The opinion
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11816
Non-Argument Calendar
____________________
TIDERA HARRIS,
Plaintiff-Appellee,
versus
THE CITY OF MONTGOMERY,
Defendant,
GREGORY HARVEY,
In his individual capacity,
Defendant-Appellant.
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2 Opinion of the Court 23-11816
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:21-cv-00799-WKW-SMD
____________________
Before NEWSOM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
This case arises from an ill-fated series of events that began
with a domestic violence report and ended with Tidera Harris
being shot by an officer of the Montgomery Police Department.
Though Harris’s injuries are unfortunate, the record shows that the
officer did not use constitutionally excessive force. The district
court therefore erred when it denied qualified immunity because
the evidence in the record established that Harris’s Fourth
Amendment rights were not violated in this encounter.
I.
The events leading to this appeal began when Chimeka
Minefield, the fiancé of Tidera Harris and mother of several of his
children, snuck out of her own home to seek her neighbor’s
assistance in calling the police. Minefield was scared because Harris
was, as she said, “acting up”—throwing furniture and “acting
crazy.” Though her neighbor warned her not to go back, Minefield
could not stand to leave her children alone in the house with Harris,
so she returned home. Minefield’s neighbor informed the 911
operator that Harris had several warrants against him, that he had
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23-11816 Opinion of the Court 3
been beating Minefield, and that she did not know if Harris had a
weapon. The neighbor was so concerned about Minefield’s
wellbeing that she called back two more times, concerned that the
police were taking too long to arrive.
As a result of these calls, Officer Gregory Harvey was
dispatched to Minefield’s home, along with Officer Helton as
backup. From the dispatch, Harvey knew that this was a domestic
violence call, which raised a sense of urgency and the possibility of
a physical altercation. Harvey was also told that there were
warrants out against Harris. Upon arrival, Harvey could hear a
verbal altercation inside the home, so he entered the residence
without knocking to intervene before things escalated.
Minefield invited Harvey further into the home, telling him
that Harvey needed to “get him”—referring to Harris. Attempting
to de-escalate the situation, Harvey asked Harris to step outside
with him. But despite Harvey’s repeated commands, Harris
refused to follow orders. Instead, Harris began rummaging
through the dimly lit house, requiring Harvey to utilize his
flashlight so that the officers could see Harris’s hands and actions.
Harris continued to pat his pockets, walk around the house, and
dig through clothing and furniture. He also kept acting as though
he was receiving phone calls—lifting the phone to his ear and
walking away from the officers—but they did not hear the phone
ring, vibrate, or otherwise indicate that he was receiving any calls.
Officer Harvey was concerned that Harris might have been looking
for a weapon.
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Finally, Harris stepped outside. He willingly gave Harvey his
name and date of birth. Meanwhile, though, Harris kept glancing
toward the Dodge Charger with dark tinted windows that was
parked in the driveway. Harris then picked up his phone again as if
to answer an imaginary phone call. He began walking toward the
vehicle, and once he was around to the driver’s side, Harris abruptly
took off in a sprint toward the driver’s door. Harvey gave chase and
shouted “No.” Upon rounding the back of the vehicle, he saw
Harris reaching into the car and could not see his hands. Fearing
that Harris was reaching for a weapon and forced to make a split-
second decision, Harvey fired three shots. One bullet struck
Harris’s shoulder and one hit him in the back. An outside
investigation by the State Bureau of Investigations determined that
Harvey’s actions were a reasonable exercise of his official duties
under the totality of the circumstances.
Harris’s operative complaint sets out four claims for relief:
(1) assault and battery under Alabama state law against Harvey; (2)
§ 1983 excessive force in violation of the Fourth Amendment
against Harvey; (3) Monell liability against the City of Montgomery
and the Montgomery Police Department; and (4) Negligence
and/or Wantonness under Alabama state law against Harvey. The
defendants moved for summary judgment on all counts. As
relevant to this appeal, Harvey argued that he was entitled to
summary judgment because he was entitled to immunity—
qualified immunity for the Fourth Amendment claims, and state
agent immunity for the state law claims. After argument, the
district court granted the motion with respect to the Monell claim
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23-11816 Opinion of the Court 5
against the City but denied summary judgment to Harvey on all
the claims against him. This appeal followed.
II.
This court reviews the grant of summary judgment based
on qualified immunity de novo. Powell v. Snook, 25 F.4th 912, 920
(11th Cir. 2022). Under this standard, we construe all facts and
draw all inferences in the light most favorable to the nonmoving
party. Id.
III.
To demonstrate that qualified immunity does not apply in
this case, Harris must show that Harvey (1) violated one of his
constitutional rights, and (2) that it was clearly established at the
time of the conduct that Harvey’s specific actions did so. Id.
Because “an objectively reasonable officer in the same situation
could have believed the use of force was not excessive,” Harris
failed to show that Harvey violated a constitutional right and
Harvey is therefore entitled to qualified immunity. Brown v. City of
Huntsville, Alabama, 608 F.3d 724, 738 (11th Cir. 2010).
The Fourth Amendment’s protection against unreasonable
searches and seizures includes the right to be free from the
excessive use of force. See Graham v. Connor, 490 U.S. 386, 394
(1989). To determine whether a use of force was “reasonable,”
courts must engage in 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.” Id. at 396 (quotation omitted). This is an objective inquiry:
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“the question is whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting
them.” Id. at 397. Critically, however, this inquiry must be judged
from the perspective of a “reasonable officer on the scene, rather
than with the 20/20 vision of hindsight,” and allow for
consideration of the fact that officers must often make “split-
second judgments—in circumstances that are tense, uncertain, and
rapidly evolving.” Id. at 396–97.
For better or for worse, this test is fact specific, and requires
courts to “slosh our way through the factbound morass of
‘reasonableness.’” Scott v. Harris, 550 U.S. 372, 383 (2007). There
are, however, several factors that can help guide the analysis. These
include (1) “the severity of the crime at issue,” (2) “whether the
suspect poses an immediate threat to the safety of the officers or
others,” and (3) “whether he is actively resisting arrest or
attempting to evade arrest by flight.” Crenshaw v. Lister, 556 F.3d
1283, 1290 (11th Cir. 2009) (quoting Graham, 490 U.S. at 396).
First, Harvey had been discharged to Minefield’s home on a
domestic violence call and warned that Harris had warrants
outstanding—these are some of the most dangerous calls for
officers. Second, though Harris did not pose an immediate threat
when the officers arrived at the scene, his progressive
noncompliance and dash to the vehicle—a common place to store
weapons—created a threatening situation in which both officers
feared for their lives. His sudden, unprovoked movement, coupled
with the pattern of evasive behavior, could alert an objectively
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reasonable officer of an imminent threat to his safety and the safety
of the others standing nearby. See Oakes v. Anderson, 494 F. App’x
35 (11th Cir. 2012) (unpublished). Third, Harris repeatedly and
blatantly ignored Harvey’s commands and resisted Harvey’s efforts
to de-escalate and investigate the alleged domestic violence
incident.
Under these circumstances, the balance of the evidence
shows that a reasonable officer at the scene could have found that
shooting Harris as he reached in the car was not an excessive use
of force. Accordingly, Officer Harvey is entitled to qualified
immunity for his § 1983 claim.
That means Harvey is also entitled to state agent immunity
on Harris’s state law claims. “The Alabama Supreme Court has
largely equated qualified immunity with state agent immunity.”
Cantu v. City of Dothan, Alabama, 974 F.3d 1217, 1236 (11th Cir. 2020)
(quotation omitted) (alteration adopted). Thus, for the same
reasons that Harvey is entitled to qualified immunity on the § 1983
claim, he is also entitled to state agent immunity on the state law
claims.
* * *
It is regrettable when a person is shot and hindsight shows
that it could have been avoided. But “tragedy does not equate with
unreasonableness.” Powell, 25 F.4th at 925 (quotation omitted).
Because Officer Harvey’s use of force was not objectively
unreasonable under the circumstances of this case, there was no
Fourth Amendment violation. The district court’s decision
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denying qualified and state agent immunity is therefore
REVERSED.