Kenneth Howard v. DeKalb County

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11035

Non-Argument Calendar

____________________

KENNETH HOWARD,

Plaintiff-Appellant,

versus

DEKALB COUNTY,

JORDAN VANCE,

individually,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

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2 Opinion of the Court 23-11035

D.C. Docket No. 1:22-cv-01550-SCJ

____________________

Before JORDAN, LAGOA, and MARCUS, Circuit Judges.

PER CURIAM:

DeKalb County Police Officer Jordan Vance (“Officer

Vance”) shot Plaintiff Kenneth Howard (“Plaintiff” or “Howard”) -

- who was coming at him with a knife -- three times in the chest.

Howard survived the shooting, and brought 42 U.S.C. § 1983

claims for excessive force against Officer Vance and DeKalb

County (“the County”) (together, “the Defendants”), as well as

state-law tort claims against Officer Vance. The district court

granted the Defendants’ motion for judgment on the pleadings.

Howard has appealed only the dismissal of his excessive force claim

against DeKalb County. After thorough review, we affirm.

I.

The relevant background -- as gleaned from the allegations

in the complaint and the critical video recordings relied on and un-

disputed by Howard 1 -- is this. On May 24, 2020, Officer Vance

responded to a call at a QuikTrip gas station located on North

1 See Baker v. City of Madison, Ala., 67 F.4th 1268, 1277–78 (11th Cir. 2023); Hors-

ley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). Notably, Howard does not

challenge the district court’s decision to consider the videos on a motion for

judgment on the pleadings, or argue on appeal that we should not consider

them. See Sapuppo v. Allstate Floridian Ins., 739 F.3d 678, 680–81 (11th Cir. 2014)

(holding that issues not raised on appeal are deemed abandoned).

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Decatur Road, shortly after 6:00 a.m. Howard was having what

the complaint describes as a “mental health episode” and had been

pacing outside the gas station for 15 minutes or so.

On arrival, Officer Vance remained in his car for nearly two

minutes, during which time Howard stood outside the gas station

in full view of Vance, while customers came and went, without in-

teraction. Officer Vance then walked into the gas station, and

along the way, he warned Howard, “by the time I get out [of] this

store, you better be gone; if [you’re] not gone, we’re gonna have a

problem.” Once inside, the officer spoke with two gas station em-

ployees, one of whom recounted that Howard had removed his

pants; that she had told him to put his pants on and asked him to

leave; and that Howard had put his pants on in response, but then

“just stood there.” Vance confirmed that the employee wanted

Howard to leave and exited the gas station to speak with Howard.

Officer Vance walked towards Howard, who was standing

by a trash can outside the gas station entrance. As Vance ap-

proached, he directed Howard twice to take his hands out of his

pockets. Howard turned toward Vance, took his right hand out of

his pocket and put it behind his back. The body camera footage

shows Howard holding an object in his right hand. Howard’s pants

were hanging loosely on his hips; twice, he used both hands to hike

them up, and both times, he returned his right hand -- still holding

something -- behind his back and out of the officer’s view.

Vance then took a few steps away from Howard. Vance

asked one of the QuikTrip employees, who had followed him out

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of the gas station, “so, you said he had his pants down, right?” The

employee responded “yes.” Nearly simultaneously, Howard

dropped his pants while asking “wanna see?” and took his right

hand out from behind his back, revealing -- as the complaint alleges

-- what Officer Vance believed to be a knife. In response, Vance

drew his firearm and pointed it at Howard, while the QuikTrip em-

ployee began backing away. Howard -- with pants around his an-

kles -- waddled towards the officer and away from the QuikTrip

entrance, while raising the knife up to eye level with the point fac-

ing towards Vance. At this point, the QuikTrip employee turned

and ran back inside the gas station, away from Howard.

Howard continued to walk toward Vance and away from

the gas station entrance. Vance backed away as Howard ap-

proached, keeping a steady distance between them. After a few

seconds, Howard stopped, so Officer Vance stopped as well and

yelled, “Put the knife down!” Howard responded, “I’m not puttin’

shit down,” and again began walking toward Vance, his movement

still impeded by his pants around his ankles. The officer again

yelled “put the knife down!” while moving backwards away from

Howard, and Howard again declared, “I’m not putting shit down.”

Vance directed Howard a third time to drop the knife, and, again,

Howard refused, saying, “I’m not putting anything down.”

Only able to take “baby steps” while his pants were bunched

around his ankles, Howard then attempted to take his pants all the

way off, struggling at first, and at one point sitting on the hood of

Officer Vance’s vehicle to aid in his balance. All the while, Vance

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kept his gun trained on Howard while remaining a distance of ap-

proximately two parking-lot spaces away, and spoke into his radio,

stating “suspect is armed with a knife, comin’ at me and is taking

off his clothes.” He then yelled twice at Howard to “put that damn

knife down!” and, as Howard finished pulling his other foot out of

the remaining pant leg, Officer Vance yelled “do not come near

me!” and again directed Howard to put the knife down.

Once Howard succeeded in fully removing his pants, he con-

tinued walking slowly, knife still in hand, toward Officer Vance,

who kept a constant distance from Howard by backing up himself.

The officer repeatedly yelled at Howard to put the knife down,

with increasing urgency. Howard still did not comply. Instead,

Howard continued to approach, growing closer to Vance with the

knife still in hand, though Howard alleges that Vance had plenty of

room to continue to slowly back up because there was no wall or

boundary threatening to trap him in the parking lot. Once Howard

came within a distance of approximately one-and-a-half parking

spots, Officer Vance opened fire, shooting Howard three times in

rapid succession. Howard fell to the ground, wounded, but did not

die from his gunshot wounds. Officer Vance secured the scene,

and Howard was disarmed and arrested by other officers who ar-

rived on the scene a few minutes later. Howard required an ex-

tended period of hospitalization to recover from his injuries.

On April 21, 2022, Howard commenced this suit against Of-

ficer Vance and DeKalb County. Howard claimed that Officer

Vance used excessive force in violation of the Fourth Amendment

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6 Opinion of the Court 23-11035

of the U.S. Constitution, and committed battery against Howard

under Georgia law when he shot him. Howard also sought to hold

DeKalb County liable under a theory that the County’s “use of

force, de-escalation, and mental illness training” caused Officer

Vance to violate Howard’s Fourth Amendment rights. The De-

fendants filed a motion for judgment on the pleadings seeking to

dismiss Howard’s claims on the ground that Officer Vance’s use of

force against Howard was justified, and therefore did not violate

Howard’s constitutional rights. The district court granted the De-

fendants’ motion in its entirety.

Howard now appeals only the district court’s dismissal of his

claim against DeKalb County.

II.

We review a district court’s decision to grant a motion for

judgment on the pleadings for failure to state a claim de novo. Perez

v. Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir. 2014). “Judgment

on the pleadings is appropriate where there are no material facts in

dispute and the moving party is entitled to judgment as a matter of

law.” Id. (quotations omitted). In our review, we accept as true all

material facts alleged in the non-moving party’s pleading, and we

view those facts in the light most favorable to the non-moving

party, just as we do when we review a ruling on a motion to dis-

miss. Id. So, while we construe all ambiguities in video footage “in

favor of the plaintiff, as [we] must, at this stage, construe all ambi-

guities in the written pleadings in the plaintiff’s favor,” “we accept

the video’s depiction instead of the complaint’s account and view

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23-11035 Opinion of the Court 7

the facts in the light depicted by the video . . . where [the] video[s]

[are] clear and obviously contradict[] the plaintiff’s alleged facts.”

Baker, 67 F.4th at 1277–78 (citation omitted).

III.

“[A] local government may not be sued under § 1983 for an

injury inflicted solely by its employees or agents. Instead, it is when

execution of a government’s policy or custom . . . inflicts the injury

that the government as an entity is responsible under § 1983.” Mo-

nell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978).

To state a so-called “Monell” claim against a county under § 1983, a

plaintiff must show: “(1) that his constitutional rights were vio-

lated; (2) that the [county] had a custom or policy that constituted

deliberate indifference to that constitutional right; and (3) that the

policy or custom caused the violation.” McDowell v. Brown, 392

F.3d 1283, 1289 (11th Cir. 2004). Thus, if a plaintiff fails to success-

fully allege an underlying constitutional violation by an agent of

the county, the plaintiff’s claim against the county fails as well. See

Baker, 67 F.4th at 1282 (“[B]ecause there was no underlying consti-

tutional violation, Baker’s municipality liability claim against the

city fails as a matter of law.”).

Here, the underlying constitutional violation alleged by

Howard is the use of excessive force by Officer Vance. “Any claim

that a law enforcement officer used excessive force -- whether

deadly or not -- during a seizure of a free citizen must be analyzed

under the Fourth Amendment’s ‘reasonableness’ standard.” Gar-

czynski v. Bradshaw, 573 F.3d 1158, 1166 (11th Cir. 2009). This

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standard requires “balanc[ing] the nature and quality of the intru-

sion on the individual’s Fourth Amendment interests against the

importance of the governmental interests alleged to justify the in-

trusion.” Scott v. Harris, 550 U.S. 372, 383 (2007) (quotations omit-

ted). “The government’s interests include protecting the safety of

the police officers involved as well as the public at large.” Gar-

czynksi, 573 F.3d at 1166.

We analyze the particular facts of each case to determine

whether the force used was “objectively reasonable” under the to-

tality of the circumstances. See Graham v. Connor, 490 U.S. 386, 396–

97 (1989). We consider an officer’s conduct “from the perspective

of a reasonable officer on the scene, . . . taking into account all of

the attendant circumstances.” Kesinger v. Herrington, 381 F.3d 1243,

1249 (11th Cir. 2004). These circumstances may include “the se-

verity of the crime at issue, whether the suspect poses an immedi-

ate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight.”

Graham, 490 U.S. at 396. The circumstances often may be “tense,

uncertain and rapidly evolving, thereby requiring split-second

judgments as to how much force is necessary.” Garczynski, 573

F.3d at 1167 (quotations omitted). “Because an officer’s perspec-

tive in the field differs from that of a judge sitting peacefully in

chambers, we must resist the temptation to judge an officer’s ac-

tions with the 20/20 vision of hindsight.” Id. (quotations omitted).

“[W]here the officer has probable cause to believe that the

suspect poses a threat of serious physical harm, either to the officer

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or to others, use of deadly force does not violate the Constitution.”

Penley v. Eslinger, 605 F.3d 843, 851 (11th Cir. 2010) (quotations

omitted); see also Cantu v. City of Dothan, 974 F.3d 1217, 1230 (11th

Cir. 2020) (use of deadly force is reasonable if the officer “had prob-

able cause to believe at the time [of the shooting] that [there was]

a threat of serious physical harm or death to [him]” or fellow offic-

ers); Hunter v. Leeds, 941 F.3d 1265, 1279 (11th Cir. 2019) (“It is axi-

omatic that when an officer is threatened with deadly force, he may

respond with deadly force to protect himself.”). And in cases where

a suspect has a deadly weapon “available for ready use,” we have

held that an officer is not “required to wait and hope for the best”

before resorting to deadly force. Jean-Baptiste v. Gutierrez, 627 F.3d

816, 821 (11th Cir. 2010) (alterations omitted) (“[T]he law does not

require officers in a tense and dangerous situation to wait until the

moment a suspect uses a deadly weapon to act to stop the suspect.”

(quoting Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007))).

In United States v. Shaw, for example, an officer shot a 74-

year-old mentally ill man who was advancing on the officer while

holding a hatchet, despite repeated commands to stop. 884 F.3d

1093, 1096–98 (11th Cir. 2018). The suspect had not committed a

crime, was not attempting to escape, was not aggressively resisting

arrest. Id. at 1096–98, 1100. Initially walking slowly away from

officers in the direction of a nearby restaurant, the suspect ignored

repeated commands from officers to put the hatchet down. Id.

The suspect then turned around, started “moving slowly” toward

officers, and repeatedly yelled, “Shoot it!” Id. When he was “less

than five feet away,” the officer opened fire. Id. Under the totality

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of the circumstances, we held that a reasonable officer could have

believed that the suspect posed a serious threat, and that the law

“did not require him to wait until the hatchet was being swung to-

ward him before firing in self-defense.” Id. at 1100. It didn’t matter

“[w]hether the hatchet was at [the suspect’s] side, behind his back,

or above his head,” because, no matter the exact position, the sus-

pect “could have raised the hatchet in another second or two and

struck” the officer with it. Id.

Similarly, in Garczynski, several officers shot and killed a

man who had not committed a crime, was not attempting to es-

cape, and was not aggressively resisting arrest. 573 F.3d at 1161–

64. The suspect, who was believed to be armed and suicidal, was

sitting in the front seat of his car when the police located him, and

then, after ignoring the officers’ commands, the suspect pointed his

gun at his own temple. Id. When the man brought the gun from

his own temple and swung it in the direction of the officers, the

officers began shooting. Id. at 1167–68. We held that the officers’

use of deadly force to protect themselves and other officers did not

violate the Fourth Amendment in those circumstances. Id. at 1168.

Here, Howard has not plausibly alleged that Officer Vance

violated his Fourth Amendment right to be free from excessive

force. Even accepting the factual allegations as true and viewing

the two sources of video footage in Howard’s favor, we are bound

by precedent to conclude that Officer Vance’s use of deadly force

was reasonable. Vance responded to a call of an individual behav-

ing erratically, or, in the words of the complaint, having a “mental

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health episode.” When Vance encountered Howard, he continued

to act erratically and refused repeated commands to show his

hands. When Howard finally removed his right hand from his

pocket, he quickly moved it behind his back to hide whatever he

was holding from Officer Vance; dropped his pants while asking

Vance if he “want[ed] to see?”; and revealed that his right hand was

holding a knife. Howard initially raised the knife to eye level, in

what could reasonably be construed as a threatening manner, with

the point facing Vance, and started moving toward the officer.

Once Howard pulled out the knife, it is clear that Officer Vance had

probable cause to arrest him for aggravated assault on a police of-

ficer, a felony under Georgia law. See O.C.G.A. § 16-5-21(c).

Howard then proceeded to advance toward Officer Vance.

Initially hampered by his pants around his ankles, Howard paused

to fully remove them before continuing toward Vance, now unim-

peded. At the time Officer Vance discharged his weapon, Howard

was closing the gap between them, knife still in hand, and had man-

aged to get within one-and-a-half parking spaces of Officer Vance.

All the while, and like the suspect in Shaw, Howard ignored eight

commands by Officer Vance -- all some variation of “put the knife

down,” with the officer’s voice sounding more urgent each time --

and even told Vance several times that he wouldn’t “put shit

down,” in a threatening tone. See Shaw, 884 F.3d at 1099.

Thus, at the moment Officer Vance used deadly force to

subdue Howard, he was confronted with a suspect who had al-

ready exhibited erratic and unpredictable behavior; who was non-

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compliant; and who was armed with a knife, i.e., a deadly weapon.

Because of his proximity to the officer, Howard -- again like the

suspect in Shaw -- could have “raised the [knife] in another second

or two and struck [Officer Vance] with it,” or he even could have

thrown the knife at Vance. Id. In light of these circumstances, and

under our precedent, a reasonable officer in Vance’s position could

have concluded that Howard posed a serious threat of physical

harm to himself or other members of the public in the QuikTrip

parking lot. Indeed, footage from Officer Vance’s body camera re-

veals that, just moments after the shooting, the officer had to warn

nearby citizens not to get out of their cars, because Howard was

still holding the knife while on the ground.

Howard claims that Officer Vance’s response violated his

Fourth Amendment rights because other alternatives to using

deadly force existed -- like using his taser to incapacitate him or

continuing to back away from Howard “until additional units ar-

rived or to buy himself time to formulate a cogent plan.” It’s worth

noting, however, that Officer Vance made multiple efforts to avoid

having to discharge his weapon. As we’ve detailed, both before

and after Howard had removed his pants, Vance repeatedly backed

up as Howard approached him knife in hand, and repeatedly asked

Howard to put the knife down and to stop advancing on the officer.

In any event, “[t]here is no precedent in this Circuit [] which

says that the Constitution requires law enforcement officers to use

all feasible alternatives to avoid a situation where deadly force can

justifiably be used.” Davis v. Waller, 44 F.4th 1305, 1316 (11th Cir.

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2022) (quoting Menuel v. City of Atlanta, 25 F.3d 990, 996 (11th Cir.

1994)). “There are, however, cases which support the assertion

that, where deadly force is otherwise justified under the Constitu-

tion, there is no constitutional duty to use non-deadly alternatives

first.” Id. (quoting Menuel, 25 F.3d at 996).

As we’ve explained, Officer Vance’s use of deadly force was

justified because, under the totality of the circumstances, a reason-

able officer in his position could have concluded that Howard pre-

sented an immediate threat of serious physical harm. So, whether

Officer Vance could have responded differently is immaterial be-

cause that does not meaningfully change the threat of serious phys-

ical harm presented by Howard. See Jean-Baptiste, 627 F.3d at 821

(holding that officer confronted by a suspect armed with a deadly

weapon was not “required to wait and hope for the best” before

employing deadly force (cleaned up)); Davis, 44 F.4th at 1316 (re-

jecting plaintiff’s argument that use of deadly force against an

armed suspect driving a large truck was unreasonable, even though

alternatives like shooting out the tires or waiting for the truck to

reach an area where other officers could assist were available). 2

2 None of the cases Howard cites are relevant. In Mercado v. City of Orlando,

for instance, we held that a jury could conclude that an officer’s use of deadly

force against an individual threatening to commit suicide by plunging a knife

into his own chest was unreasonable where the individual was sitting on the

floor, six feet away from the officers, and “had not made any threatening

moves toward himself or the officers.” 407 F.3d 1152, 1158, 1160–61 (11th Cir.

2005). Nor, notably, did Mercado hold that the Fourth Amendment requires

officers to consider alternatives to deadly force when faced with an immediate

threat of deadly harm. See id. Nor did we so hold in our unpublished,

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14 Opinion of the Court 23-11035

Howard also argues that this case is distinguishable from

Shaw on procedural and factual grounds. As for his claim that Shaw

is irrelevant since it addressed the second prong of the qualified im-

munity analysis -- the “clearly established law ground” -- we made

a clear finding in it that “a reasonable officer could have believed

that Shaw posed a threat of serious physical injury or death” be-

cause Shaw was advancing on the officer with a hatchet in hand,

which goes to the existence of a constitutional violation in first part

of the qualified immunity analysis. See 884 F.3d at 1100. As for his

observation that Shaw was decided at the summary judgment

stage, no material factual disputes need to be resolved in this case,

so any distinction based on the availability of discovery makes no

difference here. And, lastly, Howard says that Shaw is factually dis-

tinct because the suspect there was threatening others before the

officers arrived; the distance between the suspect and the officer at

the time of the shooting was “less than five feet”; the suspect was

approaching the officer with a hatchet, rather than a knife; and the

officer did not have readily available alternatives to the use of

deadly force. But even assuming these distinctions exist, none of

them warrants a different result in this case, since, under this set of

nonbinding decision in Teel v. Lozada, 826 F. App’x 880 (11th Cir. 2020). Fur-

ther, none of the nonbinding, out-of-circuit authority he cites suggests that

Officer Vance was required to do so. See Glenn v. Washington Cnty., 673 F.3d

864 (9th Cir. 2011); Retz v. Seaton, 741 F.3d 913 (8th Cir. 2014); Carpenter v. City

of Bean Station, No. 2:09-CV-140, 2011 WL 5025883 (E.D. Tenn. Oct. 21, 2011),

R. &R. aff’d No. 2:09-CV-140, 2012 WL 481830 (E.D. Tenn. Feb. 14, 2012).

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facts, Officer Vance reasonably believed he was under the immedi-

ate threat of deadly force when he shot Howard.

In short, Officer Vance did not use excessive force or violate

the Fourth Amendment when he shot Howard. And without an

underlying constitutional violation, Howard cannot impose liabil-

ity on the County under § 1983. 3 See McDowell, 392 F.3d at 1289.

Accordingly, the district court did not err in granting the County’s

motion for judgment on the pleadings and we affirm the dismissal

of Howard’s Monell claim against the County.

AFFIRMED.

3 We therefore need not address Howard’s argument that the County’s “use

of force, de-escalation, and mental illness training” caused Officer Vance to

deprive him of his Fourth Amendment rights by shooting him.