Victor Revill v. Richardson

USCA11 Case: 22-12122 Document: 35-1 Date Filed: 07/19/2023 Page: 1 of 6

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12122

Non-Argument Calendar

____________________

CHRISTOPHER SCROGGINS,

Plaintiff,

VICTOR REVILL,

appointed as personal represenatative of

Christopher Scroggins’s estate,

Plaintiff-Appellee,

versus

RICHARDSON,

Officer,

Defendant-Appellant,

USCA11 Case: 22-12122 Document: 35-1 Date Filed: 07/19/2023 Page: 2 of 6

2 Opinion of the Court 22-12122

BIRMINGHAM, CITY OF,

Defendant.

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 2:20-cv-00553-GMB

____________________

Before WILLIAM PRYOR, Chief Judge, and JORDAN and BRANCH, Cir-

cuit Judges.

PER CURIAM:

Officer James Richardson appeals the denial of qualified im-

munity from Christopher Scroggins’s claim of excessive force in vi-

olation of the Fourth Amendment, 42 U.S.C. § 1983. Victor Revill,

as personal representative of Scroggins’s estate, moves to dismiss

for lack of jurisdiction. Because Richardson’s argument turns on an

evidentiary issue, which we lack jurisdiction to review on interloc-

utory appeal, we dismiss this appeal.

After midnight on September 19, 2019, Scroggins broke into

a car in a parking lot. Richardson, an on-duty Birmingham police

officer, answered a dispatch call for breaking-and-entering and

found Scroggins in the car. Richardson approached Scroggins with

his gun drawn and ordered him out of the car.

USCA11 Case: 22-12122 Document: 35-1 Date Filed: 07/19/2023 Page: 3 of 6

22-12122 Opinion of the Court 3

What happened next is in dispute. Revill asserts that Scrog-

gins exited the car, and Richardson frisked him but found no

weapon. Scroggins pulled away and began to run, but Richardson

intentionally shot him in the back of the neck to stop him from

getting away. Although Scroggins spoke to an officer at the hospital

and made a recorded statement that the shooting was an accident

and not Richardson’s fault, Scroggins stated in his deposition that

he was on pain medication, still under the effects of anesthesia from

surgery, and did not remember the conversation.

Richardson has a different recollection. He contends that he

had no time to search Scroggins, so he was concerned that Scrog-

gins might have a weapon. After Scroggins pulled away and tried

to run, a tussle ensued. When Richardson pulled Scroggins toward

him, Scroggins’s neck made contact with Richardson’s gun, and

Richardson stumbled on a concrete wheel stop. Richardson be-

lieved that his gun discharged due to the tussle.

Richardson moved for summary judgment on the exces-

sive-force claim based on qualified immunity. The magistrate

judge, whom the parties jointly consented to conduct the proceed-

ings, 28 U.S.C. § 636(c), denied Richardson qualified immunity be-

cause of the disputed factual issue whether he intentionally shot

Scroggins. The magistrate judge ruled that although “a reasonable

juror viewing the video footage might see two men struggling and

tripping over a parking block, resulting in an accidental discharge

of Richardson’s gun, another juror watching the same recordings

might fairly conclude that Richardson intentionally shot

USCA11 Case: 22-12122 Document: 35-1 Date Filed: 07/19/2023 Page: 4 of 6

4 Opinion of the Court 22-12122

Scroggins.” The magistrate judge explained that, viewing the facts

in the light most favorable to Scroggins, Richardson’s intentional

use of deadly force was unreasonable because binding authority es-

tablished that deadly force cannot be used against a fleeing, un-

armed suspect who poses no immediate threat to officers or others.

The magistrate judge also stated that “if Richardson’s use of force

was constitutionally excessive but unintentional, he would be enti-

tled to qualified immunity.”

Revill moves to dismiss this appeal for lack of jurisdiction

because the magistrate judge’s ruling turned on a factual issue—

whether a reasonable jury could find that Richardson intentionally

shot Scroggins—instead of a legal issue. We agree.

The denial of qualified immunity is an appealable “final de-

cision,” 28 U.S.C. § 1291, only insofar as it turns on an issue of law.

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). The collateral order

doctrine provides that we have jurisdiction over an appeal if the

order conclusively determines the disputed question, resolves an

important issue completely separate from the merits, and is effec-

tively unreviewable on appeal from a final judgment. Firestone Tire

& Rubber Co. v. Risjord, 449 U.S. 368, 375 (1981). Although “a claim

of immunity is conceptually distinct from the merits of the plain-

tiff’s claim, purely factual questions of whether a defendant vio-

lated the plaintiff’s rights are not separable from the merits of his

claim,” so they do not meet the second requirement of the collat-

eral order doctrine. Hall v. Flournoy, 975 F.3d 1269, 1275 (11th Cir.

2020) (citation omitted). And we are barred from preliminarily

USCA11 Case: 22-12122 Document: 35-1 Date Filed: 07/19/2023 Page: 5 of 6

22-12122 Opinion of the Court 5

reviewing “whether or not the pretrial record sets forth a ‘genuine’

issue of fact for trial.” Id.

Richardson contends that he is entitled to qualified immun-

ity because he did not violate a clearly established constitutional

right. Although his arguments are dressed up as legal challenges as

to whether his conduct violated clearly established law, Richardson

effectively argues that the evidence, when viewed in the light most

favorable to him, does not support a finding that the shooting was

intentional. See Simmons v. Bradshaw, 879 F.3d 1157, 1163–64 (11th

Cir. 2018) (“If a government official moves for summary judgment

asserting entitlement to qualified immunity, then the relevant facts

are construed in the light most favorable to the non-movant—i.e.,

the plaintiff—and the court should decide the issue based on those

facts.” (emphasis added)). For example, Richardson argues that his

“accidental application of force” was reasonable under the totality

of the circumstances because “[n]o reasonable jury could find that

Scroggins was under control, not resisting, and obeying com-

mands.” He contends that Revill failed to supply caselaw “that de-

clares a Fourth Amendment violation when force is accidentally

used on a suspect.” And he asserts that, “if after de novo review,

[we] determine[] the shooting of Scroggins was accidental, [he] is

entitled to qualified immunity.” To that end, Richardson also chal-

lenges the magistrate judge’s determination that the videos do not

clearly establish that Richardson had enough time to search Scrog-

gins for a weapon.

USCA11 Case: 22-12122 Document: 35-1 Date Filed: 07/19/2023 Page: 6 of 6

6 Opinion of the Court 22-12122

Whether Richardson violated clearly established law turns

on issues of fact. If Richardson intentionally shot Scroggins while

he was trying to run away, not carrying a weapon, and posing no

threat to Richardson or others, then Richardson violated clearly es-

tablished law. See Bradley v. Benton, 10 F.4th 1232, 1243 (11th Cir.

2021) (recognizing that the Supreme Court has “clearly established

that an officer cannot use deadly force to stop an unarmed man

who is not suspected of committing a violent crime from fleeing

on foot.”); Cantu v. City of Dothan, Alabama, 974 F.3d 1217, 1230

(11th Cir. 2020) (“[R]esisting arrest alone is not enough to justify

the use of deadly force”). But if Richardson accidentally shot Scrog-

gins during their tussle in the parking lot, then Richardson did not

violate clearly established law. It is not for us to decide, at this junc-

ture, whose version of the facts should prevail. See Simmons, 879

F.3d at 1163. A jury will need to decide. We lack jurisdiction over

this interlocutory appeal.

We DISMISS this appeal for lack of jurisdiction.