Sharon Powell v. Jennifer Snook ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-13340
____________________
SHARON POWELL,
as executrix of the estate of William David Powell,
SHARON POWELL,
Plaintiffs-Appellants,
versus
JENNIFER SNOOK,
as Executrix for the Estate of Patrick Snook,
Defendant-Appellee,
ANNIE DAVIS, et al.,
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2 Opinion of the Court 19-13340
Defendants.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:17-cv-03412-MHC
____________________
Before WILSON, NEWSOM, and ED CARNES, Circuit Judges.
ED CARNES, Circuit Judge:
Lawsuits involving claims that officers used deadly force in
violation of the Fourth Amendment often involve tragic circum-
stances. This one does. Just after midnight one evening in June of
2016, Henry County, Georgia, police sergeant Patrick Snook1 —
who was at the wrong house because of imprecise dispatch direc-
tions — shot and killed William David Powell, who was innocent
of any crime and standing in his driveway. He was holding a pistol
because he and his wife thought they had heard a prowler.
1 While this appeal was pending, Patrick Snook died. His wife Jennifer Snook,
as executrix of his estate, was substituted as the defendant-appellee.
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Sharon Powell, 2 David’s wife, brought a § 1983 claim against
Snook in his individual capacity, alleging that he violated her hus-
band’s constitutional right to be free from excessive force. The dis-
trict court granted Snook’s motion for summary judgment on
grounds of qualified immunity. This is Powell’s appeal.
The qualified immunity issue before us is the familiar one of
whether clearly established law put Snook on notice that firing the
shots he did violated David Powell’s constitutional rights. More
specifically, was it clearly established that under the circumstances
of this case the Constitution required Snook to warn David Powell
before shooting him?
I. SUMMARY JUDGMENT FACTS
Because this case comes to us after a grant of summary judg-
ment, “the facts at this stage are what a reasonable jury could find
from the evidence viewed in the light most favorable to” Powell.
Cantu v. City of Dothan, 974 F.3d 1217, 1222 (11th Cir. 2020).
“[W]hat we state as ‘facts’ in this opinion for purposes of reviewing
the ruling[] on the summary judgment motion may not be the ac-
tual facts. Nonetheless, they are the facts for the present purposes,
and we set them out below.” Montoute v. Carr, 114 F.3d 181, 182
(11th Cir. 1997).
2
For clarity and flow purposes, we will sometimes refer to Sharon Powell as
“Powell” and refer to William David Powell as “David.”
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4 Opinion of the Court 19-13340
About five minutes before midnight on June 7, 2016, a
Henry County 911 operator spoke to a caller who reported hearing
a woman’s screams and three gunshots. The caller gave her ad-
dress as 736 Swan Lake Road and said the noises were coming from
“a few houses down.” She also said that she had called 911 on an
earlier occasion “because they were fighting so bad.” The operator
searched the 911 call history for 736 Swan Lake but did not find a
record of that earlier call.
The caller said that her mother had heard the woman
scream “help me please” and then nothing else. After that the op-
erator asked the caller for the “nearest intersecting street.” She an-
swered “Fairview Road” and added that the screaming and gun-
shots had come from “the second or third house past [hers] towards
Fairview.” (In the call report, the operator noted that Fairview was
a cross street but did not include what the caller had told her about
the screaming and gunshots having come from the direction of that
street.)
The operator asked a follow-up question: “[I]f I’m looking at
your house where exactly would their house be?” Once again, the
caller said it was a “couple houses down on the right towards Fair-
view Road.” But the operator wrote in her report only that, if a
person were looking at the caller’s house, the noises had come
from two or possibly three houses “down to the right.” She omit-
ted the caller’s more helpful and less vague direction about the
noises being toward Fairview. That is where the seeds of tragedy
were sown.
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Based on the operator’s report, a 911 dispatcher sent police
officers to 736 Swan Lake, explaining that if they were “looking at
this location, it’s two houses down on the right, maybe three
houses.” Officer Snook, who was in charge of the uniform patrol
division that shift, responded to the call with Officers Matthew Da-
vis and Ashley Ramsey. On the way to Swan Lake, Snook asked
dispatch if it could find the address for the place where the disturb-
ance had actually occurred. A 911 call center supervisor, who had
replaced the earlier dispatcher during midnight shift-change, re-
plied that dispatch thought it was “either 690 or 634.” The Powells
lived at 690 Swan Lake.
The three officers, who all wore police uniforms, parked
their cars along the roadway with their blue lights off. Before ap-
proaching the Powells’ house, Officer Davis asked the supervisor
why dispatch believed 690 was the correct location and asked him
to get more information from the caller. When the supervisor di-
aled the number that had originally called 911, the original caller’s
mother answered and agreed with the supervisor that the sounds
had come from “the right, south of [the caller’s location] going to-
wards Gardner [Road].” From the perspective of a person standing
on Swan Lake Road and looking at house 736, the Powells’ house
is to the right and toward Gardner Road.
Based on the 911 dispatch information, the officers ap-
proached the Powells’ house, which could not be seen from the
road because of its long driveway. As the officers walked down
that long driveway, there were no lights on inside or outside the
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house. It was very dark. Because they were going to a call involv-
ing domestic violence with shots fired, the officers approached cau-
tiously, trying to avoid being targets for a shooter. Snook carried a
rifle because of the dangerous circumstances and in case long-range
fire was necessary.
There were two trucks at the house, which the supervisor
told Snook were registered to the Powells, a couple in their sixties.
The supervisor also told Snook that previous 911 calls for the Pow-
ells’ house had involved an alarm and an ambulance. Snook knew
from his experience that alarm or ambulance calls sometimes grew
out of domestic violence incidents, but he also knew, because the
supervisor had told him, that police had not been dispatched to the
Powells’ house before for a domestic violence incident.
Snook sent Ramsey to cover the back of the house while he
and Davis stayed out front. Snook was close to the driveway area.
He took his flashlight to look in the windows, but he didn’t see any
damage or lights on inside the house and didn’t hear any scream-
ing. Sharon Powell, who was inside, didn’t hear any knocks on her
door or rings of her doorbell, but she did hear her dogs barking,
which had awakened her and David.
The two of them got out of bed but did not check their front
door. Instead, David went to the laundry room door, looked out
the window, and told Sharon that he saw someone outside. He
went to his closet, put on his pants, and got his pistol. He then
walked through a kitchen door into an attached garage and pushed
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a button that caused the garage door to begin opening and the gar-
age light to come on. All the other house lights were still off.
It takes the garage door 8.8 seconds to open. When the door
had fully opened, David walked out onto the driveway holding the
loaded pistol in his right hand. After walking 10 to 15 steps at a
normal pace, which took about nine seconds, 3 he stopped and
turned to face the walkway leading up to his front door, which is
where Officer Snook was positioned in the dark. When David
Powell stopped walking, he was standing straight up and his arms
were pointed straight down with the pistol in his right hand.
Sharon Powell had followed David onto the driveway and
stood four or five feet behind him. She was facing his right side,
focused on him, watching him. She heard no noise or voice, either
while the garage door was opening or after she and her husband
3
Sharon Powell has described on two occasions how long David’s walk from
the garage took. She testified in her deposition that it took “only a few sec-
onds,” a “short time.” She later swore in her declaration that she had “re-
traced” David’s steps “using the same pace” and that covering the distance he
walked took her “approximately nine seconds.” The district court used Pow-
ell’s deposition testimony. But because we must view the evidence in the light
most favorable to Powell, Cantu, 974 F.3d at 1222, and because the more spe-
cific time estimate in her declaration doesn’t outright contradict the more gen-
eral one in her deposition, we use the nine seconds number from her declara-
tion. See Lane v. Celotex Corp., 782 F.2d 1526, 1532 (11th Cir. 1986) (“[W]e
may only disregard an affidavit that contradicts, without explanation, previ-
ously given clear testimony.”) (quotation marks omitted).
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8 Opinion of the Court 19-13340
went outside. She specifically did not hear anyone identify them-
selves as police officers. It was perfectly quiet.
Sharon Powell had a sense that David was looking at some-
one. He started to raise his right arm — the one holding the pistol
— and got the pistol hip-high. While David was doing that, Snook
went down to one knee to make himself a smaller target and rap-
idly fired three shots with his rifle. Sharon testified that only a
“very short time” –– “[l]ike one second it felt like” –– passed be-
tween when David started to raise his gun and when Snook began
firing.4
After Snook fired, David dropped to the ground. Sharon
screamed, ran into the house, locked the door, and called 911. The
officers on the scene aided David and called for an ambulance that
took him to the hospital, but he died the next day.
4Sharon Powell’s deposition testimony was unequivocal about how closely
connected the shots were to her husband’s act of raising his pistol:
Q. All right. So from the point where Mr. Powell stopped,
took the position and started raising the gun, how far be-
tween that point and the shots fired? Or how long did it take?
A. Like one second it felt like.
Q. Very, very short time?
A. Very short time
Doc. 62 at 88; see also id. at 89 (Sharon confirming that when David “started
raising the gun, quickly shots were fired, and then Mr. Powell fell.”).
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II. PROCEDURAL HISTORY
On her own behalf and as executrix of her husband’s estate,
Sharon Powell filed a 42 U.S.C. § 1983 complaint in the Northern
District of Georgia explicitly claiming that Snook violated David
Powell’s Fourth and Fourteenth Amendment rights and less explic-
itly claiming that Snook committed the tort of negligence in the
process. 5 The parties eventually stipulated to the dismissal of all
claims against Snook except for the Fourth Amendment excessive
force claim, and Snook filed a motion for summary judgment con-
tending that he was entitled to qualified immunity on that claim.
Powell opposed that motion, contending that Snook was
not entitled to qualified immunity because precedent, specifically
Tennessee v. Garner, 471 U.S. 1 (1985), and our case law applying
it, clearly established that he could not constitutionally use deadly
force against David Powell without first identifying himself as a po-
lice officer and issuing a warning. Powell argued Snook could have
“easily” given that warning because David was not an immediate
threat, refusing any officer’s command, or attempting to escape.
She asserted that our case law recognized that the “mere presence”
of a firearm isn’t enough to warrant the use of deadly force and that
5
Powell’s complaint also included claims against Officer Davis, Officer Ram-
sey, the 911 operator, the 911 supervisor, the director of the Henry County
911 service, and Henry County itself. After those defendants filed motions for
summary judgment, the parties stipulated to the dismissal of all Powell’s
claims against them, which mooted their summary judgment motions.
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the reasonableness of any force depends on whether a suspect
poses a threat of serious physical harm, with an emphasis on the
level and immediacy of the threat. She also asserted that since Gar-
ner the law has been “abundantly clear that officers should issue a
warning unless it is not feasible to do so before using deadly force”
and argued that Snook had “ample opportunity (at least 17.8 sec-
onds) to identify himself and give a proper warning before deadly
force was used.”
The district court granted summary judgment to Snook,
holding that he was entitled to qualified immunity. The court dis-
tinguished the decisions Powell claimed clearly established a viola-
tion of the Fourth Amendment, noting that none of them involved
someone who, like David Powell, “was holding a gun and raising
his arm at the time of the shooting.” The court explained what the
Supreme Court held in Garner was that it was unreasonable to kill
a “young, slight, and unarmed” burglary suspect by shooting him
in the back of the head while he was running away. See 471 U.S.
at 21. The officer in Garner “could not reasonably have believed”
the suspect “posed any threat” and had justified his actions only by
saying that he needed to prevent an escape. Id. In contrast, the
district court noted, Snook fired the fatal shots while David “was
facing Snook and in the process of raising a handgun” and “justified
his actions on the basis of his belief that [David] was about to shoot
him.”
The district court also distinguished Lundgren v. McDaniel,
814 F.2d 600 (11th Cir. 1987), where officers did not have any
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advance report that a burglary suspect was armed and they were
not apparently, much less actually, threatened with a weapon. Id.at 602–03. Without provocation, those officers shot a non-danger-
ous suspect. Id. The district court reasoned that what the
Lundgren officers encountered was different from what happened
here, where officers responded at night to a shots-fired domestic
violence call and were confronted with an armed man facing them
and raising a pistol. And, the court explained, this case is materially
different from Perez v. Suszczynski, 809 F.3d 1213 (11th Cir. 2016),
where an officer shot a man who was subdued, unarmed, and not
resisting arrest. Id. at 1222.
After concluding there was no relevant decisional law
clearly establishing that Snook violated David Powell’s Fourth
Amendment right to be free from excessive force, the district court
considered whether Snook’s conduct “was so obviously at the very
core of what the Fourth Amendment prohibits that any officer
would know the conduct was illegal.” In concluding that it was
not, the court reasoned that the “decisive factor” was that David
Powell “carried a gun in his right hand and began raising that gun
in front of a police officer” and while facing “in the direction of the
officer.” The court granted summary judgment on qualified im-
munity grounds because it was not clearly established that the use
of deadly force in these specific circumstances violated the Fourth
Amendment.
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III. ANALYSIS
We review de novo a grant of summary judgment based on
qualified immunity, construing the facts and drawing all inferences
in the light most favorable to the nonmoving party. Feliciano v.
City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013).
The qualified immunity doctrine protects an officer unless
at the time of the officer’s supposedly wrongful act the law “was
already established to such a high degree that every objectively rea-
sonable” officer in his place “would be on notice” that what he was
doing was “clearly unlawful given the circumstances.” Pace v.
Capobianco, 283 F.3d 1275, 1282 (11th Cir. 2002). The doctrine
protects “all but the plainly incompetent or one who is knowingly
violating the federal law.” Terrell v. Smith, 668 F.3d 1244, 1250
(11th Cir. 2012) (quotation marks omitted). For qualified immun-
ity to apply, an officer “must first establish that he acted within his
discretionary authority.” Morton v. Kirkwood, 707 F.3d 1276, 1280
(11th Cir. 2013). Once the officer does that, “the burden shifts to
the plaintiff to show that qualified immunity is not appropriate.”
Penley v. Eslinger, 605 F.3d 843, 849 (11th Cir. 2010).
To overcome a qualified immunity defense where the de-
fendant acted within his discretionary authority, the plaintiff must
show that the defendant’s actions not only violated one or more
constitutional rights, but also that it was clearly established at the
time that those specific actions did so. See, e.g., Terrell, 668 F.3d
at 1250. Plaintiffs can meet the clearly established requirement in
one of three ways: (1) by pointing to a materially similar decision
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of the Supreme Court, of this Court, or of the supreme court of the
state in which the case arose; (2) by establishing that “a broader,
clearly established principle should control the novel facts” of the
case; or (3) by convincing us that the case is one of those rare ones
that “fits within the exception of conduct which so obviously vio-
lates th[e] constitution that prior case law is unnecessary.” Mer-
cado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005).
Under the first and second of these methods, the plaintiff
must rely on decisional law. See Vinyard v. Wilson, 311 F.3d 1340,
1351 (11th Cir. 2002) (noting that in the first method we “look at
precedent that is tied to the facts” while in the second method we
look for “broad statements of principle in case law [that] are not
tied to particularized facts”) (emphasis omitted). Under the second
and third methods, we look for “obvious clarity”: a principle or pro-
vision so clear that, even without specific guidance from a decision
involving materially similar facts, the unlawfulness of the officer’s
conduct is apparent. Id. at 1350–51 (noting that “broad statements
of principle in case law . . . can clearly establish law applicable in
the future to different sets of detailed facts” and that the “words of
the pertinent federal statute or federal constitutional provision in
some cases will be specific enough to establish clearly the law ap-
plicable to particular conduct and circumstances”); see also Corbitt
v. Vickers, 929 F.3d 1304, 1312 (11th Cir. 2019); Fish v. Brown, 838
F.3d 1153, 1163 (11th Cir. 2016). In all three methods, the “‘salient
question’ is whether the state of the law at the time of the incident
gave [the officer] ‘fair warning’ that his conduct was unlawful.”
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Perez, 809 F.3d at 1222 (quoting Hope v. Pelzer, 536 U.S. 730, 741
(2002)).
We have recognized that obvious clarity “is a narrow excep-
tion to the normal rule that only case law and specific factual sce-
narios can clearly establish a violation.” Fils v. City of Aventura,
647 F.3d 1272, 1291 (11th Cir. 2011) (quotation marks omitted).
“Concrete facts are generally necessary to provide an officer with
notice of the hazy border between excessive and acceptable force.”
Id. (quotation marks omitted). If “case law, in factual terms, has
not staked out a bright line, qualified immunity almost always pro-
tects the defendant.” Corbitt, 929 F.3d at 1312 (quotation marks
omitted).
Powell does not dispute that Snook was acting within his
discretionary authority, so she bears the burden of showing that
qualified immunity is not otherwise appropriate here. Like she did
in the district court, Powell contends that her husband had a con-
stitutional right to a warning before Snook used deadly force
against him. And like she did in the district court, she argues that
Garner and our case law applying it had clearly established before
the encounter that night in her driveway the right to a warning that
she asserts on David’s behalf. But unlike she did in the district
court, where she mentioned the phrase but did not argue it, Powell
now also explicitly asserts that this case is one of the few to fit
within the narrow obvious clarity exception to our normal rule re-
quiring a fact-specific bright line.
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A. Materially Similar Case
For all of her arguments Powell relies on case law, specifi-
cally Garner, Lundgren, Perez, and White v. Pauly, 137 S. Ct. 548(2017). 6 In considering those decisions, we keep in mind the gen-
eral analytical framework for an excessive force claim. “We ana-
lyze a claim of excessive force under the Fourth Amendment’s ob-
jective reasonableness standard.” Shaw v. City of Selma, 884 F.3d
1093, 1099 (11th Cir. 2018) (quotation marks omitted). We view
the facts “from the perspective of a reasonable officer on the scene
with knowledge of the attendant circumstances and facts,” and we
“balance the risk of bodily harm to the suspect against the gravity
of the threat the officer sought to eliminate.” McCullough v. An-
tolini, 559 F.3d 1201, 1206 (11th Cir. 2009).
“In cases involving excessive force claims it is doctrinal gos-
pel that we do not view an officer’s actions with the 20/20 vision
of hindsight and that we make special allowance for them in tense,
uncertain, and rapidly evolving situations.” Shaw, 884 F.3d at 1100
(citations and quotation marks omitted); see also Kisela v. Hughes,
138 S. Ct. 1148, 1152 (2018) (noting that the “calculus of reasona-
bleness 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
6Powell also cites Young v. Borders, 850 F.3d 1274, 1283 (11th Cir. 2017), but
that opinion is only a concurrence in the denial of a petition for rehearing en
banc, which has no precedential value.
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16 Opinion of the Court 19-13340
of force that is necessary in a particular situation”) (quotation
marks omitted).
The “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.” Long v. Slaton, 508 F.3d 576, 581 (11th
Cir. 2007). Instead, an officer may use deadly force when he:
(1) “has probable cause to believe that the suspect
poses a threat of serious physical harm, either to the
officer or to others” or “that he has committed a
crime involving the infliction or threatened infliction
of serious physical harm;” (2) reasonably believes that
the use of deadly force was necessary to prevent es-
cape; and (3) has given some warning about the pos-
sible use of deadly force, if feasible.
Vaughan v. Cox, 343 F.3d 1323, 1329–30 (11th Cir. 2003) (first em-
phasis added) (quoting Garner, 471 U.S. at 11–12). When consider-
ing the threat of physical harm to the officer or others, we empha-
size “the level and immediacy of that threat.” Perez, 809 F.3d at
1220.
We generally use the Garner factors to assess the reasona-
bleness of deadly force, see Terrell, 668 F.3d at 1251, but “Garner
did not establish a magical on/off switch that triggers rigid precon-
ditions whenever an officer’s actions constitute ‘deadly force.’”
Scott v. Harris, 550 U.S. 372, 382 (2007). “The constitutional test
for excessive force is necessarily fact specific,” McCullough, 559
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F.3d at 1206, so “in the end we must still slosh our way through
the factbound morass of ‘reasonableness,’” Scott, 550 U.S. at 383.
While the “mere presence of a gun or other weapon is not
enough to warrant the exercise of deadly force and shield an officer
from suit,” Perez, 809 F.3d at 1220, when a suspect’s gun is “avail-
able for ready use” — even when the suspect has not “drawn his
gun” — an officer is “not required to wait and hope for the best,”
Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010)
(cleaned up). Our Shaw decision drives that point home. In that
case an officer used deadly force against a mentally unstable man
who had a hatchet in his hand and was advancing on the officer.
884 F.3d at 1096–97. The man had not raised the hatchet, but we
affirmed the grant of summary judgment for the officer on quali-
fied immunity grounds anyway. Id. at 1100–01. We did so be-
cause: “A reasonable officer could have also concluded, as [the of-
ficer] apparently did, that the law did not require him to wait until
the hatchet was being swung toward him before firing in self-de-
fense.” Id. at 1100; see also Singletary v. Vargas, 804 F.3d 1174, 1183
(11th Cir. 2015).
On the subject of warnings, we “have declined to fashion an
inflexible rule that, in order to avoid civil liability, an officer must
always warn his suspect before firing — particularly where such a
warning might easily have cost the officer his life.” Penley, 605 F.3d
at 854 n.6 (cleaned up); see also Carr v. Tatangelo, 338 F.3d 1259,
1269 n.19 (11th Cir. 2003). And the Supreme Court has instructed
us that a plaintiff “cannot establish a Fourth Amendment violation
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18 Opinion of the Court 19-13340
based merely on bad tactics that result in a deadly confrontation
that could have been avoided.” City & Cnty. of San Francisco v.
Sheehan, 135 S. Ct. 1765, 1777 (2015) (quotation marks omitted).
Sharon Powell frames her appeal in a way that asks us to
focus on the third Garner factor, the feasibility of a pre-deadly force
warning. Or as she’d call it, the right to such a warning. But we
have never held that an officer must always warn a suspect before
firing. As we have just noted, we have rejected exactly that kind of
“inflexible rule.” See Penley, 605 F.3d at 854 n.6. And rightfully so.
Plaintiffs frequently cite Garner for the broad principle that a warn-
ing is always required before deadly force may be used, but Garner
does not mandate that. Garner does not say “always.” Garner says
“where feasible.” 471 U.S. at 11–12. Not only that, but Garner in-
volved a fleeing non-dangerous suspect in a non-violent crime, see
id. at 4–5; it did not involve an armed man facing an officer and
raising a pistol, a circumstance that put would put any reasonable
officer in fear for his life.
From Officer Snook’s perspective, the relevant one for as-
sessing the reasonableness of the force, see McCullough, 559 F.3d
at 1206, he and his fellow officers had responded to a 911 report of
domestic violence involving multiple gunshots and expected to
find a suspect who had been violent before. A man came out into
the driveway after midnight holding a pistol in his right hand. After
nine seconds of walking, during which he carried the pistol but kept
it pointed at the ground, the man stopped and faced the walkway
leading up to his front door, where Snook was positioned in the
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dark. While facing Snook, the man started to raise the pistol. Only
a very short time, about one second, passed between the man start-
ing to raise his pistol and Snook firing.
Powell contends that a warning was required before Snook
fired, either in the seconds her husband was walking out onto the
driveway or in the single second between when her husband began
to raise his pistol and when Snook fired. But three of the decisions
on which Powell relies for that conclusion contain the most critical
factual difference: none of them involved an officer faced with an
armed suspect who was raising his firearm in the officer’s direction.
See Garner, 471 U.S. at 4, 21; Perez, 809 F.3d at 1217–22; Lundgren,
814 F.2d at 602–03 & n.1.
Powell’s final decision is similarly unhelpful. In White, a de-
cision in which the Supreme Court unanimously held that the of-
ficer was entitled to qualified immunity, “an officer who—having
arrived late at an ongoing police action and having witnessed shots
being fired by one of several individuals in a house surrounded by
other officers—sho[t] and kill[ed] an armed occupant of the house
without first giving a warning.” 137 S. Ct. at 549. The Court con-
cluded that those facts were “not a case where it is obvious that
there was a violation of clearly established law under Garner.” Id.
at 552. White’s holding that there was no violation of clearly es-
tablished law under those facts cannot clearly establish that there
was a constitutional violation here, a later case involving materially
different facts.
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B. Obvious Clarity
Nor has Powell shown that precedent establishes “with ob-
vious clarity” untethered to particularized facts that Snook was re-
quired to warn David before using deadly force. Vinyard, 311 F.3d
at 1350–51. We have repeatedly affirmed grants of qualified im-
munity to officers who used deadly force against armed suspects
without giving a warning when a reasonable officer would have
believed the threat of harm was imminent. See, e.g., Jean-Baptiste,
627 F.3d at 819–21 (officer “fired his pistol without warning”); Pen-
ley, 605 F.3d at 854 n.6 (officers had ordered the suspect to drop his
weapon but had not explicitly warned they would shoot if he
didn’t); Jackson v. Sauls, 206 F.3d 1156, 1162–63, 1172–74 (11th Cir.
2000) (officers fired without identifying themselves or giving warn-
ing).
While it’s clear that in some circumstances an officer must
warn before using deadly force where it’s feasible to do so, Garner,
471 U.S. at 11–12, decisions addressing how soon an officer is re-
quired to give a warning to an unarmed suspect do not clearly es-
tablish anything about whether or when a warning is required for
armed suspects raising a firearm in the direction of an officer. See
Garner, 471 U.S. at 4, 21 (unarmed teen burglary suspect); Perez,
809 F.3d at 1217 (unarmed man lying on his stomach); Lundgren,
814 F.2d at 603 n.1 (store owner who did not threaten the officer
with a weapon). There is no obviously clear, any-reasonable-of-
ficer-would-know rule that when faced with the threat of deadly
force, an officer must give an armed suspect a warning at the
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19-13340 Opinion of the Court 21
earliest possible moment. See White, 137 S. Ct. at 552 (concluding,
where late-arriving officer shot armed suspect without giving a
warning, it was not an obvious case under Garner’s general princi-
ples). Instead, what’s clearly established is that it “is reasonable,
and therefore constitutionally permissible, for an officer to use
deadly force when he has probable cause to believe that his own
life is in peril.” Tillis v. Brown, 12 F.4th 1291, 1298 (11th Cir. 2021)
(quotation marks omitted).
When David Powell started to raise his pistol while facing in
Officer Snook’s direction, Snook had the authority to use deadly
force. See id.; Jean-Baptiste, 627 F.3d at 821. It would not be clear
and obvious to any reasonable officer that a warning was required
in the 17.8 seconds between when David Powell pushed his garage
door button and raised his loaded pistol in Snook’s direction. A
reasonable officer could have decided, as Snook did, that the safest
thing to do as David came out of his garage with a pistol at his side
was to wait and see what he did with the pistol before Snook drew
attention to himself and potentially escalated the situation by
shouting a warning. See Penley, 605 F.3d at 854 n.6 (noting that a
warning in some situations may “cost the officer his life”) (quota-
tion marks omitted).
In hindsight, that decision may have been a mistake. But, of
course, we “do not view an officer’s actions with the 20/20 vision
of hindsight.” Shaw, 884 F.3d at 1100 (quotation marks omitted).
Qualified immunity leaves “room for mistaken judgments.” Coffin
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22 Opinion of the Court 19-13340
v. Brandau, 642 F.3d 999, 1017 (11th Cir. 2011) (en banc) (quotation
marks omitted).
Whether analyzed under the specific facts of prior decisions
or under the narrow obvious clarity exception, “[i]nstead of clearly
establishing the law against [Snook], binding precedent clearly es-
tablishes it in his favor.” Shaw, 884 F.3d at 1100. An officer in
Snook’s position during the rapidly unfolding events on that dark
night reasonably could have believed that the man raising a pistol
in his direction was about to shoot him, and our precedent estab-
lishes he could “respond with deadly force to protect himself.”
Hunter, 941 F.3d at 1279. Snook didn’t have to wait until David
Powell fired his gun to return fire in self-defense. See Long, 508
F.3d at 581. Warnings are not always required before the use of
deadly force. See Penley, 605 F.3d at 854 n.6; Carr, 338 F.3d at 1269
n.19. And as we’ve explained, giving a warning in the seconds be-
fore David raised his gun wasn’t a clearly established requirement,
see Shaw, 884 F.3d at 1100 (noting the “special allowance” for of-
ficers in uncertain situations), and giving a warning in the one sec-
ond between David raising his gun and Snook firing wasn’t feasible.
IV. CONCLUSION
Because Sharon Powell has not identified case law with ma-
terially similar facts or with a broad statement of principle giving
Snook fair notice that he had to warn David Powell at the earliest
possible moment and before using deadly force, she has not met
her burden of showing qualified immunity is not appropriate. Pen-
ley, 605 F.3d at 849; Mercado, 407 F.3d at 1159; Vinyard, 311 F.3d
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19-13340 Opinion of the Court 23
at 1350–52. She has not shown that Snook’s actions were unrea-
sonable for qualified immunity purposes. As we have said before,
“[t]he shooting . . . was tragic, as such shootings always are, but
tragedy does not equate with unreasonableness” under clearly es-
tablished law. Shaw, 884 F.3d at 1101.
AFFIRMED.