Wesley Lee Cook v. David Bell

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13928

____________________

WESLEY LEE COOK,

Plaintiff-Appellee,

versus

DAVID BELL,

Officer, Individually and official capacity as a member of the

Lakeland Police Department,

LAURA H. DUNN,

as Personal Representative for the

Estate of Paul Patrick Dunn,

Defendants-Appellants,

PAUL DUNN et al.,

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2 Opinion of the Court 22-13928

Defendants.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:19-cv-03051-TPB-SPF

____________________

Before WILSON, GRANT, and LAGOA, Circuit Judges.

PER CURIAM:

Officer David Bell and the Estate of Officer Paul Dunn ap-

peal the district court’s order denying summary judgment on qual-

ified immunity grounds. After careful review and with the benefit

of oral argument, we affirm in part and dismiss in part for lack of

jurisdiction.

I. FACTUAL AND PROCEDURAL BACKGROUND 1

On December 28, 2015, the Appellee, Wesley Lee Cook, had

an argument with his girlfriend, Shannon Wood. As Wood was

leaving the house, Cook grabbed her cell phone and backpack, so

she left without them. Wood went to a nearby convenience store

1 “[F]or summary judgment purposes, our analysis must begin with a descrip-

tion of the facts in the light most favorable to the [non-movant].” Lee v. Ferraro,

284 F.3d 1188, 1190 (11th Cir. 2002). We accept these facts for summary-judg-

ment purposes only. See Cox Adm’r US Steel & Carnegie Pension Fund, 17 F.3d

1386, 1400 (11th Cir. 1994).

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22-13928 Opinion of the Court 3

and called the police. Officers Dunn and Bell both responded to

the call and went to meet Wood at the convenience store. Wood

told the officers that Cook was a former law enforcement officer

and that he had guns in the house. Dunn and Bell then went to

Wood’s house to speak with Cook—both to retrieve Wood’s phone

and bag, and to make sure there was not a domestic violence situ-

ation on hand.

Dunn got out of his car and approached Wood’s front door.

Bell, who arrived in a separate car, also went to the front door.

Dunn knocked on the door. Bell testified that Dunn announced

himself as police; Cook recalls hearing no such identification. The

entrance to the house was what Bell described as a “fatal funnel,”

meaning that there were walls on both sides of the door such that

the officers could not stand to either side of the door—only directly

in front of it. The officers, therefore, “backed up to a safe position”

near the corner of the attached garage. Dunn took up post at the

corner of the garage, “on the 90 where he’s facing the door.” Bell

was positioned next to Dunn in the driveway, and he testified that

he could not see the door. Cook, who had been sleeping but woke

up to Dunn’s knocking, grabbed his (licensed) gun from the

nightstand and walked to the front door. By the time he got to the

door, the knocking had stopped. Cook stood inside to the left of

the door, where a strip of 6–8-inch-wide windows ran the full

height of the door and began to unlock the door. Bell heard the

sound of the door handle moving and asked Dunn, “what is he do-

ing? Is he fucking with the door?” Dunn turned around to look at

Bell and said, “I don’t know,” then turned back to the door, yelled

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4 Opinion of the Court 22-13928

“Gun!” and drew his firearm. “The next thing [Bell] kn[e]w,” shots

were fired. Bell then realized he could not get past Dunn (towards

the door) “because of the stance that [Dunn] took between the wall

and the Explorer,” so Bell started running around the Explorer in-

stead. As he ran around the SUV, Bell radioed out “Shots fired,”

and he heard a second volley of shots ring out. By the time he

reached the far side of the SUV, Bell had drawn his gun and could

see Cook standing in the doorway, naked, with a gun held loosely

in his right hand, pointed down towards the ground. Bell ordered

Cook to drop the gun, but he stopped when he heard Dunn giving

the same command so that only one voice would be yelling. Cook

complied and dropped his gun, and then he collapsed to the

ground. Another officer who had arrived in the interim began ren-

dering aid to Cook, who was bleeding from multiple gunshot

wounds. Cook was taken to the hospital where he underwent sur-

gery; he ultimately lost his left eye and suffered other permanent

injuries. Cook’s blood-alcohol level was .28 at the time of the

shooting, and he admitted that his intoxication, stress, and injuries

all could have impaired his memory.

During this incident, Bell never saw Cook step out of the

house, advance towards the officers, or point his gun at the officers.

Indeed, all of the blood from Cook’s wounds was inside the house,

not outside. And the Lakeland Police Department investigators

who handled this police-involved shooting determined there was

no evidence that Cook had ever exited his home. Cook testified

that, while he could not say with certainty that Dunn never spoke,

Cook did not hear anyone give any commands, did not hear anyone

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22-13928 Opinion of the Court 5

say “gun,” and did not hear anyone identify himself as police. Bell,

for his part, did not testify that Dunn gave any warnings or com-

mands before he opened fire.

Cook filed suit asserting multiple claims against Officers

Dunn and Bell, along with other defendants who are not present in

this appeal. He sued Dunn for excessive force and unlawful seizure

under 42 U.S.C. § 1983 (Counts I and II) and for assault and battery

under Florida law (Count VII). As to Bell, Cook raised one claim

for failure to intervene under § 1983 (Count III).

On January 9, 2020, Dunn was killed in a motorcycle acci-

dent. On Cook’s unopposed motion, the personal representative

of Dunn’s estate eventually substituted for Dunn as defendant.

After discovery, the Appellants moved for summary judg-

ment on the basis of qualified immunity. 2 The district court held

two hearings on the motion and ultimately entered an order deny-

ing qualified immunity. In the order, the district court found that

there were genuine disputes of material fact as to whether Dunn

violated Cook’s constitutional rights and whether Bell had an op-

portunity to intervene. The district court also concluded that

Cook’s “right to be free from the use of deadly force while nonre-

sistant in his own home was clearly established at the time of the

shooting.” This timely appeal followed.

2 The motion also raised other, unrelated arguments as to the other defend-

ants. This appeal only addresses the qualified immunity issues as to Bell and

Dunn.

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6 Opinion of the Court 22-13928

II. STANDARD OF REVIEW

We review jurisdictional issues de novo. Cavalieri v. Avior Air-

lines C.A., 25 F.4th 843, 848 (11th Cir. 2022).

This Court also reviews de novo an order denying summary

judgment based on qualified immunity. See Helm v. Rainbow City,

Alabama, 989 F.3d 1265, 1271 (11th Cir. 2021). “When considering

a motion for summary judgment, including one asserting qualified

immunity, ‘courts must construe the facts and draw all inferences

in the light most favorable to the nonmoving party and when con-

flicts 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) (quoting Davis v. Wil-

liams, 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. 2009) (quoting Haves v. City of Miami,

52 F.3d 918, 921 (11th Cir. 1995)).

III. ANALYSIS

We have a threshold obligation to ensure that we have juris-

diction to hear an appeal. See Corley v. Long-Lewis, Inc., 965 F.3d

1222, 1227 (11th Cir. 2020). This Court usually has jurisdiction to

review the decisions of a district court “only where the district

court has disposed of all claims against all parties.” Hudson v. Hall,

231 F.3d 1289, 1293 (11th Cir. 2000); see also 28 U.S.C. § 1291. As

one exception to that general rule, we may hear “an interlocutory

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22-13928 Opinion of the Court 7

appeal of the denial of qualified immunity where the disputed issue

is whether the official’s conduct violated clearly established law.”

Hudson, 231 F.3d at 1293 (quoting Stanley v. City of Dalton, 219 F.3d

1280, 1286 (11th Cir. 2000)). We may also hear appeals that raise

mixed questions of law and fact. English v. City of Gainesville, 75

F.4th 1151, 1155–56 (11th Cir. 2023). But we lack jurisdiction to

hear an interlocutory appeal that asks only “whether the district

court erred in determining that there was an issue of fact for trial

about the defendant’s actions or inactions which, if they occurred,

would violate clearly established law.” Id. In other words, we lack

interlocutory jurisdiction “where the only issues appealed are evi-

dentiary sufficiency issues.” Id.

Our two Appellants stand on different footing. Dunn, for his

part, presents a purely legal issue on appeal. He argues, in sum,

that even when we accept Cook’s version of events, “[t]here was no

materially similar case predating the shooting that would have put

Dunn on notice that his actions were unconstitutional.” Because

this challenge lies at the heart of the legal question of clearly estab-

lished law, we have jurisdiction to hear Dunn’s interlocutory ap-

peal. 3 See Hudson, 231 F.3d at 1293.

3 Because have jurisdiction to hear Dunn’s appeal of the Fourth Amendment

claim, we also have jurisdiction over his appeal of Florida state-law immunity

on Cook’s state-law claim, which tracks the same analysis. See Butler v. Gual-

tieri, 41 F.4th 1329, 1335 (11th Cir. 2022) (“Florida’s sovereign immunity law

provides qualifying government officials with immunity from both suit and

liability.” (citing Florida Highway Patrol v. Jackson, 288 So. 3d 1179, 1185 (Fla.

2020)); English, 75 F.4th at 1156–57.

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8 Opinion of the Court 22-13928

Bell, however, has raised the type of “evidentiary suffi-

ciency” issue that we lack jurisdiction to hear in an interlocutory

appeal. He argues, for example, that he “was not in a position to

observe and evaluate Dunn’s use of force,” and that he “had no rea-

sonable opportunity to intervene.” These are factual questions, not

legal ones. For this reason, we lack jurisdiction to hear Bell’s inter-

locutory appeal and, therefore, we dismiss the appeal as to Bell. See

English, 75 F.4th at 1155–56.

We turn, then, to Dunn’s appeal. Dunn argues that the

district court erred in denying him qualified immunity because, in

his view, it was not clearly established that his conduct violated

Cook’s Fourth Amendment rights. “Qualified immunity offers

complete protection for government officials sued in their

individual capacities if their conduct ‘does not violate clearly

established statutory or constitutional rights of which a reasonable

person would have known.’” Vinyard v. Wilson, 311 F.3d 1340, 1346

(11th Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). By imposing liability only for violations of clearly

established law, the defense of qualified immunity “balances two

important interests—the need to hold public officials accountable

when they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they

perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223,

231 (2009).

To qualify for this immunity, an officer “must first prove that

he was acting within the scope of his discretionary authority when

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the allegedly wrongful acts occurred.” Lee v. Ferraro, 284 F.3d 1188,

1194 (11th Cir. 2002) (quoting Courson v. McMillian, 939 F.2d 1479,

1487 (11th Cir. 1991)). Once “the defendant establishes that he was

acting within his discretionary authority, the burden shifts to the

plaintiff to show that qualified immunity is not appropriate.” Lee,

284 F.3d at 1194. “To overcome a qualified immunity defense, the

plaintiff must make two showings.” Corbitt v. Vickers, 929 F.3d 1304,

1311 (11th Cir. 2019). First, “the plaintiff must establish that the

defendant violated a constitutional right.” Griffin Indus., Inc. v. Irvin,

496 F.3d 1189, 1199 (11th Cir. 2007). Second, “the plaintiff must

show that the violation was clearly established.” Id. Courts are

“permitted to exercise their sound discretion in deciding which of

the two prongs of the qualified immunity analysis should be ad-

dressed first.” Corbitt, 929 F.3d at 1311 (quoting Pearson, 555 U.S. at

236).

“The relevant, dispositive inquiry in determining whether a

right is clearly established is whether it would be clear to a reason-

able officer that his conduct was unlawful in the situation he con-

fronted.” Vinyard, 311 F.3d at 1350 (quoting Saucier v. Katz, 533 U.S.

194, 202 (2001)). The defendant must have fair notice of his con-

duct’s unconstitutionality, derived from one of the following

sources: (1) obvious clarity; (2) broad holdings or statements of

principle in case law that are not tied to particularized facts; or (3)

fact-specific judicial precedents that are not readily distinguishable.

Id. at 1350–51. “The critical inquiry is whether the law provided

[the officer] with ‘fair warning’ that his conduct violated the [the

plaintiff’s rights].” McClish v. Nugent, 483 F.3d 1231, 1248 (11th Cir.

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2007) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). In this Cir-

cuit, only the “decisions of the United States Supreme Court, the

United States Court of Appeals for the Eleventh Circuit, and the

highest court of the pertinent state (here, the Supreme Court of

Florida) can clearly establish the law.” Id. at 1237.

“[I]n the end, we must still slosh our way through the fact-

bound morass of ‘reasonableness.’” Scott v. Harris, 550 U.S. 372, 383

(2007). “[A]t the summary judgment stage,” however, “once we

have determined the relevant set of facts and drawn all inferences

in favor of the nonmoving party to the extent supportable by the rec-

ord, the reasonableness of the officer’s actions . . . is a pure question

of law.” Penley v. Eslinger, 605 F.3d 843, 848–49 (11th Cir. 2010)

(cleaned up and citing Scott, 550 U.S. at 381 n.8).

As the district court explained, when we take the facts in the

light most favorable to Cook (as we are bound to do at this stage),

Cook was doing nothing more than standing inside his own door-

way when Dunn opened fire on him. Viewing the evidence in the

light most favorable to Cook, he was not suspected of having com-

mitted a felony, nor was he fleeing from officers or advancing to-

wards them in a threatening way. As the district court observed,

perhaps trial will reveal evidence that supports the officers’ claim

that the force Dunn used was necessary, reasonable, and appropri-

ate—and therefore did not violate Cook’s rights—but that is a ques-

tion for a jury to resolve, not this court. We cannot say at this pro-

cedural stage that Dunn is entitled to qualified immunity on Cook’s

excessive force claim.

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For these reasons, we affirm the district court’s order as to

Dunn.

AFFIRMED in part and DISMISSED in part.