones is not

entitled to qualified immunity on Wade’s excessive force claim

against him.

B. Deprivation of Medical Care Claim

The Due Process Clause of the Fourteenth Amendment re-

quires government officials to provide medical aid to individuals

who have been injured during an arrest. City of Revere v. Mass.

Gen. Hosp., 463 U.S. 239, 244 (1983). To succeed on a claim for

deprivation of medical care, a plaintiff must prove (1) the existence

of an objectively serious medical need, and (2) that the officer was

deliberately indifferent to that need. Valderrama v. Rousseau, 780

F.3d 1108, 1116 (11th Cir. 2015). There is no dispute here that a

gunshot wound is an objectively serious medical need. To prove

deliberate indifference, the “plaintiff must present, for each officer,

evidence from which a reasonable jury could conclude that (1) the

officer was aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, (2) the officer actually

drew that inference, (3) the officer disregarded the risk of serious

harm, and (4) the officer’s conduct amounted to more than gross

negligence.” Id.

An officer may act with deliberate indifference by delaying

the treatment of a serious medical need. McElligott v. Foley, 182

F.3d 1248, 1255 (11th Cir. 1999). 3 “The tolerable length of delay in

3The standards for assessing deliberate indifference under the Eighth and

Fourteenth Amendments are the same. See Lancaster v. Monroe Cnty., 116

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providing medical attention depends on the nature of the medical

need and the reason for the delay.” Bozeman v. Orum, 422 F.3d

1265, 1273 (11th Cir. 2005) (per curiam), abrogated on other

grounds by Kingsley v. Hendrickson, 576 U.S. 389, 395 (2015).

“[W]hen officers intentionally delay seeking treatment for a life-

threatening injury, they act with deliberate indifference.” Valder-

rama, 780 F.3d at 1121 (emphasis added). A jury can also infer

deliberate indifference when an officer fails to justify or explain a

delay in medical treatment. See Bozeman, 422 F.3d at 1273; Brown

v. Hughes, 894 F.2d 1533, 1538 (11th Cir. 1990) (per curiam).

Wade argues that Daniels, Jones, and Wilson violated his

Fourteenth Amendment rights by delaying in seeking medical

treatment for his gunshot wounds for four minutes. We agree.

There is no question that the investigators knew that Wade had

been shot in the head and that a substantial risk of serious harm

existed. And viewing the evidence in the light most favorable to

Wade, a jury could reasonably conclude that the investigators were

deliberately indifferent to that harm.

F.3d 1419, 1425 n.6 (11th Cir. 1997) (“We have held that the minimum stand-

ard for providing medical care to a pre-trial detainee under the Fourteenth

Amendment is the same as the minimum standard required by the Eighth

Amendment for a convicted prisoner; both the right to due process and the

right to be free from cruel and unusual punishment are violated by a govern-

ment official’s deliberate indifference to serious medical needs.”), overruled

on other grounds by LeFrere v. Quezada, 588 F.3d 1317, 1317–18 (11th Cir.

2009).

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To start, a jury could find that there was a four-minute delay

in seeking medical care. Wade says that he was shot at 2:03 p.m.,

and that the investigators waited until 2:07 p.m. to call for an am-

bulance. Although the investigators dispute the timing of the shots

to suggest there was no delay, Wilson claimed in his statement that

the investigators noticed Wade pointing his gun and that Daniels

responded by firing his weapon at “approximately 1403.” And the

CAD report shows that an investigator communicated “Shots

Fired” and requested EMS at 2:07 p.m., and that an investigator

communicated that Wade had been shot in the head at 2:08 p.m.

Therefore, there is at least a dispute of material fact as to the timing

that must be resolved by a jury.

A jury could also infer that the investigators’ delay was de-

liberately indifferent because they provided no explanation for it.

Although the investigators claim that Beach provided medical care

by pressing on Wade’s gunshot wounds, this neither justifies nor

explains the delay in requesting real medical attention, much like

applying a Band-Aid would neither justify nor explain a delay in

seeking medical attention for a stab wound. See, e.g., Ancata v.

Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985) (“Alt-

hough the plaintiff has been provided with aspirin, this may not

constitute adequate medical care. If, ‘deliberate indifference

caused an easier and less efficacious treatment’ to be provided, the

defendants have violated the plaintiff’s Eighth Amendment rights

by failing to provide adequate medical care.”). And even though a

four-minute delay may seem short, this court has explained that

evaluating a delay in providing medical attention for life-

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threatening injuries “is especially time-sensitive and must ordinar-

ily be measured not in hours, but in a few minutes.” See Valder-

rama, 780 F.3d at 1120 (emphasis added) (quoting Bozeman, 422

F.3d at 1273). Here, the investigators provide no justification for

why it took eleven investigators four minutes to call an ambulance

when Beach had searched, handcuffed, and restrained Wade. And

the investigators have failed to point the court to any evidence in

the record providing an explanation for what could have preoccu-

pied the investigators while Wade had three gunshot wounds and

his mouth filled with blood. Thus, the delay in requesting treat-

ment, coupled with the investigators’ failure to provide any expla-

nation for that delay, could lead a jury to reasonably infer that Dan-

iels, Jones, and Wilson were deliberately indifferent to Wade’s se-

rious medical need. See Bozeman, 422 F.3d at 1273.

From a different angle, a jury could reasonably infer that the

investigators intentionally delayed seeking medical attention for

Wade. Wade claims that Daniels said, “I shot that motherfucker in

the head,” and that “mother-fucker will die any [] minute.” And

after waiting four minutes to ask for ambulance, it took an extra

minute for the investigators to report that Wade had been shot in

the head. From this evidence, a reasonable jury could infer that the

investigators intentionally delayed seeking medical attention to see

if Wade would die of his injuries.

To be sure, a reasonable jury could conclude that four

minutes was a reasonable amount of time for the investigators to

wait to request an ambulance. But it could also conclude just the

opposite; whether because the investigators failed to justify their

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16 Opinion of the Court 18-12371

delay or because they intentionally delayed, a jury could reasona-

bly conclude that Daniels, Jones, and Wilson acted with deliberate

indifference. And for that reason, we must conclude that Wade has

met his burden at this stage to show that those three investigators

violated his Fourteenth Amendment rights.

Even though Wade met his burden that Daniels, Jones, and

Wilson violated Wade’s Fourteenth Amendment rights, we con-

clude that there was no established law on how long before officers

must request medical care for a suspect that has been shot to con-

stitute deliberate indifference. Although it is clearly established

that an officer cannot ignore an individual’s serious medical condi-

tion, Brown, 894 F.2d at 1538, we have not drawn a bright-line rule

on how long before officers must seek medical care for a suspect

that has been shot to constitute deliberate indifference, Valder-

rama, 780 F.3d at 1120. In Valderrama, after considering all the

facts of the case, we found that Valderrama proved a deliberate in-

difference claim because the officers “delayed Valderrama’s medi-

cal care for more than ten minutes for no good or legitimate rea-

son.” Id. (emphasis added). We specifically noted that “a three and

half minute delay standing alone may be insufficient to establish

deliberate indifference.” Id. Accordingly, Daniels, Jones, and Wil-

son did not have fair warning that their four minute delay in not

requesting medical care after a shooting involving a suspect could

rise to a deliberate indifference claim. Sebastian, 918 F.3d at 1311.

Thus, Daniels, Jones, and Wilson are entitled to qualified im-

munity on Wade’s deprivation of medical care claim.

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II. Motion to Amend the Complaint

After the time to file an amendment as a matter of course

expires, Federal Rule of Civil Procedure 15 allows a plaintiff to

amend his complaint only with the opposing party’s written con-

sent or leave of court. Fed. R. Civ. P. 15(a)(2). Leave to amend

should be freely given, but a district court can deny leave to amend

the complaint when amendment would be futile. See id.; Hall v.

United Ins. Co. of Am., 367 F.3d 1255, 1262–63 (11th Cir. 2004).

Leave to amend is futile if “the complaint as amended is still subject

to dismissal.” Id. at 1263. We review the denial of a motion to

amend for abuse of discretion, but we review the underlying legal

conclusion that an amendment would be futile de novo. Corsello

v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir. 2005) (per curiam).

In his complaint, Wade alleged that Spears used excessive

force and deprived him of medical care when she held Wade down

after the shooting. But the investigators’ summary judgment pa-

pers revealed that Wade had incorrectly identified Beach as Spears.

To correct the error, Wade sought leave to amend his complaint.

The district court denied the request, claiming that amendment

would be futile because Beach would be entitled to summary judg-

ment on qualified immunity grounds for both claims. Wade argues

that the district court abused its discretion in doing so.

We disagree. Wade claims that Beach deprived him of med-

ical care by refusing to let him sit up when he said he could not

breathe. Even if Beach’s actions were deliberately indifferent to

Wade’s need to breathe, Wade cites no analogous cases showing

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18 Opinion of the Court 18-12371

that Beach violated a clearly established right. The general propo-

sition that an officer acts with deliberate indifference by failing to

provide medical treatment to a suspect who communicates his

medical distress is not clearly applicable to this situation; there is

no allegation that Beach failed to provide medical treatment or de-

layed Wade’s access to medical treatment. Wade’s primary issue

appears to be with Beach’s use of force in restricting Wade’s move-

ments.

But Wade’s excessive force claim against Beach is futile as

well. Although Wade claims that Beach held him down to give the

“false appearance of medical aid,” it would be unreasonable to infer

that Beach used excessive force. That Beach applied pressure to

Wade’s head and body—two places he had been shot—shows that

she was trying to prevent excessive bleeding. And there is no indi-

cation that Beach applied an unreasonable or excessive amount of

pressure because Wade was able to “remove[] her hand from hold-

ing [his] cranium down” so that he could try to sit up and breathe.

Thus, any force that Beach used was proportional to the need to

restrict Wade’s movements and apply pressure to his wounds to

control the bleeding. Because both claims against Beach would be

futile, the district court did not abuse its discretion in denying

Wade’s request for leave to amend his complaint.

CONCLUSION

For the reasons stated above, we REVERSE the district

court’s grant of summary judgment on the excessive force claim

against Jones. We AFFIRM the district court’s grant of summary

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18-12371 Opinion of the Court 19

judgment on the excessive force claim against Daniels and the dep-

rivation of medical care claim against Daniels, Jones, and Wilson

and the district court’s denial of leave to amend the complaint.

REVERSED IN PART AND AFFIRMED IN PART.

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18-12371 [LAGOA, J., Concurring in Part and in the Result] 1

LAGOA, Circuit Judge, Concurring in Part and in the Result:

I concur in the majority’s decision to affirm the district

court’s order denying Nicholas Wade’s motion for leave to add In-

vestigator A. Beach as a defendant and in the majority’s decision to

reverse the district court’s order granting summary judgment in

favor of Investigator Victor Jones on Wade’s excessive force claim.

I further concur in the result to affirm the district court’s order

granting summary judgment in favor of Investigator Solomon

Daniels on Wade’s excessive force claim, although I would affirm

the district court’s finding of qualified immunity for Investigator

Daniels based on the conclusion that his use of force was not exces-

sive.

As the majority’s decision notes, Investigator Daniels was

part of a team looking to arrest Wade for the murder of a child.

During their investigation, the investigative team stopped the ve-

hicle Wade was in after Jillian Belk, the driver of the vehicle and

the mother of the murder victim, expressed fear for her safety. As

Investigator Daniels approached the vehicle, he saw Wade holding

a sawed-off shotgun in close proximity to Ms. Belk and his fellow

officers.

In such a “tense and dangerous situation,” where the sus-

pect’s actions pose a significant risk of serious harm to others, of-

ficers are justified in their use of lethal force. See Long v. Slaton,

508 F.3d 576, 581 (11th Cir. 2007). Indeed, this Court recognizes

that officers are not required “to wait until the moment a suspect

uses a deadly weapon to act to stop the suspect.” Id. For example,

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2 [LAGOA, J., Concurring in Part and in the Result] 18-12371

in Jean-Baptiste v. Gutierrez, 627 F.3d 816 (11th Cir. 2010), this

Court held that an officer’s decision to shoot an armed suspect was

objectively reasonable because the officer was suddenly faced with

the suspect and “was forced to decide in a matter of seconds

whether to employ deadly force.” Id. at 821–22. This Court further

concluded that the officer reasonably perceived the suspect as pos-

ing a threat of serious harm to others and “[r]egardless of whether

[the suspect] had drawn his gun, [the suspect’s] gun was available

for ready use, and [the officer] was not required to wait ‘and hope[]

for the best.’” Id. at 821 (last alteration in original) (quoting Scott

v. Harris, 550 U.S. 372, 385 (2007)).

Similarly, in Montoute v. Carr, 114 F.3d 181 (11th Cir. 1997),

this Court concluded that an officer acted objectively reasonably

when he shot a suspect who was fleeing with a sawed-off shotgun

in hand. Id. at 183–85. The suspect had not pointed the shotgun at

anyone and was not even facing the officer, but we acknowledged

that “there was nothing to prevent him from doing either, or both,

in a split second.” Id. at 185. Because of the events that reasonably

could have unfolded, this Court concluded that a reasonable officer

could have believed that the suspect “posed a risk of serious physi-

cal injury to [the officer] or others.” Id.; see also Long, 508 F.3d at

583 (finding that an officer’s decision to shoot a “psychotic man [to

prevent him] from driving away in a marked sheriff’s cruiser” was

reasonable because of the serious harm that could have occurred if

the suspect was allowed to flee in the stolen cruiser).

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18-12371 [LAGOA, J., Concurring in Part and in the Result] 3

Based on this Court’s precedent, Investigator Daniels was

justified in shooting Wade to diffuse the situation and prevent a

real risk of serious harm to others. See, e.g., Montoute, 114 F.3d at

185. Investigator Daniels encountered Wade—armed with a

sawed-off shotgun—and was forced to immediately decide

whether deadly force was necessary. Based on Wade’s holding the

shotgun in close proximity to Ms. Belk, admitted willingness to end

his own life, and admission that he “turned with the weapon be-

neath [his] chin” when the officers approached the vehicle, Investi-

gator Daniels was faced with a tense situation presenting immedi-

ate risk of serious harm to Ms. Belk, the driver of the vehicle, and

the other officers. From the standpoint of a reasonable officer, it is

not unreasonable to believe that Wade was capable and willing to

suddenly reposition his shotgun and begin shooting others. Inves-

tigator Daniels’s use of force was therefore objectively reasonable,

as he was not required to wait for Wade to attempt to use his shot-

gun. Jean-Baptiste, 627 F.3d at 821.

The majority correctly concludes that Investigator Daniels

is entitled to qualified immunity for his actions but reaches this con-

clusion based on a determination that Investigator Daniels did not

violate Wade’s clearly established rights. It is not necessary to de-

cide this claim on the “clearly established” prong of the qualified

immunity analysis because, as a threshold matter and as discussed

above, Investigator Daniels did not use objectively unreasonable

force against Wade. I would therefore affirm the district court’s

grant of qualified immunity to Investigator Daniels by holding that

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4 [LAGOA, J., Concurring in Part and in the Result] 18-12371

his use of force was not excessive. I therefore concur in the result

only as to this claim.

Finally, while I concur in the result of the majority’s holding

that Investigators Daniels, Jones, and Kerry Wilson are entitled to

qualified immunity on Wade’s deliberate indifference claim on the

basis that “there was no established law on how long before officers

must request medical care for a suspect that has been shot to con-

stitute deliberate indifference,” Maj. Op. at 16, I respectfully disa-

gree with the majority’s conclusion that a jury could infer deliber-

ate indifference by Investigators Daniels, Jones, and Kerry Wilson

regarding Wade’s medical deprivation claim. I do so for several

reasons. First, both Wade and the majority opinion fail to judge

each defendant separately and on the basis of what that defendant

knew. 1 Second, a de novo review of the record establishes that

there was not a four-minute delay from the shooting of an armed

suspect to the calling of an ambulance. However, even accepting

as true that a four-minute delay had transpired from the time of the

shooting to the calling of the ambulance, Wade presented no evi-

dence from which a jury could infer that Investigators Daniels,

Jones, or Wilson exhibited deliberate indifference to his serious

medical needs.

Before turning to Wade’s deliberate indifference claim, I first

address the procedural posture of this case, our standard of review,

1 Both the magistrate judge in its report and recommendation and the district

court properly analyzed each defendant separately.

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18-12371 [LAGOA, J., Concurring in Part and in the Result] 5

and the undisputed facts in the record. Then, I discuss the doctrine

of the qualified immunity and legal framework involving a deliber-

ate indifference claim under the Fourteenth Amendment, as rele-

vant to this case. And I conclude with a discussion of Wade’s de-

liberate indifference claim against Investigators Daniels, Jones, and

Wilson.

I. Summary Judgment and this Court’s Standard of Review

Because this case concerns the entry of summary judgment,

each of the elements relevant to Wade’s deliberate indifference

claim must be judged using the standard for summary judgment.

This Court reviews de novo a district court’s order granting sum-

mary judgment based on qualified immunity. Glasscox v. City of

Argo, 903 F.3d 1207, 1212 (11th Cir. 2018); CAMP Legal Def. Fund,

Inc. v. City of Atlanta, 451 F.3d 1257, 1268 (11th Cir. 2006). “When

considering a motion for summary judgment, including one assert-

ing qualified immunity, ‘courts must construe the facts and draw

all inferences in the light most favorable to the nonmoving party

and when conflicts arise between the facts evidenced by the parties,

[they must] credit the nonmoving party’s version.’” Feliciano v.

City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) (altera-

tion in original) (quoting Davis v. Williams, 451 F.3d 759, 763 (11th

Cir. 2006)).

“Summary judgment is appropriate if ‘the evidence before

the court shows that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter

of law.’” McCullough v. Antolini, 559 F.3d 1201, 1204 (11th Cir.

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6 [LAGOA, J., Concurring in Part and in the Result] 18-12371

2009) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.

1995)). The nonmoving party must show more than the existence

of a “metaphysical doubt” regarding the material facts. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

Speculation, conjecture, or conclusory statements from a party

cannot create a genuine issue of material fact. See Glasscox, 903

F.3d at 1213; Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th

Cir. 2005). The nonmoving party must either point to evidence in

the record or present additional evidence sufficient to withstand a

directed verdict motion at trial based on the alleged evidentiary de-

ficiency. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th

Cir. 1993); Owen v. Wille, 117 F.3d 1235, 1236 (11th Cir. 1997).

But “[a] mere scintilla of evidence in support of the nonmoving

party will not suffice to overcome a motion for summary judg-

ment.” Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir.

2004).

II. The Undisputed Record Evidence2

Viewing the facts in the light most favorable to the non-

moving party, Wade, the undisputed facts show the following:

Investigator Wilson, Investigator Daniels, and Investigator

Jones are investigators with the DeKalb County Sheriff’s Office and

are assigned to the Fugitive Division. Investigator Wilson’s daily

2 The undisputed facts are taken from the affidavits and accompanying exhib-

its filed in support of and in opposition to the summary judgment motion as

well as Defendants’ Responses to Wade’s Request for Admissions.

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18-12371 [LAGOA, J., Concurring in Part and in the Result] 7

duties involve serving criminal warrants. On February 5, 2014, In-

vestigator Wilson was assigned a murder case, and, that morning,

he conducted a briefing attended by investigators of the Fugitive

Division, where he informed them that there was a warrant for

Wade on the charges of murder and Cruelty to Children-First De-

gree. Investigator Peterson created a “Be on the Lookout”

(“BOLO”) notice for Wade, which noted that Wade was armed and

dangerous. The Fugitive Unit then began working the case to lo-

cate Wade, and Investigator Wilson instructed the investigators to

follow up on several leads involving residences. Investigator Jones

and Investigator Beach went to several residences looking for

Wade but did not find him.

While at one of the lead residences, Investigators Daniels

and Wilson spoke to Alicia Stevenson, the sister of the victim’s

mother, Jillian Belk, who took the Investigators to Ms. Belk. Inves-

tigators Daniels and Wilson interviewed the victim’s mother, Ms.

Belk, at an apartment complex and advised her to call them if Wade

attempted to contact her. Investigator Wilson gave his card to Ms.

Belk. Shortly after leaving, Wilson received a call from Ms. Steven-

son advising him that Ms. Belk was on the phone with Wade. In-

vestigators Daniels, Wilson, and Peterson returned to the apart-

ment. Wade wanted to see Ms. Belk, and she agreed to meet him

at a Wal-Mart.

Ms. Stevenson, Ms. Belk, and Daniels left the apartment and

drove to the meeting location in Ms. Stevenson’s black BMW.

During this time, Investigator Peterson informed the criminal

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8 [LAGOA, J., Concurring in Part and in the Result] 18-12371

process investigators to head to the Wal-Mart parking lot. Before

arriving at the parking lot, Investigator Daniels had Ms. Stevenson

get in the unmarked Ford Taurus driven by Investigator Peterson,

and Investigator Wilson had Ms. Belk drive the black BMW. Inves-

tigator Daniels remained a passenger in the black BMW until exit-

ing the vehicle at the corner of Chupp and Farington Road.

Wade entered the black BMW and sat in the passenger seat.

Ms. Belk and Wade proceeded to travel to the New Birth Mission-

ary Baptist Church parking lot. Investigator Peterson advised ad-

ditional units to follow the black BMW down Chupp Way. After

exiting the BMW, Investigator Daniels ran to the top of the street

and entered the vehicle driven by Investigator Peterson. Investiga-

tor Wilson feared for Ms. Belk’s safety and decided to stop the ve-

hicle.

Investigators Daniels and Wilson exited their unmarked ve-

hicle, removed their firearms from their holsters, and approached

the driver door of the black BMW. Investigators Jones and Beach

exited their unmarked Dodge Charger and approached the passen-

ger side of the black BMW with their guns drawn. Investigator

Wilson was behind Daniels and heard him yell, “Gun.” Investiga-

tor Daniels observed Wade place the shotgun 3 to his chin, at which

time he took a step back and yelled to Wade, “No. Don’t do it.”

3 Investigator Wilson, in the statement attached to his affidavit, stated that, “at

approximately 1403 [or 2:03 p.m.], [the officers] noticed that the subject (Nich-

olas Wade) had a shotgun in the car with him and he pointed the weapon.”

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18-12371 [LAGOA, J., Concurring in Part and in the Result] 9

Then, Investigator Daniels observed Wade “swing the shotgun in

the direction of Investigator Jones,” and it was only at this point

that Investigator Daniels finally fired the shots into the vehicle that

struck Wade. Investigator Wilson also saw Wade move the

weapon in the direction of Jones. Neither Investigator Jones nor

Investigator Wilson discharged their service weapons.

Wade does not dispute this characterization, and he re-

counts the events as follows:

I placed a single-shot weapon under my chin. As I

faced Ms. Belk[,] law enforcement advanced towards

the passenger door. The deputies were screaming.

Before I could pull [the] trigger of [my] weapon to

commit suicide[,] Deputy S. Daniels, K. Wilson and

V. Jones fired upon the vehicle. Several projectiles

disengage[d] through [the] driver-door pass[ed] Ms.

Belk[’s] face. The projectiles assaulted my cranium,

left-leg and knee. Ms. Belk went into shock because

[the] Deputies discharged their weapon through Ms.

Belk [’s] window.

Wade further admitted in his Declaration in Opposition to the Mo-

tion for Summary Judgment that he was facing Ms. Belk as she sat

in the driver seat when he “heard footsteps advance towards the

vehicle [and that he] instinctively turned with [his] weapon be-

neath [his] chin to see who was approaching the passenger door of

the vehicle.”

After the shots were fired, Investigator Daniels “placed the

BMW in park” by “open[ing] the door and plac[ing] [his] left foot

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10 [LAGOA, J., Concurring in Part and in the Result] 18-12371

on the brakes, stopping the vehicle, as well as keeping the target at

gun point.” Investigator Wilson intended to handcuff Wade, but

he did not because Investigator Daniels vocalized “that Wade was

still moving and that the weapon was still in the car.” Instead, In-

vestigator Beach asked Investigator Daniels for his handcuffs,

which he passed to her over the top of the vehicle. Investigator

Daniels then kept Wade “at gunpoint until the shotgun was recov-

ered from the target.” Investigator Beach then “placed Mr. Wade

in handcuffs and removed the shotgun from the” vehicle. Then, as

Wade himself testified, he tried to resist Investigator Beach’s ac-

tions by attempting to “remove her hands and sit up-right.” Inves-

tigator Wilson instructed Investigator Wortham to request an am-

bulance. Investigator Beach asked for bandages, but Investigator

Jones was only able to find a handful of napkins which Investigator

Beach used to apply pressure to Wade’s gunshot wound. At some

point afterwards, Investigator Daniels was asked to step back from

the BMW, Sergeant D. Brown took possession of Investigator Dan-

iels’s gun as evidence, and Investigator Daniels was escorted to and

placed inside Investigator Freeman’s vehicle as required by depart-

ment policy.

Per the CAD Incident Report, “Shots Fired” was communi-

cated at 2:07 p.m. and a request for EMS was also made at 2:07 p.m.

Also per the CAD Incident Report, “Male Shot To The Head” was

communicated at 2:08 p.m. EMS arrived on scene at 2:16 p.m., and

EMS transported Wade to Grady Memorial Hospital at 2:39 p.m.

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18-12371 [LAGOA, J., Concurring in Part and in the Result] 11

Ms. Belk was also transported by EMS to the DeKalb Medical Cen-

ter.

III. Qualified Immunity

Here, all three defendants—Investigators Daniels, Jones,

and Wilson—moved for summary judgment on the deliberate in-

difference claim based on qualified immunity. “The defense of

qualified immunity completely protects government officials per-

forming discretionary functions from suit in their individual capac-

ities unless their conduct violates ‘clearly established statutory or

constitutional rights of which a reasonable person would have

known.’” Marbury v. Warden, 936 F.3d 1227, 1232 (11th Cir. 2019)

(quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)); accord Gilmore

v. Hodges, 738 F.3d 266, 272 (11th Cir. 2013) (“Qualified immunity

protects government officials from liability for civil damages unless

they violate a statutory or constitutional right that was clearly es-

tablished at the time the alleged violation took place.”).

In order to assert a qualified immunity defense, a govern-

ment official must first show that “he was acting within his discre-

tionary authority” during the alleged wrongdoing. Glasscox, 903

F.3d at 1213 (quoting Skop v. City of Atlanta, 485 F.3d 1130, 1136

(11th Cir. 2007)). Here, it is undisputed that the Investigators were

acting within the scope of their discretionary authority. Once a

government official makes this showing, the burden shifts to the

plaintiff to show: (1) that the government official violated a consti-

tutional right; and (2) that the law was clearly established at the

time of the wrongdoing. Pearson v. Callahan, 555 U.S. 223, 232

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12 [LAGOA, J., Concurring in Part and in the Result] 18-12371

(2009); Terrell v. Smith, 668 F.3d 1244, 1250 (11th Cir. 2012). A

court may rest its analysis on either prong. See Pearson, 555 U.S.

at 236.

Although qualified immunity protects all government offi-

cials aside from “the plainly incompetent” or those who “know-

ingly violat[e] federal law,” it does not extend to government offi-

cials who knew or reasonably should have known that his or her

actions would violate the plaintiff’s constitutional rights. Alcocer

v. Mills, 906 F.3d 944, 951 (11th Cir. 2018) (quoting Lee v. Ferraro,

284 F.3d 1188, 1194 (11th Cir. 2002)); Jones v. Fransen, 857 F.3d

843, 851 (11th Cir. 2017). In other words, “[u]nless a government

agent’s act is so obviously wrong, in the light of pre-existing law,

that only a plainly incompetent officer or one who was knowingly

violating the law would have done such a thing, the government

actor has immunity from suit.” Youmans v. Gagnon, 626 F.3d 557,

562 (11th Cir. 2010) (quoting Lassiter v. Ala. A&M Univ., Bd. of

Trs., 28 F.3d 1146, 1149 (11th Cir. 1994) (en banc)).

“Because [42 U.S.C.] § 1983 ‘requires proof of an affirmative

causal connection between the official’s acts or omissions and the

alleged constitutional deprivation,’ each defendant is entitled to an

independent qualified-immunity analysis as it relates to his or her

actions and omissions.” Alcocer, 906 F.3d at 951 (citation omitted)

(quoting Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986)).

This Court’s precedent instructs us to carefully “evaluate a given

defendant’s qualified immunity claim, considering only the actions

and omissions in which that particular defendant engaged.” Id.

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18-12371 [LAGOA, J., Concurring in Part and in the Result] 13

Here, while the district court and the magistrate judge in its report

and recommendation properly conducted that individualized anal-

ysis with respect to each defendant, the majority fails to conduct

such an individualized analysis as to any defendant.

IV. Deliberate Indifference Claim Under the

Fourteenth Amendment

Individuals detained by the government are guaranteed cer-

tain minimal protections by the Constitution. The Fourteenth

Amendment requires government officials to provide medical care

to individuals who are injured during arrest. Valderrama v. Rous-

seau, 780 F.3d 1108, 1116 (11th Cir. 2015). This standard finds its

roots in the Eighth Amendment’s proscription of cruel and unusual

punishment against prison inmates. See id. As we have noted, the

Fourteenth Amendment’s promise of due process provides a coex-

tensive protection for pre-trial arrestees. Cottrell v. Caldwell, 85

F.3d 1480, 1490 (11th Cir. 1996) (holding that “decisional law in-

volving prison inmates applies equally to cases involving arrestees

or pretrial detainees”); see also Keith v. DeKalb County, 749 F.3d

1034, 1044 n.35 (11th Cir. 2014) (“[T]he standard for providing basic

human needs to those incarcerated or in detention is the same un-

der both the Eighth and Fourteenth Amendments.” (quoting

Marsh v. Butler County, 268 F.3d 1014, 1024 n.5 (11th Cir. 2001)

(en banc))). Because the deliberate indifference analysis under the

Eighth and Fourteenth Amendment are the same, cases discussing

deliberate indifference are applicable as well in this analysis. See

Cottrell, 85 F.3d at 1490.

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14 [LAGOA, J., Concurring in Part and in the Result] 18-12371

Wade’s complaint raises a claim under 42 U.S.C. § 1983 and

the Fourteenth Amendment, alleging that the Investigators were

deliberately indifferent to his serious medical needs. When officials

act with deliberate indifference to a pretrial detainee’s serious med-

ical needs, they violate the Fourteenth Amendment. Valderrama,

780 F.3d at 1116. To prevail on a deliberate indifference claim, a

plaintiff must satisfy both an objective and a subjective inquiry. See

Swain v. Junior, 961 F.3d 1276, 1285 (11th Cir. 2020). The objective

inquiry requires a plaintiff to establish the existence of an objec-

tively serious medical need. See Goebert v. Lee County, 510 F.3d

1312, 1326 (11th Cir. 2007). As to the objective inquiry, there is no

dispute here as both parties agree that a gunshot wound is an ob-

jectively serious medical condition.

To satisfy the subjective inquiry, Wade must show “(1) sub-

jective knowledge of a risk of serious harm; (2) disregard of that

risk; (3) by conduct that is more than [gross] negligence.” Id. at

1327 (alteration in original) (quoting Bozeman v. Orum, 422 F.3d

1265, 1272 (11th Cir. 2005), abrogated on other grounds by Kings-

ley v. Hendrickson, 576 U.S. 389, 395 (2015)). Because it is undis-

puted that the Investigators had “subjective knowledge” of the risk,

the subjective inquiry at issue here hinges on whether the Investi-

gators “disregard[ed]” the risk “by conduct that is more than gross

negligence.” Id. (quoting Bozeman, 422 F.3d at 1272). This subjec-

tive inquiry requires Wade to prove that Investigators Daniels,

Jones, and Wilson each were deliberatively indifferent, i.e., that

each “acted with deliberate indifference to [Wade’s] serious

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18-12371 [LAGOA, J., Concurring in Part and in the Result] 15

medical need.” See id. at 1326. The fact that medical care is even-

tually provided is insufficient, by itself, to defeat a claim for delib-

erate indifference, as an official may still act with deliberate indif-

ference “by delaying the treatment of serious medical needs.”

McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999). But in

making the determination of whether any particular delay is un-

constitutional, the court must consider “the nature of the medical

need and the reason for the delay.” Bozeman, 422 F.3d at 1273

(quoting Harris v. Coweta County, 21 F.3d 388, 393–94 (11th Cir.

1994)). In addition, the plaintiff must present evidence from which

a jury could infer more-than-grossly-negligent conduct to defeat an

official’s motion for summary judgment. See McElligott, 182 F.3d

at 1255; Bozeman, 422 F.3d at 1272.

As noted above, a deliberate indifference claim contains a

subjective component. Indeed, the word “deliberate” means “in-

tentional,” “premediated,” or “fully considered.” Deliberate,

Black’s Law Dictionary (11th ed. 2019). And “deliberate” as an ad-

jective modifies the noun “indifference.” In Farmer v. Brennan,

511 U.S. 825 (1994), the Supreme Court explained that a deliberate

indifference claim focuses “on what a defendant’s mental attitude

actually was.” Id. at 839. A plaintiff must therefore prove that the

defendant acted with a “sufficiently culpable state of mind” that

shows “subjective recklessness as used in the criminal law.” Id. at

834, 839 (first quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)).

Because there is no dispute that the objective component was sat-

isfied, Wade must show the existence of a genuine issue of material

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16 [LAGOA, J., Concurring in Part and in the Result] 18-12371

fact on the subjective component in order to rebut the defense of

qualified immunity. Wade, however, failed to present any evi-

dence in the record establishing that Investigators Daniels, Jones,

or Wilson possessed the requisite subjective intent for a deliberate

indifference claim as to Wade’s serious medical needs. Investiga-

tors Daniels, Jones, and Wilson are therefore entitled to judgment

as a matter of law on Wade’s deliberate indifference claim.

V. A Reasonable Jury Could Not Infer Deliberate Indifference

as to the Medical Deprivation Claim Against Investigators Dan-

iels, Jones, and Wilson

Although the majority affirms the district court’s grant of

qualified immunity to Investigators Daniels, Jones, and Wilson on

Wade’s medical deprivation claim on the basis that “there was no

established law on how long before officers must request medical

care for a suspect that has been shot to constitute deliberate indif-

ference,” it concludes that a jury could infer deliberate indifference

on their part because the Investigators have not provided a reason

for the four-minute delay in requesting an ambulance. See Maj.

Op. at 13–16. The question presented in this case is simple: does

the Constitution permit a less-than-four-minute delay between the

time an armed fugitive is shot and the time an ambulance is called?

The majority says it does not, concluding that a four-minute delay,

coupled with a “failure to provide any explanation for that delay,”

is constitutionally infirm. Maj. Op. at 15. The majority rests its

conclusion on four grounds: (1) that a jury could infer the Investi-

gators waited a full four minutes before requesting medical

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18-12371 [LAGOA, J., Concurring in Part and in the Result] 17

assistance; (2) that the Investigators provided no explanation for

the delay; and (3) that a jury could infer the Investigators intention-

ally delayed medical treatment. I respectfully disagree not only

with the majority’s conclusion, but with each step the majority

took to reach that conclusion.

Before addressing the inferences that the majority makes to

conclude there was deliberate indifference on the part of the de-

fendants, I first expound on why I believe Investigators Daniels,

Jones, and Wilson did not violate clearly established constitutional

law.

A. No Clearly Established Law Existed Providing Fair

Warning

Even if Wade could show that Investigators Daniels, Jones,

and Wilson each acted with deliberate indifference to his serious

medical needs—which, as addressed in the following sections, he

cannot—qualified immunity applies because Wade failed to show

that the defendants violated clearly established law. “‘Clearly es-

tablished’ means that, at the time of the officer’s conduct, the law

was ‘“sufficiently clear” that every “reasonable official would un-

derstand that what he is doing”’ is unlawful.” District of Columbia

v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011)); Reichle v. Howards, 566 U.S. 658, 664

(2012) (“To be clearly established, a right must be sufficiently clear

‘that every “reasonable official would [have understood] that what

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18 [LAGOA, J., Concurring in Part and in the Result] 18-12371

he is doing violates that right.”’” (alteration in original) (quoting al-

Kidd, 563 U.S. at 741)).

Although Wade does not need to identify a case “directly on

point, . . . existing precedent” must “place[] the statutory or consti-

tutional question beyond debate.” al-Kidd, 563 U.S. at 741. Indeed,

a “plaintiff must establish more than broad legal truisms; he or she

must demonstrate that the law fixed the contours of the right so

clearly that a reasonable official would have understood his acts

were unlawful.” Dolihite v. Maughon ex rel. Videon, 74 F.3d 1027,

1040–41 (11th Cir. 1996). That precedent must “define[ ] the con-

tours of the right in question with a high degree of particularity.”

Morgan v. Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011). In order

to answer this “salient question,” we must ask whether the state of

the law at the time of the incident “gave [the Investigators] fair

warning that their alleged treatment of [Wade] was unconstitu-

tional.” Hope, 536 U.S. at 741. Indeed, “[t]he sine qua non of the

‘clearly-established inquiry’ is ‘fair warning.’” Baynes v. Cleland,

799 F.3d 600, 612–13 (6th Cir. 2015) (quoting Hope, 536 U.S. at

741). The answer to the question of whether the law at the time of

the incident gave the Investigators fair warning is a resounding no.

Wade has not identified any sufficiently analogous case that

would have made it obvious that a clearly established right was vi-

olated, such that the Investigators had “fair warning” or were on

notice that their actions constituted deliberate indifference to

Wade’s medical needs. See Youmans, 626 F.3d at 563 (holding that

a violation was not clearly established where no precedent made it

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18-12371 [LAGOA, J., Concurring in Part and in the Result] 19

“obvious that the defendant’s acts violated the plaintiff’s rights in

the specific set of circumstances at issue” in the case). As the Su-

preme Court has explained, qualified immunity is designed to

“give[] government officials breathing room to make reasonable

but mistaken judgments about open legal questions.” al-Kidd, 563

U.S. at 743. “[T]he focus is on whether the [defendant] had fair

notice that [his or] her conduct was unlawful.” Kisela v. Hughes,

138 S. Ct. 1148, 1152 (2018) (per curiam) (quoting Brosseau v.

Haugen, 543 U.S. 194, 198 (2004) (per curiam)). The qualified im-

munity defense thus protects “all but the plainly incompetent or

those who knowingly violate the law.” Ziglar v. Abbasi, 137 S. Ct.

1843, 1867 (2017) (quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)).

Because the focus of the analysis is on notice, the qualified

immunity analysis “requires that the legal principle clearly prohibit

the [defendant’s] conduct in the particular circumstances before

him.” Wesby, 138 S. Ct. at 590. So, whether the defense “can be

invoked turns on the ‘objective legal reasonableness’ of the offi-

cial’s acts.” Ziglar, 137 S. Ct. at 1866 (quoting Harlow v. Fitzgerald,

457 U.S. 800, 819 (1982)). Because the inquiry into clearly estab-

lished law is inherently objective—looking to whether an official’s

actions were objectively reasonable—the qualified immunity anal-

ysis remains objective even when the constitutional claim at issue

involves subjective elements. See Crawford-El v. Britton, 523 U.S.

574, 588–89 (1998) (“[A]lthough evidence of improper motive is

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20 [LAGOA, J., Concurring in Part and in the Result] 18-12371

irrelevant on the issue of qualified immunity, it may be an essential

component of the plaintiff’s affirmative case.”).

It bears repeating that no case from the Supreme Court or

this Court stands for, or even suggests, the proposition that when

an armed fugitive is shot, but remains conscious, armed, and unre-

strained with an innocent bystander in the car, the Constitution

guarantees him a call for medical care within 240 seconds. While

Wade raises this Court’s decisions in Valderrama and Bozeman for

this proposition, neither case does so. Indeed, even a cursory re-

view of Valderrama and Bozeman shows that the officers’ conduct

at issue in both cases was intentional—i.e., more than grossly neg-

ligent—and thus wholly incongruous with the conduct at issue

here.

In Valderrama, the record showed that after an officer shot

the plaintiff in the genitals, instead of calling for an ambulance, the

officer immediately began discussing with his co-officers “the need

to concoct a story that would justify [his] use of deadly force.” 780

F.3d at 1109, 1118. Then, in the moments after the shooting, the

officer began searching the plaintiff’s car “in violation of depart-

ment policy” and offered “to drop the cocaine-possession charge

against [one of the witnesses] to secure his cooperation.” Id. at

1118. When the plaintiff then begged for an ambulance, the officer

told him to sit down. Id. at 1117. Then, after three and a half

minutes, the officers called for an ambulance but, when they did

so, they misreported the gunshot wound as a simple laceration,

which delayed medical treatment for another seven minutes. See

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18-12371 [LAGOA, J., Concurring in Part and in the Result] 21

id. at 1117–18. All in all, then, the officers intentionally delayed the

plaintiff’s medical treatment for over ten minutes. See id. at 1120.

In addressing the plaintiff’s claims, this Court in Valderrama

explained that a plaintiff must present evidence that, among other

things, each officer “disregarded the risk of serious harm” and such

conduct “amounted to more than gross negligence” in order to

show deliberate indifference to the plaintiff’s serious medical need.

Id. at 1116. We also noted that “when officials ‘ignore without ex-

planation a[n arrestee’s] serious [medical] condition that is known

or obvious to them, the trier of fact may infer deliberate indiffer-

ence.’” Id. at 1122 (alteration in original) (quoting Brown v.

Hughes, 894 F.2d 1533, 1538 (11th Cir. 1990)). Applying those prin-

ciples, this Court concluded that the officers’ conduct amounted to

more than gross negligence because they “delayed [the plaintiff’s]

medical care for more than ten minutes” while trying to fabricate

evidence, concoct a corroborating story, and bribe a witness’s com-

pliance. See id. at 1117–20. Based on the undisputed record evi-

dence regarding each officer’s conduct, this Court held that a jury

could find that the officers knowingly disregarded a serious risk of

harm to the plaintiff. Id. at 1119.

Our holding in Valderrama was thus based on the reasona-

ble inference that the officers intentionally attempted to delay med-

ical treatment and use that time for nefarious purposes—i.e., inten-

tional conduct beyond gross negligence. The holding was not

based solely on the period of delay in making the initial call. In fact,

we were explicit in our repudiation of the notion that the short

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22 [LAGOA, J., Concurring in Part and in the Result] 18-12371

delay before calling an ambulance, standing alone, would have

been enough to escape summary judgment. Specifically, this Court

held that:

While a three and half minute delay standing alone

may be insufficient to establish deliberate indiffer-

ence, under the facts of this case, a reasonable jury

could conclude that [the officers] were more than

grossly negligent when they delayed Mr. Valder-

rama’s medical care for more than ten minutes for no

good or legitimate reason as he faced life-threatening

injuries.

Id. at 1120; cf. Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1318–

19 (11th Cir. 2010) (“No preexisting law clearly establishe[s] that an

approximately two-to-five-minute delay of medical care . . . is a

constitutional violation . . . .”).

The facts of this case do not bear even a passing resemblance

to those of Valderrama. Here, there is no evidence in the record

from which a jury could infer that any of the three defendants de-

layed medical treatment with deliberate indifference. Indeed, even

Wade, who admits he was conscious throughout the entire time

period, failed to identify a single action taken by any of the three

Investigators after he was handcuffed and before the ambulance

was called. By contrast, Valderrama is a case about officers inten-

tionally delaying medical treatment for “more than ten minutes”

in order to try and cover up their use of excessive force. See 780

F.3d at 1120. Valderrama thus has no application to this case and

does not constitute clearly established law that put Investigators

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18-12371 [LAGOA, J., Concurring in Part and in the Result] 23

Daniels, Jones, and Wilson on notice that their treatment of Wade

was unconstitutional.

In Bozeman, the victim (a juvenile detainee) was sitting in

his cell at a detention facility when four officers entered. 422 F.3d

at 1268. A scuffle ensued, during which other inmates testified they

heard “choking sounds” and someone “gagging for air,” followed

by the victim’s silence. Id. at 1269. An inmate who was one of the

members of the detention facility’s custodial staff was outside the

cell as this occurred and testified that, during the scuffle, the victim

was lying “face-down on the bed” while the officers applied

“weight to him,” with one officer “pushing down on [the victim’s]

head.” Id. The inmate also testified that even after the victim said

“I give . . . I’ve had enough,” the officers responded, “Oh, we don’t

think you’ve had enough,” and continued to apply pressure to the

victim. Id. At some point, the inmate heard “a sound like . . . the

wind went out” of the victim, and when the officers carried him

out of his cell, one officer was heard saying, “damn, damn, damn.”

Id.

The victim had lost consciousness due to the beating and

suffocation he suffered at the hands of the prison guards. Id. at

1269–70. And for the next fourteen minutes, the officers dragged

and carried his “lifeless” body, which “hung and flopped in an un-

controlled manner,” around the detention facility. Id. at 1269. At

one point, they laid him down on the ground to attempt to unlock

a door, and another inmate could see from his own cell that the

victim’s ankles had turned blue and swollen from the lack of

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24 [LAGOA, J., Concurring in Part and in the Result] 18-12371

oxygen. See id. at 1270. After fourteen minutes had passed—dur-

ing which every witness, other than the officers involved, testified

that the victim was clearly unconscious—the officers reached their

destination (in front of a solitary confinement cell) and claimed that

only then did they notice that the victim had lost consciousness.

See id. Finally, they radioed for medical attention. See id. After

being transported to the hospital, the victim died; his autopsy listed

“asphyxia” as the cause of death. Id.

This Court noted that, viewed in the light most favorable to

the plaintiff, the officers had become subjectively aware of his need

for medical attention after the struggle, when they exited his cell.

See id. at 1273. Accordingly, we concluded that the prison guards

“failed for fourteen minutes to check [his] condition, call for medi-

cal assistance, administer CPR or do anything else to help,

[thereby] disregard[ing] the risk facing [the victim] in a way that

exceeded gross negligence.” Id. We noted that “[t]he tolerable

length of delay in providing medical attention depends on the na-

ture of the medical need and the reason for the delay,” but that “the

right reason for the delay can make a delay of any duration tolera-

ble.” Id. (quoting Harris, 21 F.3d at 393–94). Nonetheless, we con-

cluded that the prison guards’ fourteen-minute delay in calling for

medical help was actionable because they “offer[ed] no explana-

tion—medical or non-medical—for the failure to (1) check [the vic-

tim]’s breathing or pulse; (2) call for medical assistance; or (3) ad-

minister CPR themselves, during the fourteen minutes in ques-

tion.” Id. The prison guards therefore “ignore[d] without

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18-12371 [LAGOA, J., Concurring in Part and in the Result] 25

explanation” the victim’s serious medical needs because they “did

nothing” for fourteen minutes and could not justify their inaction.

See id. at 1273–74; see also Brown, 894 F.2d at 1536, 1538–39 (find-

ing issue of fact as to deliberate indifference because of evidence

suggesting that correctional officer ignored the plaintiff’s broken

foot, resulting in a six-hour delay of medical care).

As the facts of Bozeman illustrate, our holding there is not

applicable here. Not only was the delay in Bozeman over three

times longer than the delay at issue here, but the guards in Bo-

zeman did not (and could not) provide any explanation for it. See

422 F.3d at 1273 (“We conclude, therefore, that because of the ur-

gent nature of the medical need in this case and because of the (lack

of any) reason for the corresponding delay in care, a delay of four-

teen minutes is actionable under the constitution, given the cir-

cumstances here.”). After all, the victim in Bozeman was not only

unarmed—he was unconscious. And the guards presented no evi-

dence of any reason for not immediately placing him down and

calling for medical assistance. Here, by contrast, the officers had to

separate the conscious victim from his sawed-off shotgun and re-

strain him before they could seek medical aid.

Significantly, neither Valderrama nor Bozeman clearly es-

tablish the alleged unconstitutionality of the officer’s actions here.

These two cases stand only for the rather unremarkable proposi-

tion that when an official intentionally and without legitimate rea-

son delays medical treatment for a life-threatening medical condi-

tion that he was subjectively aware of for more than ten minutes,

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26 [LAGOA, J., Concurring in Part and in the Result] 18-12371

his actions violate the constitution. See Bozeman, 422 F.3d at 1273

(noting that with the “urgent nature of the medical need . . . , a de-

lay of fourteen minutes is actionable”); Valderrama, 780 F.3d at

1120 (noting that “a reasonable jury could conclude that [the offic-

ers] were more than grossly negligent when they delayed [the vic-

tim’s] medical care for more than ten minutes for no good or legit-

imate reason as he faced life-threatening injuries”).

Here, the record evidence—viewed in the light most favor-

able to Wade—shows that immediately after the shooting, while

Wade was still moving and the shotgun was still in the car, Investi-

gator Wilson instructed another officer to call for an ambulance.

The record evidence further shows that then, Investigator Beach

opened the passenger-side door, placed handcuffs on Wade, and

removed the shotgun from the vehicle. Investigator Beach unsuc-

cessfully sought a first aid kit and then applied pressure on Wade’s

gunshot wounds, attempting to stop the bleeding by using napkins

that she received from Investigator Jones. Even if the first aid was

rudimentary, it was rendered almost immediately after the shot-

gun was removed from the car and Wade was handcuffed. These

facts are undisputed.

Wade must show—as to each defendant—that the defend-

ant delayed medical treatment out of deliberate indifference. This

he has not done. The record does not show that the Investigators

“did nothing,” like in Bozeman, or ignored requests for help and

mischaracterized the injuries for improper purposes, like in Valder-

rama. Although Investigators Daniels, Jones, and Wilson did not

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18-12371 [LAGOA, J., Concurring in Part and in the Result] 27

personally render medical aid to Wade, the record is devoid of any

evidence suggesting that Investigators Daniels, Jones, or Wilson ei-

ther hindered Investigator Beach from providing aid to Wade or

hindered EMS from accessing Wade. Instead, the record evidence

shows that Investigator Jones went searching for bandages follow-

ing Investigator Beach’s request and brought Investigator Beach

what he found—napkins as a substitute for bandages that she used

to staunch Wade’s bleeding. The record evidence also shows that

Investigator Wilson instructed Investigator Wortham to call for an

ambulance. Both of these actions occurred immediately following

the shooting and before the call requesting EMS. Finally, after

Wade was secured, Investigator Daniels was escorted to and placed

in a patrol car and was relieved of his weapon in conformance with

department policy after an officer has shot an individual.

The uncontroverted evidence further establishes that—un-

like in Valderrama where the officers intentionally misrepresented

the plaintiff’s injuries—dispatch was notified at 2:07 p.m. of “shots

fired” and was notified at 2:08 p.m. of a “male shot to head.” Dis-

patch was also notified at 2:08 p.m. that officers were “blocking

traffic” and “setting up perimeter to let EMS in.”

“[Q]ualified immunity attaches unless it is ‘already clearly

established in such a particularized way to make obvious the con-

clusion for all reasonable, similarly situated . . . [officers] that what

Defendants were doing violated [the arrestee’s] federal rights un-

der the circumstances.’” Burnette v. Taylor, 533 F.3d 1325, 1332

n.7 (11th Cir. 2008) (alteration in original) (quoting Bozeman, 422

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28 [LAGOA, J., Concurring in Part and in the Result] 18-12371

F.3d at 1270–71). Because there is no clearly established law that

placed Investigators Daniels, Jones, and Wilson on notice that their

actions violated Wade’s constitutional rights, they are entitled to

qualified immunity on Wade’s medical deprivation claim.

2. No Reasonable Juror Could Infer that the Investigators

Waited a Full Four Minutes Before Requesting Medical

Assistance.

I part ways, however, with the majority’s conclusion that

there was a four-minute delay between the shooting and the time

the ambulance was called, as a de novo review of the record evi-

dence does not support this determination. Wade presented no

evidence that the shooting occurred exactly at 2:03 p.m. Instead,

Wade and the majority rely on a statement from Investigator Wil-

son, who stated that “at approximately 1403 [or 2:03 p.m.], [the of-

ficers] noticed that the subject (Nicholas Wade) had a shotgun in

the car with him and he pointed the weapon.” (emphasis added).

The key word here is “approximately”—which means in a manner

“very near,” “closely situated,” or “nearly resembling.” Approxi-

mate, Oxford English Dictionary (3d ed.). The majority and Wade

base their computation on a statement by one defendant based on

an approximation. Viewing this in the light most favorable to

Wade, this statement demonstrates only that the four-minute pe-

riod in question was between the time when the Investigators first

realized that Wade was armed with a sawed-off shotgun and the

time when the ambulance was called. Nothing in this statement

suggests that the shots were fired exactly at 2:03 p.m. The four

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18-12371 [LAGOA, J., Concurring in Part and in the Result] 29

minutes do not, in other words, refer to the time period between

when the officers were aware of Wade’s need for medical attention

and when the ambulance was called.

Moreover, while Wade and the majority rely on the nota-

tion in the CAD report that establishes that EMS was called at 2:07

p.m., they completely disregard the notation immediately below

that line that states “shots fired” at 14:07 (2:07 p.m.). Thus, the only

evidence in the record of an exact time when shots were fired es-

tablishes that they were fired at 2:07 p.m.

3. No Reasonable Juror Could Infer that the Investigators

Provided “No Explanation” for the Delay in Medical Treatment

I also disagree with the majority’s conclusion that a reason-

able juror could infer that the officers provided “no explanation”

for the delay in medical treatment. See Brown, 894 F.2d at 1538

(noting that officials may not “ignore without explanation a pris-

oner’s serious medical condition that is known or obvious to

them”). Even if we assume that the shooting did occur exactly at

2:03 p.m., and further infer that the Investigators became aware of

Wade’s need for medical attention also exactly at 2:03 p.m., the un-

disputed record evidence shows that the delay in calling for an am-

bulance was justified and does not rise to deliberate indifference.

This is because—even assuming the shooting happened ex-

actly at 2:03 p.m.—in the moments immediately following the

shooting, Wade remained conscious and in possession of a sawed-

off shotgun. In addition, the car that Wade was in began moving,

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30 [LAGOA, J., Concurring in Part and in the Result] 18-12371

as the driver of the vehicle, Ms. Belk, apparently went into shock.

Therefore, before seeking medical attention, Investigators Daniels,

Jones, and Wilson had to secure the situation. Investigator Daniels

opened the door of the vehicle, stopped its movement, and placed

it in park. Ms. Belk ran out of the vehicle. Investigator Beach

opened the passenger door, disengaged Wade from his shotgun,

placed Wade in handcuffs, and assessed the severity of Wade’s in-

juries. These facts—viewed in the light most favorable to Wade as

the plaintiff—constitute the “justification” for the delay in seeking

medical treatment for Wade.

The majority, however, suggests that the Investigators’ de-

cision to secure the safety of themselves, Wade, and Ms. Belk—the

driver of the vehicle and the mother of the child Wade had mur-

dered earlier—and to separate Wade from his sawed-off shotgun

and place him in handcuffs is insufficient to even qualify as an ex-

planation for the delay. I strongly disagree with the majority’s con-

clusion. The record shows and establishes that all three Investiga-

tors have, in fact, provided an explanation for the delay in medical

treatment. Their explanation is constitutionally sufficient and

more than justified the brief delay occasioned before calling for an

ambulance.

Turning to the majority’s statement that the “investigators

provide no justification for why it took eleven investigators four

minutes to call an ambulance when Beach had searched, hand-

cuffed, and restrained Wade,” Maj. Op. at 15 (emphasis in original),

there are three problems with it. First, the deliberate indifference

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18-12371 [LAGOA, J., Concurring in Part and in the Result] 31

claim is brought against only three investigators—Investigators

Daniels, Jones, and Wilson. Accordingly, the question of why

other investigators at the scene purportedly delayed calling an am-

bulance is irrelevant to the deliberate indifference claim at issue

against these three Defendants. This Court’s precedent on a claim

of deliberate indifference is clear—“each individual [d]efendant

must be judged separately and on the basis of what that person

knows.” Burnette, 533 F.3d at 1331. “[I]mputed or collective

knowledge cannot serve as the basis for a claim of deliberate indif-

ference.” Id.

Second, even if the clock started to run at exactly 2:03 p.m.,

Investigator Beach searched, handcuffed, and restrained Wade af-

ter the clock started at 2:03 p.m. Thus, even when viewed in the

light most favorable to Wade, Beach’s actions took place after the

shooting and after 2:03 p.m. Viewing the evidence in the light most

favorable to Wade, the four-minute time period in question was

between when the Investigators first realized that Wade was armed

with a sawed-off shotgun and when the ambulance was called. In

other words, the four minutes do not refer to the time period be-

tween when the Investigators were aware of Wade’s need for med-

ical attention and when the ambulance was called.

Third, and in response to the majority’s statement that there

was no justification for why it took eleven investigators four

minutes to call the ambulance, Maj. Op. at 15, because our review

is de novo, it is not a mystery what the other investigators were

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32 [LAGOA, J., Concurring in Part and in the Result] 18-12371

doing at the scene following the shooting. The record evidence

establishes the following.

Investigator Beach, as already outlined, removed the shot-

gun from the vehicle, handcuffed Wade, and administered first aid

to him. Investigator C. Robinson, after hearing the shots, waited

until the scene was safe, moved his vehicle to prevent any traffic

from coming into the area, placed crime scene tape at the scene,

and then was told to report to the hospital to receive statements

from Ms. Belk and Ms. Stevenson.

After Sergeant D. Brown heard the shots, he moved from

cover, and, once Wade was handcuffed, checked Wade’s pulse for

responsiveness. Sergeant Brown then radioed that shots were fired

and requested EMS. Sergeant Brown also took possession of Inves-

tigator Daniel’s weapon to secure it as evidence after Daniels in-

formed him that he shot Wade. Brown secured the weapon in the

trunk of his car until he relinquished it to a DeKalb County Police

CID Detective. Daniels was then escorted to and placed inside In-

vestigator Freeman’s vehicle as required by department policy.

Investigator A. Bell, after the shooting, approached the

BMW, observed Wade bleeding from his head, radioed for EMS,

and then secured the crime scene with crime scene tape. Deputy

McRae and his K-9, Viper, stood by Wade until EMS arrived.

Investigator T. Wortham, after the shots were fired, as-

sisted Ms. Belk and her sister away from the scene and requested

EMS. Investigator N. Mendez after the shooting likewise called in

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18-12371 [LAGOA, J., Concurring in Part and in the Result] 33

to have EMS enroute and assisted in securing the scene with crime

tape. Investigator Mendez was also instructed to accompany Wade

via EMS to the hospital.

Thus, the record shows that the other officers were securing

the scene, taking care of the witnesses, calling EMS for both Wade

and one of the two females, monitoring Wade until EMS arrived,

securing Daniels’s weapon as evidence, and placing Daniels in a pa-

trol car.

4. No Reasonable Juror Could Infer that the Investigators

Intentionally Delayed Medical Treatment

Finally, and for largely the same reasons, I disagree with the

majority’s conclusion that a reasonable juror could infer that the

three officers intentionally delayed seeking medical treatment for

Wade. See Brown, 894 F.2d at 1538 (noting that an “intentional

denial or delay of medical care is evidence of deliberate indiffer-

ence”). As support for this position, the majority cites the afore-

mentioned “four-minute” delay in requesting emergency medical

care—as well as the extra one minute it took to identify the specific

type of injury Wade suffered—and Wade’s recollection that Inves-

tigator Daniels stated—at some unidentified time before Wade had

been placed in handcuffs—that “[he] shot that motherfucker in the

head” and that “motherfucker will die any minute.” Because of

Investigator Daniels’s statements, the majority suggests “a reason-

able jury could infer that the investigators intentionally delayed

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34 [LAGOA, J., Concurring in Part and in the Result] 18-12371

seeking medical attention to see if Wade would die of his injuries.”

Maj. Op. at 15.

There are at least two things wrong with the majority’s rea-

soning. First, the statements are attributed only to Investigator

Daniels, and thus say nothing of whether Investigators Jones or

Wilson (the other defendants) were deliberately indifferent to

Wade’s need for medical assistance. See Alcocer, 906 F.3d at 951–

52 (remanding a § 1983 case for the district court to conduct indi-

vidualized analyses as to each officer, i.e., by parsing the actions

each officer undertook and omitted, on the one hand, and the ac-

tions others engaged in without each officer’s knowledge or partic-

ipation); Jackson v. West, 787 F.3d 1345, 1354–56 (11th Cir. 2015)

(explaining that, as to the individualized assessment requirement,

“[b]ecause we must consider each officer individually, we analyze

what each officer knew about [plaintiff’s] risk for suicide at the time

of his death [and] conclude that none of the seven officers appeal-

ing the District Court’s order had subjective knowledge of a strong

risk that [plaintiff] would attempt suicide, and that none of the

seven officers were deliberately indifferent for qualified immunity

purposes,” i.e., by delineating not only what each defendant did

and did not do, but also what each knew at the time of the inci-

dent).

Indeed, these statements do not refute that, immediately af-

ter the shooting, Investigator Wilson asked another officer to call

for an ambulance and that Investigator Jones searched for and re-

turned with napkins to help Investigator Beach began rendering

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18-12371 [LAGOA, J., Concurring in Part and in the Result] 35

medical care to Wade. As such, even if Investigator Daniels ex-

pected Wade to die from his gunshot wounds, his statements do

not suggest that each of the other two defendants—Wilson and

Jones—ignored Wade’s medical needs or wanted Wade to die or

suffer, which is what Wade must show.

Second, these two statements do not support an inference

that Investigator Daniels himself sought to delay medical care. The

uncontroverted evidence shows that, following the shooting, In-

vestigator Daniels remained with his gun pointed at Wade as Wade

was moving and the shotgun was still in the car. Investigator Dan-

iels kept his gun pointed at Wade while Investigator Beach re-

moved the shotgun from the car, handcuffed Wade, and rendered

first aid to Wade. Even Wade admits that Investigator Daniels

made these statements while “Inv. Spears[4] was placing resistance

[handcuffs] on my hands.” Moreover, the undisputed record evi-

dence shows that Investigator Daniels was present when Investiga-

tor Wilson asked Investigator Wortham to request medical assis-

tance, and nothing in the record suggests that Investigator Daniels

hindered or attempted to stop the request for medical assistance.

The undisputed evidence also does not show that Investigator Dan-

iels attempted to stop or otherwise hinder Investigator Beach from

4 As the record evidence establishes—and Wade concedes on appeal—Investi-

gator Spears was not at the scene at the time of the shooting or immediately

thereafter. The record establishes that Investigator Spears received a call at

approximately 2:15 p.m. and arrived at the scene at approximately 2:30 p.m.

to conduct witness interviews.

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36 [LAGOA, J., Concurring in Part and in the Result] 18-12371

providing Wade with basic first aid. Additionally, the undisputed

record shows that other officers asked Investigator Daniels to step

away from the BMW, took possession of Investigator Daniels’ gun

as evidence, and placed him inside Investigator Freeman’s vehicle

as was required by department policy.

While it remains our duty to give the plaintiff the benefit of

all reasonable inferences drawn from the evidence, a plaintiff does

not reap the benefit of unreasonable inferences or of nonexistent

evidence. And the inferential leap required to conclude, as the ma-

jority does, that a descriptive statement or statements made by one

officer are probative of whether he or other officers wanted to “see

if Wade would die of his injuries” is not reasonable. Deliberate in-

difference, as understood by its plain meaning, cannot and does not

allow for any reasonable inference to be made by a jury that Inves-

tigators Daniels, Jones, or Wilson were deliberately indifferent to

Wade’s medical needs.

****

In sum, while I agree with the majority that the Investiga-

tors’ actions did not violate any clearly established law such that

they are entitled to qualified immunity, I disagree with the major-

ity’s conclusion that a reasonable jury could conclude that Investi-

gators Daniels, Jones, and Wilson acted with deliberate indiffer-

ence. Specifically, Wade failed to present any evidence from which

an inference could be drawn that the Investigators’ conduct ex-

ceeded the standard of gross negligence. Indeed, the record evi-

dence shows that the Investigators amply detailed what occurred

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18-12371 [LAGOA, J., Concurring in Part and in the Result] 37

from the moment they saw Wade at 2:03 p.m. in the parking lot of

the New Birth Missionary Baptist Church to the moment EMS was

called. First, the Investigators approached the vehicle Wade was

in. Investigator Daniels observed Wade, in the vehicle, first place

a sawed-off shotgun to his chin before turning the shotgun in the

direction of Investigator Jones. Then, the shooting occurred. In-

vestigator Daniels, after noticing the vehicle was moving, stopped

the moving vehicle and placed the car in park. Investigator Beach

opened the passenger side door, secured the shotgun, handcuffed

Wade, assessed Wade’s injuries, asked for bandages, received nap-

kins from Jones, and proceeded to provide first aid to stop Wade’s

bleeding. And Investigator Wilson instructed Investigator

Wortham to call an ambulance.

Furthermore, I respectfully disagree with the majority’s fail-

ure to limit its holding to the facts of this case. The majority’s rea-

soning suggests that any period of delay between a shooting and an

emergency call will be sufficient to reach a jury. But, as we have

previously noted, these “cases are highly fact-specific and involve

an array of circumstances pertinent to just what kind of notice is

imputed to a government official and to the constitutional ade-

quacy of what was done to help and when.” Bozeman, 422 F.3d at

1274. Indeed, “[m]ost cases in which deliberate indifference is as-

serted are far from obvious violations of the Constitution.” Id. In

this case—when viewing the facts in the light most favorable to the

plaintiff and even accepting the contention that shots were fired at

2:03—medical assistance was requested within four minutes (faster

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38 [LAGOA, J., Concurring in Part and in the Result] 18-12371

than any case cited by the majority) for a victim who was armed

and dangerous in the moments after the injury was sustained (a fact

also absent from any case cited by the majority). Moreover, during

that four-minute window, first aid was also administered to Wade.

If this first aid by Officer Beach was not enough, how many more

officers needed to provide medical assistance?

Here, a jury could not reasonably infer that any of the Inves-

tigators exhibited deliberate indifference, as understood by its plain

meaning, to Wade’s medical needs. If the facts here are enough to

reach a jury, then every case with a life-threatening injury will be,

regardless of the cause for delay.

VI. Conclusion

Based on the foregoing, I concur only in the result of the

majority’s affirmance of Wade’s medical deprivation claim against

Investigators Daniels, Jones, and Wilson. For the reasons stated, I

respectfully disagree with the majority’s determination that a rea-

sonable jury could conclude Investigators Daniels, Jones, and Wil-

son acted with deliberate indifference. Additionally, I concur only

in the result as to Wade’s excessive force claim against Investigator

Daniels. While the majority reaches the conclusion that Investiga-

tor Daniels is entitled to qualified immunity for his actions based

on a determination that Investigator Daniels did not violate clearly

established rights, I would instead affirm the grant of qualified im-

munity by holding that Investigator Daniels’ use of force was not

excessive under the facts of this case, which involved an armed and

dangerous fugitive.

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18-12371 [LAGOA, J., Concurring in Part and in the Result] 39

I concur in full, however, in the majority’s decision to re-

verse the district court’s order granting Investigator Jones qualified

immunity on Wade’s excessive use of force claim and in the major-

ity’s decision to affirm the district court’s order denying Wade’s

motion for leave to add Investigator Beach as a defendant.