Linda L. Harrell, Individually, as Personal Representative, and as Surviving Spouse of Larry Gene Harrell, Deceased v. Decatur County, Ga.

DUBINA, Circuit Judge,

dissenting:

Because I am convinced that the majority has erred in its application of the doctrine of qualified immunity, I respectfully dissent. *1578 Qualified immunity is “immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 , 105 S.Ct. 2806, 2815 , 86 L.Ed.2d 411 (1985). The doctrine of qualified immunity is intended to protect government officials performing discretionary functions from the burdens of trial and broad-reaching discovery in cases that are insubstantial or that do not allege violations of clearly established law. Id at 526, 105 S.Ct. at 2815 ; Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738-39 , 73 L.Ed.2d 396 (1982). In particular, qualified immunity avoids “distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.” Harlow, 457 U.S. at 816 , 102 S.Ct. at 2737 . Accord Mitchell, 472 U.S. at 526 , 105 S.Ct. at 2815 . These important purposes of qualified immunity are thwarted if a case is erroneously permitted to go to trial. Mitchell, 472 U.S. at 526 , 105 S.Ct. at 2815 . Police officers on the beat, who daily risk their lives to defend society and preserve our system of ordered liberty, are certainly among those government officers that qualified immunity is meant to protect. In my view, the case before us is precisely the type of case that qualified immunity is designed to resolve.

The applicability of qualified immunity is a question of law to be decided by the court. Ansley v. Heinrich, 925 F.2d 1339, 1341, 1345 (11th Cir.1991). To invoke the affirmative defense of qualified immunity, a defendant public official initially bears the burden of proving that he was acting within the scope of discretionary authority when the allegedly wrongful acts occurred. Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir.1988). Once the defendant public official satisfies this burden, the burden then shifts to the plaintiff to show that the actions of the defendant public official, at the time they occurred, violated clearly established law. Id. at 1564 . The defendant public official is entitled to qualified immunity as a matter of law if either (1) the applicable law was not clearly established at theftime of the alleged violation, or (2) the plaintiff fails to demonstrate the existence of genuine issues of material fact as to whether the defendant public official’s actions violated the clearly-established law. Mitchell, 472 U.S. at 526 , 105 S.Ct. at 2815 ; Rich, 841 F.2d at 1564 .

There is no question that Deputy Morris was exercising his discretionary authority as a deputy sheriff when he shot Harrell. As discussed infra, it is also clear that the applicable law was clearly established at the time of the shooting. Thus, the pivotal question in this case is whether the plaintiff has successfully demonstrated any genuine issues of material fact as to whether Deputy Morris’s actions violated the clearly established law.

In October of 1990, when the events involved in this case took place, the law governing the use of excessive force in the course of an arrest was clearly established. The Supreme Court had held that “all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395 , 109 S.Ct. 1865, 1867 , 104 L.Ed.2d 443 (1989). “As in other Fourth Amendment contexts, however, the ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397 , 109 S.Ct. at 1872 .

The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.... The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.

Id. at 396-97 , 109 S.Ct. at 1872 . “[T]he question is ‘whether the totality of the circumstances justifie[s] a particular sort of ... seizure.’” Id. at 396 , 1 09 S.Ct. at 1872, quoting Tennessee v. Garner, 471 U.S; 1, 8-9, 105 S.Ct. 1694, 1700 , 85 L.Ed.2d 1 (1985).

*1579 “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396 , 109 S.Ct. at 1871 , quoting Garner, 471 U.S. at 8 , 105 S.Ct. at 1699 . The proper application of this balancing test will depend on such factors as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting or attempting to evade arrest by flight.” Graham, 490 U.S. at 396 , 109 S.Ct. at 1872 .

Thus, at the time of the events involved in this case, the law governing the use of deadly force during the course of an arrest was clearly established: use of deadly force during an arrest is constitutional if it strikes a balance between the competing interests of the individual and society that is objectively reasonable under the totality of the circumstances. Moreover, at the time of the events in this case, it was clearly established law that use of deadly force does strike such a balance when necessary as an act of self-defense or when necessary to stop a dangerous fleeing felon. See O’Neal v. Dekalb County, 850 F.2d 653 , 657-658 & n. 7 (11th Cir.1988) (holding that where suspect armed with knife lunged at officer with knife, use of deadly force in self-defense did not violate Fourth Amendment); Fraire v. City of Arlington, 957 F.2d 1268, 1276-77 (5th Cir.), cert. denied, — U.S.-, 113 S.Ct. 462 , 121 L.Ed.2d 371 (1992) (holding that where suspect was about to run over officer with his car, use of deadly force in self-defense was constitutional); Garner, 471 U.S. at 11 , 105 S.Ct. at 1701 .

With regard to dangerous fleeing felons, the majority misapplies the clearly established law. Ever since the Supreme Court decided Tennessee v. Garner in 1985, the clearly established law governing the use of deadly force to seize a fleeing felon has been that

[wjhere the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threats ens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

Garner, 471 U.S. at 11-12 , 105 S.Ct. at 1701 . In my view, even if the majority were correct that a genuine issue of material fact exists as to whether or not Deputy Morris saw Harrell reaching for a weapon when he shot him, Deputy Morris’s use of deadly force was constitutionally reasonable under the totality of the circumstances as a means of seizing a dangerous fleeing felon.

My review of the record persuades me that there are no genuine issues of material fact in this case. The majority’s decision to reverse the district court’s grant of summary judgment hinges entirely on its finding of one allegedly disputed fact — whether or not Harrell was reaching under the seat at the time Deputy Morris fired his weapon. 1 On this *1580 point, the majority has conjured a disputed issue of fact out of thin air. There is simply no evidence anywhere in the record that raises any genuine issue as to whether or not Harrell was reaching downward.

As discussed above, the burden was on Harrell to demonstrate genuine issues of material fact that would preclude summary judgment in favor of Deputy Morris on the basis of qualified immunity. Despite this heavy burden, the only evidence adduced by Harrell to dispute Deputy Morris’s testimony that he thought Harrell was reaching for a weapon was the affidavit of Annie Jefferson, the only other eyewitness. Contrary to the majority’s assertions that Jefferson’s affidavit “sharply conflicts with” and “contradicts” Deputy Morris’s testimony and that it “suggests” Harrell was not reaching, Jefferson’s affidavit is, in fact, totally silent on the reaching issue. The only portions of Jefferson’s affidavit that are even arguably relevant simply state that upon hearing the shots fired by Deputy Morris, “she saw Harrell fall over toward the passenger’s side of his vehicle” and that “she observed Harrell fall over in the seat of his vehicle.”

Even viewing the evidence in the light most favorable to Harrell and drawing all inferences in his favor, as we are duty bound to do when reviewing a grant of summary judgment, these two statements in Jefferson’s affidavit do not raise any genuine issue of material fact as to whether or not a reasonable law enforcement officer in Deputy Morris’s position and under similar circumstances would have thought that Harrell was reaching for a weapon. The only logical inference that can be drawn from Jefferson’s statements is that at the‘time Harrell was shot, his body was in a position from which it was possible to fall into the passenger seat. Such an inference does not contradict Deputy Morris’s testimony that Harrell’s hands were reaching downward, much less raise a genuine issue of material fact. On the contrary, the arguable inference that Harrell was already leaning toward the passenger seat when he was shot actually supports rather than contradicts Deputy Morris’s assertion that Harrell was reaching downward. Jefferson’s affidavit cannot create a genuine issue of material fact on the reaching issue because it simply does not address it.

Moreover, it should be emphasized that even if Jefferson had disputed whether or not Harrell was reaching, her perspective is of limited relevance in that reasonableness is to be determined from the perspective of a reasonable officer under similar circumstances. Here, Jefferson’s rear-angle view of events from the back seat of a patrol car and from behind a protective screen does not shed much light on what a reasonable officer standing in Deputy Morris’s position just below the crest of an embankment and looking at a silhouette through the front passenger window would have seen at the moment Deputy Morris fired his weapon.

Given clearly established law and undisputed facts, the final question is whether as a matter of law Deputy Morris’s use of deadly force struck a balance between the interests of Harrell and society that was objectively reasonable under the totality of the circumstances — that is, would a reasonable officer in Morris’s position have thought deadly force was necessary either to rebuff an immediate threat to his life or to seize a dangerous fleeing felon.

Harrell’s interest in his life, while undoubtedly great, is not absolute, for society has a countervailing interest in effective law enforcement and the protection of its citizens and law enforcement officers. “Policemen on the beat are exposed, in the service of society, to all the risks which the constant effort to prevent crime and apprehend criminals entails: Because these people are literally the foot soldiers of society’s defense of ordered liberty, the State has an especial interest in their protection.” Roberts v. Louisiana, 431 U.S. 633, 646-47 , 97 S.Ct. 1993, 2000 , 52 L.Ed.2d 637 (1977) (Rehnquist, J., dissenting). Effective law enforcement “requires the resort to deadly force, or at least the meaningful threat thereof.” Garner, 471 U.S. at 9-10 , 105 S.Ct. at 1700 .

The undisputed facts confronting Deputy Morris at the time he fired the fatal shots were that Harrell was intoxicated, was resisting arrest, had beaten Deputy Morris with a flashlight so severely that the only other eyewitness feared Morris was dead, had *1581 threatened to kill Deputy Morris and searched the latter’s body for a gun with which to carry out the threat, had ignored Deputy Morris’s warning to halt, and appeared to Deputy Morris to be reaching under the front seat of his car for a weapon. In view of these undisputed facts, Deputy Morris’s use of deadly force as an act of self-defense struck a balance between Harrell’s interest in avoiding seizure by deadly force and society’s interest in protecting its law enforcement officers that was objectively reasonable. Under the totality of the circumstances, an objective officer in Deputy Morris’s position could have reasonably believed that deadly force was necessary to protect his life. See Young v. City of Killeen, 775 F.2d 1349, 1352-53 (5th Cir.1985) (holding that use of deadly force was a constitutional act of self-defense where officer, who had just observed drug transaction and ordered driver of car to exit vehicle, thought driver was reaching down to seat or floorboard for a gun).

Even absent the element of self-defense, the use of deadly force to stop a dangerous fleeing felon would have been constitutional on these facts. If Harrell were merely a fleeing felon, the combined facts that he had been driving while intoxicated and had just committed a felony against a law enforcement officer that involved a significant threat of death or serious physical injury demonstrate that use of deadly force was constitutional under Garner. See Fraire v. City of Arlington, 957 F.2d at 1276 & n. 30 (holding that suspect’s conduct in drinking while driving, erratic driving, driving at high speeds through a residential neighborhood, and twice crashing his car indicated that suspect posed a threat of serious physical injury within the rationale of Gamer, justifying the use of deadly force). Under these circumstances, the use of deadly force to seize a dangerous.fleeing felon struck a balance between Harrell’s Fourth Amendment interests and society’s interests in effective law enforcement and protection of its citizenry that was objectively reasonable. Deputy Morris is entitled to qualified immunity. I would affirm the district court’s grant of summary judgment in favor of Deputy Morris in his individual capacity.

Because Harrell was not deprived of any constitutional rights, it follows that the plaintiffs section 1983 claims against Deputy Morris in his official capacity, Sheriff Phillips in his individual and official capacities, Decatur County, and the Decatur County Commissioners cannot stand. See 42 U.S.C. § 1983 . The district court’s grant of summary judgment with respect to these claims should also be affirmed.

. In footnote one, the majority mentions several collateral fact questions, which it does not fully address but which it claims "raise further doubt as to the propriety of the district court's decision.” In fact, none of these are genuine issues of material fact, and thus they have no bearing on the correctness of the district court’s grant of summary judgment. Whether the driver’s door was closed is not a material issue because even if it were, Deputy Morris’s actions would have been constitutional.

There is no genuine issue with regard to whether Deputy Morris gave a warning. In her affidavit, eyewitness Annie Jefferson states that she heard Deputy Morris shout "hold it, stop, stop.” In his deposition, Deputy Morris stated that he could not recall whether he shouted a warning. Deputy Morris’s inability to recall does not contradict or in any way impeach Annie Jefferson’s undisputed testimony on this point. Furthermore, the significance of this warning is a legal not a factual question.

Finally, there are no material issues with regard to whether Deputy Morris could have used less extreme methods to apprehend Harrell. All the Constitution requires is that the force used be objectively reasonable, not that it be-the absolute minimum necessary. See O’Neal, 850 F.2d at 656 .